United States, Department of Homeland Security, United States Customs and Border Protection (Agency) and American Federation of Government Employees, Local 1917 (Union)

[ v62 p59 ]

62 FLRA No. 17

UNITED STATES
DEPARTMENT OF HOMELAND SECURITY
UNITED STATES CUSTOMS AND
BORDER PROTECTION
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1917
(Union)

0-AR-4039

_____

DECISION

March 29, 2007

_____

Before the Authority: Dale Cabaniss, Chairman and
Wayne C. Beyer, Member

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Martin Ellenberg filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and Part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

      The Arbitrator found that the Agency violated the parties' collective bargaining agreement (agreement) when it discontinued dues withholding for a group of employees. To remedy the violation, the Arbitrator ordered the Agency to provide the Union a list of all bargaining unit employees as well as all non-supervisory, non-bargaining unit employees in the New York District during the years 2004 and 2005, indicating those who are or were members of the Union's bargaining unit and the dates of any changes in their bargaining unit status. The Arbitrator also directed the Agency to issue to each member of the bargaining unit a statement indicating the amount of dues withheld during the years 2004 and 2005.

      For the reasons that follow, we find that the award is deficient because it provides a remedy to persons not encompassed by the grievance, and we modify the award accordingly. We deny the Agency's remaining exceptions.

II.     Background and Arbitrator's Award

A.     Background

      During the transition from employment by the United States Customs Service to employment by the Department of Homeland Security, some bargaining unit members who used payroll dues withholding were listed as ineligible for dues withholding. The Union filed a grievance "on behalf of all [Customs and Border Protection] Officers . . . that have been taken out of the bargaining unit (known and unknown to the [U]nion)." Exceptions, Attachment 2, grievance letter. The grievance sought to: (1) have the Agency adhere to the parties' agreement; (2) reinstate dues withholding for affected employees; (3) reimburse the Union for all dues payments lost; and (4) provide the Union with a list identifying all bargaining unit and non-bargaining unit employees in the NY District quarterly. See id.

      Subsequently, the Agency forwarded funds to the Union for the dues that should have been withheld and then commenced steps to recoup those funds from the employees whose dues had not been withheld. The grievance remained unresolved, however, and was submitted to arbitration.

B.     Arbitrator's Award

      The Arbitrator addressed the following issues:

Did the Agency violate Appendix 2 of the [p]arties' collective bargaining agreement when it coded employees who were members of the collective bargaining unit as "non-bargaining unit" and ceased to withhold dues and forward dues for such bargaining unit members to the Union? If so, what shall be the remedy?
Did the Agency violate the Agreement when, in order to retroactively withhold dues, it notified each of the affected employees of an overpayment of salary, and subsequently deducted such overpayment in amounts, per pay period, "of up to 15 percent of your disposable pay .... unless a different repayment schedule is accepted by [the] agency?" If so, what shall be the remedy?

Award at 3. [n1] 

      [ v62 p60 ] The Arbitrator noted that there was no dispute that dues withholding has been improperly terminated for a number of employees. The Arbitrator found the Agency's failure to withhold dues for employees who had authorized dues withholding violated Appendix 2 of the parties' agreement. See id. at 3, 5. The Arbitrator directed the Agency to take appropriate steps to assure that no further terminations in dues withholding occurred and to respond promptly if notified of future dues withholding problems. The Arbitrator also found that the subsequent recoupment of dues over only one or two pay periods was improper and determined that a more suitable manner of dues repayment should have been adopted, such as double deductions for a period equal to the period when the dues were not withheld. The Arbitrator stated the Agency was required "to issue a statement to each affected employee indicating and clarifying the amount of Union dues withheld during the years 2004 and 2005." Id. at 4. As his Award, the Arbitrator directed the Agency "to issue to each member of the bargaining unit a statement indicating the amount of dues withheld for the year 2004 and for the year 2005." Id. at 6.

      In response to the Union's request for a quarterly list of all unit and non-supervisory, non-unit employees in the New York District, the Arbitrator noted that Section D (1) of Article 8 of the agreement [n2]  clearly defines the Agency's responsibility for providing employee lists to the Union and that he did not have authority to revise that agreement provision. However, as a means of resolving the grievance, the Arbitrator concluded it was appropriate, and not inconsistent with the agreement, to require the Agency to provide the Union a list of all current non-managerial, non-supervisory employees in the New York District, identifying bargaining unit members, to allow the Union to audit and reconcile its records and to ensure that there were no further violations of the dues withholding provisions of the parties' agreement.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency asserts that the award conflicts with Article 8, Section D(1) of the parties' agreement and, thereby, fails to draw its essence from the parties' agreement. In particular, the Agency contends that the award improperly requires the Agency to provide employee lists to the local Union, rather than the national Union office, and more often than once annually, as provided for by Article 8, Section D(1). The Agency also contends that the portion of the award requiring the Agency to provide employees with a dues withholding statement fails to draw its essence from Appendix 2 because, according to the Agency, nothing in Appendix 2 requires the Agency to provide an accounting to employees regarding their dues withholding.

      The Agency also asserts that the Arbitrator exceeded his authority. In this regard, the Agency claims that the Arbitrator exceeded his authority "by, essentially, revising the language" of the parties' agreement to require the Agency to furnish the Union with a list of bargaining unit and non-bargaining unit employees in the New York District in 2004 and 2005 that indicates the date of "`any changes in bargaining unit status'" of those employees. Exceptions at 10 (citing Award at 5). The Agency asserts that this portion of the remedy "appears designed to address a dispute that was not before" the Arbitrator. Id. According to the Agency, the Arbitrator also exceeded his authority in two ways by requiring that the Agency issue each member of the bargaining unit a statement indicating the amount of dues withheld for the years 2004 and 2005. First, the Agency maintains that, because this portion of the award applies to all unit employees, it provides a remedy to employees not encompassed in the grievance. Second, according to the Agency, no employee questioned the amount of dues withheld, and, as a result, this portion of the award addresses an issue not before the Arbitrator.

B.      Union's Opposition

      The Union argues that the award does not fail to draw its essence from the parties' agreement. According to the Union, the portion of the Arbitrator's remedy requiring the Agency to provide the Union with a list of all bargaining unit and non-supervisory non-bargaining unit employees within the New York District office constitutes a narrowly tailored remedy to cure an agreement violation. The Union maintains that, without this remedy, [ v62 p61 ] "only the Agency itself could monitor its own compliance with correcting its admitted violation." Opposition at 2. According to the Union, the fact that the parties' agreement contains a general method for addressing administrative errors in dues withholding does not limit an arbitrator's remedial power. The Union asserts that the requirement for the Agency to provide a statement of dues withholding to bargaining unit members was necessitated by the Agency's contractual violation and its "subsequent retroactive deduction of dues." Id. at 8.

      As for the Agency's claim that the Arbitrator exceeded his authority, the Union asserts generally that arbitrators do not exceed their authority by addressing any issue that necessarily arises from issues that are before the Arbitrator. In support, the Union cites United States Dep't of Commerce, Patent & Trademark Office, Arlington, Va., 60 FLRA 869, 878 (2005). In addition, the Union asserts that the Agency's contention that the Arbitrator exceeded his authority by ordering the Agency to provide the Union a list of all current non-managerial, non-supervisory employees in the New York District because that remedy was never requested by the Union is "novel and unsupported by the case law." Opposition at 10. According to the Union, arbitrators have broad discretion to fashion remedies and the parties conferred broad remedial discretion upon the Arbitrator when they stipulated, at the conclusion of the framed issue: "`[i]f so, what shall be the remedy[.]'" Id. at 11. The Union contends that the Arbitrator's remedy requiring dues withholding statements to be sent to bargaining unit members was properly aimed at those employees referenced in the framed issues.

IV.     Analysis and Conclusions

A.      The Award Does Not Fail to Draw Its Essence from the Parties' Agreement

      To demonstrate that an award fails to draw its essence from a collective bargaining agreement, a party must show that the award: (1) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; or (2) does not represent a plausible interpretation of the agreement; or (3) cannot in any rational way be derived from the agreement; or (4) evidences a manifest disregard of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).

      The award requires the Agency to provide the (local) Union with a one-time list of all current non-managerial, non-supervisory employees in the New York District, identifying bargaining unit members. Under Article 8 D(1) of the parties' agreement, the Agency is requested to submit to the Regional Union, no more than annually, a list of bargaining unit members' names, grades, position titles, and posts of duty. In addition, the agreement provides that the Agency is to submit to the Regional Vice President, on a monthly basis, a list of bargaining unit members' accessions and separations. Thus, the award orders the Agency to provide different information than that set forth in the bargaining agreement to a different party than set forth in the agreement. The award does not, therefore, "revis[e] the language of the [parties' agreement]" by converting an annual reporting requirement into a more frequent reporting requirement, as alleged by the Agency. Exceptions at 10. As such, the Arbitrator's remedy is not inconsistent with Article 8 D(1) of the parties' agreement, is not unfounded in reason, implausible, irrational, and does not evidence a manifest disregard of the agreement. Thus, the award does not fail to draw its essence from the parties' agreement.

      The Agency also contends that the portion of the Arbitrator's remedy requiring the Agency to provide employees with a statement regarding their dues withholding fails to draw its essence from the parties' agreement. In this connection, we note that Appendix 2, relied on by the Agency, addresses only remittance checks and does not address, explicitly or implicitly, statements to employees about dues withholding. Accordingly, the Agency has not established that the award is unfounded in reason, implausible, irrational, or evidences a manifest disregard of Appendix 2. Consequently, we find that the award does not fail to draw its essence from the parties' agreement and we deny the Agency's exception.

B.      The Arbitrator Did Not Exceed His Authority in Directing the Agency to Provide the Union with a List of Employees But Exceeded His Authority in Directing the Agency to Provide All Bargaining Unit Employees a Dues Withholding Statement

      An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. United States Dep't of Def., Army & Air Force Exch. Serv., 51 FLRA 1371, 1378 (1996).

      The Agency contends that the Arbitrator exceeded his authority by resolving an issue not submitted to arbitration. In particular, the award requires the Agency to provide the Union with a list of bargaining unit and non-bargaining [ v62 p62 ] unit employees in the New York District in 2004 and 2005, and to indicate for those employees the date of "any changes in bargaining unit status." Award at 6. We find that this remedy is responsive to the issues before the Arbitrator. In this regard, the remedy provides a means for the Union to verify that employees who are supposed to be on dues withholding are on dues withholding, which, in turn, permits the Union to determine whether the Agency's violation of the agreement has been remedied. We note that arbitrators enjoy a broad discretion to fashion remedies. See MSPB Prof'l Ass'n, 61 FLRA 650, 652 (2006) (MSPB Prof'l Ass'n) (citing United States Dep't of the Interior, United States Geological Survey, Nat'l Mapping Div., Mapping Applications Ctr., 55 FLRA 30, 33 (1998) (Nat'l Mapping Div.,)). In addition, the parties in this case specifically empowered the Arbitrator to determine "the remedy." Award at 3. Based on the foregoing, we find that the Arbitrator did not exceed his authority by resolving an issue not before him when he crafted a remedy permitting the Union to verify that the Agency's violation of the agreement had been corrected.

      We note that the Arbitrator initially required the Agency to provide "each affected employee" with a dues withholding statement. See Award at 4. However, the Arbitrator's "Award" requirement for dues withholding statements extends to "each member of the bargaining unit[,]" not to just those whose dues withholding had been terminated. See Award at 5, 6. Based on the Arbitrator's final "Award" statement, we construe the award to require the Agency to provide all bargaining unit employees with a dues withholding statement for purposes of our analysis.

      Consistent with the foregoing discussion of the Agency's contention regarding the portion of the remedy concerning the list of employees to be provided to the Union, we find that the Arbitrator did not exceed his authority when he ordered the Agency to provide affected employees a statement regarding their dues withholding so that those employees could verify that dues had been correctly withheld. As noted above, arbitrators enjoy a broad discretion to fashion remedies. See MSPB Prof'l Ass'n, 61 FLRA at 652 (citing Nat'l Mapping Div., 55 FLRA at 33). As also noted above, the parties in this case specifically empowered the Arbitrator to determine "the remedy." Award at 3. We conclude that the portion of the award providing affected employees with dues withholding statements is responsive to the issue before the Arbitrator, which specifically concerned the Agency's failure to withhold dues. Accordingly, we find that the Arbitrator did not exceed his authority by resolving an issue not before him when he crafted a remedy permitting employees to verify that dues had been correctly withheld.

      However, the Arbitrator required the Agency to provide all bargaining unit employees with a dues withholding statement. As such, the remedy extends to employees not encompassed by the grievance. As set forth above, arbitrators do not have authority to extend a remedy to employees not encompassed by the grievance. See Env'l Prot. Agency, Region 9, 17 FLRA 365, 366 (1985). In this case, the underlying grievance pertained only to those employees whose dues withholding had been terminated. See Award at 3; Exceptions, Attachment 2, grievance letter. Therefore, the Arbitrator exceeded his authority when he extended the remedy to employees whose dues withholding had not been terminated. See Env'l Prot. Agency, Region 9, 17 FLRA at 366.

      Accordingly, insofar as the award provides a remedy to employees not encompassed by the grievance, the award is deficient. As a result, we set aside the portion of the Arbitrator's remedy requiring the Agency to provide all bargaining unit employees a dues withholding statement. The award is modified to require the Agency to provide a statement regarding dues withholding for the years 2004 and 2005 to only those employees whose dues withholding had been terminated.

V.     Decision

      The award is deficient insofar as it provides a remedy to employees not encompassed by the grievance. Accordingly, we set aside the portion of the remedy requiring the Agency to provide all bargaining unit employees a dues withholding statement. We modify the remedy portion of the award to require that the Agency provide a statement regarding dues withholding for the years 2004 and 2005 to only those employees whose dues withholding was improperly terminated. The Agency's other exceptions are denied.



Footnote # 1 for 62 FLRA No. 17 - Authority's Decision

   Appendix 2, Section VII, of the parties' agreement, applicable here, provides:

Administrative Errors. Administrative errors in remittance will be corrected by reductions and corrections in subsequent remittance checks. If the employee organization is not scheduled to receive a remittance check after discovery of the error, the employee organization agrees to promptly refund the amount of erroneous remittance.

Exceptions, Attachment 5.


Footnote # 2 for 62 FLRA No. 17 - Authority's Decision

   Article 8, Section D(1) provides:

(1) Employee Lists. Upon request, but no more than annually, the Service will furnish to the Union, at the Regional level, for its internal use only, a list which will contain the names, grades, position title, and posts of duty of all employees in the local bargaining unit. The Regional Vice President will be supplied on a monthly basis, a listing of bargaining unit personnel accessions and separations from each District Service Centers, Asylum Office, Regional Office, Administrative Centers, or Headquarters. The parties recognize that errors may occur from tine-to-time in regard to input and coding of data, and