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 p416 ]

62 FLRA No. 79

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-4104

_____

DECISION

May 14, 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 Ann Gosline 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' agreement by failing to provide bargaining unit employees access to its Health Improvement Program (HIP). The Arbitrator ordered the Agency to take appropriate steps to remedy the violation.

      For the reasons that follow, we dismiss the Agency's management's rights exception and deny the Agency's remaining exceptions.

II.     Background and Arbitrator's Award

      The grievants were formerly employed within the New York District of the Immigration and Naturalization Service (INS) as Senior Immigration Inspectors (SRI). In March 2003, INS was replaced with Customs and Border Protection (CBP or the Agency) and the grievants' job title changed from SRI to Customs Border Patrol Officer-Enforcement (CBPOE). In both the former and current positions, the grievants were considered "6C"officers. [n1]  The grievants are currently assigned to the JFK airport located in New York.

      The former agency, INS, implemented the national program, HIP, in order "to help `6C' officers maintain fitness to enable them to be better prepared to respond to life-threatening situations." Award at 3. Employees who wished to participate in the program were required to submit an application along with certain health information. Under the program, employees were allowed "to exercise up to three hours a week on official time, with the approval of times worked out with their supervisors." Id. at 4. After the Agency replaced INS, employees continued to have the opportunity to participate in the program "in all ports of entry where CBPOE's are employed, except in New York" where the grievants are employed. Id.

      The Union filed a grievance on behalf of all CBPOE's in the New York District alleging that the Agency failed to make the program available to 6C officers and requesting as a remedy that HIP be made available. Unresolved, the grievance was submitted to arbitration where the Arbitrator framed two issues: (1) "whether [the Agency] violated the collective bargaining agreement when it did not provide access to the legacy INS HIP to CBPOE's in the New York District." Id. at 12. (2) "whether CBPOE's represented by [the Union] enjoyed this condition of employment at legacy INS." Id. at 13.

      Initially, the Arbitrator rejected the Agency's argument that an alleged "failure to provide access to HIP cannot be the subject of a grievance" within the meaning of Article 47, Section B of the parties' agreement because it does not concern a violation of a collective bargaining agreement, law, rule, or regulation affecting conditions of employment. [n2]  Id. at 12. In this regard, the Arbitrator interpreted the term "rule" used in this contract provision as applying to "official declarations of policy . . . [that] are binding on [the] officials and agencies to which they apply." Id. (citing AFSCME, Local 3097, 31 FLRA 322 (1988)). She found that INS had an official policy creating HIP for all INS 6C officers, including those in the New York District, which created a condition of employment -- access to HIP-- that continued after employees transferred to the Agency. The Arbitrator found that the Agency was obligated to maintain that condition of employment, provided it did not "interfere with operational requirements." Id at 13. [ v62 p417 ] According to the Arbitrator, the Agency "has not found continuation of the legacy INS HIP to interfere with agency operations" and, therefore, the Agency was required to continue giving employees in the New York District access to the program. Id.

      The Arbitrator also rejected the Agency's argument that "it should not be required to `set up' HIP for CBPOE's" at the JFK airport. Id. at 14. According to the Arbitrator, the Agency "already administers the legacy INS HIP around the country for CBPOE's, apparently coordinated by . . . the legacy INS HIP manager who now works for [the Agency]." Id. As to the Agency's assertion that it should not be required to allow employees to take three hours per week for physical exercise, the Arbitrator noted that the benefit of HIP is always secondary to the operational requirements of the Agency. Based on the foregoing, the Arbitrator found that the Agency violated the parties' agreement by discontinuing access to HIP for employees in the New York District. The Arbitrator ordered the Agency to "take appropriate steps to remedy the violation." Id. at 15.

III.     Positions of the Parties

A.      Agency's Exceptions

      The Agency first disputes the award on nonfact grounds. Specifically, the Agency asserts that "[n]o evidence was presented to indicate that the JFK port of entry had ever permitted the use of duty time for fitness activities" and, thus, "a HIP program was never established as a condition of employment at JFK." Exceptions at 8. Further, the Agency asserts that, "to the extent the availability of a HIP program . . . to a former INS employee was considered by the Agency to be a condition of employment, it was so only for those that previously enjoyed such a condition prior to the transfer of the bargaining unit out of INS into CBP . . . ." Id. at 9.

      The Agency also claims that the award is contrary to § 7114 of the Statute because it waives the Agency's right to bargain over the HIP. According to the Agency, the award permits the Union "to circumvent the bargaining process . . . and simply direct local port management to initiate such a program immediately upon its demand." Id. at 15.

      Finally, the Agency argues that the award violates its right to assign work. In this connection, the Agency asserts that the right to assign work includes "[t]he determination to permit employees to engage in fitness activities rather than other duties . . . ." Id. at 16. According to the Agency, the award does not permit it to approve or disapprove the use of the HIP based on operational requirements. See id. at 16 (citing NTEU, 55 FLRA 1174, 1177 (1999) and NFFE, Local 2119, 49 FLRA 151 (1994)). As such, the Agency contends, the award constitutes a waiver of its right to assign work.

B.      Union's Opposition

      According to the Union, the Arbitrator found, as a matter of fact, that access to the HIP was a condition of employment for CBPOE's and "such factual findings cannot form a basis to set aside the [a]rbitration [a]ward." Opposition at 10. Also, according to the Union, there are no managerial rights implicated by the award because the Arbitrator "was merely enforcing the contractual right to enjoy a benefit already established and carried-over to the Agency as a matter of law." Id. at 10-11. As such, the Union asserts that "the Agency cannot now be heard to argue that the [a]rbitration [a]ward . . . violates any managerial right to bargain or to assign employees." Id. at 11.

IV.      Preliminary Issue

      Under 5 C.F.R. § 2429.5, an issue that could have been but was not presented before an arbitrator will not be considered by the Authority. See United States Dep't of the Air Force, Air Force Materiel Command, Robins Air Force Base, Ga., 59 FLRA 542, 544 (2003). The Agency argues that the award, by requiring it "to permit employees to engage in fitness activities rather than other duties" violates its right to assign work. Exceptions at 16. However, there is no indication in the award or the Agency's post-hearing brief that this argument was made before the Arbitrator. The record establishes that the Agency could have made this argument below, as the Union specifically requested as a remedy that the Arbitrator direct the Agency "to make the HIP program available to the Union's CBPOE's to include up to three hours a week for exercise and facilities in which to perform that exercise." Union's Post-Hearing Brief at 9-10. As the issue concerning management rights could have been, but was not, raised below, the issue is not properly before the Authority. Based on the foregoing, the Agency's management rights exception is dismissed.

V.     Analysis and Conclusion

A.      The award is not based on a nonfact.

      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. See [ v62 p418 ] NFFE, Local 1984, 56 FLRA 38, 41 (2000). However, the Authority will not find an award deficient on the basis of an arbitrator's determination of any factual matter that the parties disputed at arbitration. See id. The Agency claims the Arbitrator's conclusion that the HIP program constituted a condition of employment, is based on a nonfact -- namely, that employees at JFK airport had access to the HIP. In this regard, the Agency acknowledges that the employees at JFK airport had such access to the HIP inasmuch as INS was authorized to establish HIP locally through collective bargaining. However, the Agency asserts that the HIP was not established at JFK airport through collective bargaining and no employee at JFK airport actually participated in the HIP. Put differently, the Agency argues that the Arbitrator based her finding of a condition of employment on the wrong fact.

      The Agency's arguments do not establish that the award is deficient. In this regard, the Arbitrator framed the issue as whether the Agency violated the parties' agreement when it did not provide "access" to employees in the New York District, not whether any employees at JFK airport actually participated in the HIP. Award at 12. The Agency provides no basis for finding that the Arbitrator erred in framing the issue in terms of access to employees in the New York District rather than participation of employees assigned to JFK airport. As such, the issue that the Arbitrator found was relevant and made factual findings about -- access to the HIP -- was disputed below and the Arbitrator resolved the issue by finding that "HIP was available in the New York District, which included JFK Airport." Id. at 13. Consequently, the Agency has not demonstrated that the award is based on a nonfact. Therefore, we deny this exception.

B.      The award does not violate the Agency's bargaining rights under § 7114 of the Statute.

      When an exception involves an award's consistency with law, the Authority reviews any question of law raised by the exception and the award de novo. See 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. See United States DOD, Dep'ts of the Army and the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

      The Agency provides no legal support for its claim that the award violates § 7114 because it permits the Union to circumvent the Agency's statutory right to bargain. [n3]  In this regard, there is no dispute that employee access to the HIP was unilaterally established by INS, not by collective bargaining, and the Arbitrator found that this benefit was a condition of employment that carried over from INS to the CBPOE's when the Agency was established. The Arbitrator found, and the Agency agrees, that the Agency was required to continue conditions of employment that did not interfere with its operational requirements. Award at 8; Exceptions at 8-9. The Agency did not dispute before the Arbitrator, and the Arbitrator found, that access to the HIP did not interfere with the Agency's operational requirements. As such, the Arbitrator found that the Agency was required to continue this access.

      Moreover, the Agency has not demonstrated that the award violates § 7114 of the Statute by ordering the Agency to "take appropriate steps to remedy the violation." Award at 15. In this regard, the award merely requires the Agency to provide CBPOE's with access to the HIP, and it does not preclude the parties from bargaining to the extent requested and required by law over the particulars of the program. Therefore, we deny this exception.

VI.     Decision

      The Agency's management rights exception is dismissed and the remainder of the Agency's exceptions are denied. [ v62 p419 ]


APPENDIX

Article 47

B.       Definition: A grievance means a complaint either by a unit employee concerning his or her conditions of employment, by the Union in its own behalf concerning conditions of employment of any employee, or alleged contractual violations by the Service, or by the Service concerning alleged contractual violations by the Union. Unless excluded below, such a complaint may concern the adverse impact of:

      (1) Violation of Agreements. The effect of interpretation, or claim of breach of this master Agreement, or other written agreement between the parties; or

      (2) Violation of Law, Rule, or Regulation. Any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment.

Joint Exhibit 1, Agreement at 90.



Footnote # 1 for 62 FLRA No. 79 - Authority's Decision

   The record does not explain what "6C" refers to.


Footnote # 2 for 62 FLRA No. 79 - Authority's Decision

   The text of Article 47, Section B is set forth in the appendix.


Footnote # 3 for 62 FLRA No. 79 - Authority's Decision

   We note that the Agency does not specify which subsection of § 7114 it believes the award violates. As the Agency's argu