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

[ v62 p263 ]

62 FLRA No. 50

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

and

NATIONAL TREASURY
EMPLOYEES UNION
(Union)

0-AR-4026

DECISION

_____

November 20, 2007

_____

Before the Authority: Dale Cabaniss, Chairman, and
Wayne C. Beyer and Carol Waller Pope, Members

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator M. David Vaughn 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.

      The Arbitrator sustained the grievance, which alleged that the Agency violated the parties' agreement when it implemented changes to its grooming standards policy prior to completing negotiations with the Union. For the reasons set forth below, we deny the Agency's exceptions.

II.      Background and Arbitrator's Award

      On August 3, 2004, [n1]  the Agency notified the Union of proposed changes to its current grooming standards policy, stating that it intended to implement the new grooming standards policy on September 19. See Award at 6. On August 4, the Union requested to bargain with the Agency over the new grooming standards policy and requested a briefing by the Agency regarding the proposed changes. See id. On August 24, the Union provided the Agency with dates the Union would be available for the requested briefing. On August 30, the Agency briefed the Union and the Union submitted seventeen proposals to the Agency concerning the proposed policy. See id. at 7. On September 10, the Union provided the Agency with available bargaining dates. On September 17, the Agency advised the Union that it considered twelve of the Union's seventeen proposals submitted on August 30 to be outside the duty to bargain and informed the Union that it was delaying implementation of the grooming standards policy until October 19. See id. at 7-8. On September 23, October 6 and 19, the parties bargained, but were unable to reach an agreement regarding the grooming standards policy. The Agency implemented the policy on October 19. See id. at 8. On that same date, the Union filed the instant grievance, which alleged that the Agency violated the parties' agreement and 5 U.S.C. § 7116(a)(1) and (5) by implementing the grooming standards policy prior to completing bargaining.

      Subsequently, on December 15, the Union filed a negotiability appeal with the Authority, docketed as Case No. 0-NG-2809, concerning the negotiability of several of the proposals the Union submitted to the Agency on August 30. [n2]  See Award at 1. On December 20, 2004, the Authority issued a show cause order requiring the Union to explain "why its petition should not be dismissed without prejudice under § 2424.30(a)" because it alleged an unfair labor practice in a pending grievance over issues directly related to its petition for review. Notice and Order to Show Cause in Case No. 0-NG-2809 at 2. The Union responded to the show cause order by stating that it "hereby withdraws the allegation in the national grievance that the Agency violated 5 U.S.C. 7116(a)(1) and (5)." Attachment to Union Response to Order to Show Cause at 1.

      On January 6, 2005, the Union submitted the unresolved grievance to arbitration, where the parties stipulated the issue to be: "Whether the Agency violated the National Agreement between [the Agency] and [the Union] when it implemented [the grooming standards policy] prior to the completion of bargaining and/or by refusing to engage in post-implementation bargaining? If so, what is the remedy?" Award at 2.

      Regarding the Agency's claim that the Union waived its right to bargain by failing to timely engage the Agency in negotiations, the Arbitrator found that "far from sleeping on its rights, the Union promptly and actively exercised its rights to bargain." Id. at 15. In this connection, the Arbitrator found that the Union's requests for briefings and information were "reasonable [ v62 p264 ] and appropriate[,]" the Union "promptly" submitted proposals and scheduled negotiations, and any delays by the Union were "legitimate and not excessive." Id. Accordingly, the Arbitrator concluded that the Union's actions cannot "be bootstrapped into a waiver of [its] bargaining rights." Id.

      With regard to the Agency's claim that timely implementation of the grooming standards policy was necessary to the functioning of the Agency, the Arbitrator acknowledged that the Agency's mission is "of the utmost importance[,]" but determined that "not every act or decision is critical to the accomplishment of the mission." Id. at 16. The Arbitrator rejected the Agency's claims that delay in implementing the policy would lead to decreased efficiency, health, safety, and security, finding that such claims were "conclusory and largely unsupported by the record." Id. at 18. In this regard, the Arbitrator found that the risks created by long hair and jewelry were "easily solvable" and that the claimed risks associated with facial hair and respirators were "grossly overstated." Id. In addition, the Arbitrator found that there was "no evidence . . . that lack of uniformity in attire and appearance standards . . . interfere[ed] with the accomplishment of the Agency's mission[.]" Award at 19. The Arbitrator further found that the Agency's handling of the "creation and implementation of the [grooming standards policy] proves that the . . . implementation was not critical to the Agency's mission[.]" Id. at 20. As such, the Arbitrator concluded that the Agency had not established that implementation of the policy was necessary to the functioning of the Agency.

      Based on his conclusions that the Union did not waive its right to bargain and implementation was not necessary to the functioning of the Agency, the Arbitrator found that the Agency violated Article 37 of the parties' agreement "when it implemented the [grooming standards policy] without exhausting its bargaining obligations with the Union[,]" and that the Agency violated "applicable provisions of law[.]" [n3]  Id. at 23. The Arbitrator noted that the Union had made arguments regarding the negotiability of the seventeen proposals the Union submitted to the Agency in response to the proposed change in grooming standards. See id. at 20. The Arbitrator found that the negotiability of five of the seventeen proposals was not challenged by the Agency. With regard to the remaining twelve proposals, the Arbitrator determined that a negotiability appeal was pending before the Authority and "decline[d]" to resolve the negotiability of those proposals. Id.

      As a remedy, the Arbitrator ordered a status quo ante remedy, but stayed the remedy for a period of: (1) 60 days following the Authority's resolution of the pending negotiability appeal; or (2) 180 days from the issuance of the award, whichever comes first. See id. at 22, 23. During the interim period, the Arbitrator ordered the Agency to bargain, at the Union's request, over the five proposals the Agency did not challenge.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency claims that the Arbitrator erred in finding that it did not fulfill its bargaining obligations. See Exceptions at 1, 9. In this connection, relying on Authority precedent, the Agency asserts that the Union waived its right to bargain by failing to timely provide the Agency with negotiation dates and bargaining proposals. See id. at 10-11 (citing Internal Revenue Serv. (Dist., Region, Nat'l Office Unit), 14 FLRA 698 (1984) (IRS); United States Dep't of the Army, Letterkenney Army Depot, Chambersburg, Pa., 60 FLRA 456 (2004) (Letterkenney); Dep't of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio, 51 FLRA 1532 (1996) (Wright-Patterson); and Div. of Military & Naval Affairs, State of N.Y., Albany, N.Y., 8 FLRA 307 (1982) (Military & Naval Affairs)). In particular, the Agency contends that the Union's refusal to engage the Agency in negotiations prior to implementation of the policy "constitute[d] a clear and unmistakable waiver" of the Union's right to bargain and relieved the Agency of its duty to bargain. Id. at 11-12.

      The Agency also claims that the Arbitrator erred in finding that implementation of the grooming standards policy was not necessary to the functioning of the Agency. See Exceptions at 1, 6. In this regard, the Agency asserts that implementation of the policy was necessary to address safety and efficiency concerns. See id. at 8. In addition, according to the Agency, after several agencies were combined to create the Agency, grooming standards among similar employees lacked uniformity. See id. at 5. As such, the Agency asserts that the "lack of uniformity in an area of central importance to the accomplishment of the Agency's mission" required "[i]mmediate application" of the new grooming standards policy. Id. at 5-6.

      The Agency further claims that the Arbitrator exceeded his authority in fashioning the remedy. According to the Agency, despite his lack of authority to [ v62 p265 ] order the parties to bargain over the proposals at issue in a separate negotiability appeal, the Arbitrator ordered the parties to return to the status quo 180 days after the issue date of the award if the Authority had not resolved the pending negotiability appeal. The Agency asserts that this portion of the remedy is deficient because the Authority "may" find that no bargaining obligation exists regarding the policy. Id. at 12.

B.      Union's Opposition

      The Union asserts that the Arbitrator properly determined that the Union did not waive its right to bargain. Specifically, the Union asserts that it timely requested bargaining and submitted proposals to the Agency. In addition, the Union asserts that the Arbitrator properly determined that the implementation of the grooming standards policy was not necessary to the functioning of the Agency.

      With regard to the remedy, the Union claims that the Arbitrator did not exceed his authority. In addition, the Union asserts that even assuming the Authority finds the 180-day portion of the status quo ante remedy deficient, the Agency has not objected to the portion of the award ordering the parties to return to the status quo 60 days after the Authority's resolution of the pending negotiability appeal.

IV.      Analysis and Conclusions

A.      The award is not contrary to law

      The Authority reviews questions of law raised by exceptions to an arbitrator's award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.

1.     The Union did not waive its right to bargain

      An agency is obligated to bargain before implementing a change in the conditions of employment of bargaining unit employees. See Dep't of the Air Force, Scott Air Force Base, Ill., 33 FLRA 532, 544-47 (1988) (Scott AFB). However, the Authority has recognized that a union may waive its right to bargain over a proposed change, either explicitly through agreement or implicitly through inaction. See Letterkenney, 60 FLRA at 457. In this regard, 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 submit bargaining proposals within a contractual or other agreed upon time limit, fails to bargain, or fails to timely invoke the services of the Federal Service Impasses Panel after the parties have reached impasse. See id.; see also Wright-Patterson, 51 FLRA at 1536-38; IRS, 14 FLRA at 700; and Military & Naval Affairs, 8 FLRA at 319-20.

      According to the Agency, the Union waived its right to bargain by failing to timely provide negotiation dates and to engage the Agency in bargaining. See Exceptions at 11. However, the Arbitrator's findings, to which we defer, establish that the Union requested bargaining and a briefing on the proposed change one day after receiving notice of the change, and subsequently suggested dates for both the briefing and for bargaining. See Award at 6-7. The Arbitrator also found that the parties mutually scheduled the requested briefing for twenty-one days after the notification, the Union submitted bargaining proposals at this time, and the parties bargained three times prior to implementation, but were unable to reach an agreement. See id. at 7.

      Applying the Arbitrator's finding to the legal standards set forth above, there is no basis, and the Agency has not pointed to one, for finding that the Union failed to provide the Agency with negotiation dates or to engage the Agency in bargaining within a reasonable period of time after being notified of the proposed changes. Moreover, there is no indication that the Union did not timely request a briefing or submit bargaining proposals. As the Arbitrator's undisputed findings are consistent with law, we find that the Agency has not established that the Arbitrator erred in determining that the Union did not waive its right to bargain, and we deny the Agency's exception in this regard.

2.      Implementation of the grooming standards policy was not necessary to the functioning of the Agency

      As stated above, an agency is obligated to bargain before implementing a change in the conditions of employment of bargaining unit employees. See Scott AFB, 33 FLRA at 544-47. However, an agency is relieved of this obligation where implementation prior to the completion of bargaining is necessary to the functioning of the agency. See Soc. Sec. Admin., 35 FLRA 296, 302 (1990). The Authority has held that a party asserting that unilateral implementation of a policy was necessary to the functioning of the Agency "must establish, with evidence, that its actions were in fact consistent with the necessary functioning of the agency, such that a delay in [ v62 p266 ] implementing would have impeded the agency's ability to effectively and efficiently carry out its mission." See United States Dep't of Justice, Immigration & Naturalization Serv., 55 FLRA 892, 904 (1999) (then-Member Cabaniss and Member Wasserman dissenting in part on other grounds) (DOJ).

      The Arbitrator rejected the Agency's claims that safety and efficiency concerns warranted unilateral implementation of the policy. In particular, as set forth above, the Arbitrator determined that the claimed risks regarding hair and jewelry were "unsupported[,]" the claimed risks regarding respirators and facial hair were "grossly overstated[,]" and that there was no evidence of "operational problems[.]" Award at 18-19. Although the Agency makes general assertions regarding officer safety, national safety, and Agency efficiency, the Agency has failed to point to any specific evidence in the record establishing that the Arbitrator erred in rejecting its claim that safety or efficiency concerns made implementation necessary to the functioning of the Agency. See Exceptions at 8.

      In addition, the Agency asserts that "[i]mmediate application" of the grooming standards policy was necessary to address the "lack of uniformity in an area of central importance" to the accomplishment of the Agency's anti-terrorism mission. Exceptions at 5-6. However, consistent with the Arbitrator's findings, there is no indication that the public did not "respond[] properly to the Agency's officers because of differing appearance standards" or that "lack of uniformity in attire and appearance . . . interfere[ed] with the accomplishment of the Agency's mission[.]" Award at 19. Accordingly, although the Agency's assertion demonstrates the critical nature of its mission, it does not establish how delaying implementation of the policy until the parties completed bargaining would have prevented the Agency from effectively carrying out its mission. See DOJ, 55 FLRA at 904. Moreover, the Arbitrator found that the Agency's delay in implementing the policy one month past the planned implementation date "prove[d] that the timing of its implementation was not critical to the Agency's mission[.]" Award at 20. The Arbitrator's finding is consistent with Authority precedent holding that an agency's delay of implementation past the planned implementation date is evidence that the implementation was not necessary to the functioning of the agency. See Olam S.W. Air Defense Sector (TAC), Point Arena Air Force Station, Point Arena, Calif., 51 FLRA 797, 827 (1996) (TAC); Dep't of Health & Human Servs., Soc. Sec. Admin., & Soc. Sec. Admin., Field Operations, Region II, 35 FLRA 940, 951 (1990).

      Based on the foregoing, we find that the Agency has failed to establish that the Arbitrator erred in determining that implementation of the grooming standards policy was not necessary to the functioning of the Agency. Accordingly, we deny the Agency's exception.

B.     The Arbitrator did not exceed 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 United States Dep't of Def., Army & Air Force Exch. Serv., 51 FLRA 1371, 1378 (1996). The Authority grants arbitrators broad discretion to fashion remedies they consider appropriate. See United States Dep't of the Interior, United States Geological Survey, Nat'l Mapping Div., Mapping Applications Ctr., 55 FLRA 30, 33 (1998).

      The Agency claims that the Arbitrator exceeded his authority in fashioning the remedy. Specifically, the Agency asserts that the Arbitrator had no authority to order the parties to return to the status quo 180 days from the date of the award if the Authority has not resolved the pending negotiability appeal. In resolving the Agency's argument, we note that the issue before the Arbitrator was stated as follows: "Whether the Agency violated the National Agreement between [the Agency] and [the Union] when it implemented [the grooming standards policy] prior to the completion of bargaining and/or by refusing to engage in post-implementation bargaining? If so, what is the appropriate remedy?" Award at 2. The Arbitrator concluded that the Agency violated Article 37 of the parties' agreement "and applicable provisions of law" when it implemented the revised grooming standards policy without completing bargaining with the Union. Id. at 23. As a result, the Arbitrator ordered a status quo ante remedy. Id. He stayed the remedy for a period of 60 days following the Authority's decision in NTEU or for a period of 180 days after the issuance of the award, whichever comes first. The Arbitrator's award provides a remedy for a contract violation and a violation of "applicable provisions of law." The Agency makes no argument that the Arbitrator does not have authority to order a status quo ante remedy for a contract violation, or for a violation of "applicable provisions of law," or to stay that remedy for a period of time. Consistent with the Arbitrator's broad discretion to fashion remedies, the exception provides no basis for finding the award deficient. See United States Dep't of Health & Human Servs., Region V, 45 FLRA 737, 747 (1992). Accordingly, we deny the exception.

V.     Decision

      The Agency's exceptions are denied.

Footnote # 1 for 62 FLRA No. 50 - Authority's Decision

   Unless otherwise stated, all dates refer to 2004.

Footnote # 2 for 62 FLRA No. 50 - Authority's Decision

   On this date we are also issuing a decision resolving the negotiability issues. See NTEU, 62 FLRA No. 51 (2007).

Footnote # 3 for 62 FLRA No. 50 - Authority's Decision

   Article 37 of the parties' agreement "outlines the parties' bargaining obligations consistent with law, rule, regulation and the National Agreement." Opposition, Attachment, Post-Hearing Brief at 9 n.8.