[ v20 p391 ]
The decision of the Authority follows:
20 FLRA No. 41 U.S. IMMIGRATION AND NATURALIZATION SERVICE Agency and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1917 Union Case No. O-AR-556 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Sidney L. Cahn filed by the Department of Justice on behalf of the Immigration and Naturalization Service (INS) under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition. /1/ The grievance before the Arbitrator concerned the alleged failure of the Agency to comply with the requirements of the parties' collective bargaining agreement regarding a report of the Joint District Safety and Health Committee, which identified several health and safety problems at various facilities and recommended corrective actions. The parties were unable to agree on an issue and the Arbitrator framed the issues in this matter as follows: (1) Has the Employer (hereinafter referred to as the Agency or District Director) violated the provisions of the parties' Collective Bargaining Agreement when it failed timely to respond to the report of March 1982 of a Joint District Safety & Health Committee (hereinafter referred to as the Committee) which was submitted to the Agency in May 1982? (2) By several such alleged similar failures (i.e. item (1) hereof) and other actions has the Agency effectively repudiated and rendered nugatory (solely for the purposes of this proceeding) Article 17D(3) of the parties' Collective Bargaining Agreement. If so, what, if any, shall be the remedy? (3) What constitutes an appropriate response by the District Director to a report of the Safety & Health Committee? (4) What constitutes a safety and health hazard? Are there any safety and health problems which require correction by the Agency(?) If so, what, if any, shall be the remedy? (5) Does Article 17 of the parties' Collective Bargaining Agreement mandate Agency compliance with the recommendations of the Committee(?) If so, what, if any, shall be the remedy? The Arbitrator agreed with a number of the Committee's conclusions that problems existed which affected the safety and health of Agency employees and that the Agency violated the parties' agreement by failing to properly respond to the Committee's report and to correct those problems. As his award, the Arbitrator directed the Agency to respond to the Committee's report within ten work days after receipt of the Committee's recommendations and to take certain actions regarding specific problems. In a general exception, the Agency excepts to the Arbitrator's finding that the Agency was obligated under the parties' agreement to correct unsafe and unhealthy working conditions and practices reported by the Committee. The Agency contends that to the extent the Arbitrator's award mandates the correcting of any health and safety problem reported, the award is "ambiguous and overbroad as such corrective action may violate law, rule, or regulation and exceed the arbitrator's authority as such corrections may, under some circumstances, require actions outside the purview of the agency's authority and/or require an action in derogation of management's reserved rights." In support of this exception, the Agency asserts that the Arbitrator's (and the Committee's) definition of a "safety and health problem" is too broad because it encompasses conditions which merely involve discomfort and that given that overly broad definition "it is foreseeable" that a condition involving mild discomfort would be considered unsafe or unhealthy, and the related corrective action could be disproportionately expensive, outside the control of the parties, or violative of management's rights. The Agency further asserts in support of this general exception that while it is unclear what constitutes corrective action, a requirement that management correct any reported unhealthy or unsafe condition could be read as requiring management to substantially alter a facility or practice that is entirely outside of its control, and as requiring the expenditure of Agency funds in violation of General Services Administration (GSA) regulations and other regulatory and legal restrictions on the expenditure of funds. As to the Agency's assertions in support of this general exception, the Authority finds that the Agency has failed to demonstrate that this portion of the Arbitrator's award is deficient as alleged. Thus, with regard to the Agency's assertion that the award is overbroad and ambiguous, the Authority finds that the Arbitrator's award finding that the Agency is obligated under the parties' agreement to correct reported unsafe and unhealthy conditions is not so uncertain in its meaning and effect so as to make implementation of this portion of the award impossible. Veterans Administration Hospital, Newington, Connecticut and National Association of Government Employees, Local R1-109, 5 FLRA 64, 66-67(1981). As to the Agency's assertions that the Arbitrator exceeded his authority and that this part of the award violates unspecified law, rule, regulation and management's rights, the Authority finds that the Agency has failed to substantiate its assertions. The Agency's arguments are essentially speculative, i.e., centered on what the Agency speculates might be required by the award in the future. The essence of the disputed portion of the award is a direction to the Agency to abide by its agreement to correct health and safety problems reported by the Committee to the extent that it properly can, i.e., to the extent that corrective action is within its authority and would not violate law, including management's reserved rights under section 7106(a) of the Statute, or any rule or regulation. Arbitrators have considerable latitude in fashioning remedies for a party's violation of its collective bargaining agreement, id. at 67, and the disputed portion of the award is not in excess of the Arbitrator's authority or otherwise deficient as contrary to law, rule or regulation. See American Federation of State, County and Municipal Employees, AFL-CIO, Local 2477 and Library of Congress, Washington, D.C. (and the case consolidated therewith), 7 FLRA 578, 585-86 (1982), enforced sub nom. Library of Congress v. Federal Labor Relations Authority, 699 F.2d 1280 (D.C. Cir. 1983); Local 1688, International Brotherhood of Electrical Workers and U.S. Army Engineer District, Omaha, 5 FLRA 44, 48-49(1981). Therefore, as to this general exception, the Authority concludes that the Agency's assertions in support of the exception constitute nothing more than disagreement with the Arbitrator's interpretation of the parties' collective bargaining agreement, unsupported speculation, and an attempt to relitigate the merits of the dispute before the Authority. Consequently, the exception provides no basis for finding this part of the award deficient. See, e.g., Naval Air Rework Facility, Cherry Point, North Carolina and International Association of Machinists and Aerospace Workers, Local Lodge 2297, 14 FLRA 497, 498(1984); Colorado Air National Guard, Buckley ANG Base and Association of Civilian Technicians, the Columbine Council, 7 FLRA 3, 6-7(1981). The Agency's exceptions to the specific corrective actions ordered by the Arbitrator will be considered separately below. /2/ The Arbitrator directed the Agency, in pertinent part, to take the following actions: (1) to install or have GSA install a barrier or other form of protection against the cold on the first floor of 26 Federal Plaza; (2) to have all areas of the Brooklyn Citizenship Office building periodically exterminated and to arrange for and obtain appropriate cleaning for all facilities and adequate ventilation for all clerical sections in that building; (3) to obtain and install an effective barrier at the American Airlines terminal at John F. Kennedy International Airport to prevent jet fumes from reaching the area where Agency employees are stationed and to obtain extermination services for all areas at the airport where its employees are stationed if such services are not rendered on a regular basis by the New York/New Jersey Port Authority and/or the airlines. In its exceptions to those portions of the Arbitrator's award, the Agency contends, among other things, that the Arbitrator exceeded his authority. In support of its exception, the Agency argues that 26 Federal Plaza is owned and operated by GSA; that the Brooklyn Citizenship Office building is leased by GSA from a private owner; and that JFK International Airport is owned by the Port Authority and the terminals at the airport are leased by the airlines. Consequently, the Agency further argues, it is without authority to take the actions ordered by the Arbitrator or to compel GSA, the Port Authority or the airlines to do so. The Agency acknowledges that it properly may be required to request the organizations which control the buildings and work areas to take the actions described and indicates that it has or will comply with the award to that extent. However, the Agency essentially maintains that to the extent the award directs it to actually accomplish the corrective actions if the requests do not achieve the intended results, the award exceeds the Agency's and, therefore, the Arbitrator's authority. As to this exception, the Authority finds, in agreement with the Agency, that the Arbitrator could not properly direct the Agency to take the actions described in the disputed portions of his award, which actions were within the purview of GSA, the Port Authority or the airlines and not within the purview of the Agency. /3/ The Arbitrator could properly direct the Agency to take only those actions which were within its authority and which, of course, would not violate law, rule or regulation. The Authority therefore concludes, in agreement with the Agency, that the Arbitrator exceeded his authority to the extent he directed the Agency to take actions which were not within its purview. To that extent, the Arbitrator's award is deficient and must be modified. /4/ Accordingly, the disputed portions of the award here addressed are modified to provide that the Agency shall take whatever actions are within its authority in the specific situations involved, including requesting appropriate third parties (1) to install a barrier or other form of protection against the cold on the first floor of 26 Federal Plaza; (2) to have all areas of the Brooklyn Citizenship Office building periodically exterminated and cleaned and to provide adequate ventilation for all clerical sections in that building; and (3) to install an effective barrier at the American Airlines terminal at JFK International Airport to prevent jet fumes from reaching Agency employee work areas and to provide extermination services for all areas at the airport where Agency employees are stationed. In other portions of his award related to Agency employee work areas at JFK Airport, the Arbitrator directed the Agency to request Pan American World Airways and British Airways to continue to use climate controls during the appropriate summer and winter months in those areas of their terminals staffed by Agency employees. Additionally, the Arbitrator directed the Agency to request Pan American Airways not to use its overhead baggage conveyor belts during peak passenger inspection periods. The Arbitrator further directed that if the airlines do not comply with the request, the Agency is to inform the airlines that their failure to comply might require the Agency to: (1) Revoke the airline terminals' designation as ports of entry; (2) Revoke permission for passenger inspection at those terminals; or (3) Reduce the number of Agency inspectors stationed at the terminals to a minimum. Finally, the Arbitrator directed that if Pan American and British Airways still decline to provide adequate climate controls as requested, the Agency is to supply all areas where its employees are stationed with an adequate number of electric heaters and fans sufficient to rectify the cold and heat problems identified by the Health and Safety Committee. The Agency did not file an exception to that portion of the award directing it to request the airlines to take the actions described. However, the Agency contends that the portion of the award which in effect directs the Agency to threaten to impose the sanctions described if the airlines refuse the requests is deficient because, among other things, it interferes with management's rights under section 7106 of the Statute. The Authority agrees. It is well-established that an arbitrator's award may not interpret or enforce a provision of a collective bargaining agreement so as to improperly deny the authority of an agency to exercise its statutory rights under section 7106 of the Statute. E.g., Veterans Administration Hospital, Lebanon, Pennsylvania and American Federation of Government Employees, AFL-CIO, Local 1966, 11 FLRA 193(1983). Section 7106(a)(1) of the Statute reserves to management the exclusive authority to determine the mission of the agency, and section 7106(b)(1) reserves to management the authority to determine the number of employees or positions assigned to any work project. In terms of this case, designation of ports of entry for aliens arriving by aircraft and the examination and inspection of passengers entering the United States at those ports clearly are so integrally related to the mission of the Agency (8 U.S.C. 1223, 1225 and 1229) that they must be considered matters which are exclusively reserved to management by section 7106(a)(1). Similarly, the number of inspectors to be assigned to the terminals is a matter reserved to management by section 7106(b)(1), unless the Agency elects to negotiate with the Union regarding the matter and the record reflects that the Agency has not negotiated this matter with the Union. Therefore, by directing the Agency to threaten to revoke port of entry designations and permission for examination of passengers at the Pan American and British Airways terminals, the Arbitrator's award directly interferes with management's exclusive right under section 7106(a)(1) to determine its mission. Furthermore, by directing the Agency to threaten to reduce the number of inspectors assigned to the terminals, the award interferes with management's right under section 7106(b)(1) to determine the number of employees assigned to the terminals. Consequently, this aspect of the Arbitrator's award is deficient and is hereby set aside. /5/ The Agency also contends that the portion of the award directing the Agency to supply electric heaters and fans if the airlines decline to provide adequate climate controls is deficient for two reasons. First, the Agency contends that the heaters and fans involve the technology, methods and means of performing work, a matter reserved to management under section 7106(b)(1) of the Statute. However, the Authority concludes that the Agency has failed to establish that heaters and fans are sufficiently related to the work of the Agency to be considered technology, methods or means of performing work within the meaning of section 7106(b)(1). See AFSCME and Library of Congress, 7 FLRA at 587-88. Accordingly, this contention provides no basis for finding the disputed portion of the award deficient. Second, the Agency essentially contends that the Arbitrator exceeded his authority by directing the Agency to supply electric heaters and fans for employee work areas. In support of this exception, the Agency argues that electrical wiring necessary for the operation of heaters and fans is not within the control of the Agency, that the existing wiring in the work areas is inadequate for that purpose, and that the Agency is without authority to either install or require the airlines to install sufficient wiring. As to this exception, the Authority finds that the Agency has established that the Arbitrator exceeded his authority to the extent that his award requires any preliminary actions which are outside the purview of the Agency, that is, those actions which must be taken before the Agency properly could supply heaters and fans for the employee work areas. Thus, a prerequisite determination as to the adequacy of wiring for the safe operation of heaters and fans and the installation of any additional wiring that may be necessary for such safe operation are actions within the authority of the appropriate airline or Port Authority office and not the Agency. Therefore, to the extent that this portion of the award entails such prerequisite actions, the award is deficient as in excess of the Arbitrator's authority. However, as the Agency has previously acknowledged, the Agency properly may be required to request that such necessary preliminary actions be taken by the appropriate airline or Port Authority office. Accordingly, this portion of the Arbitrator's award is modified to provide as follows: If the airlines decline to provide continuous climate control as requested, the Agency shall request the appropriate airlines and/or Port Authority office to ensure that sufficient electrical wiring is installed for the safe operation of heaters and fans in Agency employee work areas. When it is determined that such wiring has been installed, the Agency shall supply an adequate number of heaters and fans for the employee work areas to rectify the cold and heat problems identified by the Safety and Health Committee. Issued, Washington, D.C., September 30, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The national and local offices of the Union separately filed timely oppositions. The Agency objected and requested that one of the submissions be rejected. However, the Authority has determined that it will consider both timely submissions as a combined opposition of the Union. In its opposition, the Union contends, among other things, that the Department of Justice lacks standing to file exceptions to the award because the Department was not a "party" to the arbitration and that only the INS could file exceptions. However, the Authority finds that the exceptions were properly filed by the Department on behalf of the INS. See, e.g., United States Department of Justice, Immigration and Naturalization Service and American Federation of Government Employees, Local 1917, 14 FLRA 638 n. 1 (1984). /2/ The record reflects that subsequent to the Arbitrator's award, the Agency vacated the Service Processing Center. Therefore, the portion of the award directing specific actions with respect to that facility and the related dispute between the parties as raised by the Agency's exceptions to that portion of the Arbitrator's award specifically pertaining to the Service Processing Center are dismissed. /3/ See, e.g., AFSCME and Library of Congress, 7 FLRA at 585-86; American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C., 8 FLRA 409, 411-13(1982). /4/ In view of this decision, it is not necessary to address the Agency's other exceptions to the disputed portions of the Arbitrator's award. /5/ In view of the Authority's decision with respect to this exception, it is unnecessary to address the Agency's other exceptions to this part of the award. . display memory User Memory Variables USEBLNKLIN pub L .F. USECNTLINE pub L .F. GOTONEXTDE pub L .T. 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