National Treasury Employees Union, Chapter 137 (Union) and United States, Department of Homeland Security, Bureau of Customs and Border Protection (Agency)
[ v60 p483 ]
60 FLRA No. 96
DEPARTMENT OF HOMELAND SECURITY
BUREAU OF CUSTOMS
AND BORDER PROTECTION
December 17, 2004
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1]
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Roger Abrams filed by the Union under § 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. Both parties also filed supplemental submissions. [n2]
The grievance alleged that the Agency violated § 7116(a)(1) and (5) of the Statute as well as provisions of the parties' national collective bargaining agreement, past practice, and local agreement by refusing to bargain at the local level over the impact and implementation of a change in overtime assignment practices in Fort Pierce, Florida. The Arbitrator denied the grievance.
For the following reasons, we deny the Union's exceptions.
II. Background and Arbitrator's Award
This case arises out of a dispute stemming from the Agency's implementation in 2001 of its revised National Inspectional Assignment Policy (RNIAP). [n3] The RNIAP replaced an earlier NIAP that had been negotiated and implemented in 1995. The 1995 NIAP provided for the local negotiation of matters set forth in § 7106(b)(1) of the Statute, including staffing levels and tours of duty at the local level.
As relevant here, a Local Inspectional Assignment Policy (LIAP) was negotiated in February 1996 between NTEU, Chapter 137 (the local Union) and the Port of West Palm Beach, which includes the Fort Pierce station. The LIAP provided that "Sunday assignments and cruise passenger overtime will be scheduled according to current practice." Award at 10 (quoting Ft. Pierce Jt. Ex. 4). [n4]
By letter dated August 2, 2001, the Agency notified the National Treasury Employees Union (the national Union) that it no longer intended to be bound by provisions in the parties' National Labor Agreement (NLA) in which the Agency had agreed to bargain over [§ 7106](b)(1) matters. [n5] The letter also stated that the Agency would not be bound by provisions in other agreements, including the 1995 NIAP and existing LIAPs, "which contain provisions that involve § 7106(b)(1) matters, including several that require local level bargaining on such things as minimum staffing levels and tours of duty." Award at 5 (quoting Ft. Pierce Jt. Ex. 1). Along with this letter, the Agency transmitted [ v60 p484 ] a copy of its proposed RNIAP, which included the following language in section 3, entitled "Precedence and Function":
The policies and procedures contained in this [RNIAP] take precedence over any and all other agreements, policies, or other documents or practices executed or applied by the parties previously, at either the national or local levels, concerning matters covered within this [RNIAP].
The policies and procedures [in the RNIAP] reflect the parties' full and complete agreement on matters contained and addressed herein. No further obligation to consult, confer, or negotiate, either upon the substance or impact and implementation of any decision or action, shall arise upon the exercise of any provision, procedure, right or responsibility addressed or contained within this [RNIAP].
After receiving the August 2 letter and the proposed RNIAP, the national Union requested bargaining over the impact and implementation of the proposed RNIAP. The national Union also indicated that it intended to renegotiate provisions of the expired NLA along with the proposed RNIAP. The national Union proposed certain ground rules for the negotiations; however, the national Union and the Agency did not reach agreement on these ground rules.
Following an exchange of correspondence, the Agency implemented the proposed RNIAP nationwide on October 1, 2001, and notified the national Union on that date that it was doing so. [n6] The Agency directed all Directors of Field Operations and Port Directors to implement the RNIAP, and "instructed its managers and supervisors to make determinations regarding shifts, assignments of overtime, tours of duty[,] and work hours . . . without further bargaining with NTEU." Id. at 7-8.
On October 7, 2001, following the implementation of the RNIAP, local Agency management at Fort Pierce assigned a supervisor who was on a regularly scheduled shift to perform inspectional duties instead of assigning the duties to a bargaining unit inspector on overtime. When local Agency management did not provide the local Union with an opportunity to bargain over the change in assigning overtime to supervisory personnel, the instant grievance was filed. The grievance alleged, among other things, that the Agency's action violated the LIAP, past practice, and § 7116(a)(1) and (5) of the Statute. The grievance was not resolved and was submitted to arbitration.
The Arbitrator denied the grievance. Citing the Authority's decision in Customs Service, the Arbitrator found that the "underlying legality of the Agency's [RNIAP] has been determined" by the Authority, and that implementation of the RNIAP was "lawful" and "did not violate the parties' Agreement or national law." Award at 21, 25. The Arbitrator further stated:
If the policy was lawful, Agency actions taken pursuant to its terms must be lawful, otherwise declaring the policy's implementation lawful has no meaning. The policy reasons previously offered in support of the `covered- by doctrine' apply here as well. Stability and repose in labor relations is fostered by the conclusion that matters included in a lawfully implemented policy be considered settled.
When an `arrangement' (for want of a better word) results from a lawful, albeit unilateral, management implementation after impasse, it must be considered binding on the parties at least until the end of the bargaining impasse. In the present case, the [RNIAP] must be considered binding until altered in . . . accordance with the provisions of the Statute. As far as the record indicates, that has not yet happened.
Id. at 26 (underscoring in Award; footnote omitted).
The Arbitrator then addressed "whether under the revised `lawful' [RNIAP] the Agency had the obligation to bargain with the Union about the Ft. Pierce Sunday overtime assignment." Id. at 27. As to this question, the Arbitrator concluded:
[This is] an area where there cannot be too much controversy. Local bargaining is abolished under the [RNIAP]. The Agency's local action must stand, and the grievance must be denied.
Id. In this respect, noting that the local overtime assignment protested by the local Union occurred less than a week after the national implementation of the lawful RNIAP, the Arbitrator concluded that the "local action protested was `covered by' the [RNIAP]." Id. The Arbitrator further stated that "[w]hen the parties negotiate their next National Agreement, the mandatory subjects [ v60 p485 ] involving the implementation of the Agency's policy on inspectional assignment are once again subject to the Statute's bargaining obligation[, and] [a]t that point, the Agency will be required to bargain with the Union." Id.
As his award, the Arbitrator stated:
The Agency's implementation of changes in working conditions regarding Sunday overtime assignments in Ft. Pierce under the umbrella of the [RNIAP] [was] lawful and did not violate the parties' [a]greement. Therefore, the grievance is denied.
Id. at 28.
III. Union's Exceptions
The Union maintains that the award is contrary to law on essentially two grounds.
First, the Union asserts that the Arbitrator erred in applying the "covered by" doctrine in a case where there is no underlying collective bargaining agreement. According to the Union, the Arbitrator reasoned that although the RNIAP was not a collective bargaining agreement, the "covered by" doctrine nonetheless still applied because the Authority had determined that the RNIAP was lawfully implemented and, therefore, section 3 of the RNIAP permitted the Agency's action in this case. The Union asserts that the Arbitrator erred because in Customs Service "the Authority made no finding on whether Section 3 of the RNIAP was lawful, enforceable or had any viability precluding all future bargaining by the [U]nion over changes in working conditions." Id. at 5. The Union contends that the Authority has never applied the "covered by" doctrine in the absence of a negotiated agreement, and to allow the Arbitrator to apply it here would be inconsistent with a fundamental purpose of the Statute to allow employee participation through collective bargaining in decisions that affect employees.
Second, the Union maintains that the Arbitrator's finding that local bargaining was abolished by section 3 of the RNIAP is contrary to law because the Union did not clearly and unmistakably waive its future bargaining rights. In this regard, the Union maintains that: (1) there is no express agreement waiving the Union's right to bargain locally; and (2) there is no support in the record for the Arbitrator's "de-facto waiver theory"; namely, that the parties' bargaining history shows that the Union "waived its rights under Section 3 to bargain over all future changes in conditions of employment either at the local or national levels." Id. at 10. In particular, the Union maintains that although the Authority found in Customs Service that the RNIAP was lawfully implemented, "Section 3 cannot be enforced against the Union as the basis for concluding that all local future bargaining over matters contained [in the RNIAP] was abolished as the [A]rbitrator erroneously concluded." Id. at 13.
IV. Agency's Opposition
The Agency maintains that the Arbitrator properly concluded that the local change in overtime assignment policy in Fort Pierce was "covered by" the RNIAP. Opposition at 5. The Agency also maintains that the RNIAP "terminates the [A]gency's election to engage in-local bargaining in Section 3[.]" Id. The Agency asserts that section 3 "specifically repudiate[d] previous local agreements and practices and obviate[d] the need to bargain locally over inspectional assignments" upon implementation of the revised RNIAP. Id. The Agency notes that "[t]he level of recognition is indisputably at the national level, and thus any local bargaining was completely permissive." Id. Thus, the Agency maintains that the Union had no right to insist on bargaining with management officials on inspectional policies "at a local level" on or after the implementation of the RNIAP. Id. (emphasis in original).
In addition, the Agency maintains that section 3 did not create a waiver of the Union's statutory right to bargain. Rather, the Agency maintains that section 3 "merely seeks to have the [U]nion fully exercise its statutory right (not permissive right) to bargain up front at the national level of recognition, over the procedures and arrangements to be applied to future local inspectional assignment matters[,]. . . instead of ad hoc bargaining on all future changes in local inspectional assignment policies[.]" Id. at 8.
V. Analysis and Conclusions
The Union excepts to the Arbitrator's award under § 7122(a)(1) of the Statute on the ground that the award is contrary to law. As the Union's exceptions concern whether the award is contrary to law, the Authority's review is de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See United States DoD, Dept's of the Army and Air Force, Ala. National Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id. [ v60 p486 ]
The dispute in this case concerns whether the Agency had an obligation to bargain, at the local level, with respect to a change in a local condition of employment. As his award, the Arbitrator concluded that the Agency had no obligation to bargain at the local level.
In so concluding, the Arbitrator relied on the Authority's determination in Customs Service that the RNIAP was lawfully implemented. In Customs Service, the Authority found, as an initial matter, that the Agency's implementation of the RNIAP constituted the Agency's exercise of its rights under § 7106(a) and § 7106(b)(1) of the Statute and, as a result, the Agency was obligated to bargain only over the impact and implementation of the RNIAP. The Authority concluded that the national Union improperly conditioned bargaining over the impact and implementation of the RNIAP on bargaining over a new term agreement to replace the expired NLA -- a matter that was outside the scope of the Agency's impact and implementation bargaining obligation concerning the RNIAP. Because the national Union improperly conditioned bargaining over the impact and implementation of the RNIAP in this manner, the Authority concluded that the Agency had satisfied its bargaining obligation and, therefore, the Agency's unilateral implementation of the RNIAP was lawful. [n7]
As noted above, the Arbitrator found that since the Authority had held in Customs Service that the RNIAP was lawful, Agency actions taken pursuant to its terms must also be lawful. The Arbitrator further found that the policy reasons that were used by the Authority in support of the "covered by" doctrine apply here as well; that is, that stability and repose in labor relations is fostered by the conclusion that matters included in a lawfully implemented policy be considered settled. Because the relevant matter in the lawfully implemented RNIAP--local bargaining over local overtime assignment scheduling--was abolished by the RNIAP, the Arbitrator concluded, as his award, that the Agency's implementation of changes in working conditions regarding Sunday overtime assignments in Fort Pierce under the RNIAP was lawful and did not violate the parties' agreement.
The Union now excepts to the award essentially on the grounds that the Arbitrator erroneously applied the "covered by" and waiver doctrines. For the following reasons, which differ in part from those of the Arbitrator, we find that the Arbitrator's conclusion that there was no obligation to bargain at the local level in the circumstances of this case is not contrary to law.
We begin our analysis by noting that the level of exclusive recognition here exists at the national level, that is, between the national Union and the Agency. Under Authority precedent, it is well established that there is no statutory obligation to bargain below the level of recognition. See, e.g., United States Food and Drug Admin., Northeast and Mid-Atlantic Regions, 53 FLRA 1269, 1274 (1998) (U.S. Food and Drug Admin.) (parties' mandatory bargaining obligation is limited to bargaining at certified level of exclusive recognition and therefore bargaining below level of recognition is a permissive subject of bargaining); Dep't of Defense Dependents Schools, 12 FLRA 52, 53 (1983) (since union's exclusive recognition is at national level, the Statute does not require negotiations at other than national level). As such, the statutory bargaining obligation with respect to the matter in this case resides at the national level, not the local level.
Consistent with that obligation, the parties at the national level negotiated the 1995 NIAP, which concerned inspectional assignment matters. In addition, and consistent with their ability to negotiate over permissive subjects of bargaining, the parties at the national level agreed to negotiate at levels below the level of exclusive recognition -- that is, at local levels -- over LIAPs that addressed staffing practices based on the specific needs of each port. As a consequence of this delegation, the local Union and local Agency management negotiated the 1996 LIAP, which covered local matters and applied to employees at the Fort Pierce facility.
When the parties' NLA expired in 1999, either party was free to lawfully terminate permissively negotiated matters. See, e.g., United States Border Patrol Livermore Sector, Dublin, Cal., 58 FLRA 231, 233 n.5 (2002) (Border Patrol) (permissive terms of an expired contract remain in effect but may be unilaterally terminated by either party upon expiration of agreement); see also United States Dep't of Justice, Fed. Bureau of Prisons, FCI Danbury, Danbury, Conn., 55 FLRA 201, 206 (1999) (FCI Danbury) ("A party's right to terminate unilaterally a permissive bargaining subject is not contingent on first satisfying a bargaining obligation as to the substance, impact or implementation of the change."). That is what the Agency did when it lawfully implemented section 3 of the RNIAP: the Agency terminated its (permissively negotiated) obligation under [ v60 p487 ] the expired NLA and NIAP to bargain at the local level over inspectional assignment matters. [n8]
By its terms, section 3 established the RNIAP as the governing policies and procedures with respect to inspectional assignment matters "over any and all other agreements" at the local level, and terminated the Agency's obligation to bargain at the local level over such matters. In addition, consistent with the clear terms of section 3, the Agency's August 2, 2001 letter to the national Union stated specifically that the Agency would no longer be bound by provisions in LIAPs, including those that required local level bargaining on such matters as minimum staffing levels and tours of duty. [n9]
Consistent with its clear terms, section 3 terminated locally negotiated agreements concerning inspectional assignment matters, as well as the Agency's obligation to bargain at the local level regarding such matters. [n10] Moreover, the Agency's termination of its obligation to bargain at the local level concerning inspectional assignment matters under section 3 is consistent with its right to terminate permissive terms of expired agreements -- including Article 37 of the parties' 1999 NLA and the 1995 NIAP -- under Authority precedent as discussed above, and is, therefore, lawful. Thus, the Arbitrator's conclusion that, following the Agency's lawful implementation of the RNIAP, the Agency did not have an obligation to bargain at the local level over the change in Sunday overtime assignment to supervisory personnel at Fort Pierce is consistent with law.
In concluding that the award is not contrary to law, we note two things. First, in agreement with the Union, we find that the Arbitrator erred in finding that the change in overtime assignment at the Fort Pierce facility was "`covered by' the [RNIAP]." [n11] Award at 27. The "covered by" doctrine is set forth in United States Dep't of Health & Human Servs., Soc. Sec. Admin., Balt., Md., 47 FLRA 1004, 1018-19 (1993). It applies as a defense to an alleged failure to satisfy a statutory bargaining obligation. See Soc. Sec. Admin. Headquarters, Balt., Md., 57 FLRA 459, 460 (2001). Under the first prong of the "covered by" doctrine, the Authority examines whether the subject matter of the change is expressly contained in the agreement; under the second prong, the Authority determines whether the subject is inseparably bound up with, and plainly an aspect of, a subject covered by the contract.
The Arbitrator correctly recognized that the "covered by" doctrine has been applied only in the context of negotiated agreements and determined that the RNIAP was not such a negotiated agreement. See Award at 23. Nonetheless, the Arbitrator found that the Agency's "local action" was lawful because it "was `covered by' the [RNIAP]." See id. at 27. For the following reasons, we agree with the Union that the Arbitrator's reliance on the "covered by" doctrine in these circumstances is in error because the RNIAP is not a negotiated agreement.
The Arbitrator applied the Authority's holding in Customs Service that the RNIAP was unilaterally, though lawfully, implemented. The Arbitrator found that the RNIAP was not a collective bargaining agreement. We agree. We note, in this regard, that neither party filed an exception to the Arbitrator's determination that the RNIAP was not a negotiated agreement. Moreover, by its terms, the RNIAP is not a part of any national agreement entered into by the parties; it is not subject to the parties' national agreement; and it has no term provision. [n12] [ v60 p488 ]
Based on the foregoing, we find that the RNIAP is not a negotiated agreement. [n13] As the RNIAP did not constitute a negotiated agreement, we find that the Arbitrator erred in applying the "covered by" doctrine to it. Nonetheless, this error in the Arbitrator's reasoning does not provide a basis on which to set aside the award, because the Arbitrator correctly concluded as his award that the Agency was not obligated to bargain at the local level over the change in assignment policy, under the terms of the lawfully implemented RNIAP. See, e.g., Veterans Affairs, Denver, 60 FLRA at 237 (arbitrator's misinterpretation of Authority precedent does not alter arbitrator's ultimate, correct conclusion); United States Dep't of the Navy, Naval Training Ctr., Great Lakes, Ill., 51 FLRA 198, 201 (1995) (arbitrator's erroneous statement of law does not alter arbitrator's ultimate, correct conclusion); United States Dep't of the Navy, Mare Island Naval Shipyard, Vallejo, Calif., 49 FLRA 802, 812 (1994) (arbitrator's mischaracterization of law provides no basis for finding award deficient).
Second, we also agree with the Union that the Arbitrator erred in finding that the Union had waived its rights under section 3 of the RNIAP to bargain over all future changes in conditions of employment at the local and national levels. Although the Union does not refer to the Arbitrator's specific findings in this respect, it appears that the Union is excepting to the Arbitrator's statement that "[w]hen the parties negotiate their next National Agreement, the mandatory subjects involving the implementation of the Agency's policy on inspectional assignment are once again subject to the Statute's bargaining obligation[, and] [a]t that point, the Agency will be required to bargain with the Union." Award at 27.
The Arbitrator's statement regarding the parties' bargaining obligations at the national level is in error. Section 3 of the unilaterally, but lawfully, implemented RNIAP did not extinguish the Agency's statutory bargaining obligations at the national level (that is, at the level of exclusive recognition) to bargain over all mandatory subjects of bargaining concerning overtime inspectional assignments. Indeed, the Agency acknowledges that it continues to have an obligation to bargain at the national level over assignment-related matters and that section 3 does not constitute a waiver of the Union's statutory rights to bargain at the national level over future changes in inspectional assignment policies. See Opposition at 8. However, the Arbitrator's erroneous statement that the Agency is required to bargain only during negotiations on the next national agreement does not undermine the validity of his conclusion that the Agency was not obligated to bargain at the local level over the change in assignment policy, under the terms of the RNIAP. In addition, section 3 of the RNIAP does not preclude the parties from bargaining in the future at the level of exclusive recognition on permissive subjects, and agreeing to delegate bargaining responsibilities over inspectional assignments to lower levels, in a manner similar to that which was negotiated as part of the 1995 NIAP. See, e.g., U.S. Food and Drug Admin., 53 FLRA at 1274.
In sum, by the terms of section 3 of the RNIAP, as lawfully implemented, the Agency terminated its obligations to bargain at the local level over inspectional assignment matters. In this respect, the Agency's termination of its obligation to bargain at the local level concerning inspectional assignment matters under section 3 was consistent with its right under Authority precedent to terminate permissive terms of expired agreements like the 1999 NLA and the 1995 NIAP, and was, therefore, lawful. As such, the Arbitrator's award, concluding that the Agency did not have an obligation to bargain at the local level over the change in Sunday overtime assignments to supervisory personnel at Fort Pierce, is consistent with law. Accordingly, we deny the Union's exceptions to the award.
The Union's exceptions are denied.
File 1: Authority's Decision in 60
File 2: Opinion of Chairman Cabaniss
Footnote # 1 for 60 FLRA No. 96 - Authority's Decision
Footnote # 2 for 60 FLRA No. 96 - Authority's Decision
The Union filed a submission in response to the Agency's opposition and the Agency filed a response to the Union's submission. We have not considered the supplemental submissions filed by the parties since neither party sought permission to file them. The Authority's Regulations do not provide for the filing of supplemental submissions and such submissions will not be considered unless the moving party demonstrates a reason why the Authority should consider them. See, e.g., Congressional Research Employees Association, IFPTE, Local 75, 59 FLRA 994, 999 (2004) (Authority considered union's supplemental submission as the submission challenged claims made by agency that were first raised in agency's opposition). See also United States Dep't of the Treasury, U.S. Customs Serv., El Paso, Tex., 52 FLRA 622, 624-25 (1996) (agency did not establish sufficient reasons for filing supplemental submissions as the union's opposition did not raise matters that the agency did not have the opportunity to address in its exceptions).
Footnote # 3 for 60 FLRA No. 96 - Authority's Decision
The Authority recently concluded that the Agency's implementation of the RNIAP was lawful. See United States Dep't of the Treasury, Customs Service, Wash., D.C., 59 FLRA 703 (2004) (Member Pope concurring) (Customs Service), petition for review filed sub nom. NTEU v. FLRA, No. 04-1137 (D.C. Cir. Apr. 22, 2004). The Authority's decision in Customs Service is discussed more fully below.
Footnote # 4 for 60 FLRA No. 96 - Authority's Decision