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55 FLRA No. 41
NTEU, Chapter 168 and U.S. Dept. of the Treasury Customs Service Port of Baton Rouge, Louisiana (Bowers, Arbitrator), 0-AR-3052 (Decided February 26, 1999)
The Arbitrator denied a grievance alleging that the Agency committed an unfair labor practice (ULP) in violation of section 7116(a)(1) and (5) of the Statute by "failing to consult or to negotiate" with the Union concerning a change in "overtime policy" with respect to vessel boarding from midnight to 8:00 a.m. at one of its facilities. The Authority found that the Union did not establish that the award was deficient.
As to the issue of whether the Arbitrator exceeded his authority, the Authority concluded that the award was responsive to the issue as framed. The Authority also rejected the allegations that the award failed to draw its essence form the agreement or that it was based on a nonfat.
Lastly, the Authority addressed the issue of whether the award was contrary to 5 U.S.C. § 7116(a)(1) and (5) and 5 U.S.C. § 7118. In this regard, the Authority noted that alleged violations of section 7116 may be raised as ULP charges under the statutory procedure set forth in section 7118, or as grievances under a negotiated grievance procedure. When a grievance under section 7121 of the Statute involves an alleged ULP, the arbitrator must apply the same standards and burdens that would be applied by an ALJ in a ULP proceeding under section 7118. In a grievance alleging a ULP by an agency, the Union bears the burden of proving the elements of the alleged unfair labor practice by a preponderance of the evidence. However, as in other arbitration cases, including those where violations of law are alleged, the Authority defers to an arbitrator's findings of fact. In this case, the Arbitrator found that the Agency's action in eliminating the subject vessel boarding overtime was not in violation of the parties' agreement because the clear and unambiguous language of Article 22, Section 1.B. allowed the Agency to determine the use of overtime.
The Authority noted that, although the Arbitrator failed to provide the proper analytical framework for resolving the ULP in dispute in this case, that did not render the award deficient. Here, the Arbitrator determined that the language of Article 22, Section 1.B., explicitly gave the Agency the authority to determine its use of overtime in the circumstances of this case. Thus, based on the Arbitrator's interpretation of the agreement, the Authority found that the matter involved in this dispute--the Agency's elimination of the subject overtime-was covered by the parties' agreement. Consequently, the Agency was not obligated to notify or negotiate with the Union over the elimination of vessel boarding overtime from midnight to 8 a.m. As the Arbitrator's finding on this matter was a complete defense to the unfair labor practice, the Arbitrator's failure to apply Authority precedent did not render the award deficient.