National Treasury Employees Union (Union) and United States Department of Homeland Security, United States Customs and Border Protection, Washington, D.C. (Agency)

[ v63 p183 ]

63 FLRA No. 74

NATIONAL TREASURY
EMPLOYEES UNION
(Union)

and

UNITED STATES
DEPARTMENT OF HOMELAND SECURITY
UNITED STATES
CUSTOMS AND BORDER PROTECTION
WASHINGTON, D.C.
(Agency)

0-MC-25

_____

DECISION

March 31, 2009

_____

Before the Authority: Carol Waller Pope, Chairman and
Thomas M. Beck, Member

I.     Statement of the Case

      The Union has filed with the Authority a request that the Authority issue a stay of the decision and order of the Federal Service Impasses Panel (the Panel) in United States Department of Homeland Security, United States Customs and Border Protection, Washington, D.C., 07 FSIP 108 (2008) (CBP). In CBP, the Panel resolved the parties' dispute over several issues arising from bargaining over ground rules for the negotiation of the parties' first term collective bargaining agreement. Pursuant to an order of the Authority, the Agency filed an opposition to the Union's request.

      For the reasons that follow, we deny the Union's request.

II.      Background and Panel's Decision

      As stated in the Panel decision involved in this case, the parties were at a negotiation impasse over ground rules for the negotiation of their first term collective bargaining agreement. CPB, decision at 1. [n1]  The Panel determined that the impasse should be resolved through an informal conference with two Panel members. The Panel advised the parties that, should any issues remain at impasse after the conference, the Panel would consider the parties' final offers and take whatever action it deemed appropriate to resolve the impasse. Id. Although the parties resolved several issues at the conference, a number of issues remained. Accordingly, the parties submitted their final offers and statements of position to the Panel on the unresolved issues, and the Panel issued a decision and order resolving the negotiation impasse.

      As relevant to the Union's request in this case, to resolve the negotiation impasse, the Panel ordered the Union to withdraw its proposals concerning the following: (1) bargaining dispute assistance; (2) the effect of unfair labor practices (ULPs) and grievances during bargaining; (3) ratification and severability; (4) negotiation environment; and (5) duration. Id. at 15-16.

      As to bargaining dispute assistance, the Union had proposed that the parties select a neutral who would have the authority to resolve grievances filed during bargaining and who would provide mediation assistance on any issues that remained open. In ordering the Union to withdraw its proposal, the Panel concluded that the Union had not justified the use of a different dispute resolution method from that provided in the Federal Service Labor-Management Relations Statute (the Statute). Id. at 7.

      As to the effect of ULPs and grievances, the Union had proposed that, if it filed a ULP charge or a grievance alleging that the Agency had harmed the Union's ability to continue to bargain, then the filing of the ULP charge or the grievance would postpone negotiations until a final and binding decision on the ULP or grievance. In ordering the Union to withdraw its proposal, the Panel concluded that the need for the proposal was speculative and that the proposal would allow the Union to control the bargaining process. Id. at 8-9.

      As to ratification and severability, the Union had proposed that: (1) if provisions were disapproved during agency-head review, then it retained the right to resubmit the contract to membership ratification; (2) if it challenged the legality of any Panel-imposed provisions, then only those provisions mutually agreed on would be implemented while the case was pending before the Authority. In ordering the Union to withdraw its proposal, the Panel concluded that the Union did not [ v63 p184 ] need a ground rule to ensure its right to ratification and that the Union had not demonstrated a need for its severability proposal. Id. at 11-12.

      As to negotiation environment, the Union had proposed that, for all unit employees, the parties implement for 90 days certain provisions of the collective bargaining agreement between the Union and the Customs Service, including the grievance and arbitration provisions. [n2]  In ordering the Union to withdraw its proposal, the Panel concluded that: (1) the Union had failed to substantiate the need to impose substantive contract terms in a ground rules agreement; and (2) there was no indication that the parties had ever bargained over the Union's proposal. Id. at 13. As to duration, the Union had proposed that the ground rules agreement remain in effect for 18 months. In ordering the Union to withdraw its proposal, the Panel noted that, typically, ground rules agreements do not have a duration clause and concluded that the Union had failed to demonstrate a need to deviate from common practice. Id. at 14.

III.      Positions of the Parties

A.      Union's Request

      In support of its request that the Authority stay the Panel order in CBP, the Union asserts that the Authority is empowered to grant such requests based on the Authority's decision in NTEU, 32 FLRA 1131 (1988). The Union contends that the circumstances of this case "are identical in all material respects" to the circumstances of NTEU and that this case presents the same equitable considerations on which the Authority relied in granting a stay in NTEU. Request at 16. In addition, the Union notes that, in considering stay requests, the Authority is guided by the principle that stays may be granted by an administrative agency of its own orders when it has ruled on difficult legal questions and when the equities suggest that the status quo should be maintained. Id. at 18 (citing NTEU, 32 FLRA at 1138). The Union claims that this standard is satisfied in this case.

      With regard to legal issues, the Union claims that a stay is warranted because the ground rules imposed by the Panel fail to meet the requirements of the Statute. Specifically, the Union asserts that the ground rules agreement is a collective bargaining agreement within the meaning of § 7103(a)(8) and that any collective bargaining agreement under § 7121(a)(1) must contain or be subject to a grievance/arbitration procedure. The Union claims that, therefore, the ground rules agreement is inconsistent with the Statute. Id. at 27. In this regard, the Union notes that there is no pre-existing collective bargaining agreement in effect that provides a grievance/arbitration procedure applicable to the entire bargaining unit. Id. The Union also asserts that, under § 7119(c)(5)(C), "all Panel[-]imposed actions must have terms or durations attached to them" and that the Panel rejected a duration provision. Id. at 29.

      The Union further asserts that the Panel decision is inconsistent with the Statute by binding it to the ground rules agreement prior to expiration of the agency-head review period. Id. at 28. In addition, according to the Union, the Panel's decision fails to conform to the Statute because the decision violates its right to insist that rejection of a portion of the contract equates to rejection of the contract as a whole. Id. at 31-33. The Union further claims that the Panel's decision is inconsistent with the Statute by imposing prohibited, piecemeal impasse resolution. Id. at 33-34. Specifically, the Union maintains that the Panel found an overall impasse despite concluding that the parties had not bargained sufficiently on one proposal. Finally, the Union also asserts that the time frame of bargaining ordered by the Panel is inconsistent with the Statute because it is not reasonable, as required by § 7114(b)(3). Id. at 29-31.

      With regard to the equities, the Union argues that, if a stay is not ordered, then it will suffer irreparable harm to its bargaining position. Id. at 21-22. In particular, the Union maintains that, if a stay is not granted, then it would have no choice but to commence litigation to overturn the Panel decision, which could lead to a situation where the Panel decision is reversed and prior conditions of employment are reestablished. Id. at 19-21. The Union claims that the Agency should not benefit from its bad-faith conduct or from the Panel's illegal decision. Id. at 22-23.

      For all of these reasons, the Union requests that the Authority stay the Panel's decision and take one or more of the following actions: (1) issue an order to the Panel to reconsider this case in accordance with instructions from the Authority on the legal issues; (2) stay the Panel's order pending final resolution of the grievance that the Union has filed, which charges the Agency with bad-faith bargaining; [n3]  and/or (3) order the Panel not to involve itself in the matter of the parties' term collective [ v63 p185 ] bargaining agreement until the bad-faith bargaining grievance is resolved. Id. at 34-35.

B.      Agency's Opposition

      The Agency maintains that the Union's request fails to meet the requirements of NTEU for Authority action to stay a Panel decision and order. In this regard, the Agency claims that the Authority places a heavy burden on a requesting party to establish "unusual" circumstances to justify a stay. Opposition at 9. The Agency contends that, as in AFSCME Council 26, Local 2830, AFL-CIO, 59 FLRA 802 (2004) (AFSCME) and United States Department of the Treasury, United States Customs Service, 34 FLRA 137 (1990) (Customs Serv.), the Authority should conclude that the Union has not demonstrated the necessary unusual circumstances for issuance of a stay.

      More specifically, the Agency disputes the Union's claims that a stay is warranted because the ground rules imposed by the Panel fail to meet the requirements of the Statute. The Agency asserts that, contrary to the claim of the Union, the Statute does not require that a ground rules agreement contain a grievance procedure. Id. at 11. The Agency also disputes the Union's claim that, without a grievance procedure as part of the ground rules, it can not challenge the Agency's bad-faith bargaining. In this regard, the Agency notes that a grievance procedure is available to, and has been used by, the Union as part of the Agency's required maintenance of existing conditions of employment of bargaining unit employees, who were previously covered by a collective bargaining agreement. Id. at 11-13. The Agency likewise asserts that the Statute does not require that a ground rules agreement have a duration clause. Id. at 18-20.

      The Agency further asserts that the Authority should reject the Union's claim that a stay is warranted because the Panel improperly bound it to the ground rules agreement prior to completion of the agency-head review process. According to the Agency, all ground rules to be used by the parties have been implemented in accordance with § 7114(c)(3) of the Statute. [n4]  Id. at 13-14. In addition, according to the Agency, the Union's claim pertaining to severance should be rejected because, apart from the Panel proceedings, the parties have entered into an agreement over severability. Similarly, the Agency asserts that the Authority should reject the Union's claim that the time frame of bargaining ordered by the Panel is not reasonable because that time frame was agreed to by the parties and was included in the Union's final offer submitted to the Panel.

      Based on the foregoing, the Agency contends that this matter is a "run of the mill" negotiation impasse that has been resolved by the Panel under its statutory authority set forth in § 7119(c)(1). Id. at 3. The Agency argues that the Union's request is essentially an appeal of the Panel's order. The Agency maintains that, because Panel decisions are not directly appealable to the Authority for review of the merits, the request should be denied. Id. at 9-10 (citing Council of Prison Locals v. Brewer, 735 F.2d 1497 (D.C. Cir. 1984)).

      Finally, the Agency asserts that the Authority should sanction the Union for its conduct. The Agency alleges that the Union's "blatant act of non-compliance should be viewed as a violation of . . . § 7116(b)(5) and (6)[.]" Id. at 24 (citing AFGE Local 3732, 16 FLRA 318 (1984)). Accordingly, the Agency requests that the Authority order similar remedies as those the Authority ordered in AFGE Local 3732.

IV.      Analysis and Conclusions

A.      Authority's Decision in NTEU

      As noted above, the Union relies on NTEU, a case in which the agency requested stays of orders issued by the Panel, which orders directed the parties to submit the issues in dispute to interest arbitration. The disputed issues in NTEU concerned the agency's obligation to bargain over wages and money-related fringe benefits, which the Authority noted had been the subject of extensive and continuing litigation, including cases then pending in the United States Court of Appeals for the District of Columbia Circuit. [n5]  NTEU, 32 FLRA at 1137. The Authority further noted that, in addition to [ v63 p186 ] the cases pending before the D.C. Circuit, numerous other cases involving the obligation to bargain over wages and money-related fringe benefits were pending in other United States courts of appeals, and other related unfair labor practice cases were also pending at various stages of the administrative process. Id. at 1134.

      The Authority concluded in NTEU that it was empowered to stay the disputed Panel orders because: (1) the Authority was afforded the necessary flexibility by statute; (2) an action of a component of the Authority was involved; (3) the Panel and Authority cases were inextricably linked; and (4) the situation involved protracted judicial and administrative litigation that had consumed considerable time and resources. Id. at 1138-39. The Authority cited 5 U.S.C. § 705, [n6]  as granting an administrative agency the power to postpone the effective date of its actions, pending judicial review, when justice so requires. Id. at 1136. In addition, the Authority determined that the Statute empowers it to take actions that are consistent with the effective administration of the Statute based on § 7105(a)(2)(I), which empowers the Authority to "take such . . . actions as are necessary and appropriate to effectively administer the provisions of [the Statute,]" and from § 7101(b), which directs that the provisions of the Statute are to "be interpreted in a manner consistent with the requirement of an effective and efficient Government." Id.

      As to the linkage of Panel and Authority cases, the Authority noted that the disputed Panel orders were issued in proceedings which resulted directly from Authority negotiability decisions involving the same parties and the same proposals and that, as set forth above, the negotiability decisions were pending before the D.C. Circuit. Id. at 1137. The Authority further noted that the disputed Panel orders did not resolve the impasse, but, instead, directed the parties to submit their disputes to interest arbitration for binding decision. Id. In the Authority's view, the orders were not appropriate because they disregarded duty-to-bargain questions that could not be considered well-settled under Commander, Carswell Air Force Base, Texas, 31 FLRA 620 (1988) (Carswell). Id. at 1137-38.

      The Authority acknowledged the principle that administrative "tribunals may properly stay their own orders when they have ruled on an admittedly difficult legal question and when the equities of the case suggest that the status quo should be maintained." Id. at 1138 (quoting Washington Metro. Area Transit Comm'n v. Holiday Tours, 559 F.2d 841, 844-45 (D.C. Cir. 1977)). In applying this principle, the Authority determined that the underlying issue of the negotiability of wage and money-related fringe benefit proposals was a difficult legal question and that the status quo should be maintained because implementation of the Panel's orders directing interest arbitration would likely engender further administrative and judicial litigation and would not advance the purposes of the Statute. Id. at 1138-39.

      In the "unusual circumstances" of the case, the Authority also found that the public interest would best be served by delaying further interest arbitration proceedings until the court of appeals issued its decisions. Id. at 1139. In particular, the Authority found that a stay would respect the statutory framework for the resolution of negotiability disputes, including the role of the judicial process. Id. The Authority recognized that Congress did not intend Panel decisions resolving negotiability impasses to be directly reviewable by the Authority. However, the Authority emphasized that it was not reviewing the merits of the Panel orders, but, instead, was only acting to prevent effectuation of the Panel orders at that time. Id. Consequently, the Authority ordered the Panel orders stayed until the D.C. Circuit ruled in the related negotiability cases. Id. at 1140.                                        

B.      Authority decisions applying NTEU

      As noted by the Agency, the Authority has applied NTEU to resolve two subsequent requests for stays of Panel proceedings. In Customs Serv., the agency requested that the Authority stay the Panel's order in United States Department of the Treasury, United States Customs Service, 90 FSIP 42, which directed the parties to meet with a Panel member to resolve issues concerning the parties' ground rules negotiations. The agency asserted that a stay was warranted because it had filed an unfair labor practice charge against the union and the issues raised in the charge were inextricably intertwined with the issues in the Panel case. Customs Serv., 34 FLRA at 137. The Authority summarily denied the agency's request for a stay on the ground that the "unusual circumstances" present in NTEU were not present in Customs Serv. Id.

      In AFSCME, the union asserted that the Authority should stay the Panel's assertion of jurisdiction in United States Department of Justice, Office of Justice Programs, 04 FSIP 27 because there were three cases pending before other components of the Authority, which were inextricably linked to the impasse matters before the Panel. AFSCME, 59 FLRA at 802. As in Customs Serv., the Authority summarily denied the union's request for the stay, concluding that the [ v63 p187 ] "unusual circumstances" similar to those present in NTEU were not present in AFSCME. Id.

C.      Application of Authority Precedent

      In the only case in which the Authority has granted a request for a stay of a Panel proceeding, "unusual" and "unique" circumstances involving a Panel order that was not appropriate under Carswell intertwined with difficult legal issues pending judicial resolution were present. NTEU, 32 FLRA at 1132, 1139. Neither AFSCME nor Customs Serv. involved these circumstances and, as a result, the Authority rejected reliance on NTEU and summarily denied the requests for a stay. AFSCME, 59 FLRA at 802; Customs Serv., 34 FLRA at 137. The denials of these requests demonstrate how narrowly the Authority has applied NTEU.

      In the case now before the Authority, we conclude that the Union has not demonstrated that there is a Panel order that both is not appropriate under Carswell and is intertwined with difficult legal issues pending judicial resolution. Consequently, consistent with the narrow application of NTEU in Customs Serv. and AFSCME, the Union's reliance on NTEU provides no basis on which to grant the requested stay. We likewise conclude that the Union fails to demonstrate that the equities of this case suggest that the status quo should be maintained. In NTEU, the equities warranted a stay because further litigation would not advance the purposes of the Statute and a stay would respect the statutory framework for the resolution of negotiability disputes. Without addressing the individual arguments of the Union, what they collectively fail to show is how a stay would advance the purposes of the Statute and respect the statutory framework for the review of Panel orders.

      This matter involves the resolution by the Panel of a negotiation impasse under the statutory authority of §