35:0329(37)AR - - Justice, Federal Prisons Systems, El Reno Fedeal Correctional Institution, El Reno, OK and AFGE, Council of Prisons Locals, Local No. 171 - - 1990 FLRAdec AR - - v35 p329



[ v35 p329 ]
35:0329(37)AR
The decision of the Authority follows:


35 FLRA No. 37

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF JUSTICE

FEDERAL PRISONS SYSTEMS

EL RENO FEDERAL CORRECTIONAL INSTITUTION

EL RENO, OKLAHOMA

(Activity)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL OF PRISONS LOCALS

LOCAL NO. 171

(Union)

0-AR-1697

DECISION

March 29, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Charles N. Carnes. The Arbitrator found that the Activity did not have just and sufficient cause to suspend the grievants for 14 days for inattention to duty. He vacated the suspensions and directed that the grievants be made whole with backpay. As to one of the grievants, the Arbitrator stated that he may be reprimanded for his conduct.

The U.S. Department of Justice, Bureau of Prisons (the Agency), on behalf of the Activity, filed exceptions under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the exceptions.

We conclude that the Agency has failed to establish that the award is deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The grievants, two correctional officers, were suspended for 14 days in connection with the escape of a prison inmate. Both grievants had been assigned to guard tower duty at the time of the escape. Because the inmate escaped "'in an area that [each Grievant was] responsible for observing' each of the Grievants was charged with inattention to duty in violation to Federal Prison System Program Statement 3000.01, Standards of Employee Conduct and Responsibility." Arbitrator's Award at 5-6. Grievances were filed over the suspensions and they were submitted to arbitration.

The Arbitrator noted that because these grievances involved discipline, the parties' collective bargaining agreement prescribed the issue he must address as follows: "Was the disciplinary action taken for just and sufficient cause, or if not what shall the remedy be?" Id. at 11.

The Activity's position before the Arbitrator was that it had proved by a preponderance of the evidence that an inmate escaped during the hours of the grievants' shift and that, because the visibility was good, the grievants should have prevented the escape. The Activity maintained that, consequently, it had proved that the grievants were inattentive to duty as charged. The Activity contended that the most important responsibility of a tower guard is to prevent escapes and the grievants failed to do so. The Activity also argued that the penalties assessed were reasonable under the circumstances and promoted the efficiency of the service. Id. at 9-10.

The Union's position before the Arbitrator was primarily that the escape occurred before the grievants' shift. However, the Union also contended that, because it was speculative that the grievants had been inattentive, the charges against the grievants were not proven. The Union further argued that the penalty was too severe under the circumstances. Id. at 10-11.

The Arbitrator acknowledged that the principal duty of tower guards is careful observation of all locations within their view, with the main emphasis on the areas of responsibility designated for the particular tower. Nevertheless, he stated that, although tower guards must perform with a high degree of diligence, "this standard does not amount to a guarantee that each and every improper inmate activity that may happen on their watch will necessarily be detected by them," and that "[t]hey certainly are not to be made scapegoats simply because an escape was accomplished on their watch." Id. at 11-12.

The Arbitrator first determined, contrary to the Union's contention, that the escape occurred during the grievants' shift. However, based on a consideration of all of the evidence, the Arbitrator determined that there was "no evidence in this case that shows any specific dereliction on the part of either Grievant during the shift in question." Id. at 12. Accordingly, he ruled that any culpable inattention to duty would have to be inferred from the general circumstances shown to have occurred on the night of the escape.

The Arbitrator determined that those circumstances provided no "basis for concluding that [the grievant assigned to tower 2] was improperly performing his duties that night." Id. at 15. The Arbitrator concluded that "the evidence on point is not sufficient to show by a preponderance that [this grievant] was guilty of inattention as charged." Id. Accordingly, with respect to this grievant, the Arbitrator held that "there was no just and sufficient cause shown for the disciplinary action taken against him." Id. at 20. He directed the Activity to make this grievant whole for all pay lost as a result of the suspension and remove from the grievant's personnel files and records all references to the suspension.

Reviewing the circumstances on the night of the escape with respect to the other grievant, assigned to tower 1, the Arbitrator determined that "none of them when considered in isolation tend to show an actionable inattention." Id. at 17. The Arbitrator also determined that there was "no indication that [the grievant assigned to tower 1] was guilty of any intentional misconduct or anything that would be considered grossly deficient, and there is not enough evidence to support a conclusion that [the grievant] was guilty of even negligent inattention." Id.

The Arbitrator concluded that, although the escape could have been seen by this grievant, the evidence was insufficient to support a charge of inattention to duty. However, the Arbitrator determined that the conduct of the grievant assigned to tower 1 "fell somewhat below the standard of attention required by his job." Id. However, the Arbitrator found that he was unable to identify the "specific circumstances of the dereliction." Id. at 19. Therefore, he determined that the Activity had "proved an offense in this case which would provide justification for imposing no more than an official reprimand." Id. at 20.

He found that there was just and sufficient cause shown for an official reprimand, but not for a 14-day suspension. He determined that an official reprimand for the "conduct of the sort proven" would promote the efficiency of the service. Id. Accordingly, the Arbitrator directed that the Activity make this grievant whole for all pay lost as a result of the 14-day suspension. He stated that an official reprimand, based on this grievant's "conduct on the night of October 31, 1987," may be placed in his personnel files and records, but that all references to the 14-day suspension are to be removed. Id. at 21.

III. First Exception

A. Positions of the Parties

The Agency contends that the Arbitrator exceeded his authority by ruling on issues not submitted to him.

The Agency argues that the Arbitrator ruled on whether the grievants properly could have been looking elsewhere at all critical times during the escape, and, thereby, exceeded his authority. The Agency argues that this issue was not placed in dispute in the grievance and that it cannot be plausibly argued that this issue was subsumed in the issue actually before the Arbitrator of whether there was just and sufficient cause for the disciplinary actions.

The Agency also argues that the Arbitrator redefined the type of misconduct with which the grievants were charged and, thereby, ruled on an issue not before him. The Agency maintains that, instead of ruling on whether the grievants were inattentive to duty, the Arbitrator assumed that they had been charged with a more serious type of misconduct involving either willfulness or a higher degree of negligence. The Agency further maintains that the Arbitrator created new offenses, each turning on the different degree to which the grievants departed from duty. The Agency contends that the Arbitrator was not authorized to add new offenses or to subdivide established offenses into separate offenses. The Agency claims that, instead, once the Arbitrator found that the escaped inmate could have been seen by the grievants, he was legally required to hold that they were inattentive to duty. In support of its position, the Authority cites Georgia-Pacific Corp. v. Local 27, United Paperworkers International Union, 864 F.2d 940 (1st Cir. 1988) (Georgia-Pacific) for the proposition that an arbitrator's proper role is determining whether the conduct proven constitutes the charged misconduct and not engaging in analysis of what the charge should have been.

The Union contends that the Agency neglects to mention a number of critical factors, including the fact that the Activity expressly requested the Arbitrator to stay until dark and go into the towers to observe the duties of the tower officers while on duty. The Union argues that, based on all the evidence, the Arbitrator's decision was proper.

B. Analysis and Conclusions

We conclude that the Agency fails to establish that the Arbitrator exceeded his authority. The Arbitrator resolved precisely the issue that he determined was prescribed by the parties' collective bargaining agreement for a disciplinary case: Whether the action was for just and sufficient cause and, if not, what should the remedy be?

With respect to the grievant assigned to tower 2, the Arbitrator concluded that the evidence was insufficient to show that he was inattentive to duty as charged and that, consequently, there was no just and sufficient cause shown for the disciplinary action taken against him. For this grievant, the Arbitrator determined that the remedy should be backpay and a removal of all references to the suspension from his personnel files and records.

With respect to the grievant assigned to tower 1, the Arbitrator also concluded that the evidence was insufficient to support the charge of inattention to duty and that there was no just and sufficient cause for the disciplinary action taken against him. For this grievant, however, the Arbitrator determined that his conduct fell below the standard required of his position. Therefore, the Arbitrator determined that the Activity had proved "an offense" for which there was just and sufficient cause shown for an official reprimand. Award at 20. Consequently, as a remedy for this grievant, the Arbitrator ordered backpay and a removal of all references to the suspension from his personnel files and records. However, he stated that an official reprimand may be given.

In our view, these actions by the arbitrator resolved, as to each grievant, that the disciplinary action for inattention to duty was not for just and sufficient cause and, in each case, determined what the remedy should be, as prescribed by the parties' collective bargaining agreement. The Agency's claim that the award is deficient because the Arbitrator considered whether the grievants could have been properly looking elsewhere at all critical times provides no basis for finding the award deficient. The Arbitrator rejected the Activity's position that the grievants were necessarily inattentive to duty because an inmate escaped during the hours of the grievants' shift when the visibility was good. Instead, he examined the evidence to determine whether there was any specific dereliction on the part of either grievant and whether any culpable inattention to duty could be inferred from the general circumstances shown to have occurred on the night of the escape.

We reject the Agency's claim that the Arbitrator exceeded his authority by examining these circumstances in order to determine whether the Activity had proved by a preponderance of the evidence that the grievants had been inattentive to duty as charged. We find that the Agency's claim constitutes nothing more than disagreement with the Arbitrator's reasoning in reaching his conclusion on the prescribed issue that the suspensions were not for just and sufficient cause and an attempt to relitigate the merits of the issue before the Authority. An attempt to relitigate the merits of the grievance and disagreement with an arbitrator's reasoning and conclusions in determining whether a disciplinary action is for just and sufficient cause provide no basis for finding an arbitration award deficient. For example, U.S. Department of the Interior, National Park Service, Fire Island National Seashore and American Federation of Government Employees, Local 3432, 34 FLRA 659 (1990); U.S. Department of the Air Force, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia and American Federation of Government Employees, Local 987, 34 FLRA 315 (1990); Federal Aviation Science and Technological Association and Federal Aviation Administration, Albuquerque Airway Facilities Sector, Southwest Region, 2 FLRA 679 (1980).

We also reject the Agency's claim that the Arbitrator redefined the type of misconduct with which the grievants were charged. In our view, the Arbitrator resolved whether the grievants were inattentive to duty; he did not assume that they were charged with a more serious offense and he did not create new offenses or subdivide established offenses. Unlike the arbitrator in Georgia-Pacific, relied on by the Agency, the Arbitrator in this case found that the grievants had not committed the offense with which they were charged.

We further reject the Agency's claim that once the Arbitrator found that the escape could have been seen by the grievants, he was legally required to hold that they were inattentive to duty. Under 5 U.S.C. § 7503(a), "an employee may be suspended for 14 days or less for such cause as will promote the efficiency of the service." When an agency suspends an employee for 14 days or less, the agency must establish that the employee committed the alleged misconduct and that the action against the employee promotes the efficiency of the service. See Federal Personnel Manual chapter 752, subchapters 1-2. The Agency fails to establish that under 5 U.S.C. § 7503(a), the Arbitrator was compelled to hold the grievants strictly culpable for the inmate's escape and to decide as a matter of law that the grievants were inattentive to duty. See Immigration and Naturalization Service and American Federation of Government Employees, AFL-CIO, 8 FLRA 248 (1982) (the Authority denied the agency's exception because the agency failed to establish that under 5 U.S.C. § 7503(a), the arbitrator was compelled to decide as a matter of law that the grievant's suspension promoted the efficiency of the service).

IV. Second Exception

A. Positions of the Parties

The Agency contends that the award directly interferes with management's right to take disciplinary action under section 7106(a)(2)(A) of the Statute. The Agency again argues that the grievants were necessarily inattentive to duty and, therefore, subject to discipline because an escape occurred through their areas of responsibility, that is, areas under their surveillance. The Agency maintains that the award, in ruling otherwise, conflicts with management's right to discipline by restricting the evidence on which management can rely and prohibiting the use of valid evidence. The Agency also maintains that the award conflicts with management's right by restricting discipline to only offenses that are more serious than inattention to duty. The Agency argues that the Arbitrator, by doing so, substituted his judgment for that of management with respect to what types of conduct should be subject to discipline.

With respect to the award relating to the grievant in tower 1, the Agency argues that the award interferes with management's right to take disciplinary action because the Arbitrator mitigated this grievant's penalty without relying on mitigating factors. The Agency maintains that, instead, the Arbitrator substituted his judgment for that of management with respect to what discipline was appropriate.

The Union opposes the Agency's exception.

B. Analysis and Conclusions

We conclude that the Agency fails to establish that the award is contrary to management's right to take disciplinary action under section 7106(a)(2)(A) of the Statute.

Under section 7106(a)(2)(A), management has the right to suspend employees for 14 days or less in accordance with 5 U.S.C. § 7503. See, for example, American Federation of Government Employees, AFL-CIO, Local 1458 and U.S. Department of Justice, Office of the U.S. Attorney, Southern District of Florida, 29 FLRA 3, 16-17 (1987) (Provision 9). An arbitrator's award does not conflict with management's right to take disciplinary action when the arbitrator examines a disciplinary action suspending an employee for 14 days or less and determines that the action is not in accordance with law because the suspension does not promote the efficiency of the service. In such a case, the arbitrator's action does not constitute an impermissible substitution of judgment by the arbitrator for that of management. See Social Security Administration and American Federation of Government Employees, Local 1923, 32 FLRA 765, 769-770 (1988); Immigration and Naturalization Service and American Federation of Government Employees, AFL-CIO, 8 FLRA 248 n. (1982).

As the Authority noted in Social Security Administration and American Federation of Government Employees, AFL-CIO, 30 FLRA 1156, 1162 (1988): "[A]rbitrators routinely resolve under the Statute and the Civil Service Reform Act grievances over whether disciplinary action was warranted and, if so, whether the penalty assessed was appropriate." Indeed, as the Authority indicated in Newark Air Force Station and American Federation of Government Employees, Local 2221, 30 FLRA 616, 636 (1987), this is precisely one of the functions that arbitrators perform, and that Congress intended that arbitrators perform, under the Statute. Accord Social Security Administration, 30 FLRA at 1162. Therefore, we find that the Arbitrator's determination that the 14-day suspensions of the grievants for inattention to duty were not for just and sufficient cause does not interfere with management's right to take disciplinary action.

We again reject the Agency's claim of strict culpability--that because an escape occurred through the grievants' areas of responsibility, the grievants were necessarily inattentive and subject to discipline. We also reject the Agency's claims that the Arbitrator restricted the evidence on which management can rely and prohibited the use of valid evidence and that the Arbitrator restricted discipline to more serious offenses. The Arbitrator, after rejecting the Activity's strict culpability position, examined the evidence to determine whether any culpable inattention to duty could be inferred from the circumstances presented. In our view, the Agency's claims constitute nothing more than disagreement with the Arbitrator's evaluation of the evidence and his reasoning and conclusions in determining that the suspensions were not for just and sufficient cause, and the claims provide no basis for finding the award deficient. See, for example, Robins Air Force Base, Georgia, 34 FLRA 315.

We also disagree with the Agency's claim that the Arbitrator improperly mitigated the one grievant's penalty to a reprimand. In Social Security Administration, 32 FLRA 765, 770, a case involving a suspension for 14 days or less, the Authority reconfirmed that an arbitrator may: (1) determine that all or part of the disciplinary penalty was not for just and sufficient cause, and (2) set aside or reduce the penalty. The Agency has misconstrued the award as determining that this grievant was guilty of inattention, as charged, but that only a reprimand was an appropriate penalty. As we have noted, in our view, the Arbitrator determined that the Activity failed to support the charge of inattention to duty, although it had proved "an offense" for which there was just and sufficient cause shown for a reprimand. Award at 20. Therefore, contrary to the Agency's claim, the Arbitrator's mitigation was based on the finding that the Activity had proved a separate offense for which the penalty of a reprimand was appropriate.

V. Third Exception

A. Positions of the Parties

The Agency contends that the award interferes with management's rights to determine internal security practices under section 7106(a)(1), to assign and direct employees under section 7106(a)(2)(A), and to assign work under section 7106(a)(2)(B) of the Statute.

The Agency argues that the award interferes with management's right to determine internal security practices because the award effectively precludes the Activity from determining the extent of a tower officer's responsibilities, which affects internal security by placing coworkers in jeopardy. The Agency argues that the award interferes with management's rights to assign and direct employees and to assign work because the award in effect ruled that management cannot require tower officers to direct their attention and to be sufficiently alert so as to prevent escapes through their areas of responsibility.

The Union opposes the Agency's exception.

B. Analysis and Conclusions

We conclude that the award does not conflict with any of management's rights as contended by the Agency.

We find that the award does not directly interfere with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. The award was solely concerned with and limited to deciding whether the suspensions of the grievants were for just and sufficient cause and affects no other employees. The award does not in any manner restrict the Activity's discretion to determine the extent of a tower officer's responsibilities. In fact, in resolving the grievances, the Arbitrator specifically acknowledged and accepted the responsibilities of the tower officer position, as prescribed by the Activity. The Agency fails to demonstrate that the Arbitrator's determination that the grievants were not inattentive, as charged, affects any internal security practice for protecting the coworkers of the officers assigned to towers 1 and 2. See United States Department of Justice, Immigration and Naturalization Service and American Federation of Government Employees, National Border Patrol Council, 31 FLRA 1123, 1132 (1988) (award did not conflict with management's right to determine internal security practices because the award did not prevent any investigation required or authorized by internal security practices).

We similarly find that the award does not interfere with management's rights to assign and direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute. The award does not in any manner prevent management from requiring tower officers to direct their attention and to be sufficiently alert so as to prevent escapes through their areas of responsibility. Again, the Arbitrator acknowledged and accepted the high degree of diligence required by management of tower officers. The Arbitrator's determination that, nevertheless, the evidence did not support the conclusion that the grievants were inattentive, as charged, does not require the Activity to