[ v55 p553 ]
55 FLRA No. 97
U.S DEPARTMENT OF THE TREASURY
U.S. CUSTOMS SERVICE
EL PASO, TEXAS
(Ageny)
and
NATIONAL TREASURY EMPLOYEES UNION
CHAPTER 143
(Union)
0-AR-3074
_____
DECISION
June 30, 1999
_____
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
Decision of Member Wasserman for the Authority
This matter is before the Authority on exceptions to an award of Arbitrator Carol Kyler filed by the Agency under section 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 found that the Agency violated the parties' Regional and National bargaining agreements when it permitted National Guard personnel to independently perform certain inspectional activities. We conclude that the Agency fails to establish that the award is deficient. Accordingly, we deny the Agency's exceptions.
In October 1990, the Agency and the Union entered into an agreement entitled the "Operation Guardian Agreement (Secondary Vehicle and Private Aircraft)" (the Regional Agreement), which concerned the use of National Guard personnel, in a support capacity, at ports of entry in El Paso, Texas. In April, 1991, a similar agreement concerning the use of National Guard personnel at ports of entry throughout the country was executed at the national level (National Agreement). As relevant here, the provisions of the Regional and National Agreements, which are substantially similar, provided that National Guard personnel could not engage [ v55 p554 ] in certain inspection activities outside the presence of a Customs employee. [n1]
After the National Agreement was executed, the Agency began utilizing National Guard personnel within the port of entry at El Paso, including two cargo lot facilities known as the Bridge of Americas (BOTA) and Ysleta. Prior to this time, the BOTA exit gate was not being staffed due to a shortage of Customs Inspectors. However, because of concern about potential port runners, the Agency began using National Guard personnel to staff the BOTA exit gate.
Initially, the National Guardsmen who staffed the BOTA exit gate were responsible for verifying that all vehicles attempting to exit that lot had obtained a release slip, signifying that the vehicle and its contents had been inspected by a Customs Inspector prior to leaving the lot. Later on, however, the duties of the National Guardsmen were expanded to include an assessment of whether the vehicles exiting the lot were carrying contraband. In July, 1991, the Union learned that the Agency had been assigning National Guard personnel to the BOTA exit gate unaccompanied by a Customs employee. As a result, the Union filed grievance #91-035, alleging that the Agency's use of National Guard personnel violated both the Regional and National Agreements.
In April, 1992, the Agency opened, on a permanent basis, the Ysleta cargo lot facility. The Agency then began using National Guardsmen at the Ysleta exit gate in the same manner that they were being used at BOTA. One month later, the Union filed a second grievance, #92-035, alleging that the Agency's use of National Guard personnel at the Ysleta exit gate also violated the Regional and National Agreements.
When the grievances were not resolved, they were submitted to arbitration on the following issues, as stipulated by the parties:
1. Does the grievance, #92-035 pertain to the BOTA or Ysleta Cargo Facility?
2. Did the Agency violate the Regional and/or National NG Agreements when it utilized NG military personnel at the BOTA and Ysleta exit gates, between July 31, 1991 and September 14, 1993? If so, what is the proper remedy?
Id. at 3.
At the outset, the Arbitrator found that grievance #92-035, dated May 1, 1992, pertained to the use of National Guard personnel at the Ysleta exit gate. In arriving at this finding, the Arbitrator noted that grievance #92-035 did not specifically use the word "Ysleta." However, the Arbitrator further noted that at the time that grievance was filed, there were two cargo facilities that were operating in El Paso -- BOTA and Ysleta. Therefore, based on the Union's use of the word "ports" in the grievance, and the Agency's use of the word "facilities" in its Step 1 response, the Arbitrator concluded that the Union's intent in filing the grievance was to "expand the scope and coverage of grievance #91-035 to include the exit gate at Ysleta." Id. at 5.
With regard to the merits of the grievances, the Arbitrator concluded that the Agency violated both the Regional and National Agreements, as the Union alleged. In arriving at this result, the Arbitrator initially found that section 8 of the Regional Agreement and section 9 of the National Agreement prohibit National Guardsmen from performing Agency work "unless a Customs employee is present, or `in close proximity.'" Id. The Arbitrator further found that both Agreements explicitly require that National Guard personnel be "under the direction and control of Customs personnel[.]" Id. (citing section 9 of the Regional Agreement and section 10 of the National Agreement). Finally, the Arbitrator determined that "the evidence is sufficient to support a finding that the Agency violated the Agreements when it permitted Guard personnel to independently conduct[] examination functions without being `controlled by the assigned Customs employee . . . .'" Id. at 7 (quoting sections 11 and 12 of the Regional and National Agreements). Therefore, the Arbitrator sustained the grievance.
To remedy the violations, the Arbitrator ordered "[b]ack overtime pay, with interest, . . . to all adversely affected employees that worked in [the] BOTA and Ysleta cargo facilities between July 31, 1991 and September 15, 1993." Id. at 9.
The Agency advances five exceptions to the Arbitrator's award, as set forth below. [ v55 p555 ]
The Agency maintains that the award violates its right to determine its budget under section 7106(a)(1) because it imposes a cost that requires the expenditure of appropriated funds. In support of this contention, the Agency explains that National Guard personnel were assigned to the exit gates as a result of a manpower shortage and, without their availability, the exit gates may not have been staffed at all. According to the Agency, by forcing it to significantly increase the portion of its budget allotted for inspection activities, the award attempts to prescribe the particular programs or operations to be included in its budget, or the amount to be allocated in its budget, in violation of section 7106(a).
The Agency also argues that the award violates its rights under section 7106(a)(2)(B). In this connection, the Agency maintains that under the analysis set forth in Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309 (1990) (Customs Service), the Authority determines whether an award violates management's rights under section 7106 by examining whether the provision enforced by the arbitrator: (1) constitutes an arrangement for employees adversely affected by the exercise of management's rights; and (2) if, as interpreted by the arbitrator, the provision abrogates the exercise of a management right. The Agency submits that if the provision constitutes an arrangement and the arbitrator's interpretation results in an abrogation of a management right, the award will be found to be contrary to law.
Applying Customs Service to the facts of this case, the Agency asserts that "to constitute an arrangement, a provision must seek to mitigate adverse effects `flowing from the exercise of a protected management right.'" Exceptions at 10 (citation omitted). The Agency further asserts that the provisions enforced by the Arbitrator "specifically address[] the [Union's] concerns about officer safety, staffing, assigning work, and the bargaining unit's ability to earn overtime." Id. at 11. The Agency, therefore, concludes that the provisions of the agreements enforced by the Arbitrator (sections 8, 9, and 11 of the Regional Agreement and sections 9, 10, and 12 of the National Agreement) constitute arrangements. Notwithstanding this conclusion, however, the Agency maintains that the Arbitrator's interpretation of both agreements abrogates management's right to assign work, to make determinations with respect to contracting out, and to determine the personnel by which its operations will be conducted under section 7106(a)(2)(B).
In this connection, the Agency submits, based on American Federation of Government Employees, AFL-CIO, Local 2317 and U.S. Marine Corps, Marine Corps Logistics Base, Nonappropriated Fund Instrumentality, Albany, Georgia, 29 FLRA 1587, 1593 (1987) (AFGE Local 2317), that confining work assignments to the bargaining unit is contrary to section 7106(a)(2)(B). According to the Agency, the instant award abrogates these rights by restricting the assignment of work to unit employees. In the Agency's view, the award also abrogates these rights by assuming that unit employees would "always" have been assigned overtime; the exit gates would have continually been staffed; and the Agency "could not assign National Guard personnel to other work areas." Id. at 12.
As concerns the Back Pay Act (Act), the Agency asserts that the Arbitrator failed to make the findings that are required to justify an award of back pay. In particular, the Agency cites the Arbitrator's finding that in order to be awarded back overtime pay, "it must be established that if the Agency had complied with the Regional and National Agreements concerning the utilization of NG personnel, the [a]ffected Customs employees would have worked the assignment which would have resulted in overtime being paid." Id. at 15 (emphasis omitted). The Agency also cites the Arbitrator's reliance on the testimony of Chief Inspector Squires, who stated that it was necessary to utilize overtime assignments "much of the time" and that if he had been instructed to put a Customs employee at the exit gate, "he would have applied for additional overtime funds . . . ." Id. The Agency claims that these and other similar findings are "too speculative" for an award of back pay. Id. According to the Agency, "[s]uch an award assumes that the `affected employees' would have been denied overtime on each day from July 31, 1991 to September 15, 1993 and contradicts the [A]rbitrator's fact finding that `at times' the [A]gency was not in violation of the [A]greement." Id. at 16.
In addition, the Agency submits that an award of "back overtime pay" from July 31, 1991, through September 15, 1993, is without a basis in fact. The Agency submits that the award was based on Squires' testimony that he utilized overtime to meet the Agency's mission much of the time between 1991 and 1992. However, the Agency contends that this "fact finding" cannot support an award that provides back overtime pay for 1993. Id. [ v55 p556 ] at 17. The Agency also asserts that the award fails to include a finding that the "affected employees" would actually have been assigned to staff the exit gate. Id. The Agency adds that an award of overtime pay cannot be sustained because the appropriate records were not retained. Without sufficient evidence to substantiate the time period encompassed by the award, the Agency maintains that the award will not support a back pay remedy.
The Agency claims that Article 22 of the parties' bargaining agreement, 19 U.S.C. § 267, 5 U.S.C. § 5542, and the regulations set forth in Part 550 of the CFR, "all restrict overtime earnings." Id. at 18. However, the Agency points out that the "award of back pay in this case, . . . contains no statutory conditions." Id. The Agency, therefore, contends that "compliance with the award would result in an illegal windfall of overtime pay for employees who have reached the statutory cap." Id. at 18-19.
The Agency asserts that the Union's grievance states that its use of National Guard personnel at the BOTA exit gate violated both the Regional and National Agreements. However, the Agency maintains that "the parties' agreements only concern secondary vehicle and private aircraft inspections." Id. at 13. According to the Agency, secondary vehicle activity occurs in a secondary staging area or at the cargo docks, not at the exit gate. Consequently, the Agency claims that the award fails to draw its essence from the parties' agreements because it is unfounded in reason and fact and is unconnected to the wording and purpose of the agreement.
The Union submits that the Agency's exceptions constitute only a "vague and generalized attack" on the Arbitrator's factual findings, as well as her ultimate conclusion that the Agency committed specific violations of the National and Regional Agreements. Opposition at 38.
With regard to the claim that the award violates the Agency's right to determine its budget, the Union submits that only one argument is advanced. According to the Union, the Agency contends that the award "imposes a cost upon the [A]gency which requires the expenditure of funds." Id. at 9-10 (quoting Exceptions at 8). However, the Union points out that the Authority has never found a monetary arbitration remedy to conflict with management's right to determine its budget. It further points out that arbitrators are accorded significant latitude in the fashioning of remedies and that every financial remedy will have some impact on the budget.
The Union also challenges the Agency's contention that the Arbitrator's interpretation of the Regional and National Agreements abrogates its right to assign work under section 7106(a)(2)(B). In this connection, the Union submits that the Agency has failed to specify, or offer any argument with respect to "which of the six provisions interpreted by the Arbitrator it relies upon." Id. at 16. As a result, the Union argues that this exception should be dismissed.
In the alternative, the Union asserts that an agency may elect to bargain over matters set forth in section 7106(b)(1). The Union further asserts that although an agency can withdraw from such negotiations at any time, once a provision concerning a (b)(1) matter is included in an agreement, it is enforceable through grievance arbitration. The Union contends that in this case, the Agency elected to bargain over the numbers and "types of positions and/or employees" that would be assigned to staff the exit gates. Id. at 18. As such, the Union maintains that the award does not violate section 7106(a)(2)(B).
As concerns the Agency's claim that the award abrogates its right to assign work, the Union explains that the Agency has retained the right to determine when and if National Guard personnel are to used at any work location. The Union maintains that, as interpreted by the Arbitrator, the parties' agreements only require the Agency to assign Customs employees to the exit gates when a National Guardsmen has been assigned to the same location.
The Union also challenges the Agency's contention that the award does not draw its essence from the parties' agreement. In this connection, the Union points out that only the parties' Regional Agreement specifically addresses secondary vehicle inspections. The Union, therefore, submits that with regard to the parties' National Agreement, the Agency's exception should be dismissed. As concerns the parties' Regional Agreement, the Union contends that the Arbitrator's findings and conclusions are rationally related to the language of the agreement and represent a plausible interpretation of the agreement.
With regard to the Agency's contention that the award violates the Back Pay Act, the Union asserts that the Arbitrator's explicit findings fulfill each of the crite- [ v55 p557 ] ria required for an award of back pay. In particular, the Union points to the Arbitrator's findings that: (1) certain identified employees were affected by unwarranted personnel actions; (2) absent the violations, the employees would have been assigned to work at the exit gates; and (3) but for the violations, the employees would have earned overtime. In addition, the Union notes that the Arbitrator only ordered overtime back pay for those dates that the Agency actually used National Guard personnel to staff the exits gates.
Finally, the Union asserts that the award does not violate the fiscal year statutory pay limitation placed on Customs employees by title 19 of the U.S. Code. According to the Union, under the regulation implementing 19 U.S.C. § 267, "awards [to a Customs officer] made in accordance with back pay settlements, shall not be applied to any applicable pay cap limitations." Opposition at 37 (quoting 19 C.F.R. § 24.16(h)) (emphasis omitted).
The Agency's exceptions, described above, allege, inter alia, that the award is contrary to law. Consequently, we review the questions of law raised by the exceptions de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
The framework for resolving exceptions alleging that an award violates management's rights under section 7106 of the Statute is set forth in U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and National Treasury Employees Union, Chapter 201, 53 FLRA 146, 151-54 (1997) (BEP). Upon finding that an award affects a management right under section 7106(a), the Authority applies a two-prong test. Under prong I of this framework, the Authority examines whether the award provides a remedy for a violation of either applicable law, within the meaning of section 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to section 7106(b) of the Statute. Id. 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, 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. See U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Depot, Norfolk, Virginia and International Association of Machinists and Aerospace Workers, Local Lodge 97, 54 FLRA 180, 185 (1998); U.S. Department of Veterans Affairs Medical Center, Coatesville, Pennsylvania and National Association of Government Employees, Local R3-35, 53 FLRA 1426, 1431 (1998).
In this case, the Arbitrator ordered only a make-whole remedy. That order redresses the Agency's failure to assign Customs Inspectors to the BOTA and Ysleta exit gates from July 1991 to September 1993.
The Authority's test for determining whether a proposal affects management's right to determine its budget under section 7106(a)(1) of the Statute is set forth in American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980), enforced as to other matters, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied, 455 U.S. 945 (1982) (Wright Patterson). [n2] Under the Wright-Patterson test, if a proposal prescribes either the particular programs to be included in the agency's budget, or the amount to be allocated in the budget, the proposal would affect the agency's right to determine its budget. Alternatively, if the agency makes a substantial demonstration that an increase in costs is significant and unavoidable and is not offset by compensating benefits, the Authority will [ v55 p558 ] find that the proposal affects the agency's right to determine its budget.
In this case, the Agency has provided no basis for finding that the Arbitrator's order is contrary to management's right to determine its budget under section 7106(a)(1). First, the order does not prescribe a program, operation or dollar amount to be included in the Agency's budget with regard to overtime. Therefore, the order does not conflict with management's right under the first part of the budget test. Second, the Agency has supplied no budget information that would allow the Authority to determine whether the order requires a significant and unavoidable budget increase without any compensating benefits. Therefore, the order does not affect management's right to determine its budget under the second, alternative, part of the Authority's budget test.
In these circumstances, we conclude that the order is not inconsistent with management's right to determine its budget under section 7016(a)(1). As such, we reject this exception.
The Union challenges, on procedural grounds, the Agency's contention that the award abrogates its right to assign work under section 7106(a)(2)(B). More specifically, the Union maintains that the Agency failed to identify "which of the six provisions interpreted by the Arbitrator" that the Agency relies upon. Opposition at 16. Therefore, the Union submits that this exception should be dismissed. We disagree.
Under section 2425.2 of the Authority's Regulations, a party filing an exception to an arbitration award has the burden of creating a record upon which the Authority can make a decision, including setting forth in full "[a]rguments in support of the stated grounds [for review], together with specific reference to the pertinent documents and citations of authorities; and . . . legible copies of other pertinent documents."
In this case, the Arbitrator found that the Agency violated three sections of the parties' Regional Agreement -- sections 8, 9 and 11 -- and three sections of the parties' National Agreement --sections 9, 10, and 12. The Agency contends that the Arbitrator's findings in this regard are contrary to its management rights under section 7106(a)(2)(B)
In our view, the Agency's exception sets forth with sufficient particularity the grounds on which the award is allegedly deficient. As noted in section II. above, the provisions of the Regional and National Agreements are substantially the same. Therefore, the Agency's contentions are actually premised on three similar provisions in each agreement. In addition, the Agency's submission includes a copy of both the Regional and National Agreements and complies with the Authority's Regulations in all other respects. Accordingly, we find that this exception is procedurally sufficient. See, e.g., U.S. Department of Veterans Affairs, Finance Center, Austin, Texas and National Federation of Federal Employees, Local 1745, 50 FLRA 73, 76 (1994).
An agency's right to assign work under section 7106(a)(2)(B) of the Statute includes the authority to determine the particular duties to be assigned, when work assignments will occur, and to whom or what positions the duties will be assigned. See U.S. Department of the Air Force, Seymour Johnson Air Force Base, North Carolina and National Association of Government Employees, Local R5-188, 55 FLRA 163, 167 (1999). In addition, proposals or provisions that impose a substantive limitation on the assignment of overtime work to nonunit employees directly interfere with an agency's right to assign work. AFGE Local 2317, 29 FLRA at 1593 (Provision 2).
As interpreted by the Arbitrator, the Regional and National Agreements at issue in this case require the Agency to assign Customs employees to work in the presence of, or in close proximity to, National Guard personnel stationed at the BOTA and Ysleta exit gates. The agreements also restrict the ability of National Guard personnel to independently perform inspection and examination functions. As the agreements affect management's right to determine the individuals to whom duties will be assigned, as well as the type of work to be assigned to those individuals, we find that they affect management's right to assign work under section 7106(a)(2)(B) of the Statute. [ v55 p559 ]
With regard to prong I of BEP, described in section 1 above, the Agency has conceded that the contract provisions being enforced by the Arbitrator constitute arrangements negotiated pursuant to section 7106(b)(3). Therefore, pursuant to Customs Service, it must next be determined whether these agreements would abrogate the exercise of a management right. [n4] We note, in this connection, that a provision abrogates a management right if, as interpreted and applied by the arbitrator, it "precludes an agency from exercising[] a management right[.]" Customs Service, 37 FLRA at 314. As interpreted by the Arbitrator in this case, the Regional and National Agreements do not preclude the Agency from assigning work under section 7106(a)(2)(B), as the Agency contends. Rather, the agreements only preclude the Agency from assigning National Guardsmen to the BOTA and Ysleta exit gates if a Customs employee is not concurrently assigned. Under the Arbitrator's interpretation, the Agency has retained its right to determine when and if National Guard personnel, and/or its own personnel, should be utilized. Accordingly, we conclude that the award does not abrogate management's right to assign work under section 7106(a)(2)(B). As such, we find that this portion of the award satisfies prong I.
With regard to prong II of BEP, the Arbitrator made the factual determination that the Agency's violation of the Regional and National Agreements resulted in a loss of overtime pay to adversely affected Customs employees. Accordingly, the Arbitrator ordered the Agency to pay all such employees who worked in the BOTA and Ysleta cargo facilities during the relevant time period "back overtime pay, with interest[.]" Award at 9. This reflects a reconstruction of what the Agency would have done if it had not violated the parties' Regional and National Agreements because it requires that unit employees be paid for all lost overtime opportunities. Consequently, we find that the award satisfies prong II.
As the award satisfies both prongs of BEP, we conclude that it is not inconsistent with management's right to assign work under section 7106(a)(2)(B). We therefore deny this exception.
An award of backpay is authorized under the Back Pay Act only when an arbitrator finds that: (1) the aggrieved employee was effected 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. See U.S. Department of Health and Human Services and National Treasury Employees Union, 54 FLRA 1210, 1218-19 (1998) (Authority clarified that a requirement that the pay loss would not have occurred but for the unwarranted action is not a separate, independent requirement of the Act, but merely amplifies the causal connection requirement of the Act). A violation of a collective bargaining agreement constitutes an unjustified or unwarranted personnel action under the Act. See U.S. Department of Defense, Department of Defense Dependents Schools and Federal Education Association, 54 FLRA 773, 785 (1998).
With regard to the first requirement for back pay awards, the Arbitrator found that the Agency violated sections 8, 9 and 11 of the Regional Agreement and sections 9, 10 and 12 of the National Agreement. Therefore, the Arbitrator made sufficient findings to warrant a conclusion that the Agency committed an unjustified or unwarranted personnel action.
With regard to the second requirement for back pay awards, the Authority has found that missed overtime pay constitutes a withdrawal or reduction of an employee's pay, allowances, or differentials. See U.S. Department of the Treasury, U.S. Customs Service, Portland, Oregon and National Treasury Employees Union, Chapter 156, 54 FLRA 764, 770-71 (1998). The Agency contends, however, that the Arbitrator did not make the requisite findings to justify an award of back pay because the findings that the Arbitrator made were too speculative and fail to include a determination that the affected employees would actually have been assigned to staff the exit gates. We find no merit in the Agency's contentions.
In the remedy portion of the award, the Arbitrator specifically found that "by utilizing [National Guard] personnel at the exit gate[s] unaccompanied by a Customs employee[,] [the Agency] violated both the Regional and National Agreements . . . ." Award at 8. The Arbitrator further found that "the Agency's violation of the Agreements resulted in a loss in overtime pay to adversely affected Customs employees, and that but for the Agency's violation of the Agreement[s], the adversely affected employees would not have suffered a loss in overtime pay." Id. Consistent with Authority [ v55 p560 ] precedent as set forth in U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Sheridan, Oregon and American Federation of Government Employees, Local 3979, 55 FLRA 28, 29 (1998) (FCI), these arbitral findings sufficiently identified the specific circumstances under which Customs employees were entitled to backpay. There is no additional requirement for the Arbitrator to have identified specific employees. See Federal Employees Metal Trades Council, Local 831 and U.S. Department of the Navy, Long Beach Naval Shipyard, Long Beach, California, 39 FLRA 1456, 1459 (1991) (when an arbitrator has found the specific circumstances giving rise to an entitlement to backpay, there is no requirement in the Act or its implementing regulations for the arbitrator to identify the specific employees entitled to backpay as a result of the unwarranted action); Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 13 FLRA 386, 387 (1983) (arbitrator made the necessary findings for an award of backpay because he determined that when overtime had been assigned in violation of the collective bargaining agreement, unit employees were available to perform such work; there is no requirement under the Act to identify any specific employees).
In addition, contrary to the Agency's assertions, the terms of the award ensure its consistency with the Act. Pursuant to the award, the Agency is only required to compensate employees for lost overtime pay for the dates between July 31, 1991, and September 15, 1993, on which it assigned National Guard personnel to staff the BOTA and Ysleta exit gates but failed to also assign a Customs employee. Moreover, the Agency's complaint about the absence of appropriate records to substantiate the award does not implicate the requirements of the Act, but rather implicates a matter of compliance and implementation. See FCI, 55 FLRA at 29. Accordingly, the Agency's contentions regarding the Back Pay Act must be rejected.
The Agency also submits that compliance with the award in this case would result in an illegal windfall of overtime pay for employees who have reached the statutory pay cap because it contains no statutory restrictions on overtime pay. In support of this position, the Agency relies on 19 U.S.C. § 267, the Back Pay Act and its implementing regulations, and Article 22 of the parties' Agreement.
19 U.S.C. § 267 concerns overtime and premium pay for Customs employees. As relevant here, section 267(c) provides that the aggregate of overtime and premium pay that a customs officer may receive in any fiscal year may not exceed $25,000. Notwithstanding this statutory limitation, however, the regulations implementing section 267 include a number of exceptions. In particular, 19 C.F.R. § 24.16(h) specifically provides in relevant part:
However, compensation awarded to a Customs Officer for work not performed, which includes overtime awards during military leave or court leave, continuation of pay under workers compensation law, and awards made in accordance with back pay settlements, shall not be applied to any applicable pay cap calculations.
Accordingly, the Agency's assertion that the award is contrary to 19 U.S.C. § 267 and its implementing regulations must be rejected.
As concerns the Agency's claim that the award is contrary to the statutory earnings limitations set forth in the Back Pay Act, the Agency has provided no explanation for this assertion. In addition, the Agency claims that the award violates Article 22 of the parties' collective bargaining agreement, but the Agency also provides no explanation to support this assertion. Nor does it provide a copy of the agreement. Consequently, these arguments are without merit.
As a final exception, the Agency contends that the award fails to draw its essence from the Regional and National Agreements because the agreements have no application to activities occurring at the BOTA and Ysleta exit gates.
In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential standard of review that Federal courts use in reviewing arbitration awards in the private sector. See 5 U.S.C. § 7122(a)(2); American Federation of Government Employees, Council 220 and Social Security Administration, Baltimore, Maryland, 54 FLRA 156, 159 (1998). Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the collective bargaining 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 collective bargaining 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. See [ v55 p561 ] United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990). 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. at 576.
In this case, the Arbitrator found that the Regional Agreement, the title of which specifically refers to secondary vehicles and private aircraft, applied to the exit gates of the cargo lots. The Arbitrator also found that the National Agreement, the title of which contains no such descriptive language, applied to the exit gates. The Agency has provided no basis for finding that the Arbitrator's interpretation of the applicability these agreements is implausible, irrational, or unconnected to the agreements' wording. Accordingly, we find that the Agency has not demonstrated that the award fails to draw its essence from the parties' Regional and National Agreements.
The Agency's exceptions are denied.
Sections 7, 8, 9, 10 and 11 of the Regional Agreement provide:7.
7. National Guard personnel will not be assigned to perform inspectional activities other than to provide support functions solely to assist Customs employees in the inspection process.
8. National Guard personnel will not perform any work unless a Customs employee is present, or in close proximity.
9. National Guard personnel will at all times, while performing Customs work, remain under the direction and control of Customs personnel.
10. The safety of Customs employees, National Guard members, and the public will be of paramount importance. If at any time the Customs employee assigned to direct the National Guardsmen's activity determines, in his/her judgment, that the safety of Customs personnel, National Guardsmen, or the public is threatened, then the Customs employee may order the National Guardsman away from the area.
11. All inspections will be controlled by the assigned Customs employee and will be processed in the manner required by 19 CFR Part 148, and/or by other law, rule or regulation.
Jt. Ex. 2.
Sections 8, 9, 10, 11 and 12 of the National Agreement similarly provide:
8. Guard personnel will not be assigned to perform inspectional activities other than to provide support functions solely to assist Customs employees in the inspection process.
9. Guard personnel will not perform any work unless a Customs employee is present, or in close proximity.
10. Guard personnel will at all times, while performing Customs work, remain under the direction and control of Customs personnel.
11. The safety of Customs employees, Guard members, and the public will be of paramount importance. If at any time the Customs employee assigned to direct the Guard's activity determines, in his/her judgment, that the safety of Customs personnel, Guard personnel, or the public is threatened, then the Customs employee may order the Guard personnel away from the area.
12. All inspections will be controlled by the assigned Customs employee and will be processed in the manner required by applicable law, rule, or regulation.
Jt. Ex. 3.
The provisions of the Regional and National Agreements pertinent to this case are set forth in the Appendix to this decision.
The Authority has questioned the application of the Wright-Patterson budget test to exceptions challenging arbitration awards. See U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Region West, Defense Distribution Depot Red River, Texarkana, Texas and National Association of Government Employees, Local R14-52, 52 FLRA 132 (1996). However, neither of the parties to this case has requested reconsideration of this precedent. Therefore, we apply Wright-Patterson in assessing the Agency's exception.
We construe the Agency's second management's rights exception to be limited to the right to assign work. To the extent the Agency also contends that the award abrogates management's right to make determinations with respect to contracting out and determining its personnel, the Agency has failed to offer any evidence or argument to support these contentions. As such, we find that they must be rejected. See, e.g., U.S. Department of Transportation, Federal Aviation Administration, Washington, D.C. and National Air Traffic Controllers Association, 55 FLRA 322, 326 (1999) (rejecting agency's bare assertion that the award affected management's right to assign work or determine personnel).
Under the framework set forth in Customs Service, an arbitrator's enforcement of an arrangement within the meaning of section 7106(b)(3) is not contrary to management rights unless the enforcement would abrogate the exercise of a management right. See BEP, 53 FLRA at 153 n.8.