National Treasury Employees Union, Chapter 143 (Union) and United States, Department of Homeland Security, Bureau of Customs, and Border Protection, Port of El Paso, El Paso Texas, (Agency)

[ v60 p922 ]

60 FLRA No. 167

NATIONAL TREASURY
EMPLOYEES UNION
CHAPTER 143
(Union)

and

UNITED STATES
DEPARTMENT OF HOMELAND SECURITY
BUREAU OF CUSTOMS
AND BORDER PROTECTION
PORT OF EL PASO
EL PASO, TEXAS
(Agency)

0-AR-3883

_____

DECISION

May 16, 2005

_____

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 Patrick Halter 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 Arbitrator denied a grievance alleging that the Agency violated § 7116(a)(1) and (5) of the Statute and provisions of the parties' national collective bargaining agreement when it refused to bargain over the impact and implementation of changes in the length of bridge assignments and regular days off (RDOs) at the Port of El Paso (El Paso).

      For the reasons that follow, we deny the 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 Inspection Assignment Policy (RNIAP) at the national level. [n2]  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 relevant here, El Paso's mission involves, among other things, cargo and passenger inspections. Unit employees involved here are inspectors and canine enforcement officers who are regularly assigned passenger processing duties at three bridges: Ysleta, Paso Del Norte (PDN), and Bridge of the Americas (BOTA). The employees are represented locally by NTEU, Chapter 143 (the local Union) and are part of a nationwide unit represented by NTEU (the national Union).

      On October 1, 2001, the Agency implemented the RNIAP. Subsequently, the Port Director of El Paso implemented changes in El Paso based on the RNIAP. Prior to October 2001, employees at El Paso were assigned passenger processing duties at one of the three bridges for 2 weeks and, on completion of such time, would rotate to another bridge for 2 weeks followed by a rotation to a third bridge for 2 weeks. After the 2-week period was completed at the third bridge, the employee returned to the bridge where the initial 2-week assignment occurred. Besides the bridge assignments, employees had rotating RDOs such that an employee assigned to one of the three bridges would receive an extended or "long weekend" of 4 consecutive days off every 3 weeks.

      On October 3, 2001, the Port Director notified the local Union of the following changes based on the RNIAP: (1) bridge assignments would no longer be 2 weeks but would remain in effect for 1 year and, at the end of that year, the employee could bid on his or her next assignment; and (2) the long weekend or 4 consecutive days off would occur once every 6 weeks for [ v60 p923 ] employees at Ysleta and PDN and once every 5 weeks for employees at BOTA.

      On October 4, 2001, the local Union submitted a request to bargain, which the Agency refused to do. The Agency implemented the changes on or about October 7, 2001. Thereafter, the local Union filed a grievance under the parties' expired National Labor Agreement (NLA) concerning the changes in rotations for bridge assignments and RDOs. The grievance was not resolved and the matter was submitted to arbitration.

      The Arbitrator framed the issues as follows:

Is the grievance arbitral?
If not, did the [A]gency violate Article 20, Section 15B, and Article 37, Sections 1.C(1), 2, 3B, 6 and 10?[ [n3] ]
. . . .

Award at 2. According to the Arbitrator, the grievance "present[ed] the [U]nion's allegation that the [A]gency's actions in refusing to bargain over the length . . . of bridge assignments and the rotation scheme for [RDOs] breach[ed] Articles 20 and 37 in the expired NLA as well as [violated] 5 U.S.C. [§] 7116(a)(1) and (5)." Id. at 13-14.

      Concerning Article 20, the Arbitrator noted that the Union argued that Article 20, Section 15, "captures the [U]nion's statutory rights . . . to bargain procedures and arrangements. It reflects the parties' obligations to bargain the impact and implementation of changes initiated by the [A]gency and ensures bargaining over `rotations . . . . The local [Union] is concerned with only impact-and-implementation bargaining." Id. at 8 (footnote omitted). The Agency argued that the grievance was not arbitrable. According to the Arbitrator, the Agency claimed that as the RNIAP was issued nationally and covers matters raised in the dispute, the grievance was procedurally deficient under Article 31 because it was filed locally. The Agency asserted that the RNIAP "`takes precedence over any and all other agreements' such that Article 20, Section 15 in the NLA does not control. . . . The Agency repudiated bargaining over permissive subjects as a means to extricate itself from . . . local bargaining any time it exercised a management right." Id. at 12. The Union argued that the RNIAP was not relevant to the dispute.

      The Arbitrator found that in support of the arbitrability claim, the Agency relied on Customs Service, where the Authority concluded that the Agency's implementation of the RNIAP was lawful. The Arbitrator rejected the Union's claim that RNIAP was irrelevant and found that Customs Service was "persuasive proof of [the Agency's] argument that [the RNIAP] is relevant in this grievance and, moreover, that Article 20 was changed by the [A]gency such that the Union's reliance on it must be considered in the context of [Customs Service]." Id. at 15.

      The Arbitrator also found that Article 37, like Article 20, is "trumped" by Customs Service. Id. According to the Arbitrator, unlike the prior NIAP, the RNIAP "did not contain provisions authorizing local bargaining." Id. The Arbitrator found that Section 3 of the RNIAP specifically "proclaimed that the procedures in the [RNIAP]--no local bargaining--take[] precedence over `all . . . agreements.'" [n4]  Id. The Arbitrator found that he was "without authority or discretion to . . . minimize the impact of [Customs Service] as it applies to the allegations of contract violations in this grievance." Id. at 16. According to the Arbitrator, he was "bound to the [Authority's] conclusions" as well as case law holding that the obligation to bargain attaches at the level of exclusive recognition. Id. Therefore, the Arbitrator found that "[w]ithout an obligation to bargain at the local level . . . there can be no violation of the Statute . . . for a failure or refusal to bargain." Id.

      The Arbitrator further found that the length of bridge assignments and RDOs are "inseparably linked and addressed within the [RNIAP] such that they are `covered' by the document." Id. Specifically, the Arbitrator found that "[d]ays off, the essence of the rotation scheme, is found in Section 5(A)(1)(c) where `days off are determined by managers based on operational needs' and length of assignment on a bridge is inseparably intertwined in the length of a tour of duty at a given location and in scheduling employees at a location." Id. The Arbitrator thus rejected the Union's assertion that the "covered by" doctrine is not applicable since the RNIAP was unilaterally implemented. Taking notice of Arbitrator Abrams' award issued in a prior arbitration involving the Agency, [n5]  the Arbitrator found that "the Abrams award sufficiently addresses the binding nature, in the public sector, of terms and conditions of employment [ v60 p924 ] imposed without mutual agreement formed through negotiations." Id.

      The Arbitrator rejected the Union's assertion that Sections 3 and 4 of the RNIAP are unenforceable and encompass a waiver of its statutory right to bargain. The Arbitrator found that Section 4 states that the "[RNIAP] `supersedes and replaces [the old NIAP] as well as local agreements that address matters contained within the [RNIAP].'" Id. The Arbitrator found that Section 4 of the RNIAP, "as applied to the permissive subject of negotiating at the local level . . . of recognition, does not trammel upon or abrogate a union statutory right since there is no right to bargain below the level of recognition." Id. The Arbitrator found that the RNIAP covers the topics raised in the grievance.

      Based on the evidence, the Arbitrator found the grievance arbitrable. On the merits, the Arbitrator found that the RNIAP "covers the items alleged to have been violated in Article[s] 20 and 37." Id. at 17. Accordingly, he denied the grievance.

III.     Positions of the Parties

A.     Union's Exceptions                    

      The Union essentially asserts that the award is contrary to law on five grounds.

      First, the Union contends that the award is contrary to §§ 7116(a)(1) and (5) and 7118 of the Statute and Authority precedent governing unfair labor practices (ULPs) because the Arbitrator failed to apply the same analytical approach in resolving the Union's ULP as the Authority. The Union asserts that the Arbitrator "failed or refused to place the statutory failure to bargain . . . ULP in his statement of issue[]" and "failed or refused to adopt the same analytical approach as the Authority in resolving the . . . grievance." Exceptions at 17. In support, the Union cites AFGE, Local 940, 52 FLRA 1429 (1997) (AFGE).

      Second, the Union asserts that the Arbitrator's determination that the RNIAP "changes, supersedes, and/or `trumps' [Articles 37 and 20] of the expired [NLA] governing mandatory subjects of bargaining is contrary to [Authority] law" because it upholds the Agency's actions in modifying provisions of the NLA that include mandatory subjects of bargaining. Id. at 18. According to the Union, Article 20, Section 15 and Article 37, Sections 1.(C)(1), 2, 3B, 6, and 10 govern the parties' obligation to bargain over the impact and implementation of the changes in rotation of bridge assignments and RDOs. The Union argues that because Articles 20 and 37 "represent mandatory subjects of bargaining, they must remain in effect" following the expiration of the term contract, unless the parties agreed otherwise, or unless modified in a manner consistent with the Statute. Id. at 20. In support, the Union cites FAA, Northwest Mountain Region, Seattle, Wash., 14 FLRA 644 (1984) (FAA).

      The Union asserts that the Agency provided no evidence that it "offered any proposal to modify Article[s] [20 or 37], or proposed to reopen [such] provisions . . ., or that any . . . agreement exists" which eliminated the Agency's bargaining obligation. Id. at 20. The Union also notes that in Customs Service the Authority stated that nothing in the decision was "intended to suggest that an agency may unilaterally modify provisions of an expired agreement relating to mandatory subjects of bargaining and the facts of this case do not present such an issue[;]" and rejected the idea that Customs Service "addressed any potential contract violation that may have been decided" by the arbitrator in the national arbitration. Id. at 19 (quoting Customs Service, 59 FLRA at 710 n.20 and 708 n.15).

      The Union also contends that communications received from the Agency informing it of provisions in the NLA from which the Agency withdrew did not mention Article 20, Section 15 as being modified, nor did the Agency's notice of its intention to reopen the NIAP mention this provision as being modified or superseded by the RNIAP.

      Third, the Union contends that the Arbitrator's determination that Section 3 of the RNIAP is enforceable is contrary to law. The Union asserts that the Arbitrator found that this section allowed the Agency to refuse to bargain on the impact and implementation of the changes involved here. The Union claims that Section 3, which requires NTEU to "waive future statutory bargaining rights[,] is a `permissive' subject of bargaining, which NTEU was free to ignore or refuse to negotiate." Id. at 22. In support, the Union cites, among others, Dep't of the Treasury, United States Customs Service, 17 FLRA 221 (1985) (Dep't of the Treasury). The Union also asserts that even if Section 3 could be implemented under Dep't of the Treasury, the national Union informed the Agency that it no longer would be bound by Section 3 when it demanded to bargain over the Agency's proposed changes.

      Fourth, the Union contends that the Arbitrator's application of the "covered by" doctrine is contrary to law. The Union asserts that the Arbitrator found the rotation of the bridge assignments and RDOs were covered by the RNIAP. Citing United States Dep't of Health and Human Services, Social Security Administration, [ v60 p925 ] Balt., Md., 47 FLRA 1004 (1993), the Union contends that the "covered by" doctrine applies only where a matter is encompassed in the terms of a negotiated agreement. The Union claims that this doctrine is not applicable to the RNIAP because it is not a negotiated agreement. Rather, according to the Union, the changes involved here are covered by the NLA.

      Fifth, the Union contends that the Arbitrator's finding that the Agency rescinded provisions of the NLA "mandating local level bargaining over the impact and implementation of local level changes in conditions of employment is contrary to law." Id. at 29. Referring to Article 37, Section 3.A. and B. and Section 6.A. and B. of the NLA, the Union asserts that the Agency has agreed to bargain changes at the local level. The Union asserts that it is undisputed that after expiration of the NLA, the Agency provided the Union with notice that it was rescinding all provisions in which it had agreed to bargain on matters set forth in § 7106(b)(1). However, according to the Union, the recission notice did not mention Article 37, Section 3 or 6 of the NLA, governing local level bargaining or Article 20, Section 15 governing rotation of bridge assignments' changes bargaining. According to the Union, under Authority law, an agency notice to a union of its decision to withdraw from a provision borne out of a permissive subject of bargaining must be specific. In support, the Union cites United States Dep't of Justice, Fed. Bureau of Prisons, FCI Danbury, Danbury, Conn., 55 FLRA 201, 205 (1999) (FCI Danbury). The Union contends that the Arbitrator's reference to the phrase "including but not limited to" in the Agency's recission letter does not meet the specificity standard established by the Authority. Id. at 35 n.20. The Union also asserts that an Agency witness conceded in testimony that the Agency had not withdrawn from "local level bargaining over non-(b)(1) [permissive matters]." Id. at 30.

      The Union also contends that the award is deficient on three other grounds.

      First, the Union asserts that the Arbitrator's findings that the Agency was not bound by Article 20, § 15B and/or Article 37, §§ 1.C(1), 2, 3B, 6 and 10, and that Customs Service "trumps" these provisions, fail to draw their essence from the NLA. According to the Union, the termination of § 7106(b)(1) provisions in the NLA does not equate with a recission of local level bargaining obligations, and moreover, Article 20 § 15 does not involve § 7106(b)(1) issues.

      Second, the Union contends that the Arbitrator exceeded his authority by ignoring the parties' stipulation defining tour of duty. According to the Union, at the arbitration hearing, the parties stipulated that a tour of duty "for [employees working] passenger processing at the bridges is a `two week period of time, which includes the shift, days off and work location to which an employee is assigned.'" Id. at 38 (quoting TR at 5-6). [n6]  The Union claims that the Arbitrator determined that "`length of assignment on a bridge before moving on to another bridge is inseparably intertwined in the length of a tour of duty at a given location . . . ." Id. (quoting award at 16). The Union asserts that by so finding, the Arbitrator determined that the Agency's decision to place an employee at a specific bridge for one year was a tour of duty. The Union contends that this finding contradicts the stipulated definition of tour of duty as a two week period.

      Third, the Union claims that the award is based on nonfacts. The Union asserts that the Arbitrator's finding that the RNIAP covers impact and implementation bargaining concerning the subject employees' rotation of bridge assignments is based on a nonfact, but for which the Arbitrator would have reached a different conclusion. The Union contends that during cross-examination, an Agency witness, who was the Agency's chief negotiator, testified in response to a question concerning the RNIAP and its coverage that the "RNIAP did not cover and did not control impact and implementation aspects of bid and `rotation' and was not part of the [RNIAP]." Id. at 40 (citing TR at 119-22 and 125-26). The Union asserts that despite this unrebutted testimony, the Arbitrator found "the opposite, that the [RNIAP] did cover `rotation.'" Id. The Union contends that but for this finding, based on a nonfact, the Arbitrator would have reached a different conclusion, that rotation was not covered by the RNIAP.

      The Union also asserts that the Arbitrator's determination that the Agency rescinded or repudiated provisions of the NLA mandating local level bargaining over changes in conditions of employment is based on a nonfact. According to the Union, the Arbitrator did not refer to any evidence nor is there any evidence in the record to support his finding that the Agency notified the Union that it was not bargaining at the local level and further an Agency witness testified there had been no repudiation of non 7106(b)(1) issues. The Union contends that despite this unrebutted testimony the Arbitrator found that the Agency had withdrawn from or repudiated local level bargaining over the impact and implementation of changes in the rotation system of bridge assignments--non 7106(b)(1) issues. [n7]  [ v60 p926 ]

B.     Agency's Opposition

      The Agency asserts that the exceptions should be denied because the Union has not established that the award is contrary to law, exceeds the Arbitrator's authority, fails to draw its essence from the NLA, or is based on a nonfact. The Agency contends that the Union fails to recognize that bargaining, including impact and implementation bargaining, below the level of the national recognition is permissive rather than mandatory and was terminated by the Agency through the implementation of Section 3 of the RNIAP.

      The Agency claims that the Union "received the proposed NIAP 60 days [notice] before implementation" and was informed of the date of implementation. Opposition at 6. The Agency further disputes the Union's contention that an Agency witness testified that the Agency did not repudiate local bargaining and asserts that the Agency "clearly repudiated permissive local bargaining on non-7106(b)(1) issues that fall within the scope of the NIAP." Id. at 8. In support, the Agency cites the testimony of the Agency witness. See Opposition, Attachment 4 at 111-12. The Agency also contends that the Union mischaracterizes the award by claiming that the Arbitrator had previously noted the "Agency's admission . . . [that] [it] never repudiated local level bargaining over non-(b)(1) changes . . . ." Id. at 8 (referring to Exceptions at 14 n.11.) The Agency states this statement was simply the Arbitrator's "recitation" of the Union's position on the issue.

      Further, according to the Agency, Section 5(A)(1)(a) of the RNIAP, which concerns length of workweek, states that "`[t]he length of the workweek and tours of duty at a given location shall be determined by agency managers and may be changed as required to meet operational needs.'" Opposition at 11 (quoting Section 5(A)(1)(a) of the RNIAP). The Agency refers to other sections of the RNIAP, including sections concerning scheduling, staffing flexibility, and days off, Section 5(A)(1)(d), (A)(2)(b), (A)(1)(c), which it contends support the Arbitrator's finding that the changes here fell within the scope of the RNIAP.

      The Agency also contends that the Union has not demonstrated that the Arbitrator exceeded his authority. The Agency asserts that it "never stipulated that a `tour of duty' was limited to a two week period" and cites portions of the transcript that it claims supports its contention. [n8]  Id. at 28.

      With respect to the nonfact assertions, the Agency claims that the assertion-that "it is unrebutted that the [A]gency witness claimed that the [A]gency ha[d] not repudiated local level bargaining that falls within the scope of the [RNIAP]"--is not supported by the record, because the Agency witness "clearly stated that the [RNIAP] repudiated local level bargaining." Id. at 31-32 (citing Tr. at 111-12).

IV.     Analysis and Conclusions

A.     The Award Is Not Contrary to Law

      The Authority's role in reviewing arbitration awards depends on the nature of the exceptions raised by the appealing party. See United States Customs Serv. v. FLRA, 43 F.3d 682, 686 (D.C. Cir. 1994). In NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (NTEU Chapter 24), the Authority stated that if the arbitrator's decision is challenged, as it is here, on the ground that it is contrary to any law, rule, or regulation, the Authority will review the legal question de novo. In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

      The Union's contrary to law contentions are addressed below.

1.     The Award Is Not Contrary to 5 U.S.C. §§ 7116(a)(1) and (5), and 7118

      The dispute concerns whether the Agency had an obligation to bargain at the local level with respect to a change in local conditions of employment concerning the length of bridge assignments and the scheme of RDOs. As his award, the Arbitrator concluded that the Agency had no obligation to bargain at the local level.

      The Union claims that the award is contrary to §§ 7116(a)(1) and (5) and 7118 of the Statute because the Arbitrator: (1) failed to include the refusal to bargain ULP allegation in his statement of the issues; and (2) failed to adopt the same analytical approach in resolving the grievance as the Authority. With respect to the Union's contrary to law claim that the Arbitrator failed to include the refusal to bargain ULP allegation in his statement of the issues, this claim is construed as an exceeded authority contention and is addressed below in Section IV.B.2. [ v60 p927 ]

      As to the Union's contention concerning the Arbitrator's application of the Authority's analytical approach for resolving ULPs in grievances, the Union has not demonstrated that the award is contrary to Authority precedent, in particular, AFGE, 52 FLRA 1429. In AFGE, the Authority stated that arbitrators should "apply the same standards and burdens as administrative law judges" in addressing ULP allegations. Id. at 1438. In that case, the Authority found, among other things, that the arbitrator there did not make findings of fact on which the Authority could determine whether the award was deficient under § 7116(a)(1) and (5). In this case, the Arbitrator made findings of fact and applied Authority precedent in concluding that the Agency did not violate § 7116 of the Statute.

      Under § 7116(a)(1) and (5), prior to implementing a change in conditions of employment of bargaining unit employees, an agency generally is required to provide the exclusive representative with notice and an opportunity to bargain over those aspects of the change that are within the duty to bargain. See Federal Bureau of Prisons, Federal Correctional Institution, Bastrop, Texas, 55 FLRA 848, 852 (1999) (FCI, Bastrop). With limited exceptions, parties must satisfy their mutual obligation to bargain before changes in conditions of employment are implemented. The extent to which an agency is required to bargain over changes in conditions of employment depends on the nature of the change. FCI, Bastrop. Here, the Union alleged that the Agency had an obligation to bargain over the impact and implementation of the change in bridge assignments and the scheme of RDOs.

      The record shows that the Arbitrator relied on Customs Service, where the Authority determined that the RNIAP was lawfully implemented, and the Abrams' award that was involved in NTEU, Chapter 137 and determined, based on his factual findings, that the changes in conditions of employment involved here were encompassed by the RNIAP.

      In NTEU, Chapter 137, the Authority referred to its decision in Customs Service and stated that:

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.

NTEU, Chapter 137, 60 FLRA at 486 (footnote omitted).

      Further, with respect to Customs Service, the Authority did not have occasion to specifically address the meaning and operation of Section 3 of the RNIAP, particularly as it relates to locally negotiated agreements and the Agency's obligation to bargain at the local level. See, NTEU, Chapter 137, 60 FLRA at 486 n.7. However, in NTEU, Chapter 137, the Authority found that:

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.
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.

NTEU, Chapter 137, 60 FLRA at 487 (footnotes omitted).

      Consistent with the foregoing, as relevant here, 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. "[S]ection 3 established the RNIAP as the governing policies and procedures with respect to inspectional assignment matters," including, as provided in Article 5 of the RNIAP, the length of the work week, tours of duty, and days off. [n9] NTEU, Chapter 137, [ v60 p928 ] 60 FLRA at 487. Therefore, for reasons previously expressed in NTEU, Chapter 137, the Agency did not have any obligation to bargain at the local level over the impact and implementation of the changes concerning bridge assignments and RDOs. Consequently, the Arbitrator's conclusion that the Agency did not violate § 7116 of the Statute is not contrary to Authority precedent.

2.     The Arbitrator's Findings that the RNIAP Takes Precedence over or Rescinded Articles 37 and 20, and that Section 3 of the RNIAP is Enforceable, Are Not Contrary to Law

      The Union argues that because Articles 20 and 37 of the NLA represent mandatory subjects of bargaining, they must remain in effect after the expiration of the term contract, unless the parties agreed otherwise, or unless modified in a manner consistent with the Statute. The Union claims that the Agency provided no evidence that it offered any proposal to modify Articles 20 or 37, or proposed to reopen those provisions, or that any agreement exists which eliminated the bargaining obligation found in those provisions. The Union contends, therefore, that the award is inconsistent with Authority precedent because it upholds the Agency's action modifying negotiated provisions of the NLA that include mandatory subjects of bargaining.

      The Union notes the Authority's statement in Customs Service that nothing in the decision was "intended to suggest that an agency may unilaterally modify provisions of an expired agreement relating to mandatory subjects of bargaining and the facts of this case do not present such an issue." Exceptions at 19 (quoting Customs Service, 59 FLRA at 710 n.20). In NTEU, Chapter 137, the Authority further noted that "parties' mandatory bargaining obligation is limited to bargaining at [the] certified level of exclusive recognition and therefore bargaining below [the] level of recognition is a permissive subject of bargaining[.]" NTEU, Chapter 137, 60 FLRA at 486 (citing United States Food and Drug Admin., Northeast and Mid-Atlantic Regions, 53 FLRA 1269, 1274 (1998)).

      Concerning the provisions involved in this case, in NTEU, Chapter 137, the Authority found that the terms of Article 37 of the NLA were "permissive." Id. at 486. Turning to Article 20, the Authority has held that implementation of the RNIAP effectively terminated bargaining at the local level over inspectional assignment matters. See NTEU, Chapter 137, 60 FLRA at 488. In this case, it is not clear that Article 20 provides for bargaining at the local level. However, insofar as it does, it is permissive because the statutory bargaining obligation with respect to inspectional assignment matters resides at the national level of recognition consistent with the parties' level of exclusive recognition--and not at the local level. See, e.g., NTEU, Chapter 137, 60 FLRA at 486-87. Therefore, bargaining below the national level on inspectional assignment matters provided in Article 20 concerns a permissive subject of bargaining.

      As Articles 20 and 37 concern permissive subjects of bargaining, when the parties' NLA expired in 1999, either party was free to lawfully terminate permissively negotiated matters. See id. at 486 and the cases cited therein. That is what the Agency did when it lawfully implemented Section 3 of the RNIAP: the Agency terminated its (permissively negotiated) obligation under the expired NLA and NIAP to bargain at the local level over inspectional assignment matters.

      The Union relies on FAA, 14 FLRA 644 for the proposition that following the expiration of a term agreement all provisions contained within such agreement that constitute mandatory subjects of bargaining remain in effect and enforceable until modified in a manner consistent with the Statute. However, the Union's reliance on FAA provides no basis for finding the award deficient. As mentioned, a party's mandatory bargaining obligation is limited to bargaining at the certified level of exclusive recognition and therefore bargaining [ v60 p929 ] below such level of recognition is a permissive subject of bargaining. Therefore, in the circumstances of this case where the certified level of exclusive recognition is at the national rather than the local level, the Arbitrator did not err in finding that Articles 20 and 37 were affected by the RNIAP because the Agency was free to lawfully terminate its obligation under the expired NLA and NIAP to bargain at the local level over inspectional assignment matters.

      Additionally, to the extent that the Union claims that an Agency witness conceded in testimony that the Agency had not withdrawn from local level bargaining over non-(b)(1) permissive matters, the Agency disputes this claim, asserting that the Union did not provide complete testimony and that the transcript demonstrates that the Agency witness testified that all local bargaining was "rescinde[ed" through the "NIAP." Opposition at 8 (referring to Tr. at 111-12). As the transcript demonstrates that the Agency witness testified that all local bargaining was rescinded through the NIAP, the Union has failed to establish that the Agency's witness testimony supports a finding that the Agency had not withdrawn from local level bargaining over non-(b)(1) permissive matters.

      Further, with respect to Section 3, the Union's assertion, that the Arbitrator's finding that this section is enforceable is contrary to law, does not provide any basis for finding the award deficient. In NTEU, Chapter 137, the Authority specifically found that:

Consistent with its clear terms, [S]ection 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. Moreover, the Agency's termination of its obligation to bargain at the local level concerning inspectional assignment matters under [S]ection 3 is consistent with its right to terminate permissive terms of expired agreements -- including Article 37 of the parties' 1999 NLA . . . and is, therefore, lawful.

60 FLRA at 487 (footnote omitted).

      Because the Agency did not have any obligation to bargain at the local level over changes concerning inspectional assignments matters and the dispute here involving Articles 20 and 37 concern inspectional assignment matters, the Arbitrator did not err in finding that the Agency lawfully terminated provisions in these articles. As such, whether or not the Agency's August 2 letter to the Union accompanying the proposed RNIAP was sufficient to effectively terminate the Agency's bargaining obligations at the local level under Article 37 and Article 20 of the parties' expired NLA, as addressed by the Arbitrator and the parties, is not dispositive. [n10]  See Customs Service, Port of Seattle, 60 FLRA at 494 n.11.

      As to the Union's claim that because Section 3 requires NTEU to waive future statutory bargaining rights--a permissive subject of bargaining--NTEU was free to refuse to negotiate, such claim does not provide any basis for finding the award deficient. Section 3 of the NIAP did not require the Union to waive future statutory bargaining rights. The Authority has held that the RNIAP terminated bargaining at only the local--not the national--level. See, e.g., NTEU, Chapter 137, 60 FLRA at 488.

      Accordingly, as the Union has not demonstrated that the Arbitrator's findings that the RNIAP takes precedence over or rescinds Articles 37 and 20 of the NLA and that Section 3 of the RNIAP is enforceable are deficient as contrary to law, the exceptions provide no basis for finding the award deficient as contrary to law.

3     .The Arbitrator's Application of the Covered by Doctrine Provides No Basis for Finding the Award Deficient

      The Union contends that the Arbitrator erred in finding that the revised NIAP "cover[s]" the changes--length of bridge assignments and rotation of RDOs-alleged to have been violated in Article 20 and 37 of the expired NLA. Exceptions at 25. Consistent with the Authority's decision in NTEU, Chapter 137, the Arbitrator's reliance on the "covered by" doctrine in the circumstances of this case is erroneous. In NTEU, Chapter 137, the Authority stated:

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 [ v60 p930 ] 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. . . . Nonetheless, the Arbitrator found that the Agency's "local action" was lawful because it "was `covered by' the [RNIAP]." . . . [W]e 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.
. . . .
Based on the foregoing, we find that the RNIAP is not a negotiated agreement. As the RNIAP did not constitute a negotiated agreement, we find that the Arbitrator erred in applying the "covered by" doctrine to it.

60 FLRA at 487-88 (footnote omitted).

      Nonetheless, the Authority found that this error in the arbitrator's reasoning did 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 id. at 488.

      As the Arbitrator in this case applied the "covered by" doctrine in the same manner as the arbitrator did in NTEU, Chapter 137, for the reasons expressed in that decision, the Arbitrator's finding that the RNIAP covered the subject matters in dispute is erroneous. Notwithstanding this finding, like in NTEU, Chapter 137, 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 changes concerning bridge assignments and RDOs, under the terms of the lawfully implemented RNIAP.

B.     Other Grounds               

1.     The Union Has Not Demonstrated that the Award Fails to Draw Its Essence from the Parties' Agreement

      In order for an award to be found deficient as failing to draw its essence from the parties' collective bargaining agreement, it must be established that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. United States Dep't of Labor, (OSHA), 34 FLRA 573, 575 (1990).

      In this case, the Union contends that the Arbitrator's finding that the Agency was not bound by Article 20, Section 15B and Article 37, Sections 1.C(1), 2, 3B, 6, and 10 fails to draw its essence from the NLA. In the above discussion, it was concluded that the Arbitrator did not err in finding that the Agency lawfully terminated the disputed provisions in Articles 20 and 37 because Section 3 of the lawfully implemented RNIAP effectively terminated the Agency's (permissively negotiated) obligations to bargain at the local level over inspectional assignment matters under Articles 20 and 37 of the parties' expired NLA and the NIAP. Such conclusion addresses and resolves the question of whether the Arbitrator's finding that the Agency was not bound by Articles 20 and 37 fails to draw its essence from the NLA.

2.     The Union Has Not Demonstrated that the Arbitrator Exceeded his Authority                         

      An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. See AFGE, Local 1617, 51 FLRA 1645, 1647 (1996). In determining whether an arbitrator has exceeded his or her authority, the Authority accords an arbitrator's interpretation of a stipulation of issues the same substantial deference that it accords an arbitrator's interpretation and application of a collective bargaining agreement. See United States Info. Agency, Voice of Amer., 55 FLRA 197, 198 (1999). See also SSA, Baltimore, Md., 57 FLRA 181, 183 (2001).

      First, with respect to the Union's contention that the Arbitrator failed to include the refusal to bargain ULP allegation in his statement of the issues, we construe [ v60 p931 ] this contention as an assertion that the Arbitrator exceeded his authority. Although the ULP allegation was not set forth in the Arbitrator's statement of the issues, the Arbitrator clearly noted that the grievance alleged, among other things, a violation of "5 U.S.C. [§] 7116(a)(1) and 5[,]" and resolved this allegation in his award. Award at 2 and 14. Consequently, the Union has not demonstrated that the Arbitrator exceeded his authority by failing to resolve an issue submitted to him in arbitration.

      Concerning the Union's claim that the Arbitrator exceeded his authority by ignoring the parties' stipulation defining tour of duty, the issue of whether the Arbitrator exceeded his authority in this regard revolves around his finding that the term "tour of duty" involved the length of bridge assignments. The Union claims that at the arbitration hearing the parties stipulated to the meaning of the term "tour of duty" as a "two week period of time, which includes the shift, days off and work location to which an employee is assigned." Exceptions at 38 (quoting Tr. at 5-6). The Union asserts that the Arbitrator ignored this definition when he found that the "Agency's decision to place an employee at a specific bridge for one year was a tour of duty." Id. at 38. The Agency argues that it "never stipulated that a `tour of duty' was limited to a two week period[.]" Opposition at 28. The Agency contends that it was stipulating that the term "tour of duty" referred to a period of time, a shift, designated days off, and work location" and pointed to testimony in the record that it claims shows it did not stipulate that a tour of duty was limited to a two-week period of time. Because the Union did not provide a copy of the transcript containing the stipulation and the Agency disputes the Union's contention, there is no support for finding that the Arbitrator disregarded a specific limitation on his authority. Accordingly, the Union has not demonstrated that the Arbitrator exceeded his authority.

3.     The Union Has Not Demonstrated that the Award Is Based on a Nonfact

      The Union contends that the Arbitrator's findings that: (1) the RNIAP covers impact and implementation bargaining concerning the changes involving bridge assignments and RDOs; and (2) the Agency rescinded provisions of the NLA mandating local level bargaining over the subject changes, are based on a nonfact.

      To establish that an award is based on nonfacts, the appealing party must demonstrate that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached. See United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593 (1993). Moreover, an arbitrator's legal conclusions cannot be challenged on the grounds of nonfact. See, e.g., AFGE, Local 801, Council of Prison Locals 33, 58 FLRA 455, 456-57 (2003).

      Before the Arbitrator, the parties disputed whether the Agency's "refus[al] to bargain over the impact and implementation of [the subject] changes" was lawful based on the RNIAP and whether the Agency "rescinded" provisions of the NLA mandating local level bargaining concerning the subject changes. Award at 7, 8, 9. See also id. at 12, 16 and 17. The Arbitrator determined that the RNIAP applied to the changes in dispute and the Agency rescinded provisions of the NLA mandating local level bargaining over the subject changes, therefore the Agency did not have "an obligation to bargain at the local level[.]" Id. at 16. The Union's exception challenges the Arbitrator's legal conclusions. As such, the exception provides no basis for finding the award deficient. See, e.g., United States Dep't of Defense, Education Activity, Arlington, VA, 56 FLRA 744, 749 (2000). Also, to the extent that the Union claims that an Agency witness' testimony demonstrates that the award is based on nonfacts, the Union's exception challenges the Arbitrator's legal conclusions that the RNIAP controlled local impact and implementation bargaining and that the Agency notified the Union that it had rescinded certain provisions of the NLA. Thus, for the reasons set forth above, this claim provides no basis for finding that the award was based on nonfacts.

V.     Decision

      The Union's exceptions are denied. [ v60 p932 ]


APPENDIX

Article 20 of the NLA provides, in pertinent part as follows:

                     ARTICLE 20
          ASSIGNMENT OF WORK

Section 2.A.      For purposes of this Article the
following definitions shall apply:
      . . . .
      (6)     Rotation: The recurring assignment of employees to different work locations, assigned work, shifts, and/or tours of duty within the confines of the employees' post of duty and/or other locations to which employees are regularly assigned.

      . . . .

Section 15.A.     Where necessary or appropriate, the Employer shall rotate employees through different work locations, assigned work, shifts, and/or tours of duty within the confines of the employee's post of duty and/or other locations to which the employees are regularly assigned.
B.     The Employer will give timely notice and the opportunity to bargain, in accordance with law and the terms of this Agreement, when a change is to be made in an established rotation system which has an impact, or one which is reasonably foreseeable, on conditions of employment.

Exceptions, Attachment J.E. 1. at 124, 132-33.

Article 37, in pertinent part, provides as follows:

                     ARTICLE 37
               BARGAINING

Section 1.

. . . .

C.     The Employer recognizes that the Union, in accordance with law and the terms of this Agreement, has the right to:
     (1)     bargain over the full range of statutory issues associated with the exercise of any management rights[.]

. . . .

Section 2.     Except in cases of emergency, as provided for in the Civil Service Reform Act, such as unforeseen occurrences precluding such notice, the Employer shall provide the Union with reasonable advance notice of intended changes in operational or administrative procedures.
Section 3.
B.     Notification of the changes to be implemented at the Port, Area or Area Port, Customs Management Center or Headquarters field office level will also be sent to the NTEU Field Office servicing the affected employees.

. . . .

Section 6.

A.     The parties agree that proposed changes which apply on a nationwide basis shall be negotiated at the National Office.
B.     Proposed changes which apply only within one (1) organizational office will be negotiated within that office, or upon mutual agreement, at another organizational office. If a proposed change applies in more than one organizational office, the parties will determine the appropriate level(s) and location(s) for negotiating the proposed change.

. . . .

Section 10. [Describes the duties of the parties to negotiate in good faith under this Article and lists the obligations, which are similar to the obligations listed in § 7114(b)(1) through (b)(5) of the Statute.]

Award at 3-5.

Handbook: National Inspectional Assignment Policy (RNIAP) provides, in relevant part, as follows:

3.     PRECEDENCE AND FUNCTION
The policies and procedures contained in this Handbook 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 the matters covered within this Handbook.
. . . . 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 Handbook.
4.     SUPERSEDED MATERIAL
This Handbook supersedes and replaces Handbook Number HB 51200-02 dated June 1995, as well as all local agreements that address matters contained within this Handbook.

Id. at 5-6 and Exceptions, Attachment, AE 16/HHH at 1. [ v60 p933 ]


Concurring opinion of Chairman Cabaniss:

      As with the case in NTEU, Chapter 137, 60 FLRA 483 (2004), I write separately to explain why I would find that the governing condition of employment in this case is a collective bargaining agreement rather than an agency regulation, and why the subject matter at issue here is thus "covered by" a collective bargaining agreement.

      Section 7103(a)(8) of our Statute defines a "collective bargaining agreement" as "an agreement entered into as a result of collective bargaining pursuant to the provisions of this chapter[.]" There is nothing in this agreement or our precedent that limits this definition to term agreements, for example, or precludes negotiations over the content of an agency regulation from being considered as a collective bargaining agreement. In that regard, §§ 7117(a)(2) recognizes that the content of agency rules or regulations are fully negotiable to the extent there is no "compelling need" for that regulation (a concept not applicable here). There is also nothing that mandates a finding that the concept of being "entered into" requires the mutual consent of the parties.

      Section 7103(a)(12) of our Statute defines "collective bargaining" as the mutual obligation to meet at reasonable times and to consult and bargain in a good-faith effort to reach agreement upon bargaining unit conditions of employment. That definition does not require that mutual agreement upon the terms of a collective bargaining agreement must be reached, to the contrary, the definition explicitly recognizes that "the obligation referred to in this paragraph does not compel either party to agree to a proposal or to make a concession[.]" As also noted by the definition, there is no requirement that there be a signed document as part of this process.

      The record in this case indicates that the Agency in 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), submitted its proposed assignment policies to the collective bargaining process under the Statute, as it was required to do. See, e.g., Fort Stewart Schools v. FLRA, 495 U.S. 641 (1990). I find no basis for distinguishing the facts of this case from Customs Service so as to preclude a finding that the Agency fulfilled its obligation to engage in "collective bargaining" as defined by our Statute: I also would find no basis for not concluding that this agency regulation on assignment policies is "an agreement entered into as a result of collective bargaining pursuant to the provisions of this chapter[,]" i.e., that this is a collective bargaining agreement.

The Authority also has recognized that a union may consent to a proposed change in conditions of employment, either explicitly through agreement or implicitly through action or inaction. Thus, an agency may implement changes in conditions of employment when a union fails to request bargaining within a reasonable period of time after being notified of proposed changes, fails to bargain, or fails to timely invoke the services of the Panel[,] after the parties have reached impasse. See, e.g., [United States INS I, 24 FLRA 786, 790 (1986)]. In these situations, the agency has, in effect, satisfied its bargaining obligation. (Footnote omitted).

United States Immigration and Naturalization Service, Washington, D.C., 55 FLRA 69, 73 (1999) (INS) (emphasis in the original). Based upon the above, as the Agency here has satisfied its collective bargaining obligation under the Statute, I find no basis for not concluding that there is a collective bargaining agreement establishing bargaining unit assignment policies. The fact that there is no apparent term (agreed upon length of time) to this collective bargaining agreement is immaterial, as there is no such requirement in our Statute or our precedent mandating such in order to become a collective bargaining agreement.

      I also would find that the issue of assignment policies is "covered by" this agreement, as I note no substantive rationale that would justify treating this agreement differently than any other agreement which has been reached through the collective bargaining process. As noted by the Authority in the INS decision, in each instance discussed an agency fulfills its bargaining obligation under the Statute, and any attempts to parse a distinction based upon the extent to which a union has agreed to the agreement is at odds with that decision and has no justifiable basis. Thus, I find no legally compelling basis for treating the collective bargaining agreement here any differently.



Footnote # 1 for 60 FLRA No. 167 - Authority's Decision

   Chairman Cabaniss' separate opinion is set forth at the end of this decision.


Footnote # 2 for 60 FLRA No. 167 - Authority's Decision

   The Authority concluded in 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) that the Agency's implementation of the RNIAP was lawful. The Authority has also addressed the Agency's implementation of the RNIAP in United States Dep't of Homeland Security, United States Customs and Border Protection, 60 FLRA 496 (2004) (Customs and Border Protection) (Chairman Cabaniss dissenting); United States Dep't of Homeland Security, United States Customs and Border Protection Port of Seattle, Seattle, Washington, 60 FLRA 490 (2004) (Customs Service, Port of Seattle) (Chairman Cabaniss concurring); and NTEU, Chapter 137, 60 FLRA 483 (2004) (NTEU, Chapter 137) (Chairman Cabaniss concurring).


Footnote # 3 for 60 FLRA No. 167 - Authority's Decision

   The pertinent text of Articles 20 and 37 is set forth in the Appendix to this decision.


Footnote # 4 for 60 FLRA No. 167 - Authority's Decision

   The pertinent text of the RNIAP is set forth in the Appendix to this decision.


Footnote # 5 for 60 FLRA No. 167 - Authority's Decision

   Arbitrator Abrams' award is involved in NTEU, Chapter 137, 60 FLRA 483.


Footnote # 6 for 60 FLRA No. 167 - Authority's Decision

   The pages of the transcript quoted by the Union were not included in its attachments.


Footnote # 7 for 60 FLRA No. 167 - Authority's Decision

   The Union refers to Attachment F of its exceptions (TR) at 119-22.