FLRA DECISIONS

60 FLRA Nos. 96, 97, & 98

TERMINATING LOCAL BARGAINING

NTEU, Chapter 137 and DHS, Customs & Border Protection, 0-AR-3823, December 17, 2004, 60 FLRA No. 96. DHS, Customs and Border Protection, Port of Seattle and NTEU, Chapter 139, 0-AR-3785, December 17, 2004, 60 FLRA No. 97. DHS, Customs and Border Protection and NTEU, 0-AR-3768, December 17, 2004, 60 FLRA No. 98.

Holdings

60 FLRA No. 96. Because the agency lawfully terminated its permissively negotiated duty under the national agreement and a 1995 negotiated National Inspectional Assignment Policy (NIAP) to bargain at the local level over inspectional matters, the arbitrator's conclusion that the agency didn't have a duty to bargain at the local level over a change in Sunday overtime assignments to supervisory personnel at Fort Pierce, Florida, was consistent with law.

60 FLRA No. 97. FLRA set aside an award holding that the agency violated its statutory duty to bargain I&I at the local level over changes in overtime assignment practices at the port of Seattle. The award was contrary to law. "As we found in [60 FLRA No. 96], section 3 of the lawfully implemented RNIAP [i.e., the revised NIAP] effectively terminated the Agency's (permissively negotiated) obligations to bargain at the local level over inspectional assignment matters under Article 37 of the parties' expired NLA and the NIAP."

60 FLRA No. 98. FLRA (Chairman Cabaniss dissenting), relying on 60 FLRA No. 96, set aside an award in which the arbitrator found that the agency violated an MOU dealing with the number of inspectors assigned to outbound operations. "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 to work projects, in particular, the number of such inspectors."

Summaries

Background to all three cases. Exclusive recognition is at the national level: therefore bargaining below that level is a permissive, not a mandatory, subject of bargaining. A National Inspectional Assignment Policy (NIAP) had been negotiated in 1995 in which the agency agreed to negotiate ' 7106(b)(1) staffing patterns at the local level.

The national labor agreement (NLA) expired in 1999.

In 2001 the agency notified the national union that it intended to no longer be bound by the national agreement's provisions in which the agency had agreed to bargain over ' 7106(b)(1) matters. It also sent the union a proposed revision of the NIAP (hereafter RNIAP). Section 3 of the RNIAP stated, among other things, that the RNIAP took precedence over all other agreements, practices "or other documents" executed at either or local levels concerning matters covered within the RNIAP. "No further obligation," section 3 continued, "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 [RNIAP]."

The union proposed ground rules in which it conditioned the bargaining on the impact and implementation of the proposed RNIAP on first negotiating over the expired master agreement. The agency didn't agree: instead it implemented the RNIAP and directed management officials "to make determinations regarding shifts, assignments of overtime, tours of duty and work hours without any further bargaining with NTEU."

Although the union had grieved the agency's action and the arbitrator had sustained the grievance, FLRA set aside the award in 59 FLRA No. 128, reported in Significant Cases No. 153, pp. 13-14. FLRA held that the agency had no duty to negotiate a ground rule exceeding the scope I&I bargaining. Thus when the agency refused to agree to the union's proposed ground rules and proceeded to implement the RNIAP, its actions were not a violation of the statute.

60 FLRA No. 96. When, after the RNIAP was implemented, the agency assigned a supervisor to perform inspectional duties instead of assigning such duties to a bargaining unit inspector on overtime, the local union filed a grievance, alleging that the agency violated the local IAP, past practice, and ' 7106(a)(1) and (5). The matter was referred to arbitration and the arbitrator, relying partly on FLRA's decision in 59 FLRA No. 128, denied the grievance.

The union filed exceptions and FLRA dismissed all but some technical objections having, at least in the view of the majority, no bearing on the legality of the award. It noted that when the national agreement expired in 1999, either party was free to unilaterally terminate permissively negotiated matters. Since section 3 of the RNIAP terminated locally negotiated agreements concerning inspectional assignment matters, the arbitrator's conclusion that the agency had no duty to bargain at the local level over the change at the Fort Pierce facility was consistent with law.

In a separate opinion, Chairman Cabaniss didn't agree with the majority view that the RNIAP wasn't a collective bargaining agreement and thus the "covered by" doctrine, invoked by the arbitrator, didn't apply. Citing 60 FLRA No. 18 (properly implemented final offers, like FSIP orders, are part of the contract), she viewed the RNIAP as an agreement and therefore the "covered by" doctrine applied. But the final result was the same.

60 FLRA No. 97. A Local Inspectional Assignment Policy (LIAP) that had been negotiated by the parties at the local level for the Port of Seattle, set out "Overtime Assignment Guidelines" for assigning and canceling overtime so as to "effectuate equalization of overtime." When the local union was told of the changes management intended to make pursuant to the RNIAP, it requested bargaining over the changes. The agency refused, contending that it had no duty to bargain over the substance of the changes because they were made pursuant to management's rights and, moreover, under the RNIAP there was no duty to bargain the I&I of the changes. The union grieved and the matter was referred to arbitration.

In sustaining the grievance, the arbitrator rejected the agency's claims that it had no duty to bargain at the local level and concluded, among other things, that section 3 of the RNIAP didn't waive the union's right to bargain over I&I.

In setting aside the award, FLRA said the following:

[T]his case concerns solely the Agency's obligation to bargain at the local level regarding the assignment-related changes made at the Port of Seattle. The Agency was not obligated to bargain at the local level after Section 3 of the RNIAP became effective. Consistent with [60 FLRA No. 96], we find that the Arbitrator's award finding a violation of the Statute for not engaging in such local bargaining is deficient.

In her concurring opinion, Chairman Cabaniss again explains why she "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."

60 FLRA No. 98. Customs inspectors at the Port of Roosville, Montana have been assisted by personnel of the Montana National Guard (MNG) since 1993. When management began assigning only one armed customs inspector, rather than the two it had been assigning to work with MNG personnel on outbound operations, the local union grieved claiming that agency violated an MOU management didn't meet its bargaining obligations and the matter was referred to arbitration. The found that the agency violated the statute and the MOU. In setting aside this award, FLRA (Chairman Cabaniss dissenting) said the following:

For the reasons stated in [60 FLRA Nos. 96 and 97], we also find in this case that the Agency did not have any obligation to bargain at the local level over the impact of its determination regarding the number of inspectors assigned to outbound operations, whether under the MOU or Article 37 of the parties' NLA. 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 to work projects, in particular, the number of such inspectors. Consequently, the MOU, as interpreted by the Arbitrator to require the Agency to bargain at the local level over the impact of its decision to assign a single armed inspector to outbound operations when [Montana National Guard] personnel are also assigned, as a matter of safety, is unenforceable as a result of the operation of section 3 of the RNIAP. As such, the Arbitrator's award finding a violation of the MOU and the Statute is contrary to law.

In her dissent, Chairman Cabaniss thought the majority misconstrued the award. In her view, section 3 of the RNIAP didn't apply to this case because the arbitrator found that the MOU concerned the effect of the use of non-agency personnel (i.e., National Guard personnel), and didn't relate to the assignment of agency personnel. "Her award is confined to requiring the Agency to bargain over those safety-related effects. Nowhere in her award does she state or suggest that those effects extend to the staffing matters about which the Agency expresses such great concern." In short, in her view the award was not deficient.

 

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