United States Department of Homeland Security, U.S. Customs and Border Protection (Agency) and American Federation of Government Employees, National Border Patrol Council (Union)
65 FLRA No. 23
DEPARTMENT OF HOMELAND SECURITY
U.S. CUSTOMS AND BORDER PROTECTION
OF GOVERNMENT EMPLOYEES
NATIONAL BORDER PATROL COUNCIL
September 24, 2010
Before the Authority: Carol Waller Pope, Chairman, and Thomas M. Beck and Ernest DuBester, Members
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Joseph M. Sharnoff 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 and the Statute by unilaterally making several changes to the Agency’s body-armor policy (the policy), and he awarded a partial status quo ante (SQA) remedy. For the following reasons, we deny the exceptions.
II. Background and Arbitrator’s Award
The Agency made several changes to the policy without giving the Union notice and an opportunity to bargain. The Union filed a grievance, which was unresolved and submitted to arbitration. At arbitration, the parties stipulated to the following issue: “Did the Agency violate the Collective Bargaining Agreement and/or law when it unilaterally implemented [the policy] . . . without first notifying the Union and providing it was an opportunity to negotiate to the fullest extent of the law? If so, what is the remedy?” Award at 3.
The Arbitrator found that there was no dispute that the Agency had an obligation to bargain only the impact and implementation, not the substance, of the changes. Id. at 5, 7. The Arbitrator found that the reasonably foreseeable effects of several of the changes were greater than de minimis, id. at 7-14, but determined that the reasonably foreseeable effects of one of the changes were de minimis, id. at 15. As the Agency failed to engage in impact and implementation bargaining before making the changes that were greater than de minimis, the Arbitrator sustained the grievance “to the extent set forth in the Opinion.” Id. at 18.
As to remedy, the Arbitrator applied the factors set forth in Federal Correctional Institution, 8 FLRA 604, 606 (1982) (FCI), for assessing whether SQA relief is appropriate. The Arbitrator granted the request for SQA relief, “but only to the extent that the Union . . . claimed that the Agency’s unilateral implementation of the . . . policy resulted in changes in working conditions which were not de minimis and which claims were upheld by the Arbitrator.” Award at 18.
III. Positions of the Parties
A. Agency’s Exceptions
The Agency argues that the SQA remedy is contrary to management’s right to determine internal security practices under § 7106(a)(1) of the Statute. Exceptions at 5. In this connection, the Agency asserts that it had an internal security right to implement the policy. Id. at 8-9. In addition, the Agency asserts that, if it had complied with the law, then it would have given the Union the opportunity to engage in impact and implementation bargaining, but would not have maintained the status quo. Id. at 6-7. The Agency also asserts that it had “valid safety and operational impetuses” for making the changes, and it is “unreasonable” to direct the Agency to return to the status quo, as that “could result in scenarios that [would be] impractical, if not impossible[,]” including: requiring the Agency to issue body armor that is insufficient to protect employees; requiring the Agency to contract with vendors with whom the Agency no longer has contractual relationships; and allowing employees unfettered discretion as to whether to wear body armor on the range. Id. at 7-8. The Agency also asserts that the Authority, “in determining whether an ordered remedy is lawful, has examined cases concerning negotiability” and “utilized these negotiability determinations to decide whether an ordered remedy is permissible.” Id. at 9 (citing AFGE, Local 2006, 58 FLRA 297 (2003) (Local 2006), and U.S. INS, U.S. Border Patrol, San Diego Sector, San Diego, Cal., 43 FLRA 642 (1991) (Border Patrol)).
B. Union’s Opposition
The Union argues that the award is not contrary to management rights. In this connection, the Union asserts that the Arbitrator did not require substantive, but only impact and implementation, bargaining. Opp’n at 7-8. In addition, the Union disputes the Agency’s assertion