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54:0905(89)AR - - AFGE, National Border Patrol Council and Justice, INS, U.S. Border Patrol - - 1998 FLRAdec AR - - v54 p905

[ v54 p905 ]
The decision of the Authority follows:

54 FLRA No. 89















August 31, 1998


Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

Decision by Chair Segal for the Authority.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Edgar A. Jones, Jr. 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 Regulations. The Agency filed an opposition to the Union's exceptions.

The Arbitrator denied a grievance challenging the Agency's refusal to bargain with the Union over certain details of border patrol agents. The Arbitrator concluded that the Agency was not required to bargain because the details were "covered by" the parties' collective bargaining agreement. Award at 26.

For the following reasons, we conclude that the Arbitrator's award is not deficient under section 7122(a) of the Statute. Accordingly, we deny the Union's exceptions.

II. Background and Arbitrator's Award

The Union and the Agency are parties to a collective bargaining agreement that became effective in February 1995. In late 1995, the Agency invited representatives of the Union to meet on the subject of detailing personnel to address an anticipated increase in border-crossing activity. Discussions ensued, but no agreement as to the details was reached.

Thereafter, the Union presented to the Agency bargaining proposals relating to long-term, large-scale details. The Agency responded, as relevant here, that the subject of details was "covered by" the parties' agreement and that the Agency had "satisfied its bargaining obligations with regard to such details . . . ." Id. at 13. The Union filed a grievance alleging that the Agency had violated the parties' agreement and sections 7116(a)(1), (5), and (6) of the Statute by refusing to bargain over the details.(1) The Agency denied the grievance, and the Union invoked arbitration.

The parties permitted the Arbitrator to frame the issues. Although the Arbitrator did not explicitly state the issue, he stated that the "focal point" for resolution of the grievance was "[to] be found in the cluster of contractual provisions that involve operational details" that the parties had negotiated. Id. at 21-22. The Arbitrator noted that these provisions had been a part of the parties' agreement since 1975.

The Arbitrator reviewed Articles 16, 25, and 26 of the parties' agreement,(2) describing them as the "accumulated contractual terms" dealing with personnel detail issues. Id. at 22. According to the Arbitrator, these articles addressed documentation, temporary promotions, competitive assignment procedures, salary adjustments, and dispute resolution procedures concerning details (Article 16.H); uniforms worn on details (Article 25.D); and advance notice and duration of details (Article 26.N and 26.O). The Arbitrator also reviewed Article 4.B, finding that the "flip side" of the article's statement that "nothing shall preclude the parties from negotiating procedures . . ." is that "neither party can compel the other" to negotiate. Id. (emphasis in original).

The "tenor" of these contract provisions, the Arbitrator concluded, contradicted the Union's claim that the Agency was obligated to bargain over the disputed details. The Arbitrator specifically rejected the Union's argument that the parties did not intend their agreement to cover long-term, large-scale details. According to the Arbitrator, the agreement "cover[s] all details," and "[n]o exception [was] expressly or impliedly provided by the parties for coping with . . . long-term details." Id. at 25 (emphasis in original).

Based on the foregoing, the Arbitrator concluded that the Agency was not obligated to bargain over the details. Accordingly, the Arbitrator denied the grievance.

III. Positions of the Parties

A. Union's Exceptions (3)

The Union argues that the Arbitrator failed to apply the test articulated in U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004 (1993) (SSA), for determining whether the subject of long-term, large-scale details is covered by the parties' agreement. According to the Union, the facts in this case are similar to those in Social Security Administration, Area IX of Region IX 51 FLRA 357 (1995) (Area IX), where "some tangential mention of details" in the agreement was not sufficient to satisfy the Authority's "covered by" standard. Exceptions at 6.

The Union also disputes the Arbitrator's interpretation of Article 4.B. The Union argues that because this article reiterates the management rights provision in the Statute, the Arbitrator's interpretation of it is subject to greater than normal scrutiny. According to the Union, by interpreting Article 4.B to mean that the Agency need only negotiate over mid-term changes at its election, the Arbitrator exceeded the scope of his authority and issued a ruling that is contrary to law, rule and regulation.

2. Agency's Opposition

The Agency asserts that the Union's exceptions were untimely filed because they were not filed within 30 days of the date of service of the Arbitrator's award. According to the Agency, section 2429.22(a) of the Authority's Regulations, which provides an additional 5 days for filing when an award is served by mail, is invalid.(4) Opposition at 8 (citations omitted).

On the merits, the Agency argues that the Arbitrator did not misapply SSA. The Agency also asserts that the Arbitrator's statements regarding Article 4.B are consistent with Authority case law and that, even if the statements were incorrect, they were not the basis for the award and, therefore, would not render the award deficient.

IV. Analysis and Conclusions

A. The Union's Exceptions Were Timely Filed

The Authority previously determined that there is "no indication in the legislative history of section 7122(b) of the Statute [suggesting] that Congress intended to preclude the additional 5 days provided by section 2429.22 of the regulations to the time period for filing exceptions when service is by mail." Association of Civilian Technicians and Pennsylvania National Guard, 27 FLRA 96, 98 (1987) (National Guard). According to the Authority, the regulation "is consistent with the [congressional intent] that a full 30-day period be available to parties for filing exceptions to an arbitration award." Id. at 97-98.

The decisions relied on by the Agency to contest section 2429.22 of the regulations are inapposite because they construe provisions outside the Statute with wording different from the Statute. See, e.g., Railway Labor Executives' Association v. National Mediation Board, 29 F.3d 655, 661-71 (D.C. Cir. 1994) (court considered regulation permitting National Mediation Board to investigate and resolve representation petitions sua sponte in light of Board's authority under Section 2, Ninth of the Railway Labor Act, 42 U.S.C. § 152 Ninth); Clayton Brokerage Co. v. Bunzel, 820 F.2d 1459, 1461 (9th Cir. 1987) (court construed phrase requiring appeal "within 30 days from and after the date of the reparation order" in the Commodity Exchange Act, 7 U.S.C. § 18(e)). The Agency provides no other reason to depart from the holding in National Guard. Thus, the Authority affirms National Guard. As there is no dispute that the Arbitrator's award was served by mail and that, if section 2429.22 of the regulations is applied, the exceptions were timely filed, the Union's exceptions are properly before us.

B. The Award Is Not Inconsistent With Law

The Authority reviews the questions of law raised by the award and the Union's exceptions de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. National Federation of Federal Employees, Local 1437 and Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998) (Army Research). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id. The Authority also defers to an arbitrator on questions of contract interpretation. See id. at 1709 n.4.

Here, the Union claims that the Arbitrator erred in failing to find that the Agency committed an unfair labor practice. In a grievance alleging an unfair labor practice by an agency, the union bears the burden of proving the elements of the alleged unfair labor practice by a preponderance of the evidence. American Federation of Government Employees, Local 940 and U.S. Department of Veterans Affairs, Philadelphia, Pennsylvania, 52 FLRA 1429, 1438-39 (1997).

As the Union argues, determining whether the Agency was required to bargain over the disputed details requires application of the test articulated in SSA.(5) This test first requires a determination as to whether the subject matter "is expressly contained in the collective bargaining agreement." SSA, 47 FLRA at 1018. "[E]xact congruence of language" is not required. Id. "[I]f a reasonable reader would conclude that the provision settles the matter in dispute," the subject matter is covered by the agreement, and the agency's statutory duty to bargain has been satisfied. Id. If it is determined that the subject matter is not expressly contained in the agreement, then it should be determined whether the matter is "inseparably bound up with and . . . thus [is] plainly an aspect of . . . a subject expressly covered by the contract." Id. (Citations omitted.) In this regard, the examination focusses on whether "the parties reasonably should have contemplated that the agreement would foreclose further bargaining in such instances." Id. at 1018-19. If the matter is only "tangentially related" to provisions in the parties' agreement and not one that "should have been contemplated as within the intended scope of the provision," then the subject matter is not "covered by" the agreement. Id. at 1019.

There is no dispute that, as found by the Arbitrator, Articles 16, 25, and 26 of the parties' agreement specifically address details.(6) These articles require that details be documented under certain circumstances, identify when a temporary promotion must ensue as a result of a detail, enumerate when an agency must utilize competitive procedures in assigning details, address the affect of details on employee salaries, establish a grievance procedure for resolving detail disputes, specify required uniform types for employees on detail, limit the length of involuntary details, and mandate advance notice for operational details. As such, this case is similar to USDA Forest Service Pacific Northwest Region Portland, Oregon, 48 FLRA 857 (1993) (Forest Service), where the Authority rejected an argument that details over which the agency allegedly was required to bargain were not covered by the parties' agreement because the relevant contract provisions extensively addressed details of a different type. The contract provisions in Forest Service defined when details may be implemented, when an employee may be excused from a detail, what effect a detail will have on an employee's salary, and how a detailed employee's performance will be evaluated.

The contract provisions addressing details in this case are more comprehensive than those found sufficient to satisfy the agency's bargaining obligation in Forest Service. In addition, unlike the agreement under review in Area IX, which is relied on by the Union, there is nothing in the parties' agreement here, or a supplement thereto, that "consciously reserv[es]" its opportunity to bargain as to the detail. See Area IX, 51 FLRA at 372. Accordingly, consistent with the Authority's decisions in SSA and Forest Service, the Arbitrator did not err in concluding that the Agency was not required to bargain over the disputed details because they are covered by the parties' agreement. In this regard, there is no reason to interpret the award as holding that, even if the disputed details were not covered by the parties' agreement, the Agency would not be required to bargain over them under Article 4.B. Accordingly, we do not address whether the Arbitrator's interpretation of Article 4.B is contrary to law.

V. Decision

The Union's exceptions are denied.


Article 4

Rights and Obligations

. . . .

B. Management officials at the Agency retain the right to determine the mission, budget, organization, numbers of employees, and internal security practices of the Agency; and in accordance with applicable laws and regulations--(1) hire, assign, direct, lay off, and retain employees in the Agency, or to suspend, remove, reduce in grade or pay or take other disciplinary action against such employees; (2) to assign work, to make determinations with respect to contracting out, and to determine the personnel by which Agency operations shall be conducted; (3) with respect to filling positions, to make selections for appointment from among properly ranked and certified candidates for promotion, or any other appropriate source; and (4) to take whatever actions may be necessary to carry out the Agency mission during emergencies.

Nothing in this Contract shall preclude the Agency and the Union from negotiating:

(1) at the election of the Agency on the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project or tour of duty, or on the technology, methods and means of performing work;

(2) procedures which management officials of the Agency will observe in exercising any authority under this Article; or

(3) appropriate arrangements for employees adversely affected by the exercise of any authority under this Article by such management officials.

Article 16

. . . .

H. The parties recognize that details to other positions and activities are necessary and an integral part of mission accomplishment. Details to other activities or to higher graded positions for fifteen (15) consecutive workdays or more will be documented by memorandum to the employee with a copy to his or her official personnel folder. The Agency will not use details to avoid filling positions at a higher grade level, nor will they be made on the basis of personal favoritism. Should the requirements of the Agency necessitate an employee's being detailed to a lower position, this will in no way adversely affect the employee's salary, classification, or job standing.

If a detail of more than 60 calendar days is made to a higher grade position, or to a position with known promotion potential, it must be made under competitive promotion procedures.

If an employee alleges that a detail violates FPM regulations or this agreement, he or she may file a grievance under the negotiated grievance procedure.

Article 25

. . . .

D. Unless it is definitely known that three types of dress shall be required for performance of duty on detail (TDY), requirement for transporting uniforms shall be limited to either the rough duty or dress uniforms in addition to appropriate clothing for plain clothes duty.

Article 26
Travel and Per Diem

. . . .

N. The Agency agrees that for operational details requiring advance planning, as much advance notice as possible will be given to employees selected for detail.

O. Except for training courses, details away from the normal duty station will not exceed 35 calendar days, unless the employee volunteers for a longer period.

(If blank, the decision does not have footnotes.)

1. The Union also requested assistance from the Federal Mediation and Conciliation Service and the Federal Service Impasses Panel, which subsequently declined to assert jurisdiction over the matter. Before the Arbitrator, the Union alleged that the Agency's implementation of the disputed details violated section 7116(a)(6) of the Statute. Because the Arbitrator found that the Agency was not obligated to bargain over the details, he did not address this allegation. In view of our determination that the Arbitrator's award is not deficient, and the parties' agreement that the section 7116(a)(6) issue is reached only if an underlying obligation to bargain is found, we do not address this issue further.

2. Relevant contract provisions are included in the appendix to this decision.

3. In addition to the two arguments included here, the Union makes an assertion in the introductory section of its exception, but provides no supporting argument, that the award fails to draw its essence from the parties' agreement. See Exceptions at 3. Such an unsupported assertion does not provide a basis for finding an award deficient. See U.S. Department of the Air Force Oklahoma City Air Logistics Center Tinker Air Force Base, Oklahoma, 44 FLRA 527, 530 (1992). Accordingly, the Union's exception is summarily denied.

4. Section 2429.22 states:

Except as to the filing of an application for review of a Regional Director's Decision and Order under § 2422.31 of this subchapter, whenever a party has the right or is required to do some act pursuant to this subchapter within a prescribed period after Agency of a notice or other paper upon such party, and the notice or paper is served on such party by mail, 5 days shall be added to the prescribed period: Provided, however, that 5 days shall not be added in any instance where an extension is granted.

5. As SSA was decided almost 2 years before the parties' agreement became effective, we apply it here despite the Union's assertion that relevant contract provisions find their genesis in previous collective bargaining agreements that predated SSA.

6. We note that the Arbitrator did not expressly apply SSA in the award. That failure does not render the award deficient because, as stated infra, in applying the standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with law, based on the underlying factual findings. See Army Research, 53 FLRA at 1710.