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  • National Treasury Employees Union, Chapter 110 (Union) and United States Department of Homeland Security, Customs and Border Protection (Agency)

National Treasury Employees Union, Chapter 110 (Union) and United States Department of Homeland Security, Customs and Border Protection (Agency)

[ v63 p95 ]

63 FLRA No. 39

NATIONAL TREASURY
EMPLOYEES UNION
CHAPTER 110
(Union)

and

UNITED STATES
DEPARTMENT OF HOMELAND SECURITY
CUSTOMS AND BORDER PROTECTION
(Agency)

0-AR-4080

_____

DECISION

February 4, 2009

_____

Before the Authority: Thomas M. Beck, Chairman and
Carol Waller Pope, Member

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Roger P. Kaplan 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 claiming that the Agency was obligated to negotiate a bid and rotation process with a local chapter of the Union (Chapter 110). For the reasons that follow, we deny the Union's exceptions.

II.      Background and Arbitrator's Award

      The grievance protested the refusal of the Agency to negotiate with Chapter 110 over the implementation of changed work assignments on March 5, 2005, at the Port of Philadelphia. The Union maintained that local bargaining was required pursuant to the National Bid and Rotation Memorandum of Understanding (National MOU), a locally negotiated, verbal bid and rotation agreement, Revision 5 of the expired national labor agreement (NLA), and the Statute. On the basis of the Revised National Inspectional Assignment Policy (RNIAP), the Agency maintained that it had no obligation to bargain.

      In considering the grievance, the Arbitrator noted that, after the expiration of the NLA in 1999 and prior to the creation of the Department of Homeland Security (DHS) and the transfer of the United States Customs Service to DHS in 2003, the Customs Service implemented the RNIAP in 2001. The RNIAP replaced an earlier National Inspectional Assignment Policy (NIAP) that had been negotiated by the Customs Service and the Union and that provided for local negotiation of matters set forth in § 7106(b)(1) of the Statute, including staffing levels and tours of duty at the local level. According to the Arbitrator, the Authority found, and the United States Court of Appeals for the District of Columbia Circuit affirmed, that the RNIAP was properly implemented and that it terminated the Customs Service's obligation under the expired NLA, the earlier NIAP, and local inspectional assignment policies to bargain at the local level over inspectional assignment matters. Award at 4 (citing NTEU v. FLRA, 414 F.3d 50 (D.C. Cir. 2005) (NTEU v. FLRA), aff'g United States Dep't of the Treasury, Customs Serv., Wash., D.C., 59 FLRA 703 (2004) (Member Pope concurring)).

      The Arbitrator found that, prior to 2001, the Customs Service and the Union had many agreements covering bid and rotation, which had been negotiated pursuant to Article 20 of the NLA. [n1]  The Arbitrator also found that, in 2003, the Agency and the Union negotiated the National MOU. He acknowledged that the Agency maintained that the National MOU was a one-time agreement to permit employees to bid on work assignments in January 2004 while the Union maintained that the National MOU was an agreement with a duration of one year. The Arbitrator further found that the National MOU granted the local parties some discretion, but only in those areas, and only to the extent, explicitly stated in the National MOU. The Arbitrator found that the local managers and union representatives at the Port of Philadelphia subsequently "reached a verbal agreement[,]" but that the testimony was conflicting as to its terms. Id. at 5. The Arbitrator noted that the Union's position was that the local, verbal agreement was effective through April 2005 and that the Union filed the grievance when the Agency refused to negotiate over the work assignment changes at the Port of Philadelphia in March 2005. In addition, the Arbitrator acknowledged that the parties had reached agreement on Revision 5 to the expired NLA, which revision reopened Article 20 (Assignment of Work) and Article 37 (Bargaining).

      [ v63 p96 ] In resolving the grievance, the Arbitrator rejected the Union's argument that the grievance was not governed by the RNIAP because the grievance arose after the negotiation of Revision 5 and because Revision 5 revived the Agency's obligation to negotiate locally over changes to work assignments. As support for its interpretation of Revision 5, the Union argued that, during the negotiation of Revision 5, the Agency proposed to have all negotiations at the national level, but that, instead, the parties agreed not to change the language of Article 37, § 6B. [n2]  In rejecting the argument, the Arbitrator emphasized that the Agency and the Customs Service had consistently and successfully maintained the position that, since implementation of the RNIAP in 2001, there was no obligation to bargain locally over changes in work assignments. Id. at 11. In the Arbitrator's view, the Agency would not have agreed to again bargain locally through the negotiation of Revision 5. Id.

      The Arbitrator also rejected the Union's argument that the National MOU was an agreement with a one-year duration and that, pursuant to the National MOU, the local parties verbally agreed in April 2004 to a local bid and rotation agreement with a duration until April 2005. The Arbitrator noted that the National MOU specifies a bid and rotation process to be used in January 2004 and that the National MOU has no stated duration. However, because he concluded that the grievance could not be sustained even if he accepted the Union's position that the National MOU was effective through January 2005, he accepted the Union's position on the duration of the National MOU "[f]or the sake of this decision only[.]" Id. at 13.

      Based on the foregoing, the Arbitrator held that, to the extent that the local parties agreed verbally to a local bid and rotation agreement with a duration until April 2005, the agreement exceeded that authorized by the National MOU. Consequently, the Arbitrator determined that, after January 2005, neither the National MOU nor the local, verbal bid and rotation agreement obligated the Agency to negotiate locally with Chapter 110 concerning work assignments. In addressing the obligation to bargain under the Statute, the Arbitrator concluded that the Agency did not violate § 7116(a)(1) and (5) when it refused to negotiate locally over the impact and implementation of the disputed changes in work assignments because the RNIAP governed and because both the Authority and the courts found that implementation of the RNIAP eliminated that obligation.

      For all of these reasons, the Arbitrator denied the grievance.

III.      Positions of the Parties

A.      Union's Exceptions

      The Union contends that the award is deficient because it fails to draw its essence from the parties' agreements and because it is contrary to the Statute.

      The Union contends that the award is deficient on essence grounds because it is inconsistent with the express language of Revision 5, the National MOU, and the local, verbal bid and rotation agreement. As to Revision 5, the Union argues that the Arbitrator's interpretation that Revision 5 did not require bargaining at the local level is inconsistent with the plain language of reopened and renegotiated Articles 20 and 37.

      More specifically, the Union claims that Article 20, § 15B and Article 37, § 6B of Revision 5 require, respectively, that the Agency give notice and an opportunity to bargain over any changes to bid and rotation systems when such changes have a reasonably foreseeable impact on conditions of employment, and bargain locally over local changes unless there is mutual agreement otherwise. The Union acknowledges that Article 20 does not address the level of the notice and opportunity to bargain, but the Union asserts that Article 37 requires that local changes be bargained locally, absent agreement otherwise. The Union maintains that there is no dispute that the Port of Philadelphia changes were local and that there was no agreement to deviate from the local bargaining requirements of Article 37, § 6B. As to the National MOU and the local, verbal bid and rotation agreement, the Union argues that neither the National MOU nor the local agreement contained provisions that would allow for their terms to become unenforceable after January 2005, as found by the Arbitrator.

      The Union also contends that the award is contrary to the Statute because the Arbitrator failed to find a violation of § 7116(a)(1) and (5). The Union first asserts that the award is deficient because, like the arbitrator in AFGE, Local 940, 52 FLRA 1429 (1997), the Arbitrator made no reasoned findings of fact and failed to use the proper analysis in resolving the issue. Exceptions at 10. The Union also asserts that the award is deficient because, contrary to the finding of the Arbitrator, the Agency violated § 7116(a)(1) and (5) when it failed to give Chapter 110 notice and an opportunity to bargain [ v63 p97 ] prior to the implementation of the disputed changes at the Port of Philadelphia. Id. at 14. In addition, the Union claims that the National MOU specifically delegated bargaining on bid and rotation issues to the local parties and that, under the National MOU and Revision 5, Chapter 110 and local managers bargained a local, verbal bid and rotation agreement. The Union asserts that, even if the Authority accepts the Arbitrator's determination that the MOU and the local bid and rotation agreement expired in January 2005, their mandatory terms and the conditions of employment continued by operation of the Statute. Id. at 15.

      In sum, the Union claims that Revision 5, the National MOU, and the local, verbal bid and rotation agreement governed the issue of the Agency's obligation to bargain with Chapter 110, not the RNIAP, as found by the Arbitrator. The Union asserts that, because the Authority has ruled that the RNIAP is agency policy and not a collective bargaining agreement, the collective bargaining agreements govern under the Statute. Exceptions at 17 (citing NTEU, Chapter 137, 60 FLRA 483 (2004) (Chairman Cabaniss concurring)). In the alternative, the Union argues that the Arbitrator's reliance on the RNIAP is deficient because the Authority wrongly decided the RNIAP cases.

B.      Agency's Opposition

      The Agency contends that the award does not fail to draw its essence from the agreements and that the Arbitrator's ruling that the Agency did not violate § 7116(a)(1) and (5) is not contrary to the Statute.

      The Agency argues that the award does not fail to draw its essence from Revision 5, the National MOU, or any local, verbal agreement on bid and rotation. In particular, the Agency asserts that the Arbitrator properly interpreted Revision 5. Opposition at 14. The Agency notes that, in reopening Article 37, Revision 5 did not change the language of § 6B. The Agency also notes that Revision 5 reopened Article 20, but maintains that the reopening was solely to delete language pertaining to the Agency's previous obligation to bargain over permissive matters. Id. at 13. The Agency relies, in this regard, on an explanatory memorandum on Revision 5 signed by the Union's assistant counsel for negotiations that explained the changes to Article 20, § 15B, as follows: "You will also note language concerning the agency's previous election to bargain permissive subjects, i.e., numbers, types, grades, methods [sic] means and technology, has been deleted from Articles 5, 12 and 20." Id., Attach. A.

      The Agency also argues that the award does not fail to draw its essence from the National MOU, which, according to the Agency, does not confer or infer any right or obligation to engage in bargaining. [n3]  Id. at 4. The Agency further argues that the award does not fail to draw its essence from the local, verbal bid and rotation agreement because there was no such agreement. Id. at 5.

      Finally, the Agency asserts that the Arbitrator correctly found that bid and rotation involved changes in work assignments and that, under the RNIAP, changes in work assignments are not subject to local bargaining. The Agency maintains that the award is not contrary to the Statute because the RNIAP terminated the local bargaining provisions of Articles 20 and 37 of the expired NLA. Id. at 10.

IV.      Analysis and Conclusions

A.      The award does not fail to draw its essence from the parties' agreements.

      The Union contends that the award is deficient because it fails to draw its essence from Revision 5, the National MOU, and the local, verbal bid and rotation agreement.

      In reviewing an arbitrator's interpretation of a collective bargaining agreement, we apply the deferential standard of review used by federal courts in reviewing arbitration awards in the private sector. United States Dep't of Homeland Sec., United States Customs & Border Prot., JFK Airport, Queens, N.Y., 62 FLRA 129, 132-33 (2007) (citing 5 U.S.C. § 7122(a)(2)). Under this standard, we will find that an arbitration award fails to draw its essence from the agreement when the appealing party establishes 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. Id. at 133. The Authority and the courts defer to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. (quoting United States Dep't of Labor (OSHA), 34 FLRA 573, 576 (1990)).

      [ v63 p98 ] We reject the Union's argument that the Arbitrator's conclusion that Revision 5 did not require bargaining at the local level is inconsistent with the plain language of reopened and renegotiated Articles 20 and 37. In NTEU, Chapter 143, 60 FLRA 922 (2005) which involved Article 20, § 15B and Article 37, § 6B of the expired NLA prior to Revision 5, the arbitrator determined that any obligation to bargain locally over work assignments was terminated by the RNIAP. The Authority denied the Union's exception, which contended that this award failed to draw its essence from the NLA. The Authority concluded that the arbitrator correctly found that the RNIAP terminated the Agency's obligation to bargain at the local level over inspectional assignment matters under Articles 20 and 37 of the parties' expired NLA. Id. at 930. For the following reasons, we find NTEU, Chapter 143 dispositive here.

      As quoted by the Arbitrator, Article 20, § 15B plainly does not require the Agency to bargain locally over work assignments. Award at 2. The Union does not dispute the accuracy of the quotation and concedes that § 15B alone does not obligate the Agency to bargain at the local level. Exceptions at 13-14. Instead, the Union asserts that the renegotiation of Article 20 in Revision 5 supports its exception. However, the Union did not submit any renegotiated language to support its claim of a revived local bargaining obligation. [n4]  Accordingly, as in NTEU, Chapter 143, the Union has not shown that the Arbitrator's interpretation of the renegotiated language of Article 20, § 15B of Revision 5 fails to draw its essence from Revision 5. See NTEU, Chapter 143, 60 FLRA at 930.

      NTEU, Chapter 143 also resolves the exception as to Article 37, § 6B. Although in Revision 5 the parties reopened Article 37, § 6B and the Agency proposed new language, there is no dispute that the parties ultimately agreed not to change the language of the expired NLA. Award at 12; Tr. at 178. Consequently, the language of Article 37, § 6B of Revision 5 is the same language the arbitrator and the Authority, in NTEU, Chapter 143, held did not require local bargaining over work assignments after the RNIAP. NTEU, Chapter 143, 60 FLRA at 930. Accordingly, the Union has not shown that the Arbitrator's interpretation of the reopened language of Article 37, § 6B of Revision 5 fails to draw its essence from Revision 5. See id.

      The award also does not fail to draw its essence from the National MOU or the local, verbal bid and rotation agreement. The Authority has consistently ruled that the RNIAP terminated the Agency's obligation to bargain locally over work assignments. E.g., NTEU, Chapter 137, 60 FLRA at 486-88. As with Revision 5, the Union argues that the National MOU and the local, verbal bid and rotation agreement revived local bargaining. However, the Union fails to cite any language of the National MOU that authorizes local bargaining over work assignments. In addition, the National MOU specified that provisions authorizing local variation did not confer or infer any right or obligation to bargain locally. Opposition, Attach. D (National MOU) at 1. As such, the Union's reliance on the local, verbal bid and rotation agreement is misplaced because it was not negotiated at the level of recognition. See NTEU, Chapter 137, 60 FLRA at 486 (only the parties at the national level can agree to negotiate at levels below the level of recognition).

      Accordingly, we deny this exception.

B.      The award is not contrary to § 7116(a)(1) and (5) of the Statute.

      We review questions of law raised by exceptions to an arbitrator's award de novo. E.g., NTEU, Chapter 24, 50 FLRA 330, 332 (1995). In applying a standard of de novo review, we determine whether the award is consistent with the applicable standard of law. E.g., NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, we defer to the arbitrator on questions of contract interpretation. Id. at 1709 n.4.

      We reject the Union's claim that the Arbitrator made no reasoned findings of fact and failed to use the proper analysis in finding no violation. Consistent with the Authority's decision in NTEU, Chapter 143, we conclude that the Arbitrator made sufficient findings of fact and properly applied Authority precedent in ruling that the Agency did not violate § 7116 of the Statute. See NTEU, Chapter 143, 60 FLRA at 927 (Authority rejected argument that award was contrary to AFGE, Local 940).

      The Union also claims that the Agency violated § 7116 (a)(1) and (5) because Revision 5, the National MOU, and the local, verbal bid and rotation agreement governed the Agency's obligation to have bargained with Chapter 110, not the RNIAP. This claim reiterates the Union's essence arguments denied above. Consistent with that denial, we also deny the Union's contention [ v63 p99 ] that the award is contrary to law because the Arbitrator erroneously concluded that the Agency did not violate § 7116 (a)(1) and (5) of the Statute. See NTEU, Chapter 168, 55 FLRA 237, 242 (1999) (when the arbitrator's interpretation of the agreement is a complete defense to and unfair labor practice, no basis is provided for finding the denial of a grievance alleging a violation of § 7116 contrary to the Statute).

      Finally, in view of the judicial rejection of the Union's claim that the Authority erred in concluding that the Customs Service properly implemented the RNIAP, we reject the Union's alternative assertion that the award in this case is deficient because the Authority wrongly decided the RNIAP cases. See NTEU v. FLRA, 414 F.3d at 57-61.

      Accordingly, we deny this exception.

V.      Decision

      The Union's exceptions are denied.

Footnote # 1 for 63 FLRA No. 39 - Authority's Decision

   Article 20, § 15B provides: "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." Award at 2.

Footnote # 2 for 63 FLRA No. 39 - Authority's Decision

   Article 37, § 6B provides: "Proposed changes which apply only within one (1) organizational office will be negotiated within that office, or upon mutual consent, at another organizational office." Id. at 3.

Footnote # 3 for 63 FLRA No. 39 - Authority's Decision

   The Agency notes that the MOU specifies that a "`by mutual consent' provision does not confer or infer any right or obligation to . . . bargain[.]" Opposition at 4 (quoting Attach. D (National MOU) at 1).

Footnote # 4 for 63 FLRA No. 39 - Authority's Decision

   Furthermore, as set forth above, the Agency points out that, in the explanatory memorandum of Revision 5 referenced by the Arbitrator, award at 6, the Union's assistant counsel for negotiations acknowledged that "the agency's previous election to bargain permissive subjects, i.e., numbers, types, grades, methods [sic] means and technology, has been deleted from Articles 5, 12 and 20." Opposition, Attach. A.