United States Department of Homeland Security, U.S. Customs and Border Protection, JFK Airport, Queens, New York (Agency) and American Federation of Government Employees, Local 1917 (Union)

[ v62 p129 ]

62 FLRA No. 33

UNITED STATES
DEPARTMENT OF HOMELAND SECURITY
U.S. CUSTOMS AND BORDER PROTECTION
JFK AIRPORT
QUEENS, NEW YORK
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1917
(Union)

0-AR-4043

_____

DECISION

July 17, 2007

_____

Before the Authority: Dale Cabaniss, Chairman, and
Wayne C. Beyer and Carol Waller Pope, Members

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Jeanne M. Vonhof filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and 5 C.F.R. part 2425. AFGE Local 1917 (Local 1917) filed an opposition to the Agency's exceptions.

      The Arbitrator found that the Agency violated the collective bargaining agreement by failing to notify Local 1917 about, and bargain over, changes in the implementation of a new overtime and scheduling system. For the reasons that follow, we deny the Agency's exceptions.

II.      Background and Arbitrator's Award

      In March 2003, the Department of Homeland Security (DHS) was created pursuant to the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (the Act). Pursuant to the Act, various functions from other federal agencies were transferred to DHS. In particular, immigration functions were transferred from the Department of Justice and grouped organizationally within DHS as part of Customs and Border Protection (CBP), and the Immigration and Naturalization Service (INS) was abolished. Prior to their transfer to CBP, immigration officers of INS were represented by AFGE through its National INS Council (NINSC). At the time of the transfer, INS and NINSC were parties to a collective bargaining agreement referred to as "Agreement 2000."

      This case involves CBP and Local 1917, a constituent local of NINSC. On January 9, 2005, CBP implemented a new overtime and scheduling system (Customs Overtime and Scheduling System (COSS)) for legacy immigration officers at JFK airport represented by Local 1917. Local 1917 filed a grievance, which was submitted to arbitration. The Arbitrator framed the issues, as follows:

Did the Agency violate Article 9(A) [n1]  or Article 29(A)(5) or (9) [of Agreement 2000] by changing to the COSS (Customs Overtime and Scheduling System) in January 2005 at JFK Airport for members of the bargaining unit? If so, what shall the remedy be?

Award at 1 (footnote added).

      The Arbitrator first concluded that the Agency did not violate Article 29. [n2]  However, the Arbitrator concluded that the Agency violated Article 9(A) of Agreement 2000 "by failing to notify [Local 1917] and proceed to bargaining . . . over changes in policies, practices and/or working conditions arising from the change to the COSS system." Id. at 33.

      In finding a violation of Article 9(A), the Arbitrator rejected the Agency's claim that Agreement 2000 had expired and that it was not obligated to abide by it. In rejecting this claim, the Arbitrator stated that "at the time of the merger and consolidation, the Agency clearly took the position, as stated in the March 12, 2003 memo [the Hale Memorandum], that `all collective bargaining obligations that existed in the various components prior to the Department of Homeland Security (DHS) transfer carry forward and are still active.'" Id. at 21. The Arbitrator found that the Agency presented no evidence that the Hale Memorandum had been [ v62 p130 ] rescinded or that it had notified either NINSC or Local 1917 that Agreement 2000 was no longer in effect.

      The Arbitrator next rejected the Agency's claim that Local 1917 was provided with notice and an opportunity to bargain over the implementation of COSS. She ruled that the Agency's letter to Local 1917 was not specific enough to meet the requirements of Article 9(A) and that the Agency's offer to schedule a briefing also did not meet the notice requirements of Article 9(A). Further, the Arbitrator found unsupported the Agency's claims that it had no obligation to bargain based on E.O. 13203 (Revocation of Executive Order and Presidential Memorandum concerning Labor-Management Partnerships), the Agency's National Inspection Assignment Policy (NIAP), and Authority cases involving the NIAP. In addition, she rejected the Agency's arguments that the NIAP superseded Agreement 2000 and that CBP satisfied its bargaining obligation when NINSC failed to request bargaining over the NIAP. She ruled that NINSC had requested bargaining and noted that several unfair labor practice (ULP) charges were filed, which alleged that the Agency had failed to bargain.

      Accordingly, the Arbitrator sustained the grievance, in part. As a remedy, she ordered: "To the extent that problems still exist that constitute changes in policies, practices or working conditions caused by the switch to COSS, . . . the Agency is required to bargain with [Local 1917] over them, under Article 9(A)." Id. at 33-34.

III.      Positions of the Parties

A.      Agency's Exceptions

      The Agency contends that the award is deficient because it is based on nonfacts and is contrary to law.

      The Agency asserts that the award is deficient as based on a nonfact because the Arbitrator mistakenly found "that the Agency's [NIAP] had not been implemented . . . and therefore that the NIAP was not in full force and effect with respect to the subject bargaining unit employees." Exceptions at 5. The Agency also asserts that the award is based on a nonfact because the Arbitrator incorrectly determined that the Agency did not notify Local 1917 of the changes pursuant to Article 9(A) and that the invitation to attend a comprehensive briefing did not satisfy Article 9(A).

      The Agency next argues that the award is contrary to the Statute because it waives the Agency's right to require bargaining at the level of recognition and because it requires indefinite extension of Agreement 2000 based solely on management guidance. More specifically, the Agency claims that the award is deficient because the Arbitrator concluded that the Agency was obligated to bargain at the local level. The Agency asserts that the Arbitrator reached this determination on the basis of conclusions that are legally and factually incorrect.

      First, the Agency asserts that the Arbitrator erroneously concluded that Agreement 2000 had not expired. The Agency maintains that the Arbitrator erred because CBP is not a signatory to Agreement 2000 and because Agreement 2000 either terminated on the abolishment of the INS or expired by its own terms on June 8, 2003. Second, the Agency contends that the Arbitrator erroneously concluded that the Hale Memorandum served to make CBP a party to Agreement 2000, to renew and indefinitely extend the terms of Agreement 2000, and to waive the Agency's statutory right to insist that bargaining occur at the level of recognition.

      Third, the Agency asserts that the Arbitrator erred by failing to conclude that CBP's notice to NINSC terminated the local bargaining obligation. The Agency maintains that, in the absence of an existing collective bargaining agreement, it was permitted to rescind the local bargaining obligation and claims that it did so. In addition, the Agency argues on the basis of Authority cases involving the NIAP that no additional notice terminating local bargaining beyond that contained in the NIAP was necessary for the termination to be effective.

      Fourth, the Agency alternatively asserts, in the event that the Authority finds that CBP's notice to NINSC did not terminate the local bargaining obligation, that the award is deficient because the Agency "provided [Local 1917] with adequate notice of the changes at issue within the terms of Article 9(A) of the Agreement." Id. at 16. The Agency argues that the Arbitrator incorrectly concluded that the Agency's letter to Local 1917 was not specific enough to meet the requirements of Article 9(A). The Agency claims that the award is deficient because "[t]he Arbitrator has manufactured a standard for the notice which is not contained in the text of the Agreement[.]" Id. The Agency maintains that Article 9(B)(3)(b) [n3]  shows that Agreement 2000 clearly contemplates that not all notices under Article 9(A) will provide complete information. The Agency also maintains that the Arbitrator disregarded [ v62 p131 ] its invitation to Local 1917 to attend an informational briefing.

      Finally, the Agency asserts that the Arbitrator erroneously concluded that the NIAP had not gone into effect because NINSC had requested bargaining. The Agency maintains that NINSC failed to present any proposals or request a meeting before the NIAP went into effect on July 25, 2004. The Agency also maintains that although ULP charges had been filed, none of them resulted in a ruling by the Authority that the NIAP had not been legally implemented. The Agency asserts that to the extent that the Arbitrator concluded that a ULP charge prevented the NIAP from going into effect, the conclusion is factually and legally incorrect.

B.      Local 1917's Opposition

      Local 1917 argues that the Agency provides no basis for finding the award deficient as based on nonfacts because the asserted nonfacts relate to matters that were disputed at arbitration.

      Local 1917 also argues that the award is not contrary to law because the asserted erroneous legal conclusions are based on the Arbitrator's factual findings to which the Authority defers. It maintains that the Agency's exception "challenges a single finding of fact made by the arbitrator, namely that the collective bargaining agreement, including those contractual rights based on permissive subjects of bargaining, continued in effect." Opposition at 5. It also maintains that the Agency challenges the additional factual finding of the Arbitrator that the Agency failed to provide proper notice of implementation of COSS.

IV.      Analysis and Conclusions

A.      The award is not based on nonfacts.

      To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. United States Dep't of the Treasury, Internal Revenue Serv., Kansas City Field Compliance Serv., 60 FLRA 401, 402 (2004) (IRS). However, the Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties disputed at arbitration. Id. In addition, an arbitrator's conclusion that is based on an interpretation of the parties' collective bargaining agreement does not constitute a fact that can be challenged as a nonfact. AFGE Local 3302, 52 FLRA 677, 679 (1996).

      The Agency contends that the award is deficient because the Arbitrator mistakenly found that the NIAP had not been implemented. However, the parties clearly disputed before the Arbitrator whether the NIAP had been implemented. Consequently, the Agency's disagreement with the Arbitrator's determination that the NIAP had not been implemented fails to establish that the award is based on a nonfact. IRS, 60 FLRA at 402. The Agency also contends that the award is deficient because the Arbitrator incorrectly determined that the Agency failed to satisfy the requirements of Article 9(A). This determination constituted the Arbitrator's interpretation and application of the agreement. As such, it cannot be challenged as a nonfact. AFGE Local 3302, 52 FLRA at 680. Furthermore, to the extent that the Arbitrator's determination has a factual element, the matter of Article 9(A) notice was disputed at arbitration, and, as a result, the Agency's contention provides no basis for finding the award deficient as based on a nonfact.

      Accordingly, we deny this exception.

B.      The award is not contrary to law.

      When an exception involves the award's consistency with law, the Authority reviews any question of law raised by the exception and the award de novo. NTEU Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. NFFE Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. Id.

      The Agency contends that the award is contrary to the Statute because it waives the Agency's right to require bargaining at the level of recognition and requires indefinite extension of Agreement 2000 based solely on management guidance. The Agency argues that the Arbitrator reached this result on the basis of conclusions that are legally and factually incorrect. Specifically, the Agency asserts that the Arbitrator erroneously concluded that Agreement 2000 had not expired and that the Hale Memorandum served to make CBP a party to Agreement 2000.

      The Arbitrator found that as a result of the Hale Memorandum, CBP was obligated to abide by the provisions of Agreement 2000. Local 1917 argues that this is a factual finding to which the Authority must defer. Local 1917's argument is consistent with Authority precedent. In this regard, the Authority has uniformly held [ v62 p132 ] that the question of the existence of a collective bargaining agreement is a question of fact and not a question of law. E.g., United States Dep't of Commerce, Patent & Trademark Office, Arlington, Va., 60 FLRA 869, 880 (2005). In ruling that the question is one of fact, the Authority has specifically relied on the approach of the National Labor Relations Board and the federal courts. Id. (citing Bobbie Brooks, Inc. v. Int'l Garment Workers Union, 835 F.2d 1164 (6th Cir. 1987) (Bobbie Brooks); Arco Elec. Co. v. NLRB, 618 F.2d 698, 699 (10th Cir. 1980), enforcing 237 NLRB 708 (1978)). Consistent with this approach, the existence of a collective bargaining agreement "can be shown by conduct manifesting an intention to abide by agreed-upon terms." Id. at 881 (quoting Bobbie Brooks, 835 F.2d at 1168).

      In this case, the Arbitrator found that Agreement 2000 was in effect at the time of the implementation of COSS because the Hale Memorandum and the Agency's failure to notify either NINSC or Local 1917 that it viewed Agreement 2000 as no longer in effect manifested an intention of the Agency and CBP to abide by that agreement. Because this is a factual finding to which we defer in reviewing de novo the Arbitrator's legal conclusions, the Agency's contrary to law assertions provide no basis for finding the award deficient. [n4]  Specifically, the Agency's assertions that Agreement 2000 expired and that the Agency and CBP could not be obligated to abide by the provisions of Agreement 2000 fail to establish that the award is contrary to the Statute. See id. at 881. The Agency's assertion that the award indefinitely extended Agreement 2000 likewise fails to establish that the award is contrary to the Statute. Nowhere in the award did the Arbitrator rule that the obligation to abide by Agreement 2000 was indefinite. Instead, to resolve the grievance, the Arbitrator held only that CBP was obligated in January 2005 to provide notice and an opportunity to bargain under Article 9(A) in implementing COSS at JFK airport.

      The Agency's argument that the Arbitrator erred by failing to conclude that its notice to NINSC terminated the local bargaining obligation likewise provides no basis for finding the award deficient. As the Agency expressly acknowledges, this argument is based on its rights "in the absence of an in-force labor agreement[.]" Exceptions at 11. However, because we defer to the Arbitrator's factual finding that Agreement 2000 was in effect at the time of the implementation of COSS, the Agency's argument is based on an incorrect premise.

      For the same reason, the Agency's reliance on other Authority cases involving the NIAP is misplaced. Unlike this case, which involves former INS employees who were represented by AFGE, those cases all involved the national labor agreement (NLA) between the National Treasury Employees Union (NTEU) and the United States Customs Service, prior to the transfer of the Customs Service to DHS. See United States Dep't of the Treasury, Customs Serv., Wash., D.C., 59 FLRA 703, 703 n.1 (2004) (Member Pope concurring). Specifically, those cases concerned actions after the expiration of the NLA in 1999. See, e.g., NTEU Chapter 137, 60 FLRA 483, 487 (2004) (Chairman Cabaniss concurring). Although the cases held that the Customs Service acted consistent with the Statute when it terminated the contractual provisions for local bargaining, e.g., NTEU Chapter 137, 61 FLRA 413, 416 (2005), this holding was premised on the fact that the NLA had expired, e.g., NTEU Chapter 143, 60 FLRA 922, 927 (2005), aff'd NTEU v. FLRA, 453 F.3d 506 (D.C. Cir. 2006) (court held that in view of the union's concession that the contractual provisions for local bargaining, as permissive subjects, became subject to revocation upon expiration of the NLA, the Authority reasonably concluded that the NIAP revoked the contractual provisions for local bargaining). In finding the Agency's reliance on these cases misplaced, we reiterate that unlike the NLA between the Customs Service and NTEU, the Arbitrator in this case found that Agreement 2000 had not expired, and we have deferred to this finding. Consequently, the Authority's NIAP cases provide no basis for finding the award deficient.

      Accordingly, we deny this exception.

C.      The award does not fail to draw its essence from the agreement.

      The Agency contends that it provided Local 1917 with adequate notice under Article 9(A). The Agency claims that the Arbitrator manufactured a standard for notice not contained in the text of Agreement 2000 and that Agreement 2000 does not require all notices to provide complete information. We construe these claims as arguing that the award fails to draw its essence from the agreement.

      In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential standard of review that federal courts use in reviewing arbitration awards in the private sector. See [ v62 p133 ] 5 U.S.C. § 7122(a)(2); AFGE Council 220, 54 FLRA 156, 159 (1998). Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the agreement when the appealing party establishes that the award (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the agreement as to manifest an infidelity to the obligation of the Arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990). The Authority and the courts defer to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. at 576.

      Article 9(A) pertinently provides: "[T]he Service shall present the changes and explanations of the changes, including the reason for the change(s) it wishes to make to existing rules, regulations[,] and, [sic] existing practices to the Union in writing." Award at 2. In ruling that the Agency's letter to Local 1917 was not specific enough to satisfy Article 9(A), the Arbitrator explained that although the letter described the substantial changes that would be made to reorganize the entire workforce at the airport, the letter failed to "mention . . . any changes regarding scheduling[.]" Id. at 27. She also explained that there was "no mention that a new module system of scheduling would be introduced, that legacy Immigration Inspectors were to be brought under COSS, or that new ways of posting schedules and the trading of shifts were to be introduced." Id.

      In view of the changes that the Arbitrator found were not mentioned in the letter and that were the focus of the grievance, the Agency fails to establish that the Arbitrator's ruling that the letter was insufficient disregards the agreement or is irrational, unfounded, or implausible. Because Article 9(A) requires specific written notice of proposed changes, the Agency likewise provides no basis for finding deficient the Arbitrator's ruling that the Agency's offer to schedule a briefing also was insufficient. Accordingly, we conclude that the Agency provides no basis for finding that the award fails to draw its essence from Agreement 2000, and we deny this exception.

V.      Decision

      The Agency's exceptions are denied.



Footnote # 1 for 62 FLRA No. 33 - Authority's Decision

   Article 9(A) (Notice of Proposed Change) provides, in pertinent part:

The parties recognize that . . . during the life of the Agreement, the need will arise for Management to change existing Service regulations covering personnel policies, practices, and/or working conditions not covered by this Agreement. . . . [T]he Service shall present the changes and explanation of the changes, including the reason for the change(s) it wishes to make to existing rules, regulations, and, [sic] existing practices to the Union in writing.

Footnote # 2 for 62 FLRA No. 33 - Authority's Decision

   As the Agency does not except to this finding, Article 29 will not be discussed further.


Footnote # 3 for 62 FLRA No. 33 - Authority's Decision

   Article 9(B)(3)(b) pertinently provides: "Within ten (10) workdays after being served with the notice of a proposed change, the Local President or designee may request additional information necessary to clarify or determine the impact of the proposed change."


Footnote # 4 for 62 FLRA No. 33 - Authority's Decision

   To prevent the Authority from deferring to this finding, the Agency would be required to establish that the finding was deficient as based on a nonfact. Although the Agency claims that the award is based on a nonfact i