[ v20 p391 ]
20:0391(41)AR
The decision of the Authority follows:
20 FLRA No. 41
U.S. IMMIGRATION AND
NATURALIZATION SERVICE
Agency
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1917
Union
Case No. O-AR-556
DECISION
This matter is before the Authority on exceptions to the award of
Arbitrator Sidney L. Cahn filed by the Department of Justice on behalf
of the Immigration and Naturalization Service (INS) under section
7122(a) of the Federal Service Labor-Management Relations Statute and
part 2425 of the Authority's Rules and Regulations. The Union filed an
opposition. /1/
The grievance before the Arbitrator concerned the alleged failure of
the Agency to comply with the requirements of the parties' collective
bargaining agreement regarding a report of the Joint District Safety and
Health Committee, which identified several health and safety problems at
various facilities and recommended corrective actions. The parties were
unable to agree on an issue and the Arbitrator framed the issues in this
matter as follows:
(1) Has the Employer (hereinafter referred to as the Agency or
District Director) violated the provisions of the parties'
Collective Bargaining Agreement when it failed timely to respond
to the report of March 1982 of a Joint District Safety & Health
Committee (hereinafter referred to as the Committee) which was
submitted to the Agency in May 1982?
(2) By several such alleged similar failures (i.e. item (1)
hereof) and other actions has the Agency effectively repudiated
and rendered nugatory (solely for the purposes of this proceeding)
Article 17D(3) of the parties' Collective Bargaining Agreement.
If so, what, if any, shall be the remedy?
(3) What constitutes an appropriate response by the District
Director to a report of the Safety & Health Committee?
(4) What constitutes a safety and health hazard? Are there any
safety and health problems which require correction by the
Agency(?) If so, what, if any, shall be the remedy?
(5) Does Article 17 of the parties' Collective Bargaining
Agreement mandate Agency compliance with the recommendations of
the Committee(?) If so, what, if any, shall be the remedy?
The Arbitrator agreed with a number of the Committee's conclusions that
problems existed which affected the safety and health of Agency
employees and that the Agency violated the parties' agreement by failing
to properly respond to the Committee's report and to correct those
problems. As his award, the Arbitrator directed the Agency to respond
to the Committee's report within ten work days after receipt of the
Committee's recommendations and to take certain actions regarding
specific problems.
In a general exception, the Agency excepts to the Arbitrator's
finding that the Agency was obligated under the parties' agreement to
correct unsafe and unhealthy working conditions and practices reported
by the Committee. The Agency contends that to the extent the
Arbitrator's award mandates the correcting of any health and safety
problem reported, the award is "ambiguous and overbroad as such
corrective action may violate law, rule, or regulation and exceed the
arbitrator's authority as such corrections may, under some
circumstances, require actions outside the purview of the agency's
authority and/or require an action in derogation of management's
reserved rights." In support of this exception, the Agency asserts that
the Arbitrator's (and the Committee's) definition of a "safety and
health problem" is too broad because it encompasses conditions which
merely involve discomfort and that given that overly broad definition
"it is foreseeable" that a condition involving mild discomfort would be
considered unsafe or unhealthy, and the related corrective action could
be disproportionately expensive, outside the control of the parties, or
violative of management's rights. The Agency further asserts in support
of this general exception that while it is unclear what constitutes
corrective action, a requirement that management correct any reported
unhealthy or unsafe condition could be read as requiring management to
substantially alter a facility or practice that is entirely outside of
its control, and as requiring the expenditure of Agency funds in
violation of General Services Administration (GSA) regulations and other
regulatory and legal restrictions on the expenditure of funds.
As to the Agency's assertions in support of this general exception,
the Authority finds that the Agency has failed to demonstrate that this
portion of the Arbitrator's award is deficient as alleged. Thus, with
regard to the Agency's assertion that the award is overbroad and
ambiguous, the Authority finds that the Arbitrator's award finding that
the Agency is obligated under the parties' agreement to correct reported
unsafe and unhealthy conditions is not so uncertain in its meaning and
effect so as to make implementation of this portion of the award
impossible. Veterans Administration Hospital, Newington, Connecticut
and National Association of Government Employees, Local R1-109, 5 FLRA
64, 66-67(1981). As to the Agency's assertions that the Arbitrator
exceeded his authority and that this part of the award violates
unspecified law, rule, regulation and management's rights, the Authority
finds that the Agency has failed to substantiate its assertions. The
Agency's arguments are essentially speculative, i.e., centered on what
the Agency speculates might be required by the award in the future. The
essence of the disputed portion of the award is a direction to the
Agency to abide by its agreement to correct health and safety problems
reported by the Committee to the extent that it properly can, i.e., to
the extent that corrective action is within its authority and would not
violate law, including management's reserved rights under section
7106(a) of the Statute, or any rule or regulation. Arbitrators have
considerable latitude in fashioning remedies for a party's violation of
its collective bargaining agreement, id. at 67, and the disputed portion
of the award is not in excess of the Arbitrator's authority or otherwise
deficient as contrary to law, rule or regulation. See American
Federation of State, County and Municipal Employees, AFL-CIO, Local 2477
and Library of Congress, Washington, D.C. (and the case consolidated
therewith), 7 FLRA 578, 585-86 (1982), enforced sub nom. Library of
Congress v. Federal Labor Relations Authority, 699 F.2d 1280 (D.C. Cir.
1983); Local 1688, International Brotherhood of Electrical Workers and
U.S. Army Engineer District, Omaha, 5 FLRA 44, 48-49(1981). Therefore,
as to this general exception, the Authority concludes that the Agency's
assertions in support of the exception constitute nothing more than
disagreement with the Arbitrator's interpretation of the parties'
collective bargaining agreement, unsupported speculation, and an attempt
to relitigate the merits of the dispute before the Authority.
Consequently, the exception provides no basis for finding this part of
the award deficient. See, e.g., Naval Air Rework Facility, Cherry
Point, North Carolina and International Association of Machinists and
Aerospace Workers, Local Lodge 2297, 14 FLRA 497, 498(1984); Colorado
Air National Guard, Buckley ANG Base and Association of Civilian
Technicians, the Columbine Council, 7 FLRA 3, 6-7(1981).
The Agency's exceptions to the specific corrective actions ordered by
the Arbitrator will be considered separately below. /2/
The Arbitrator directed the Agency, in pertinent part, to take the
following actions: (1) to install or have GSA install a barrier or
other form of protection against the cold on the first floor of 26
Federal Plaza; (2) to have all areas of the Brooklyn Citizenship Office
building periodically exterminated and to arrange for and obtain
appropriate cleaning for all facilities and adequate ventilation for all
clerical sections in that building; (3) to obtain and install an
effective barrier at the American Airlines terminal at John F. Kennedy
International Airport to prevent jet fumes from reaching the area where
Agency employees are stationed and to obtain extermination services for
all areas at the airport where its employees are stationed if such
services are not rendered on a regular basis by the New York/New Jersey
Port Authority and/or the airlines.
In its exceptions to those portions of the Arbitrator's award, the
Agency contends, among other things, that the Arbitrator exceeded his
authority. In support of its exception, the Agency argues that 26
Federal Plaza is owned and operated by GSA; that the Brooklyn
Citizenship Office building is leased by GSA from a private owner; and
that JFK International Airport is owned by the Port Authority and the
terminals at the airport are leased by the airlines. Consequently, the
Agency further argues, it is without authority to take the actions
ordered by the Arbitrator or to compel GSA, the Port Authority or the
airlines to do so. The Agency acknowledges that it properly may be
required to request the organizations which control the buildings and
work areas to take the actions described and indicates that it has or
will comply with the award to that extent. However, the Agency
essentially maintains that to the extent the award directs it to
actually accomplish the corrective actions if the requests do not
achieve the intended results, the award exceeds the Agency's and,
therefore, the Arbitrator's authority.
As to this exception, the Authority finds, in agreement with the
Agency, that the Arbitrator could not properly direct the Agency to take
the actions described in the disputed portions of his award, which
actions were within the purview of GSA, the Port Authority or the
airlines and not within the purview of the Agency. /3/ The Arbitrator
could properly direct the Agency to take only those actions which were
within its authority and which, of course, would not violate law, rule
or regulation. The Authority therefore concludes, in agreement with the
Agency, that the Arbitrator exceeded his authority to the extent he
directed the Agency to take actions which were not within its purview.
To that extent, the Arbitrator's award is deficient and must be
modified. /4/ Accordingly, the disputed portions of the award here
addressed are modified to provide that the Agency shall take whatever
actions are within its authority in the specific situations involved,
including requesting appropriate third parties (1) to install a barrier
or other form of protection against the cold on the first floor of 26
Federal Plaza; (2) to have all areas of the Brooklyn Citizenship Office
building periodically exterminated and cleaned and to provide adequate
ventilation for all clerical sections in that building; and (3) to
install an effective barrier at the American Airlines terminal at JFK
International Airport to prevent jet fumes from reaching Agency employee
work areas and to provide extermination services for all areas at the
airport where Agency employees are stationed.
In other portions of his award related to Agency employee work areas
at JFK Airport, the Arbitrator directed the Agency to request Pan
American World Airways and British Airways to continue to use climate
controls during the appropriate summer and winter months in those areas
of their terminals staffed by Agency employees. Additionally, the
Arbitrator directed the Agency to request Pan American Airways not to
use its overhead baggage conveyor belts during peak passenger inspection
periods. The Arbitrator further directed that if the airlines do not
comply with the request, the Agency is to inform the airlines that their
failure to comply might require the Agency to:
(1) Revoke the airline terminals' designation as ports of
entry;
(2) Revoke permission for passenger inspection at those
terminals; or
(3) Reduce the number of Agency inspectors stationed at the
terminals to a minimum.
Finally, the Arbitrator directed that if Pan American and British
Airways still decline to provide adequate climate controls as requested,
the Agency is to supply all areas where its employees are stationed with
an adequate number of electric heaters and fans sufficient to rectify
the cold and heat problems identified by the Health and Safety
Committee.
The Agency did not file an exception to that portion of the award
directing it to request the airlines to take the actions described.
However, the Agency contends that the portion of the award which in
effect directs the Agency to threaten to impose the sanctions described
if the airlines refuse the requests is deficient because, among other
things, it interferes with management's rights under section 7106 of the
Statute. The Authority agrees.
It is well-established that an arbitrator's award may not interpret
or enforce a provision of a collective bargaining agreement so as to
improperly deny the authority of an agency to exercise its statutory
rights under section 7106 of the Statute. E.g., Veterans Administration
Hospital, Lebanon, Pennsylvania and American Federation of Government
Employees, AFL-CIO, Local 1966, 11 FLRA 193(1983). Section 7106(a)(1)
of the Statute reserves to management the exclusive authority to
determine the mission of the agency, and section 7106(b)(1) reserves to
management the authority to determine the number of employees or
positions assigned to any work project. In terms of this case,
designation of ports of entry for aliens arriving by aircraft and the
examination and inspection of passengers entering the United States at
those ports clearly are so integrally related to the mission of the
Agency (8 U.S.C. 1223, 1225 and 1229) that they must be considered
matters which are exclusively reserved to management by section
7106(a)(1). Similarly, the number of inspectors to be assigned to the
terminals is a matter reserved to management by section 7106(b)(1),
unless the Agency elects to negotiate with the Union regarding the
matter and the record reflects that the Agency has not negotiated this
matter with the Union. Therefore, by directing the Agency to threaten
to revoke port of entry designations and permission for examination of
passengers at the Pan American and British Airways terminals, the
Arbitrator's award directly interferes with management's exclusive right
under section 7106(a)(1) to determine its mission. Furthermore, by
directing the Agency to threaten to reduce the number of inspectors
assigned to the terminals, the award interferes with management's right
under section 7106(b)(1) to determine the number of employees assigned
to the terminals. Consequently, this aspect of the Arbitrator's award
is deficient and is hereby set aside. /5/
The Agency also contends that the portion of the award directing the
Agency to supply electric heaters and fans if the airlines decline to
provide adequate climate controls is deficient for two reasons. First,
the Agency contends that the heaters and fans involve the technology,
methods and means of performing work, a matter reserved to management
under section 7106(b)(1) of the Statute. However, the Authority
concludes that the Agency has failed to establish that heaters and fans
are sufficiently related to the work of the Agency to be considered
technology, methods or means of performing work within the meaning of
section 7106(b)(1). See AFSCME and Library of Congress, 7 FLRA at
587-88. Accordingly, this contention provides no basis for finding the
disputed portion of the award deficient.
Second, the Agency essentially contends that the Arbitrator exceeded
his authority by directing the Agency to supply electric heaters and
fans for employee work areas. In support of this exception, the Agency
argues that electrical wiring necessary for the operation of heaters and
fans is not within the control of the Agency, that the existing wiring
in the work areas is inadequate for that purpose, and that the Agency is
without authority to either install or require the airlines to install
sufficient wiring. As to this exception, the Authority finds that the
Agency has established that the Arbitrator exceeded his authority to the
extent that his award requires any preliminary actions which are outside
the purview of the Agency, that is, those actions which must be taken
before the Agency properly could supply heaters and fans for the
employee work areas. Thus, a prerequisite determination as to the
adequacy of wiring for the safe operation of heaters and fans and the
installation of any additional wiring that may be necessary for such
safe operation are actions within the authority of the appropriate
airline or Port Authority office and not the Agency. Therefore, to the
extent that this portion of the award entails such prerequisite actions,
the award is deficient as in excess of the Arbitrator's authority.
However, as the Agency has previously acknowledged, the Agency properly
may be required to request that such necessary preliminary actions be
taken by the appropriate airline or Port Authority office.
Accordingly, this portion of the Arbitrator's award is modified to
provide as follows:
If the airlines decline to provide continuous climate control
as requested, the Agency shall request the appropriate airlines
and/or Port Authority office to ensure that sufficient electrical
wiring is installed for the safe operation of heaters and fans in
Agency employee work areas. When it is determined that such
wiring has been installed, the Agency shall supply an adequate
number of heaters and fans for the employee work areas to rectify
the cold and heat problems identified by the Safety and Health
Committee.
Issued, Washington, D.C., September 30, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ The national and local offices of the Union separately filed
timely oppositions. The Agency objected and requested that one of the
submissions be rejected. However, the Authority has determined that it
will consider both timely submissions as a combined opposition of the
Union.
In its opposition, the Union contends, among other things, that the
Department of Justice lacks standing to file exceptions to the award
because the Department was not a "party" to the arbitration and that
only the INS could file exceptions. However, the Authority finds that
the exceptions were properly filed by the Department on behalf of the
INS. See, e.g., United States Department of Justice, Immigration and
Naturalization Service and American Federation of Government Employees,
Local 1917, 14 FLRA 638 n. 1 (1984).
/2/ The record reflects that subsequent to the Arbitrator's award,
the Agency vacated the Service Processing Center. Therefore, the
portion of the award directing specific actions with respect to that
facility and the related dispute between the parties as raised by the
Agency's exceptions to that portion of the Arbitrator's award
specifically pertaining to the Service Processing Center are dismissed.
/3/ See, e.g., AFSCME and Library of Congress, 7 FLRA at 585-86;
American Federation of Government Employees, AFL-CIO, Local 32 and
Office of Personnel Management, Washington, D.C., 8 FLRA 409,
411-13(1982).
/4/ In view of this decision, it is not necessary to address the
Agency's other exceptions to the disputed portions of the Arbitrator's
award.
/5/ In view of the Authority's decision with respect to this
exception, it is unnecessary to address the Agency's other exceptions to
this part of the award.
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