45:0329(29)AR - - AFGE, National INS Council, Local 2012 and INS, Eastern Region - - 1992 FLRAdec AR - - v45 p329
[ v45 p329 ]
The decision of the Authority follows:
45 FLRA No. 29
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Monroe Berkowitz filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency filed an opposition to the Union's exceptions.
The Arbitrator denied a grievance claiming that the Agency violated the parties' collective bargaining agreement by implementing changes in overtime procedures. For the following reasons, we conclude that the Union has failed to establish that the award is deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
The Commissioner for the Eastern Region of the Immigration and Naturalization Service issued an order directing that district offices immediately reduce inspectional overtime spending by 10 percent due to budgetary constraints. Thereafter, the Philadelphia District Director informed the Union that he was proposing to make changes in overtime procedures in order to comply with the Commissioner's directive. The Agency offered to bargain with the Union over the impact and implementation of the proposed changes. The Union declined on the grounds that the matter of overtime procedures was a subject of negotiations at the national level and, thus, negotiations at the local level were precluded until national level negotiations were completed. The Agency determined that it could not delay its proposed reduction of overtime expenditures, in view of the financial situation, and implemented the changes. The Union thereupon filed a grievance protesting the changes and requesting backpay for all affected employees.
The issue before the Arbitrator was whether the Philadelphia District violated the parties' agreement in implementing changes to its overtime procedures at the local level before policies were agreed to at the national level.
The Union claimed that the Agency's conduct constituted bad faith bargaining and violated Articles 2 and 27E of the parties' agreement by insisting on formal negotiations with the local Union.1/ The Union maintained that "'[t]he Philadelphia district could not in good faith negotiate with the local Union on matters of overtime until such time as the national policy in that area took effect.'" Award at 3. The Union also claimed that the Agency violated section 251 of the Immigration and Nationality Act (the Act) and thereby violated Article 2 of the agreement, because "incoming vessels were not inspected 'on arrival.'"2/ Id.
The Agency asserted that it was under a mandate to reduce overtime spending and that it implemented the changes in overtime procedures when the Union failed to respond to the Agency's attempts to negotiate. The Agency also claims that it implemented the changes rather than risk violating the Anti-Deficiency Act.3/ Finally, the Agency asserted that its actions complied with Article 9 of the agreement, which sets forth procedures for impact bargaining when changes in existing working conditions are contemplated.
The Arbitrator found that the Agency had not violated the parties' agreement when it implemented changes in overtime procedures. Initially, the Arbitrator discussed the Union's contention that the Agency violated section 251 of the Act. The Arbitrator found that he lacked jurisdiction over the issues of whether unspecified vessels were inspected on arrival and whether there was any violation of law occasioned by a delay in the delivery of certain documents on arrival. He also found that it was not clear that the Union had any standing to raise these matters but that, in any event, there was no showing that any Union member was disadvantaged by any delay in the inspection of vessels.
Next, the Arbitrator found that, while the delay in ship inspection may not have disadvantaged the employees, other changes in the overtime procedures did have such an effect. Specifically, the Arbitrator noted that a reduction in overtime spending necessarily reduced employees' overtime compensation. However, the Arbitrator noted that no amount of overtime was guaranteed "in the rules, regulations or any of the provisions of the negotiated agreement." Id. at 5.
Finally, the Arbitrator found that, regardless of any mandate to reduce costs, the method used to reduce costs could not violate the parties' agreement. However, the Arbitrator rejected the Union's claims that it could not negotiate at the local level pending negotiations at the national level and, therefore, that no changes could be made by the Agency in overtime procedures. The Arbitrator noted that Article 9 of the agreement sets forth procedures for impact bargaining and constitutes a recognition by the parties that "from time to time, the necessity will arise for changes in . . . policies and practices." Id. at 6. The Arbitrator determined that the Union's refusal to negotiate on the changes in overtime procedures on the basis that the matter was being handled at the national level frustrated the bargaining process and left the Agency "no reasonable alternative but to put the new procedures into effect." Id. The Arbitrator also found that the Agency would have incurred the risk of violating the Anti-Deficiency Act had it not implemented the changes. In the Arbitrator's view, the situation presented was an occasion where local negotiations were "'unavoidable'" within the meaning of "the Devine memorandum . . . ."4/ Id. (quoting the Devine memorandum). Accordingly, the Arbitrator denied the grievance.
III. The Union's First Exception
A. Positions of the Parties
1. The Union
The Union argues that by failing to find a violation of the parties' agreement, the award does not draw its essence from the agreement and violates section 7116(a)(5) of the Statute. The Union claims that the Agency could not insist on bargaining at the local level and then unilaterally implement changes "in local overtime agreements when the governing overtime regulations were at the same time being renegotiated at the national level." Exceptions at 6. The Union maintains that, under Article 2 of the agreement, the parties are required to abide by applicable law, which includes section 7116 of the Statute. According to the Union, it is an unfair labor practice for a party to insist on bargaining at the local level when the same issue is the subject of bargaining at the national level. The Union cites NLRB v. Katz, 369 U.S. 736 (1962) (Katz), in support of this proposition and states that a different standard has not been established in the Federal sector.
In addition, the Union asserts that the only circumstances under which management can implement changes are where the parties have reached agreement, there is no timely invocation of the services of the Federal Service Impasses Panel, or the Union has waived its right to bargain. The Union states, in this case, that there was no waiver of bargaining rights at the local level and that the parties at the national level agreed to defer local bargaining until bargaining at the national level was completed. The Union also claims that the Arbitrator selectively read the provision on mid-term bargaining contained in Article 9 in finding that the agreement authorized the change and, consequently, in concluding that no unfair labor practice occurred. According to the Union, the Arbitrator was required to enforce all the provisions of the agreement and, therefore, the award, "which implements one provision of the agreement while ignoring other pertinent provisions[,] must be overturned as contrary to law[.]" Exceptions at 8.
2. The Agency
The Agency contends that the Union misunderstands the issue involved in this case and that the Union's claim that it is an unfair labor practice for an agency to insist on bargaining at the local level while negotiations are taking place on a matter at the national level is irrelevant. According to the Agency, local negotiations were explicitly authorized under Articles 9 and 50,5/ of the parties' agreement and, as the Arbitrator found, local negotiations over temporary agreements were specifically authorized under the Devine memorandum as well.
The Agency also disputes the Union's reliance on Katz and Authority decisions for the proposition that bargaining cannot be required on the same issue at both the local and national levels. The Agency asserts that Katz did not discuss either simultaneous or sequential bargaining at the local and national levels.
B. Analysis and Conclusions
To demonstrate that an award fails to draw its essence from an agreement, a party must show that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact, and so unconnected with the wording and the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See, for example, U.S. Office of Personnel Management, Central Office and American Federation of Government Employees, Local 32, 44 FLRA 287, 290 (1992).
The Union has not demonstrated that the Arbitrator's award fails to draw its essence from the parties' collective bargaining agreement under any of the tests set forth above. The Arbitrator found that Article 9 of the agreement provided for local impact bargaining and that it was the Union's refusal to negotiate that frustrated the bargaining process and left the Agency with no choice but to implement the changes in overtime procedures. The Arbitrator further found that, in the circumstances presented, local negotiations were unavoidable under the terms of the Devine memorandum.
In our view, nothing in the Arbitrator's interpretation of Article 9 of the parties' agreement is irrational, unfounded, or implausible. The Union's contention that local negotiations were not authorized constitutes mere disagreement with the Arbitrator's interpretation and application of the agreement. Such an exception does not provide a basis for finding the award deficient. See, for example, Ogden Air Logistics Center, Hill Air Force Base, Utah and American Federation of Government Employees, AFL-CIO, Local 1592, 39 FLRA 1282, 1286 (1991).
We also find no merit to the Union's contention that the award is inconsistent with section 7116(a)(5) of the Statute and, therefore, is prohibited by Article 2 of the parties' agreement. As noted, the Arbitrator found that Article 9 of the agreement authorized negotiations over changes in overtime procedures at the local level. Thus, although the parties were negotiating with respect to overtime at the national level, the Arbitrator found sufficient evidence in the parties' agreement to support the Agency's conduct in seeking to negotiate with the Union at the local level and thereafter implementing the changes after the attempts to negotiate proved unsuccessful. In addition, we note that, pursuant to the Devine memorandum, the Agency recognized that any actions taken at the local level were temporary and would ultimately be required to conform to the results reached in the national negotiations. Accordingly, in view of the Arbitrator's finding that local bargaining was permissible under Article 9 and the Agency's recognition that the product of local bargaining could not undercut the outcome of national bargaining, we conclude that the Union has not established that the Arbitrator's application of the agreement to the prevailing local conditions was inconsistent with the Statute.
Additionally, we find that the Union's reliance on Katz is inapposite. In that case, the Supreme Court found that an employer's unilateral implementation of a change in working conditions during the pendency of negotiations violated the employer's obligation to bargain. Notably, the Court held that there could be circumstances justifying an employer's unilateral action. In this case, the Arbitrator essentially found such circumstances when he concluded that the parties had agreed to authorize local impact bargaining in Article 9.
IV. The Union's Second Exception
A. Positions of the Parties
1. The Union
The Union asserts that the Arbitrator erroneously determined that he lacked jurisdiction over the claimed violation of section 251 of the Act. The Union states that the parties' broad scope grievance procedure includes all matters that are not specifically excluded. The Union maintains that, by failing to assert jurisdiction, the Arbitrator essentially added a new exclusion to the grievance procedure, which allows arbitrators to decline jurisdiction over basic legal questions. The Union concludes that the Arbitrator based his award on a nonfact, inasmuch as he had jurisdiction to resolve the issue. Additionally, the Union claims that, by adding a provision to the parties' agreement, the Arbitrator exceeded his authority and failed to perform the function for which he was appointed.
2. The Agency
The Agency claims that the Arbitrator correctly determined that he lacked jurisdiction over the claimed violation of the Act, which the Union raised for the first time in its post-hearing brief, and correctly determined that the Union lacked standing to enforce the provisions of the Act. The Agency further argues that the issue before the Arbitrator was narrowly drawn and did not include an alleged violation of the Act. However, even assuming the issue was properly before the Arbitrator, the Agency claims that disposition of the issue is not relevant to this case or, if relevant, that the Agency could not have violated the Act because the cited section does not address conduct by the Agency.
B. Analysis and Conclusions
We will find an award deficient because it is based on a nonfact when the contending party establishes that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. See, for example, U.S. Department of Justice, Immigration and Naturalization Service and American Federation of Government Employees, National Immigration and Naturalization Service Council, 44 FLRA 559, 564 (1992).
The Union claims that, by failing to assert jurisdiction over an alleged violation of the Act, the Arbitrator based his award on a nonfact, thereby failing to perform his duties and improperly narrowing the coverage of the parties' negotiated grievance procedure. We disagree. However, even if we were to find that the Arbitrator's conclusion that he lacked jurisdiction to resolve the alleged violation of section 251 of the Act was erroneous, the Union has not demonstrated that this determination was a central fact underlying the award, but for which a different result would have been reached.
The thrust of the Union's argument is that the reduction in overtime resulted in the unavailability of inspectors and the Agency's inability to comply with the Act's inspection requirements. However, the Union has not established that the Act imposes either any particular inspection requirements on the Agency or any liability for matters pertaining to inspection. Consequently, the Union has not established that the Arbitrator's finding that he lacked jurisdiction was erroneous or that even if such a finding were erroneous, he would have reached a different result. We note in this regard the Arbitrator's additional finding that no bargaining unit employee was disadvantaged by any possible delays in inspection. Therefore, while claiming not to have jurisdiction over the claimed violation of law, the Arbitrator nonetheless determined that there was no effect on unit employees' conditions of employment. Consequently, we find no basis on which to conclude that the award is based on a nonfact. See U.S. Department of the Navy, Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 41 FLRA 535, 539-40 (1991). Moreover, we reject the Union's assertion that the Arbitrator exceeded his authority by adding a new exclusion to the scope of the negotiated grievance procedure. The Arbitrator did not find, as a general matter, that the parties' agreement precluded the resolution of claimed violations of law. The Arbitrator merely addressed that issue within the particular circumstances of this case. For this reason, and because the Arbitrator addressed the effect of the claimed violation of law on unit employees' conditions of employment, we also reject the Union's contention that the Arbitrator failed to perform his functions.
V. The Union's Third Exception
A. Positions of the Parties
1. The Union
The Union claims that the portion of the award addressing the Anti-Deficiency Act is based on a nonfact because it ignores the requirements of the Statute that parties bargain over changes in working conditions. The Union states, without support, that "[t]he Authority has already held that not even dire financial circumstances justify violation of the [S]tatute . . . ." Exceptions at 9.
2. The Agency
The Agency agrees with the Union that a risk of violating the Anti-Deficiency Act does not justify violating a collective bargaining agreement. However, the Agency maintains that the Arbitrator made no such finding here but, rather, found that the possibility of violating the Anti-Deficiency Act is what made the local negotiations '"unavoidable'" within the meaning of the Devine memorandum. Opposition at 12. In the Agency's view, the issue of the Anti-Deficiency Act pertained only to whether the Agency violated the terms of the Devine memorandum and not to a violation of the parties' agreement.
B. Analysis and Conclusions
We find no basis to sustain the Union's exception. Contrary to the Union's contention, the Arbitrator did not hold that the provisions of the Anti-Deficiency Act permitted the Agency to ignore the bargaining obligations contained in the Statute. Rather, the Arbitrator addressed the Anti-Deficiency Act while assessing the Agency's conduct in implementing the changes in overtime procedures. As we previously stated, the Arbitrator concluded that the parties' agreement authorized bargaining at the local level and, further, that the Agency's conduct did not violate the agreement because the Agency implemented the changes only after the Union refused to enter into such negotiations. The Arbitrator further found that, as the Union failed to honor its obligation to bargain, the Agency's risk of violating the Anti-Deficiency Act created an unavoidable situation that justified the Agency's action. The Union has not established that the Arbitrator's finding concerning the Anti-Deficiency Act was a central fact underlying the award or that it was clearly erroneous, but for which a different result would have been reached by the Arbitrator. In our view, the Union is merely disagreeing with the Arbitrator's findings and reasoning. Such an exception does not provide a basis for finding the award deficient. See, for example, American Federation of Government Employees, National Council of Education Locals, Council 252, Local 2607 and U.S. Department of Education, 43 FLRA 820, 825 (1991).
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
1/ The portions of Article 2 cited by the Arbitrator require that, in the administration of the agreement, the parties are governed by existing and future laws, which supercede conflicting provisions of the agreement, and that the terms of the agreement supercede any conflicting rules or regulations issued after the effective date of the agreement. Article 27E provides that "[t]he [Agency] agrees to continue to comply with applicable regulations, laws and policies in the payment of overtime to employees." Award at 3.
2/ Section 251 of the Act pertains to the presentation of documents by the master of a vessel "to an immigration officer '[u]pon arrival of any vessel or aircraft in the United States from any place outside the United States. . . ." Id. See also 8 U.S.C. § 1281(a).
3/ 31 U.S.C. § 1341 (1988).
4/ This memorandum, attached as an exhibit to the Agency's Opposition, is a communication from Michael G. Devine, Assistant Regional Commissioner, Examinations, Eastern Region, to all district directors, advising them that no local agreements were to be entered into until negotiations at the national level were completed. The memorandum also noted, however, that "any local agreement should, if unavoidable, be considered only temporary." Exhibit 4 to Opposition.