[ v60 p131 ]
60 FLRA No. 32
DEPARTMENT OF HOMELAND SECURITY
BUREAU OF IMMIGRATION AND
CUSTOMS ENFORCEMENT
(Agency)
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
NATIONAL IMMIGRATION
AND NATURALIZATION
SERVICE COUNCIL
LOCAL 2859
(Union)
0-AR-3635
_____
DECISION
August 16, 2004
_____
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 Jeffrey J. Goodfriend filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.
For the reasons that follow, we find that the award granting the employee 8 additional hours of remedial firearms training is not contrary to law. However, the Arbitrator's conditional award of back pay is contrary to the Back Pay Act and will be set aside. Award at 18.
II. Background and Arbitrator's Award
During the Immigration Officer Basic Training Course (IOBTC), the grievant was referred to the remedial training program after failing to achieve a qualifying score on the practical pistol course. At that time, the grievant signed a remedial referral form that stated: "A maximum of eight (8) hours of remedial training and two (2) retests are allowed." Award at 3.
The grievant participated in remedial firearms training and took two retests of the practical pistol course. However, she did not achieve a passing score on either test. As a result, the grievant was removed from IOBTC training and was reassigned to non-inspectional duties.
The grievant filed a grievance alleging that the Agency violated the INS Firearms Policy, a policy which had been negotiated with the Union, set forth in the Agency's Administrative Manual, and incorporated into the parties' collective bargaining agreement under Article 47B. [n2] Award at 1, 2. The grievance was not resolved and was submitted to arbitration.
Before the Arbitrator, the Agency argued that the grievance was not arbitrable and that the remedial training provided the grievant was sufficient. With respect to the sufficiency of the training, the Agency claimed that the INS Firearms Policy provision for 80 hours of remedial training was a typographical error, which the Agency had repeatedly pointed out to the Union. The Union contended that the grievance was arbitrable and that the provision for 80 hours of remedial training was properly negotiated between the parties and was correct as written.
The Arbitrator concluded that the grievance was arbitrable. On the merits, the Arbitrator ruled that the Union was entitled to rely on the clear language of the INS Firearms Policy to establish that the grievant did not receive the required amount of remedial firearms training. He determined that the Agency had not established that there was a mutual mistake pertaining to the amount of required remedial firearms training and that consequently, the Agency could not avoid the explicit language of the policy. On this basis, the Arbitrator determined that the grievant was entitled to have been provided 80 hours of remedial firearms training and that therefore, she was improperly terminated from the IOBTC after having received only 8 hours of remedial firearms training. [ v60 p132 ]
In fashioning a remedy for the Agency's improper termination of the grievant, the Arbitrator took into account a number of matters. He took into account the re-issued INS Firearms Policy, dated March 1, 2002, which modified the remedial firearms training to permit up to 8 hours of remedial firearms training instead of 80 hours. He took into account that at the time this award was written, the Union was challenging the change from 80 hours of remedial firearms training to only 8 hours in another arbitration. He also took into account the fact that the grievant had signed a document informing her that she would be given only 8 hours of remedial firearms training and 2 retests. He explained this approach as follows:
I am applying the currently stated INS Firearms Policy in crafting a remedy . . . in part because, in crafting the remedy set forth in this Award I have tried to incorporate principles of equity. [The grievant] signed a document informing her that she would be given 8 hours of remedial firearms training, if necessary, and two chances to take a firearms test that would require her to demonstrate proficiency in shooting her INS handgun.
Id. at 17.
The Arbitrator granted the following remedies:
(A) Because, due to her failure of the Practical Pistol Course course, [the grievant] was removed from the . . . (IOBTC) before completing all the non-firearm related training, [the grievant] cannot be reinstated into an Immigration Inspector position merely upon successful completion of remedial firearms training. Accordingly, the [Agency] should return [the grievant] to the Immigration Officer Academy so that she may re-take the IOBTC. . . . However, although [the Agency] must allow [the grievant] to take the IOBTC, the structure of the training provided . . . shall ultimately be determined by [Agency] management. This determination, given the facts of this case, must be consistent with the terms of the most recent Firearms Policy, providing for 8 hours of remedial firearms training (not 80) and two re-tests, if necessary--unless the most recent policy has been changed in arbitration at the time that [the grievant] attends the IOBTC, in which case the then applicable remedial firearms training provisions will apply. . . .
(B) If, and only if [the grievant] passes the entire IOBTC, she will have demonstrated, for purposes of the Back Pay Act, 5 U.S.C. § 5596, that:
(1) she is an aggrieved employee who was affected by an unjustified or unwarranted personnel action; and
(2) the personnel action resulted in the withdrawal or the reduction of an employee's pay, allowances or differentials.
Consequently, [the grievant] will be entitled to reinstatement into an Immigration Inspector position, retroactive to a time when she could have passed the entire IOBTC . . . with all appropriate back pay, including overtime, which she would have earned had she not been removed from the IOBTC. . . .
Id. at 17-18 (footnote omitted).
III. Positions of the Parties
A. Agency's Exceptions
The Agency contends that the award is deficient because it is contrary to § 7106(a) of the Statute and the Back Pay Act.
The Agency contends that the award is contrary to management's rights to determine internal security practices and to assign work under § 7106(a)(1) and (a)(2)(B) under the framework established by the Authority in United States Dep't of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 53 FLRA 146 (1997) (BEP). The Agency asserts that the award affects management's rights because it affects the Agency's determinations as to whether, and under what conditions, its security personnel should be armed, and it affects the Agency's determinations as to the type of training to be assigned and its frequency and duration. See Exceptions at 5 (citing AFGE, Nat'l Border Patrol Council, 40 FLRA 521, 541 (1991) (§ 7106(a)(1)); NTEU, 45 FLRA 339, 358 (1992) (§ 7106(a)(2)(B)).
Under the two-prong test of BEP, the Agency claims that the Arbitrator's enforcement of the firearms policy negotiated with the Union excessively interferes with management's rights and that consequently, the award fails to satisfy prong I. The Agency maintains that the Agency's entire firearms training program at the Immigration Officer Academy, as submitted to the Arbitrator, only encompasses 48 hours and that requiring the Agency to potentially give 80 hours of remedial firearms training is not feasible. The Agency asserts that the Arbitrator's "sweeping remedial firearms training [ v60 p133 ] requirement" excessively interferes with management's rights to assign work and to determine its internal security practices. Exceptions at 6.
The Agency also claims that the award does not reflect a reconstruction of what it would have done had it not violated the agreement and that consequently, the award fails to satisfy prong II of BEP. The Agency maintains that "[t]he Arbitrator . . . has ordered the Agency to do exactly what it did before and, in effect, has given the grievant a windfall (a second chance at the same course with the same remedial training) for her original failure to pass the firearms part of the IOBTC." Id. at 7. The Agency asserts that this result "bears no relationship to the findings made by the Arbitrator about whether the remedial training requirement was satisfied here." Id.
The Agency contends that the award is contrary to the Back Pay Act because the Arbitrator failed to find that the Agency's personnel action resulted in the reduction of the grievant's pay, allowances or differentials. The Agency asserts that requiring it to repeat the remedial firearms training does not establish that the grievant would have passed the IOBTC but for the Agency's failure to earlier provide the grievant with the proper amount of remedial training.
B. Union's Opposition
The Union contends that the Agency's exceptions should be denied because the award is not contrary to the Statute or the Back Pay Act.
The Union argues that the award is not contrary to management's rights under § 7106(a) because the Agency head approved the negotiated provision in dispute under § 7114 of the Statute and because the award satisfies both prongs of BEP. The Union asserts that the award satisfies prong I because it constitutes enforcement of a provision negotiated pursuant to § 7106(b)(3) in a manner that does not excessively interfere with management's rights. The Union maintains that 80 hours of remedial firearms training does not excessively interfere with management's rights because it "is less than two times the amount of regular training." Opposition at 3.
The Union asserts that the award satisfies prong II because of the Arbitrator's finding that any change to the March 2002 firearms policy as to remedial training would apply to the grievant's subsequent attendance at IOBTC. The Union maintains that "[t]his allows for any related grievances to work their way through the process, it allows the Agency to negotiate the eighty-hour provision with the Federal Law Enforcement Training Center, and it allows the parties to negotiate another reasonable accommodation for the affected employees . . . . In addition, it provides the [g]rievant with most of the seventy-two hours of remedial firearms training she was precluded from receiving." Id. at 4. The Union further asserts that "[t]he award definitely bears a relationship to the findings made by the Arbitrator." Id.
Finally, the Union contends that the award is not contrary to the Back Pay Act because "[h]ad the Agency provided the requisite amount of remedial firearms training as called for in the 1996 firearms policy, the [g]rievant most likely would have passed the IOBTC and the grievant would not have suffered the loss of pay as a result." Id.
IV. Analysis and Conclusions
A. The Award Does Not Excessively Interfere with the Agency's Right to Determine Its Internal Security Practices or Assign Work
When a party's exception challenges an arbitration award's consistency with law, rule, or regulation, the Authority reviews the questions of law raised in the exception and the arbitrator's award de novo. See NFEE, Local 1437, 53 FLRA 1703, 1709 (1998). When applying a de novo standard of review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. Id. at 1710. In making that assessment, the Authority defers to the arbitrator's factual findings. See NTEU, Chapter 50, 54 FLRA 250, 253 (1998).
Where an agency asserts that an arbitrator's award violates management's rights, the Authority first determines whether the award affects management's rights. See United States Small Business Admin., 55 FLRA 179, 184 (1999). In this respect, the Authority has held that "the right to assign work encompasses decisions as to the type of training to be assigned and the frequency and duration of the training." NTEU, 45 FLRA at 359. Moreover, we have held that "an agency's determination as to whether, and to what extent, its security personnel should be armed is a decision concerning the agency's internal security practices." AFGE, Nat'l Border Patrol Council and Nat'l Immigration and Naturalization Serv. Council, 40 FLRA at 541 (citing, Int'l Fed'n of Prof'l and Technical Eng'rs, Local 25, 33 FLRA 304, 306-07 (1988)). As the award affects management's determinations as to whether, and under what conditions, its security personnel should be armed, and it affects the Agency's determinations as to the type of training to be assigned and its frequency and duration, the award affects management's rights to determine its internal security practices and assign work under § 7106(a)(1) and § 7106(a)(2)(B) of the Statute. [ v60 p134 ]
Where, as here, an award affects management rights under § 7106, the Authority assesses the legality of the award under a test that was developed in light of the Supreme Court's decision in Dep't of the Treasury, Internal Revenue Serv. v. FLRA, 494 U.S. 922 (1990) (IRS); see BEP, 53 FLRA 146. The two-prong BEP test provides as follows:
Under prong I, the Authority examines whether the award provides a remedy for a violation of either an applicable law, within the meaning of § 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to § 7106(b) of the Statute. BEP, 53 FLRA at 153. If the award provides such a remedy, the Authority will find that the award satisfies prong I of the framework and will then address prong II. Under prong II of the BEP framework, the Authority considers whether the arbitrator's remedy reflects a reconstruction of what management would have done if management had not violated the law or contractual provision at issue. Id. at 154. If the arbitrator's remedy reflects such a reconstruction, then the Authority will find that the award satisfies prong II. An award that fails to satisfy either prong I or prong II will be set aside or remanded to the parties, as appropriate.
Soc. Sec. Admin., Boston Region (Region 1), Lowell Dist. Office, Lowell, Mass., 57 FLRA 264, 268-69 (2001) (Member Wasserman dissenting in part) (SSA, Boston).
1. The Award Is Not Deficient Under Prong I
Under prong I of BEP, we examine whether the INS Firearms Policy, Administrative Manual Section 20.012 incorporated through Article 47 of the parties' agreement, is enforceable as having been negotiated pursuant to § 7106(b). As the Union claims that it is an appropriate arrangement under § 7106(b)(3), we conduct our analysis accordingly.
In order to determine whether a provision is enforceable as having been negotiated pursuant to § 7106(b)(3), we assess whether the provision constitutes an arrangement within the meaning of § 7106(b)(3) and whether it excessively interferes with the exercise of a management right. United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Oakdale, La., 59 FLRA 277, 279 (2003) (Member Pope dissenting). In performing this analysis, the Authority must consider the provision in light of an arbitrator's interpretation and application of it. United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Fed. Satellite Low, La Tuna, Tex., 59 FLRA 374, 376 (2003) (BOP, La Tuna); United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Transfer Ctr., Oklahoma City, Okla., 58 FLRA 109, 110 (2002) (BOP, Oklahoma) (emphasis added).
Here, the Arbitrator determined that the parties' remedial firearms training policy in effect when the grievance arose provided expressly for up to 80 hours of training. However, in requiring the Agency to provide the remedial firearms training to the grievant that it failed to provide initially, the Arbitrator also took into consideration the fact that the entitlements under the new remedial firearms training policy had been modified to provide up to 8 hours instead of 80 hours, and that the new remedial firearms training policy was applicable to the circumstances of this case. Therefore, the Arbitrator determined that the Agency must provide only up to 8 hours of remedial firearms training for the Agency's failure to properly apply the remedial firearms training policy in effect when the grievance arose. Accordingly, in assessing whether this award excessively interferes with the Agency's rights under § 7106(a), we will resolve that issue based on the Arbitrator's determination that the grievant is entitled to up to an additional 8 hours of remedial firearms training as a remedy.
In its exceptions, the Agency does not dispute that the parties' agreement granting remedial training is an arrangement for employees adversely affected by the exercise of its management rights. Rather, the Agency argues that requiring it to give up to 80 hours of remedial training to every employee "with proficiency problems is not feasible, imposing an unworkable burden on the entire program for Agency trainee officers at FLETC." Exceptions at 6. However, for the following reasons, we find that the award does not excessively interfere with the Agency's management rights.
We note again that the award requires only that the Agency set aside up to 8 hours for additional remedial training, for a total of 16 hours of additional firearms training, not 80. Therefore, while under the terms of the award the employee would get up to 16 hours of remedial training, 16 hours is far short of the 80 hour threshold that the Agency argues is clearly excessive. Consequently, based on the record before us, we find that the Agency has failed to show, let alone argue, that 16 hours of remedial training is excessive.
The Agency also cites to Patent Office Prof'l Ass'n, 56 FLRA 69, 108-09 (2000) (Member Wasserman dissenting as to Proposal 35) for the proposition that a proposal requiring a minimum of 12 hours of formal classroom training to every employee excessively interfered with management's right to assign work because it deprived management of discretion with [ v60 p135 ] respect to the duration and type of training. Exceptions at 7. However, upon review of that determination, we note that the Authority stated:
A requirement that the Agency provide examiners with a minimum 12 hours of classroom training does not appear excessive, particularly when measured against the potential adverse effects on examiners from inefficient use of the automated system. However, the blanket nature of the proposal would deprive the Agency of any discretion to deviate from a specified minimum number of hours. Moreover, Proposal 35 would constrain the Agency not only with regard to the duration of the training, but also with regard to the type of the training [requiring "classroom" training]. In these circumstances, we conclude that Proposal 35's effect on management's right to assign work would be disproportionate to the benefits that employees would derive from it. Accordingly, Proposal 35 is not within the Agency's duty to bargain because it excessively interferes with management's right to assign work.
POPA, 56 FLRA at 109.
Accordingly, after review of the above, we note that a contract provision which sets forth a specific duration of training does not in itself excessively interfere with an agency's right to assign work as argued by the Agency. Moreover, in the circumstances of that case, the training was a "one size fits all" approach requiring a set amount of training for every employee regardless of proficiency and it dictated that the training must take place in a "formal classroom." Id. at 108, 109. In contrast, the parties' agreement, as interpreted and applied by the Arbitrator, involves only a single employee and leaves to the discretion of the Agency where the training can take place. Award at 10.
Turning to the benefits afforded the employee, it is clear that if an employee fails to satisfactorily complete firearms training, that employee would be reassigned to "non-sensitive, non-inspectional" duties. Award at 3. Under this award, the employee has the opportunity to meet the Agency requirements for carrying a firearm and, therefore, not be precluded from assuming the full duties of an immigration inspector. We find that this benefit to the employee is significant.
Accordingly, based on the above, we find that the Arbitrator's interpretation and application of the parties' agreement does not excessively interfere with the Agency's management rights as the benefits to the employee outweigh the burden to the Agency. As such, the Arbitrator's award does not violate prong I under BEP. [n3]
2. The Award Is Not Deficient Under Prong II
Under prong II of the BEP framework, as stated above, the Authority considers whether the arbitrator's remedy reflects a reconstruction of what management would have done if management had not violated the law or contractual provision at issue. BEP, 53 FLRA at 154. If the arbitrator's remedy reflects such a reconstruction, then the Authority will find that the award satisfies prong II. An award that fails to satisfy either prong I or II will be set aside or remanded to the parties as appropriate. See United States Dep't of Defense, Defense Logistics Agency, Defense Distribution Depot, Norfolk, Va., 54 FLRA 180, 185 (1998).
The Agency does not argue that the award fails under Prong II because the Arbitrator ordered 8 rather than 80 hours of additional remedial firearms training. Rather, the Agency challenges the remedy because the Arbitrator "ordered the Agency to do exactly what it did before and, in effect, has given the grievant a windfall (a second chance at the same course with the same remedial training) . . . ." Exceptions at 7. Therefore, the Agency asserts, the remedy fails prong II of BEP "because it bears no relationship to the findings made by the Arbitrator about whether the remedial training requirement was satisfied here [i.e., when the grievant was removed from training for not having fired a passing score]." Id.
As found by the Arbitrator, the Agency initially failed to properly apply the remedial firearms policy to the grievant. The Arbitrator fashioned his remedy in part to reflect the fact that the full range of entitlements under that policy may have changed to now permit a maximum of 8 additional hours of firearms training rather than a maximum of 80 additional hours. See Award at 17-18. We conclude, based upon the facts of this case, that the award does not conflict with prong II of BEP.
The alleged "windfall" cited by the Agency provides no basis for finding the award inconsistent with prong II of BEP under the facts of this case. Exceptions 136 at 7. Rather, the award reflects an appropriate remedy directing that the employee be granted training that the employee had been improperly denied. Moreover, there is no basis provided for finding that the Arbitrator was precluded in his award from taking into consideration the passage of time since the grievant had started the initial training, or the fact that the definition of the remedial training to be provided the grievant may have been changed. In that regard, the Arbitrator expressly directed that the grievant be provided the "applicable remedial firearms training[,]" noting that if the parameters of the remedial training program actually turned out to be 80 hours instead of 8, then the grievant would be entitled to the 80 hours. Award at 18.
As such, we find that the Arbitrator's remedy reflects a reconstruction of what the Agency would have done if management had not violated the parties' agreement. In this respect, as the Arbitrator found that the Agency violated the remedial firearms training policy, it was not improper for the Arbitrator to direct that the grievant be provided training in accordance with the Agency's remedial firearms training policy, even though the terms of that training might have changed.
Therefore, we find that the award is not contrary to law because it fails to comply with prong II of BEP.
B. The Award Violates The Back Pay Act
The Authority has long held that under the Back Pay Act, an award of back pay is authorized only when an arbitrator finds that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; and (2) the personnel action has resulted in the withdrawal or reduction of the grievant's pay, allowances or differentials. See United States Dep't of Health and Human Servs., 54 FLRA 1210, 1218-19 (1998) (HHS).
With regard to the first requirement, a breach of a collective bargaining agreement constitutes an unjustified or unwarranted personnel action. See GSA, 55 FLRA 493, 496 (1999). An arbitrator's finding of an agreement violation satisfies this requirement. See United States Dep't of Def., Army & Air Force Exch. Serv., Dallas, Tex., 49 FLRA 982, 991-93 (1994). The second part of the Back Pay Act test requires that there be a showing of a causal connection between the unwarranted personnel action and the withdrawal or reduction of a grievant's pay.
Here, the Arbitrator determined that the Agency breached the parties agreement because it violated Article 47B.(1) of the collective bargaining agreement when it failed to abide by the terms of the firearms training policy. Award at 16. As such, the employee was aggrieved by an unjustified or unwarranted personnel action.
However, with respect to the second part under the Back Pay Act, the Arbitrator did not find that the Agency's improper termination of the grievant's training caused the grievant to suffer a "withdrawal or reduction of the grievant's pay." HHS, 54 FLRA at 1218. Rather, the Arbitrator awarded back pay conditioned solely on the employee getting her firearms certification during this 8 hours of remedial firearms training.
As the Agency states, in SSA Office of Hearings and Appeals, Paducah, Ky., 58 FLRA 124, 125-26 (2002) (SSA, Paducah), the Authority found an arbitrator's award deficient under the Back Pay Act where "the Arbitrator made no finding that but for the Agency's failure to follow Section 7B [an article requiring the Agency to consider an internal applicant's application for at least 10 days before hiring outside of the Agency] the grievant would have been selected for the promotion." Accordingly, SSA, Paducah is similar to the current award in that the Arbitrator here also made no explicit or implicit "but for" determination linking the contract violation to the loss of pay. Award at 18. Therefore, as the Arbitrator did not find that the employee had suffered a loss of pay because of the Agency's breach of contract, the award does not satisfy the Back Pay Act.
While we are mindful of the FDIC, Washington D.C., 48 FLRA 313, 330 (1993) and United States Dep't of Health & Human Serv., SSA, Balt., Md. and United States Dep't of Health & Human Serv., SSA, Hartford Dist. Office, Hartford, Conn., 37 FLRA 278 (1990) decisions cited by Member Pope in her dissent, we note an apparent distinction between a circumstance where the parties first have to negotiate employee entitlements before knowing whether employees may have suffered any lost entitlement (the cases cited by Member Pope), and a situation where the lost entitlement is known - but it is unknown whether an employee is actually entitled to a retroactive promotion because the Arbitrator has first required that the employee successfully complete a training course before the Arbitrator would grant the retroactive promotion (the present situation). We need not await any further action (such as the negotiations referenced in the two cases by Member Pope) to know what benefits the employee may have lost - we know in the present instance that a lost promotion is the benefit alleged to have been improperly withheld. What isn't established (and what the Arbitrator didn't find) in the present case is that there is a causal relationship between the Agency's failure to abide by its firearms training requirements as part of the grievant's training and the lost promotion. Failure by the grievant to successfully complete all of the training course completely negates [ v60 p137 ] the Agency's obligation to provide the retroactive promotion, an event that would not be possible nor logical if the Agency's actions did indeed cause the promotion to be lost.
V. Decision
The Arbitrator's award granting the employee an additional opportunity to go through remedial firearms training is not contrary to law and the Agency's exceptions pertaining to this portion of the award are denied. The Arbitrator's award of back pay is contrary to the Back Pay Act and is set aside.
Member Armendariz concurring in part and dissenting in part:
I write separately to state why I find the award deficient.
The Arbitrator interpreted the provision in dispute -- Section 23.C.(2)(b) of the 1996 INS Firearms Policy -- as meaning that the Agency was obligated to have provided the grievant with 80 hours of remedial firearms training. In so doing, he expressly rejected the Agency's argument that the number "80" was a typographical error and the provision was intended to require only 8 hours of remedial training. However, to remedy this violation, he directed that the grievant be reinstated to an Immigration Officer Basic Training Course (IOBTC) and that based on the subsequent 2002 INS Firearms Policy and principles of equity, the Agency provide the grievant with 8 hours (not 80) of remedial firearms training.
I agree with my colleagues' reasoning and conclusion that the award affects management's rights to determine its internal security practices and assign work under § 7106(a)(1) and § 7106(a)(2)(B) of the Statute. However, I disagree with their conclusion that the award is not deficient under the two-prong test of United States Dep't of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 53 FLRA 146 (1997) (BEP). I would find that the award fails to satisfy prong I of the BEP test.
Under prong I of the BEP test, as relevant here, the Authority determines whether an arbitrator's award enforces a properly negotiated appropriate arrangement under § 7106(b)(3) of the Statute. In doing so, the Authority examines whether the provision of the collective bargaining agreement, as interpreted and applied by the arbitrator, constitutes an arrangement and whether its enforcement by the arbitrator excessively interferes with the exercise of a management right. Thus, the focus of a prong I examination is on the arbitrator's interpretation and application of the contract provision in finding a violation and sustaining the grievance. What is dispositive is the contractual obligation imposed on the agency by the arbitrator that results in an award that affects the exercise of a management right. It is this contractual obligation that is the interpretation, application, and enforcement, which must be examined under prong I. It is this contractual obligation that must constitute an appropriate arrangement properly negotiated pursuant to § 7106(b)(3). The focus under prong I is not on the remedy awarded (including, as here, a remedy awarded as a result of an arbitrator's consideration of a subsequent provision and principles of equity).
In this case, as noted above, the Arbitrator interpreted Section 23.C.(2)(b) as requiring the Agency to have provided the grievant with 80 hours of remedial firearms training. On this basis, he found that the Agency violated the provision, as so interpreted. On this basis, he also sustained the grievance and awarded relief that affects management's rights. Accordingly, consistent with the standard set forth in BEP, in order to resolve whether the Arbitrator enforced a properly negotiated appropriate arrangement, I must determine whether the Arbitrator's interpretation of Section 23.C.(2)(b), as entitling the grievant to 80 hours of remedial firearms training, excessively interferes with the exercise of management's rights to determine its internal security practices and assign work.
The Agency argues that the Arbitrator's interpretation of Section 23.C.(2)(b) violates prong I because "requiring the Agency potentially to give 80 hours of remedial training for each student with proficiency problems is not feasible, imposing an unworkable burden on the entire program for Agency trainee officers at FLETC." Exceptions at 6. Further, the Agency contends that "[i]mposing this kind of sweeping remedial firearms training requirement, which dwarfs the firearms training program as a whole, imposes an enormous restraint on management's ability to assign work and to determine its internal security practices and constitutes excessive interference with those rights." Id. I agree that the burdens placed on the Agency by the Arbitrator's interpretation of the provision are substantial. These burdens outweigh the benefits to employees resulting from the Arbitrator's interpretation of the provision. Accordingly, the Arbitrator's interpretation of Section 23.C.(2)(b) excessively interferes with the exercise of management's rights to determine its internal security practices and assign work. Therefore, the award violates prong I of BEP. As such, the award is deficient and must be set aside in its entirety.
Even if I were to assume that it is proper to address the Arbitrator's remedy of 8 hours of training in conducting an analysis under prong I of BEP, I would still [ v60 p138 ] find that the award excessively interferes with management's rights.
Employees attending IOBTC receive a total of 48 hours of firearms training. Thirty-four hours of training are provided up to and including the police pistol qualification course. Employees who fail to achieve a qualifying score on the pistol course are referred to the remedial firearms training program. Under the remedial firearms training program, employees are provided a maximum of 8 hours of remedial firearms training and up to 2 qualification retests.
In this case, the grievant received a minimum of 34 hours of firearms training and qualification testing and failed to achieve a qualifying score on the pistol course. As a result, the grievant was referred to the remedial firearms training program and was provided 8 hours of remedial firearms training. As part of the remedial firearms training program, she was also provided with 2 qualification retests, but failed to achieve a qualifying score on the pistol course.
By my count, the grievant has been provided with at least 42 hours of firearms training and 3 qualification tests in order to qualify her for a position that requires proficiency in the use of firearms. After all the training and the qualification tests, the grievant has failed to achieve a qualifying score on the pistol course. Despite all the training and qualification tests, the Arbitrator has now ordered that the grievant be reinstated to IOBTC and be given yet additional chances to achieve a qualifying score on the pistol course, even though the Agency has determinated that the grievant is not qualified to perform one of the essential functions of the position of immigration inspector.
It is well-established that the right to assign work under § 7106(a)(2) of the Statute includes the right to determine the qualifications and skills needed for positions and/or duties and to judge whether particular employees meet those qualifications and skills. See, e.g., AFGE, Local 3935, 59 FLRA 481, 482 (2003) (Chairman Cabaniss dissenting as to other matters). As noted, the Agency has repeatedly given the grievant opportunities to meet the requirements of the job. In my view, requiring the Agency to reinstate the grievant to IOBTC and to provide the grievant with more firearms training and additional chances to achieve a qualifying score on the pistol course places a disproportionate burden on management. Accordingly, even when I address the Arbitrator's remedy of 8 hours of remedial firearms training in conducting an analysis under prong I of BEP, I still find that the award excessively interferes with management's rights and violates prong I of BEP.
Normally, this would constitute a complete resolution of the case from my point of view, and I would not need to express a view on the Agency's additional claim that the award of back pay is contrary to the Back Pay Act. However, my colleagues disagree as to the resolution of the Agency's Back Pay Act claim. Thus, solely "in order to avoid an impasse in the Authority's disposition of this" claim, I will address it. See United States Dep't of Agric., Rural Dev. Oklahoma, Stillwater, Okla., 59 FLRA 983, 987 (2004) (separate opinion of Chairman Cabaniss).
I concur in the judgment that the award of back pay is deficient because, even assuming that the Agency's violation of Section 23.C.(2)(b) could constitute an unwarranted personnel action within the meaning of the Back Pay Act, there is no finding of the necessary causal connection between the Agency's unwarranted personnel action and any loss of pay, allowances, or differentials by the grievant.
The Authority has typically explained the requirement of a causal connection under the Back Pay Act in terms of a so-called "but-for" finding. See United States Dep't of Health & Human Serv., 54 FLRA 1210, 1219 (1998). Thus, the Authority examines the award for findings by the arbitrator which reflect that but for the unwarranted action, the grievant otherwise would not have suffered any loss of pay, allowances, or differentials. Accordingly, an arbitrator must effectively reconstruct what would have happened had the agency not committed the unwarranted personnel action and find that if the agency had not committed the unwarranted action, the grievant in that event would not have lost any pay, allowances or differentials.
Examining the Arbitrator's findings in this case in these terms, it is not apparent to me that the Arbitrator found that if the Agency had not committed the unwarranted personnel action, the grievant would have successfully completed the IOBTC in 2000 and would have earned pay, allowances, or differentials that she did not earn as a consequence of her removal from the course. To me, the grievant's future performance in an IOBTC does not reflect what would have happened in 2000 but for the Agency's unwarranted action and does not satisfy the requirement of a causal connection under the Back Pay Act. Accordingly, I concur in the judgment to find the award of back pay deficient as contrary to the Back Pay Act and concur in the decision to set aside the award of back pay.
File 1: Authority's Decision in 60
FLRA No.
32 and Opinion of Member Armendariz
File 2: Opinion of Member Pope
Footnote # 1 for 60 FLRA No. 32 - Authority's Decision
Member Armendariz's opinion, dissenting in part and concurring in part, and Member Pope's separate opinion dissenting in part follow this decision.
Footnote # 2 for 60 FLRA No. 32 - Authority's Decision
INS Firearms Policy, Agency's Administrative Manual Section 20.012 (1996) pertinently provided at Section 23.C.(2)(b):
Individual Basic Trainee officers who are required to carry a handgun and otherwise complete all other aspects of one of the Service Academies but fail to qualify with a handgun during the Basic Marksmanship Instruction and Practical Pistol Courses will be provided remedial training as outlined in Section 23.C.(1)(b) in order to assist them in successfully completing these courses. Such training will be conducted by the Academy and will consist of 80 additional hours of training devoted exclusively to firearms instruction . . . .
Award at 2 (emphasis in original).
Footnote # 3 for 60 FLRA No. 32 - Authority's Decision
Chairman Cabaniss is inclined to agree, as Member Armendariz argues, that the award would excessively interfere with the Agency's right to determine its internal security practices and assign work had the Arbitrator not only interpreted the parties' agreement to require 80 hours of additional remedial firearms training but also applied the contract to result in 80 hours of additional training. See, e.g., BOP, La Tuna, 59 FLRA at 376 (under BEP the Authority looks at both the interpretation and application of a parties' agreement in determining if a contract provision excessively interferes with a management right).