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 p360 ]

62 FLRA No. 66

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-4063

_____

DECISION

March 18, 2008

_____

Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Milden J. Fox 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 did not file an opposition to the Agency's exceptions.

      The Arbitrator found that the Agency violated the parties' collective bargaining agreement by failing to notify the Union of an increase in parking rates at its JFK Airport facility (JFK Airport).

      For the reasons discussed below, we conclude that the award is deficient because the Arbitrator denied the Agency a fair hearing. Accordingly, we vacate the award and remand the case to the parties for resubmission to the Arbitrator consistent with this decision.

II.     Background and Arbitrator's Award

      The award in this case involves a collective bargaining agreement predating the formation of the United States Department of Homeland Security (DHS). In this regard, the Immigration and Naturalization Service (INS), along with 22 other Federal agencies, became DHS. INS was abolished and separated into three new bureaus under DHS: the United States Immigration and Customs Enforcement (ICE), Citizenship and Immigration Service (CIS), and Customs and Border Protection (CBP). As relevant here, employees from several former agencies, including the United States Customs Service, INS, United States Border Patrol, and the Animal and Plant Health Inspection Service (APHIS) of the United States Department of Agriculture, were brought under CBP. NTEU, AFGE/NINSC (National INS Council), and the National Association of Agriculture Employees (NAAE) had collective bargaining agreements with the former agencies. Additional bargaining units transferred to CBP include the National Border Patrol Council and the National Association of Plant Protection and Quarantine Office Support Employees. In this regard, the Arbitrator found that it was "not disputed that not all of the local CBP employees are former INS employees." Award at 17. The Arbitrator also found that a "forthcoming representation election" to determine the "exclusive representation of all CBP employees, with the exception of the Border Patrol unit" was pending. Id. at 17 and 6. [n1] 

      The instant case involves CBP and AFGE Local 1917 and parking fees at the JFK Airport. These parking fees are controlled by the Port Authority of New York and New Jersey through a company that runs the parking facility. In 2004, the Port Authority decided to increase the parking rates for CBP officers at JFK Airport. The fees increased in March 2005 to $25.00 a month, and in March 2006, the fees increased to $50.00 a month.

      After the fees were raised, the Union filed a grievance contending that CBP violated Article 9(A) of the 2000 collective bargaining agreement (2000 Agreement) when the parking rates were raised without notice to the Union as required by Article 9(A). [n2]  The parties were unable to resolve the matter and thus the issue was submitted to arbitration.

      The stipulated issue before the Arbitrator was:

Did the Agency violate Article 9(A) of the [Agreement] in connection with the handling of [ v62 p361 ] the increased parking rates at JFK Airport? If so, what is the remedy?

Id. at 3.

      Before the Arbitrator, the Union argued that Article 9(A) of the 2000 Agreement requires a "proper 9(A) notice from CBP in regard to the parking rate[s] at the JFK Airport[,]" and that the "rate increase is a mandatory subject of bargaining[.]" Id. at 8. The Agency argued that it could not be found "to have breached Article 9(A) . . . because it is not a party to [the 2000] Agreement and, therefore, cannot breach its terms as a matter of law." Id. Alternatively, the Agency asserted that the "Union did not meet its burden of proving that [the Agency] failed to give notice pursuant to Article 9(A) . . . ." Id.

      The Arbitrator found that the case was presented by the parties as a "[c]ontract violation . . . a single issue[,]" and that the 2000 Agreement "govern[ed]" the matter. Id. at 24 and 4. In rejecting the Agency's claim that it was not obligated by the 2000 Agreement, the Arbitrator considered testimony and evidence presented in a previous award in which he was the arbitrator. [n3]  In particular, the Arbitrator relied on a March 12, 2003 memorandum issued by the then Under Secretary for Management of DHS (the Hale Memorandum), and evidence, including testimony, as to the meaning and coverage of this memorandum. The Arbitrator also relied on the testimony of a witness in the prior arbitration that he was the author of the Hale memorandum, that "`all existing collective bargaining agreements and relative documents executed before 2003 still had life and that one purpose of the [Hale memorandum] was that no one's rights were stepped on[,]'" and that "[u]ntil new guidance is used, all DHS managers are expected to honor contractual and statutory obligations that are in place.'" Id. at 16 (Arbitrator quoting transcript in AFGE, Local 1917 and CIS).

      The Arbitrator also found that an Administrative Law Judge's decision in United States Department of Homeland Security, Border and Transportation Security Directorate, Bureau of Customs and Border Protection, New York, New York, Case No. BN-CA-04-0468 (July 19, 2005) (DHS/CBP, NY) -- where the Judge found that the Agency was not bound by a prior collective bargaining agreement between the union involved and the agency and thus did not violate the Statute -- was not controlling in this case because the author of the Hale memorandum did not testify in that case and because the judge's decision "ignored" DHS' decision as to the application of this memorandum. [n4]  Award at 19. Also, the Arbitrator noted the court's decision in NTEU v. Chertoff, 385 F. Supp. 2d 1 (D.D.C 2005), wherein the court found that certain regulations issued by DHS to implement its human resources system were unauthorized. Based on the above, the Arbitrator found that the Agency "must adhere to the existing [2000 Agreement] . . . terms." Award at 19.

      The Arbitrator next addressed the Agency's alternative argument that the Union did not meet its burden of proving that the Agency failed to give notice pursuant to Article 9(A) of the 2000 Agreement. The Arbitrator found that the Agency violated its duty to provide the Union notice to bargain over parking rates, as required by Article 9(A), because the Agency failed to notify the Union of the proposed increase in parking rates consistent with the requirements of Article 9(A) of the 2000 Agreement.

      To remedy the Agency's violation of Article 9(A) of the 2000 Agreement, the Arbitrator considered, and rejected, the Union's request that the Agency pay all unit employees' parking increases at JFK Airport. The Arbitrator found there was "no statutory authority that would permit the [CBP] to pay its employees' parking expenses," and the 2000 Agreement likewise did not authorize such payment. Id. at 25. The Arbitrator thus, as his award, stated only that the Agency violated Article 9(A) of the 2000 Agreement.

III.     Agency's Exceptions

      The Agency asserts that the Arbitrator denied it a fair hearing when he relied on testimony outside of the record in finding that the Agency was bound by the 2000 Agreement. According to the Agency, at the hearing it argued that it was not bound by the Agreement because it was not a party to it. The Agency relies, in this regard, on the testimony of one of its witnesses that the Hale memorandum "served as [an] intra-agency guidance with regard to the pre-existing bargaining agreements governing the employees of the newly-formed Agency, and that it did not serve to bind the Agency to these [a]greements to which they were not a party, such as the [2000 Agreement]." Exceptions at 10. The Agency contends the Union presented no evidence to counter this testimony. Nonetheless, according [ v62 p362 ] to the Agency, the Arbitrator "relied upon his interpretation of the . . . Hale memorandum, which had been entered into evidence" in the prior arbitration." Id.

      The Agency asserts that the Arbitrator relied on not only his prior award in concluding that the Agency was bound by the 2000 Agreement, but also on the testimony from a "self-proclaimed author of this [m]emorandum'" in that case. Id. at 11. The Agency states that this witness' testimony was not a part of the instant record, the Union did not call this witness in this case, and the Union did not introduce or seek to introduce the witness' prior testimony as evidence. The Agency asserts that it was "not given the opportunity to determine whether this "yet-unnamed witness truly spoke for DHS with regard to the import of the . . . Hale memorandum[,]" and that the Arbitrator did not provide the name of this individual in his award. Id. at 12.

      The Agency thus asserts that it was "blindsided" by this witness' testimony and "deprived" of the opportunity to counter it. Id. Specifically, the Agency contends that it had "no opportunity to cross-examine this witness to determine his veracity, or the basis of his claimed knowledge of the . . . Hale memorandum[,]" and it was denied the opportunity to present evidence to discount the testimony of this witness. Id. In addition, the Agency contends that it was denied the opportunity to brief the matter because it was not aware of the Arbitrator's prior award, or the testimony cited therein.

      The Agency next asserts that the Arbitrator's finding that it violated Article 9(A) of the 2000 Agreement is contrary to law. The Agency contends that it is not bound by the 2000 Agreement and thus it is not required to "adhere to its terms and provisions." Id. at 13. The Agency also contends that the award is contrary to law because it conflicts with decisions of Authority judges in DHS/CBP, NY (Case No. BN-CA-04-0468) and United States Dep't of Homeland Sec., U.S. Customs and Border Protection, Wash., D.C., (2005) (DHS/CBP and NAAE) (Case No. SF-CA-04-0577). [n5]  In addition, according to the Agency, it provided the Union with proper notice of the increase in parking rates and the Arbitrator's ruling is contrary to Authority precedent, specifically, United States Penitentiary, Leavenworth, Kan., 55 FLRA 704, 715 (1999).

      Finally, the Agency asserts that the award is based on two nonfacts. First, the Agency contends that the Arbitrator found that the Agency was bound by the 2000 Agreement based on testimony concerning the Hale memorandum that was presented to him in the prior arbitration proceeding. Second, the Agency contends that the award is based on the Arbitrator's incorrect factual determination that the Agency did not notify the Union of the increase in parking rates pursuant to Article 9(A) of the 2000 Agreement.

IV.      Analysis and Conclusions

      An award will be found deficient on the ground that an arbitrator failed to provide a fair hearing when it is demonstrated that the arbitrator refused to hear or consider pertinent and material evidence, or that other actions in conducting the proceeding so prejudiced a party as to affect the fairness of the proceeding as a whole. See AFGE, Local 1668, 50 FLRA 124, 126 (1995). It is well established that an arbitrator has considerable latitude in conducting a hearing and the fact that an arbitrator conducts a hearing in a manner that a party finds objectionable does not, by itself, provide a basis for finding an award deficient. See AFGE, Local 22, 51 FLRA 1496, 1497-98 (1996). As an example, an arbitrator does not fail to conduct a fair hearing by accepting and considering additional information or memoranda submitted by a party with its post-hearing brief, where the opposing party had an adequate opportunity to respond to the additional information. See NATCA, MEBA/AFL-CIO, 47 FLRA 638, 647-48 (1993).

      The Authority vacates awards when a party demonstrates that an arbitrator denied the party a fair hearing. For instance, in General Services Administration, Region 9, Los Angeles, Calif., 56 FLRA 978, 979 (2000), the Authority found that an arbitrator, by failing to provide the agency with an opportunity to respond to an official time issue raised for the first time in the union's post-hearing brief, prejudiced the agency in a manner that affected the fairness of the proceeding as to that issue. Additionally, in United States Department of the Air Force, Hill Air Force Base, Utah, 39 FLRA 103, 107 (1991), the Authority found that the arbitrator failed to conduct a fair hearing because the arbitrator's acknowledged failure to consider the union's position prejudiced the right of the union to fully present its case and affected the fairness of the arbitration.

      Applying the above precedent here, the Arbitrator's award shows that the Arbitrator determined that the Agency must adhere to the 2000 Agreement by relying on documentary and testimonial evidence from a previous award involving the Arbitrator. See Award at 16, 18-19. There is no dispute that this evidence was [ v62 p363 ] not presented at the arbitration hearing in this case. It is also undisputed that the Agency had no opportunity to contest such evidence before the Arbitrator rendered his award. In this circumstance, the Arbitrator, by considering evidence and basing his findings on evidence that had not been presented by the parties at the hearing prejudiced the Agency in a manner that affected the fairness of the proceeding. Therefore, the Arbitrator failed to conduct a fair hearing and the award must be vacated.

V.     Decision

      The award is vacated and remanded to the parties for resubmission to the Arbitrator for further proceedings permitting the Agency to address, including the opportunity to contest, the evidence relied on by the Arbitrator in finding that the Agency must adhere to the 2000 Agreement. [n6] 


APPENDIX

      The relevant text of Article 9(A) is as follows:

Article 9 - Impact Bargaining and Mid-Term Bargaining
NOTICE OF PROPOSED CHANGE. The parties recognize that from time-to-time 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. The parties are encourage to engage in pre-decisional involvement prior to the agency's formal presentation of proposal's for working conditions under this article. If the parties are unable to reach an agreement through pre-decisional involvement or if pre-decisional involvement is not used, the 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, existing practices to the Union in writing. The Service recognizes that this obligation exists at the National, Regional, and District level depending upon the level at which such changes originate. If the Service proposes a change in working conditions in locals in more than one region, such as for Telephone Centers or Service Centers, it shall serve the requisite notice on the Council at the national level. If the Union intends to exercise its bargaining rights regarding the proposed change it must submit a timely bargaining demand including proposals, in accordance with the procedures and time frames specified below.

Award at 4.



Footnote # 1 for 62 FLRA No. 66 - Authority's Decision

   An application for review of the regional director's decision finding appropriate CBP's proposed unit and ordering an election was filed with the Authority and a decision denying the application was issued on February 3, 2006. See United States Dep't of Homeland Sec., Bureau of Customs and Border Prot., 61 FLRA 485 (2006) (DHS, CBP and NAAE), aff'd sub nom. Nat'l Assoc. of Agric. Employees v. FLRA, 473 F.3d 983 (9th Cir. 2007). Also, in United States Dep't of Homeland Sec., United States Customs and Border Protection, 62 FLRA 78 (2007), the Authority denied an application for review of a regional director's decision denying objections to the election.


Footnote # 2 for 62 FLRA No. 66 - Authority's Decision

   The relevant text of Article 9(A) is set forth in the Appendix to this decision.


Footnote # 3 for 62 FLRA No. 66 - Authority's Decision

   With respect to the previous award, to which the Arbitrator referred, exceptions were filed with the Authority, and a decision issued on those exceptions in AFGE, Local 1917, 61 FLRA 579 (2006) (AFGE, Local 1917 and CIS).


Footnote # 4 for 62 FLRA No. 66 - Authority's Decision

   No excep