73 FLRA No. 60

                                                                                                                                                                                               

AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES

NATIONAL ICE COUNCIL 118

(Union)

 

and

 

UNITED STATES

DEPARTMENT OF HOMELAND SECURITY

U.S. IMMIGRATION

AND CUSTOMS ENFORCEMENT

ENFORCEMENT AND REMOVAL OPERATIONS

(Agency)

 

0‑AR‑5755

_____

 

DECISION

 

October 13, 2022

_____

 

Before the Authority:  Ernest DuBester, Chairman, and

Colleen Duffy Kiko and Susan Tsui Grundmann, Members

(Chairman DuBester dissenting)

 

1. Statement of the Case

    

This case involves a dispute over whether the Agency was allowed to implement the                               “Field Delivered Training Policy” (FDT Policy) without bargaining with the Union.[1]  Arbitrator Luella E. Nelson found that the FDT Policy was covered by Article 15 of the parties’ agreement; and therefore, the Agency did not violate the parties’ agreement or the Federal Service Labor‑Management Relations Statute (Statute) by implementing the FDT Policy without bargaining with the Union.  The Union argues that the award is contrary to the Statute because it misapplies Authority precedent on the “covered by” doctrine, and fails to draw its essence from the parties’ agreement.  We deny the Union’s exceptions because they fail to demonstrate that the award is defective.

1. Background and Arbitrator’s Award

 

On April 17, 2019, the Agency sent the Union a “Courtesy Notice” concerning the development and implementation of the FDT Policy.[2]  Between April 2019 and January 2020, the Union and Agency discussed the FDT Policy and bargaining obligations.[3]  The Agency promulgated the FDT Policy on February 2, 2020, and the Union filed a grievance and demand to bargain on February 12, 2020.  The grievance alleged that the Agency violated Articles 2 and 9 of the parties’ agreement and § 7116(a)(1), (5), and (8) of the Statute by unilaterally implementing the FDT Policy.  The Agency denied the grievance and declined to negotiate on the basis that the FDT policy was covered by Article 15 of the parties’ agreement.  The Union invoked arbitration.

 

The Arbitrator found that “Article 15 of              [the parties’ agreement] specifically cover[ed] training in its many facets.”[4]  The Arbitrator further found that “[the] provisions [of Article 15] ma[d]e plain the Agency’s exclusive role in developing and administering training programs.”[5]  The Arbitrator also found that Article 15.I specified the Union’s role in training programs, which was

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 limited to providing recommendations and requiring the Agency to “give careful and due consideration” to such recommendations.[6]  Therefore, the Arbitrator concluded that the Union’s “contractual rights [regarding] training are to obtain information, ask questions, and make recommendations for the Agency’s consideration.”[7]  The Arbitrator also emphasized that while the parties previously negotiated MOUs related to training on tasers and firearms, such examples were not determinative of whether a duty to bargain existed because “[p]arties are free to negotiate even where not required to do so.”[8]  Based on the above, the Arbitrator concluded that the Agency did not have a duty to bargain.[9]  As such, the Arbitrator denied the grievance.

 

On August 16, 2021, the Union filed exceptions to the award.  On September 15, 2021, the Agency filed its opposition to the Union’s exceptions.

 

1. Analysis and Conclusions

    

A.              The award is consistent with the Statute and Authority precedent.

 

The Union argues that the award is contrary to the Statute because it misapplies Authority precedent on the “covered by” doctrine.[10]  When an exception challenges an award’s consistency with law, the Authority reviews any question of law raised by the exception and the award de novo.[11]  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.[12]  In making that assessment, the Authority defers to the arbitrator’s underlying factual findings unless the excepting party establishes that they are nonfacts.[13]

 

In determining whether the subject matter at issue is covered by the parties’ agreement, the Authority applies a two-prong test.[14]  Under the first prong, the Authority considers whether the subject matter of the change is expressly contained in the agreement or falls within the scope of the agreement.[15]  If the first prong is not satisfied, the Authority moves to the second prong and considers whether the subject is inseparably bound up with, and thus plainly an aspect of, a subject covered by the agreement.[16]

 

The U.S. Court of Appeals for the District of Columbia Circuit (the Court) has held that the application of the covered-by doctrine is an exercise of construction, and “the scope of what is covered must be construed to give the parties the benefit of their bargain.”[17]  As the Court stated, “[w]hen parties bargain about a subject and memorialize the results of their negotiation in a collective[-]bargaining agreement, they create a set of enforceable rules – a new code of conduct for themselves – on that subject.”[18]

                Further, the Court explicitly “rejected the Authority’s use of a ‘covered‑by’ standard that compelled bargaining ‘unless the collective[‑]bargaining agreement specifically addresses the precise matter at issue.’”[19]  According to the Court, “[s]uch an approach would undermine the Statute’s goal of ‘promot[ing] collective bargaining and the negotiation of collective[‑]bargaining agreements,’ as collective bargaining is encouraged if and only if the parties to such agreements can rely on ‘stability and repose with respect to matters reduced to writing in the agreement.’”[20]

 

Accordingly, “if the parties’ bargain encompasses the implementation of a new policy, then the new policy is deemed covered by the agreement.”[21]  Furthermore, the Authority does not require an exact congruence of the language, but instead, finds the requisite similarity if a reasonable reader would conclude that the contract provision settles the matter in dispute.[22]

 

Here, as found by the Arbitrator, “Article 15 of [the parties’ agreement] specifically cover[ed] training in its many facets.”[23]  The Arbitrator further found that “[the] provisions [of Article 15] ma[d]e plain the Agency’s exclusive role in developing and administering training programs.”[24]  The Arbitrator also found that Article 15.I specified the Union’s role in developing training programs, which was limited to providing recommendations and requiring the Agency to “give careful and due consideration” to such recommendations.[25]  It is clear to us – as it was to the Arbitrator – that a “reasonable reader would conclude” that Article 15 “settles the matter” of the parties’ respective roles in the development and administration of training programs.[26]  Specifically, Article 15 provides:  “The [Agency] agrees to develop and maintain forward‑looking effective policies and programs designed to achieve [employee development], consistent with its needs.  Through the procedures established in Article 10 of the [parties’] agreement, the parties shall discuss training and development of employees.”[27]  Additionally, Article 10 merely provides for “Information and Questions,” “Consultations,” and “Labor Management Partnerships.”[28]

 

In short, through bargaining, the parties have “created[ed] a [new] set of enforceable rules”[29] concerning the parties’ respective roles in the development and administration of training programs – and agreed that the Union’s role is to provide recommendations regarding those matters.  As ordered by the Court, we must construe the covered-by doctrine to give the parties the benefit of their bargain.  It is true that the parties’ agreement does not specifically mention every single possible training program that the Agency may develop – including the FDT Policy.  However, that does not change the fact that the parties have defined their respective roles with regard to the development and administration of training programs generally, which necessarily covers the development and administration of the FDT Policy specifically.  As such, the Arbitrator’s conclusion that the Agency did not have a duty to bargain over the FDT Policy is consistent with Authority precedent.[30]

 

B.            The award draws its essence from the parties’ agreement.

 

The Union also argues that the award fails to draw its essence from the parties’ agreement because the Arbitrator’s interpretation of Articles 15.A and 15.I are implausible.[31]  As relevant here, the Authority will find an arbitration award fails to draw its essence from the parties’ agreement when it does not represent a plausible interpretation of the agreement.[32]  However, the Authority has held that mere disagreement with the arbitrator’s interpretation and application of an agreement does not provide a basis for finding an award deficient.[33]

 

Here, the Arbitrator found that Article 15.A, along with the other provisions of Article 15, clearly indicated the “Agency’s exclusive role in developing and administering training programs.”[34]  The Arbitrator also found that Article 15.I specified the Union’s role in developing training programs, which was limited to providing recommendations.[35]  The Union fails to identify any language from the parties’ agreement that requires a different result, but merely argues for its preferred interpretation.[36]  Accordingly, we deny the Union’s essence exception.[37]

 

1. Decision

 

                We deny the Union’s exceptions.

 

 

Chairman DuBester, dissenting:

 

                I disagree that the Arbitrator correctly concluded the Agency did not have a statutory duty to bargain over the FDT Policy pursuant to the Authority’s covered-by doctrine.

 

                At the outset, it is unclear from the award whether the Arbitrator separately analyzed both the Union’s contractual and statutory duty-to-bargain claims.  But to the extent the Union is challenging the Arbitrator’s application of the covered-by doctrine to the Union’s statutory duty-to-bargain claim, I would grant the Union’s contrary-to-law exception.1

 

                Of course, in construing essence exceptions to awards, the Authority should afford significant deference to arbitrators’ interpretations of parties’ agreements.  But when assessing if an arbitrator has correctly applied the covered-by doctrine to a statutory bargaining claim, “‘whether a subject is ‘covered by’ an existing agreement is a question of law[,]’ and not a matter of deferral to an arbitrator’s interpretation of that agreement.”2  And, applying this principle, I disagree with the majority’s conclusion that the Agency’s unilateral implementation of the FDT Policy was covered by the parties’ agreement.       

                In reaching its conclusion, the majority relies upon the Arbitrator’s finding that Article 15 “specifically cover[ed] training in its many facets,”3 and that Article 15 “ma[d]e plain the Agency’s exclusive role in developing and administering training programs.”4  But none of Article 15’s provisions specifically addresses the subject matter of the changes at issue in this case, which, as the Union argued to the Arbitrator, would have a “monumental effect on the way bargaining unit employees receive training in the field, and also on the workload and job responsibilities of bargaining unit employees who will be tasked with providing training to junior co‑workers.”5 

 

                Moreover, Article 15(I) – upon which the Arbitrator relied for this finding, and which simply provides that the Agency will give consideration to any Union recommendations regarding training needs and programs – does not specifically cover the subject matter at issue.6  As the Union persuasively argues, it should not be precluded from exercising its right to bargain over Agency-initiated changes simply because the parties have “provided [in their agreement] for the Union to make any sort of input to the Agency as it develops a policy.”7  And in response to the majority’s rejection of the Union’s arguments in favor of judicial interpretations of the “covered by” doctrine that ignore this practical reality, I would simply reiterate my call for the Authority to re‑examine the manner in which it applies the “covered by” doctrine.8

 

                And in any event, I am not convinced that the Arbitrator’s interpretation of Article 15(I) is even governed by the covered-by doctrine.  In the award, the Arbitrator concludes that “[h]ad the parties intended to reserve [the right to negotiate concerning employee training needs and programs], the phrase ‘submit recommendations’ would not have been used.  Rather, ‘negotiations’ or ‘bargaining’ would have been used . . . .”9  In my view, the Arbitrator’s conclusion constitutes nothing more than a finding that the Union waived its statutory rights to bargain over changes to employee training programs by agreeing to this language.  Finding nothing in the record to support such a conclusion, I would grant the Union’s exception on this basis as well.10

 

                Further, because I disagree that Article 15 “specifically covers” the subject matter at issue, I also disagree with the Arbitrator’s conclusion that it is “unnecessary to . . . decide the merits of the Union’s analysis of the interplay of the two sentences of Article 9.G.”11  Article 9 generally establishes the Union’s right to engage in mid-term bargaining over               Agency-proposed changes during the term of the agreement.  And the first sentence of Article 9(G) states that “[m]id-term agreements may be negotiated at the level of recognition covering subjects or matters not specifically covered in this agreement.”12

 

                As noted, I agree with the Union that the subject matter of the FDT program was not “specifically covered” by Article 15 of the parties’ agreement.  Therefore, in my view, it was necessary for the Arbitrator to address the meaning of the first sentence of Article 9(G), which clearly reserves the Union’s right to bargain mid-term agreements under the circumstances presented in this case.  And for the same reasons, I disagree with the majority’s decision to deny the Union’s essence exception regarding this point “because it is based on the previously denied contrary‑to‑law argument.”13

 

                Accordingly, I dissent.