[ v61 p413 ]
61 FLRA No. 76
DEPARTMENT OF HOMELAND SECURITY,
BUREAU OF CUSTOMS
AND BORDER PROTECTION
December 14, 2005
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Ira F. Jaffe 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.
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, national inspectional assignment policy and past practice by refusing to bargain over the impact and implementation of a changes in overtime assignment practices in Miami, 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) at the national level. [n1] The RNIAP replaced an earlier NIAP that had been negotiated and implemented in 1995 by the parties at the national level. 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 described in the award, the parties negotiated a Southeast Regional Agreement in 1981 that provided for the equalization of overtime on a port-wide basis by assigning the first available inspector in order of credited overtime earnings from low to high. [n2] This equalization agreement provided that all inspectors working within a particular port would be eligible for overtime assignments within that port, with some exceptions based upon whether the inspector was qualified to perform the particular assignment. Award at 3. The parties negotiated a supplemental agreement in 1989 that included the same 1981 equalization of overtime provisions. [ v61 p414 ]
On August 2, 2001, the Agency notified the National Treasury Employees Union (the national Union) that it would no longer be bound by any agreements requiring bargaining over § 7106(b)(1) matters and proposed a RNIAP, which included provisions reiterating the Agency's statutory management rights regarding the establishment of tours of duty, scheduling, and work hours. The Union requested to bargain over the RNIAP, and proposed, as a ground rule, that such bargaining be combined with bargaining over a new NLA. Believing it had no duty to combine these negotiations, the Agency declined to bargain over this proposal, and on October 1, 2001, implemented the RNIAP nationwide.
The Union filed a grievance over the Agency's implementation of the RNIAP. The grievance was resolved in arbitration in favor of the Union. Subsequently, the Authority granted the Agency's exceptions to the award and found that the Agency had lawfully implemented the RNIAP. See Customs I, 59 FLRA at 708-11. In this connection, the Authority found that the Agency had no obligation to bargain over the Union's proposal to combine the NLA and RNIAP negotiations. Id. at 710.
One year after the implementation of the RNIAP, on October 1, 2002, the Agency discontinued the equalization of overtime on a port-wide basis in South Florida under its regional inspectional assignment agreement. After October 1, 2002, the method for allocating overtime involved the creation of primary and secondary overtime pools, in order to permit inspectors who performed inspectional duties on regular time to also perform those duties when needed on overtime.
By letter dated October 28, 2002, to the Director of Field Operations for South Florida, the local union President requested bargaining over the impact and implementation of the Agency's establishment of the primary and secondary overtime pools. The following day, the Agency notified the Union that it refused to bargain, relying upon Section 3 of the RNIAP for its position that with implementation of the RNIAP, the Agency had "no obligation to bargain on the changes made in accordance with the RNIAP at the local level." Award at 7.
On November 18, 2002, the Chief Steward for the local union filed the instant grievance, alleging violations of § 7116(a)(1) and 5 of the Statute, Article 22 of the NLA, NIAP and past practice. Id. The grievance described the dispute as follows:
In October 2002 unilateral changes were made [Customs Management Center] CMC wide to the way Inspectors were assigned overtime. These changes violated National and Local NIAP policies with adverse financial impact to Inspectors. On October 28, a letter requesting to bargain over the impact and implementation of this decision was sent to the Director of Field Operations. . . . A response from [the Agency] denied our request to bargain on October 29, 2002. On November 4, [the local union President] requested to meet on the issue by November 12, 2002. The request was ignored.
Id. As relief, the grievance requested that the Agency "cease and desist the utilization of the new overtime assignment methods, make whole by an award of back pay [for] all inspectors adversely affected by the new methods, and attorney fees and any other remedy deemed appropriate." Id.
In an email dated November 19, 2002, the Agency advised the Chief Steward that
[the grievance] questions the validity of management actions taken under the new NIAP. The NIAP is a national policy, the validity of which cannot be adjudicated at the local level. Therefore, your dispute has been forwarded to the national level for processing.
Id. at 8. The grievance was not resolved and was submitted to arbitration.
The Arbitrator denied the grievance. The Arbitrator found that the Authority's decisions in Customs I, as well as Customs II and Customs III, have clarified the law in this area. Specifically, the Arbitrator found that these decisions establish that: (1) the RNIAP was lawfully implemented; (2) the RNIAP terminated locally negotiated agreements or past practices concerning inspectional assignment matters, as well as the Agency's obligation to bargain at the local level (or any other level below the level of exclusive recognition at the national level) over such matters; (3) "the Agency could refuse demands by NTEU Chapters to bargain locally over unilaterally changed overtime assignments and distribution policies and procedures without violating the Statute since the Agency no longer had any obligation to bargain at the local level over such matters[;]" and (4) "the RNIAP was not a collective bargaining agreement and that the "covered-by" doctrine could not operate to waive the Union's rights under the Statute to bargain at the level of exclusive recognition, i.e., at the national level." Id. at 14-15. As relevant here, applying these principles to the instant grievance, the Arbitrator found that the Union's "claim in the grievance that the [ v61 p415 ] Agency violated the Statute by failing to bargain at the local level over the changes in overtime pools and overtime assignment practices and policies in South Florida must be rejected." Id. at 15.
As noted above, prior to the issuance of the Authority's decisions in Customs I, Customs II and Customs III, this case was submitted to arbitration in January 2004 by agreement of the parties on the basis of a stipulated documentary record. After the issuance of the Authority's decisions in Customs I, Customs II and Customs III and prior to the issuance of the Arbitrator's award, the Union, in January 2005, argued to the Arbitrator for the first time that "the demand to bargain in this case made with respect to the South Florida unilateral changes in working conditions did not limit the demand to local bargaining and was sufficiently broad to include bargaining at the national level if preferred by the Agency." See Award at 16, 19. As relevant here, the Arbitrator noted that in response to the Union's January 2005 submission, the Agency argued that "the grievance in the instant case did not encompass any request to bargain at the national level and cannot be recast to include such a new claim at this date." Id. at 16. The Arbitrator's award denied the Union's claim and found that the dispute submitted to arbitration encompassed the Agency's failure to provide notice and bargain at the national level over the South Florida changes. In this respect, the Arbitrator found that "the stipulated facts do not substantiate the claim that the Union had requested bargaining at the national level concerning the South Florida overtime changes." Id. at 17-18. Further, the Arbitrator concluded that the dispute involved solely the Agency's failure to bargain at the local level on the basis of the following facts:
(1) the record contains no reference to any demand to bargain regarding the impact and implementation of the South Florida changes other than that of NTEU Chapter 137 President . . . to . . . a local management official, on October 28, 2002; (2) the October 29, 2002 response from . . . a Labor Relations Specialist at the Customs Management Center in Miami stated that he was `responding on behalf of . . . [the] Director, Field Operations, South Florida, to your demand to bargain letter' and noted the Agency's position that `there is no obligation to bargain on changes made in accordance with the NIAP at the local level; (3) Stipulated Fact 26 also describes the Agency's October 29, 2002 response as one `refusing to bargain at the local level'; and (4) the grievance was alleging a failure to bargain and violations of various contractual provisions that focused substantively upon local agreements and local work assignment and distribution practices.
Id. at 18.
III. Positions of the Parties
A. Union's Exceptions
The Union maintains that the Arbitrator's award is contrary to law in two respects. First, the Union excepts to the Arbitrator's award that the Agency did not violate its statutory bargaining obligation by unilaterally implementing changes in overtime practices in South Florida without providing the Union with prior notice and an opportunity to bargain at the level of exclusive recognition before implementing the changes. In this respect, the Union maintains that "the Authority's decision in [Customs II], leaves undisturbed the Union's core right under the Statute to bargain at the National level" over changes at issue here involving procedures to insure the equitable distribution of overtime, and that the RNIAP did not eliminate the Agency's statutory bargaining obligation in this regard. Exceptions at 4-5. The Union maintains that the Arbitrator's award "concoct[s] a new bargaining paradigm relieving the [Agency] of its bargaining obligation because the Union may have demanded to bargain in the wrong place some four (4) weeks after the [A]gency failed to give NTEU lawful prior notice and unilaterally implemented." Id. at 5. The Union maintains that the Arbitrator "failed to comprehend that the violation of the [Statute] occurred some four (4) weeks before any demand to bargain was made irrespective of whether the demand was lodged locally or nationally by the Union." Id.
Second, the Union maintains that the Arbitrator failed to apply Authority precedent and instead unlawfully relieved the Agency of its bargaining obligation because the Union demanded to bargain at the local level rather than at the national level a month after the Agency implemented the changes. Citing Authority precedent, the Union contends that the Statute requires the Agency to provide the exclusive representative with prior notice and an opportunity to bargain before implementing changes in conditions of employment. The Union maintains that "[h]ere[,] the uncontradicted record establishes that the [A]gency failed to give notice of changes at the level of recognition, to NTEU nationally, and failed to bargain because it believed that it had no statutory duty to bargain at any level consistent with its ill fated RNIAP `covered-by' and waiver defenses." Id. at 6 (citing Award at 16). The Union maintains that based on the Arbitrator's "reasoning . . . [ v61 p416 ] had the Union requested to bargain at the national level he would have found the [A]gency's conduct here unlawful." Id. at 7 (citing Award at 17-18, 20). The Union maintains that "where NTEU demanded to bargain after the fact should not be dispositive of the [A]gency's failure to first give the Union appropriate, timely and prior notice before it implemented here." Id. at 8. The Union contends that this case "turns on where the bargaining obligation resided and the rights and obligations flowing therefrom." Id. The Union also claims that had it demanded to bargain at the national level the Agency would have refused because of its claims that RNIAP eliminated all of its bargaining obligations.
B. Agency's Opposition
The Agency maintains that the Union's exception should be denied. In this respect, the Agency contends that the Union and the Arbitrator misinterpret the decision in Customs II as requiring the Agency to bargain at the national level over a local change in inspectional assignment policies had the Union requested bargaining at the national level. Opposition at 2.
IV. Analysis and Conclusions
The Union excepts to the Arbitrator's award under § 7122(a)(1) of the Statute as 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, Dep'ts of the Army and the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
We reject the Union's contention that since Customs II affirmed the Agency's statutory bargaining obligation at the national level to bargain over all mandatory subjects of bargaining concerning inspectional assignments, the Agency violated the Statute in this case by not bargaining with the Union at the national level. In Customs II, the Authority found that the dispute concerned solely whether the Agency had an obligation to bargain at the local level over assignment-related changes made at the local level at Fort Pierce, Florida, and that under Section 3 of the lawfully implemented RNIAP, the Agency was no longer obligated to bargain at the local level with the Union over inspectional assignment matters. See 60 FLRA at 487. In so holding, the Authority explained that the Agency's termination of its obligation at the local level was "consistent with its right to terminate permissive terms of expired agreements - including Article 37 of the parties 1999 NLA and the 1995 NIAP. . . ." Id. The Authority followed this precedent in Customs III, and concluded that "section 3 of the RNIAP, by its terms, effectively terminated any previously existing agreement that required the Agency to bargain at the local level over the impact and implementation of decisions concerning the assignment of inspectors . . . ." 60 FLRA at 500 (emphasis added).
Similarly here, this case turns on the scope of the violation that the Union grieved and submitted to arbitration for resolution. The Arbitrator found that the sole issue before him was whether the Agency was obligated to bargain at the local level over the changes in South Florida. [n3] In this respect, the Arbitrator's factual findings, to which we defer, establish that the only demand to bargain regarding the impact and implementation of the South Florida changes was made at the local level by the NTEU Chapter 137 President to local management and that the Agency refused the Union's request to bargain at the local level. See Award at 18. Moreover, the Arbitrator found that the allegations in the grievance involved "a failure to bargain and violations of various contractual provisions that focused substantively upon local agreements and local work assignment and distribution practices." Id. In light of these findings and consistent with Authority precedent in Customs I, Customs II and Customs III, we find that the scope of the grievance was limited to Agency's bargaining obligation at the local level over the assignment-related changes in South Florida, and that the Agency's obligation to bargain at the national level was not at issue in this case. As such, we find that the Arbitrator's award is not deficient as contrary to law.
Moreover, to the extent that the Union's exceptions could be construed as a claim that the Arbitrator exceeded his authority by failing to resolve an issue that was before him for resolution, we also reject any such claim. In this regard, the parties did not stipulate the issue to the Arbitrator for resolution. The Arbitrator [ v61 p417 ] framed the issue in line with the grievance concerning whether the Agency violated the Statute, NLA, NIAP and past practice by changing the method for distributing overtime in South Florida. See Award at 13. The Arbitrator's determination of the scope of the dispute as concerning solely the Agency's failure to bargain at the local level over the changes, including his rejection of the Union's claim that the grievance encompassed the Agency's failure to bargain at the national level, is responsive to the issue submitted as the Arbitrator framed it. Consistent with Authority precedent, we accord the Arbitrator's formulation of the issue in the absence of a stipulation substantial deference. See, e.g., Soc. Sec. Admin., Baltimore, Md., 55 FLRA 498, 503 (1999).
Lastly, we reject the Union's contention that the Arbitrator's award "concocts a new bargaining paradigm" by focusing on the Union's request to bargain at the local level as irrelevant to the Agency's violation of the Statute. In determining the scope of the dispute submitted to arbitration, i.e., whether the dispute involved solely the Agency's obligation to bargain at the local level, the Arbitrator appropriately considered the undisputed facts that the Union requested bargaining solely at the local level over changes that occurred at the local level, and that the Union never requested to bargain over the disputed changes in South Florida at the national level. See Customs II, 61 FLRA 60; Customs III, 61 FLRA 85.
As such, the Arbitrator's award, concluding that the scope of the grievance involved solely the Agency's obligation to bargain at the local level over the assignment-related changes in South Florida and that the Agency did not have an obligation to bargain at the local level over these changes, is consistent with law.
The Union's exceptions are denied.
Footnote # 1 for 61 FLRA No. 76 - Authority's Decision
This is the seventh case in a series of cases that have come before the Authority concerning implementation of the Department of Homeland Security's revised national inspectional assignment policy. See United States Dep't of the Treasury, Customs Serv., Wash., D.C., 59 FLRA 703 (2004) (Member Pope concurring) (Customs I), aff'd sub nom NTEU v. FLRA, 414 F.3d 50 (D.C. Cir. 2005); NTEU, Chapter 137, 60 FLRA 483 (2004) (Chairman Cabaniss concurring) (Customs II), motion for reconsideration denied, 61 FLRA 60 (2005), petition for review filed sub nom. NTEU v. FLRA, No. 05-1338 (D.C. Cir. Aug. 24, 2005); United States Dep't of the Treasury, Customs Serv., Port of Seattle, Seattle, Wash., 60 FLRA 490 (2004) (Chairman Cabaniss concurring) (Customs III), motion for reconsideration denied, 61 FLRA 85 (2005), petition for review filed sub nom. NTEU v. FLRA, No. 05- 1352 (D.C. Cir. Sept. 2, 2005); United States Dep't of Homeland Security, United States Customs and Border Protection, 60 FLRA 496 (2004) (Chairman Cabaniss dissenting) (Customs IV); NTEU, Chapter 143, 60 FLRA 922 (2005) (Customs V), petition for review filed sub nom. NTEU v. FLRA, No. 05-1266 (D.C. Cir. July 14, 2005); United States Dep't of Homeland Security, Border and Transportation Security Directorate, Bureau of Customs and Border Protection, Seattle, Wash., et al., 61 FLRA 272 (2005) (Chairman Cabaniss concurring) (Customs VI ), petition for review filed sub nom. NTEU v. FLRA, No. 05-76783 (9th Cir. Nov. 29, 2005).
Footnote # 2 for 61 FLRA No. 76 - Authority's Decision
The Arbitrator noted that the case was submitted for decision in January 2004 by agreement of the parties on the basis of a stipulated documentary record. The Arbitrator also noted that the parties made final submissions in mid-January 2005 after the Authority's decisions in Customs I, as well as Customs II and Customs III. The record in this case before the Authority contains only the Union's exceptions to the Arbitrator's award and the Agency's Opposition. The grievance is attached to the Union's exceptions. However, the parties' submissions to the Arbitrator below, including the stipulation of facts, are not in the record before the Authority.
Footnote # 3 for 61 FLRA No. 76 - Authority's Decision
The Union correctly notes that in Customs II the Authority found that Section 3 of the RNIAP did not terminate the Agency's statutory bargaining obligations at the national level over all mandatory subjects of bargaining concerning overtime inspectional assignments. Accordingly, the Agency's claim that it has no obligation to bargain over inspectional agreements at the national level is without merit.