37:1261(106)AR - - Justice, Federal Bureau of Prisons, Federal Correctional Institution, Ashland, KY and AFGE, Council of Prison Locals, Local 1286 - - 1990 FLRAdec AR - - v37 p1261



[ v37 p1261 ]
37:1261(106)AR
The decision of the Authority follows:


37 FLRA No. 106

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF JUSTICE

FEDERAL BUREAU OF PRISONS

FEDERAL CORRECTIONAL INSTITUTION

ASHLAND, KENTUCKY

(Activity)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL OF PRISON LOCALS

LOCAL 1286

(Union)

O-AR-1755

DECISION

October 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 David L. Beckman. The Arbitrator found that management violated the parties' collective bargaining agreement in failing to schedule annual leave as requested by the grievant. The Arbitrator directed management to schedule the grievant's annual leave for 1989 as he had requested.

The U.S. Department of Justice (the Agency) 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 Agency's exceptions.

We conclude that the Agency's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The grievant, an air conditioning technician, submitted his annual leave request to the Activity for 1989 and included the weeks beginning July 2 and July 30. On December 9, 1988, the Activity denied his request for these 2 weeks. The stated reason for the denial was to assure the efficient operation of air conditioning equipment during periods of excessive use. The Activity advised the grievant that he must resubmit his request for these 2 weeks of annual leave for periods other than July 1 through August 27, 1989. The grievant filed a grievance over the denial of his leave request. The grievance was not resolved, and the matter was submitted to arbitration.

Article 19, Section a of the parties' collective bargaining agreement pertinently provides:

Annual leave will be scheduled as requested by the employees in accordance with the provisions of this Article insofar as it does not decrease the safety, security or mission accomplishments of the organization.

Award at 3 (quoting agreement). The Activity argued before the Arbitrator that it was not required to schedule the grievant's leave as requested because it had properly curtailed the grievant's request under Article 19, Section 1(2), which provides:

2. The Employer shall determine the maximum number of employees that may be on scheduled annual leave during each one week (7 consecutive days) period, and when scheduled annual leave will be curtailed because of training and/or other causes such as military leave. To the extent possible, such determination will be made and announced prior to setting up the annual leave schedule.

Id. at 4 (quoting agreement).

The Arbitrator determined that under Article 19, the grievant's requested schedule for annual leave should have been granted unless the reason for the curtailment was equivalent in importance to the contractually specified reasons of "training" and "military leave." The Arbitrator found no support for management's stated view that there would likely be a problem if the grievant were granted annual leave during July or August. Accordingly, he determined that there was no cause for curtailment of the grievant's request under Article 19, Section 1.

The Arbitrator also determined that management had failed to establish that scheduling the grievant's annual leave as requested would decrease the safety, security, or mission accomplishments of the organization. The Arbitrator noted that the Activity's position was that the failure to have the grievant present at work during all of July and August could cause cooling problems in the prison dining room and could lead to security problems because the dining room is the only place in the prison where the prison inmates can cool off. The Arbitrator concluded that there was no connection between the grievant's presence and the cooling efficiency of the prison dining room air conditioner.

Consequently, the Arbitrator ruled that management violated Article 19 in failing to schedule annual leave as requested by the grievant. The Arbitrator ordered management to schedule the grievant's annual leave for 1989 as he had requested.

III. First Exception

A. Positions of the Parties

The Agency contends that the award is contrary to management rights under section 7106(a) of the Statute. The Agency asserts that the award violates management's rights to assign work, to determine internal security practices, and to discipline its employees.

The Agency argues that the award interferes with management's right to assign work under section 7106(a)(2)(B) because it precludes management from assigning work to the grievant on the days for which the Arbitrator has ordered his leave request to be approved. The Agency maintains that the Authority has consistently held that management's right to assign work precludes an arbitrator from second-guessing management's judgments as to whether an employee's presence at particular times is necessary.

The Agency argues that the award is also inconsistent with management's right to determine internal security practices under section 7106(a)(1). The Agency emphasizes that this case involves the air conditioning of a prison. The Agency maintains that the decision to deny the leave was based in part on management's determination that its internal security might be adversely affected if leave were granted and a breakdown occurred during this period. The Agency claims that the award clearly interferes with management's right by overruling management's determination that the presence of the grievant was necessary for internal security practices.

The Agency further argues that by requiring management to grant leave, the award requires management to approve the grievant's absence from, or refusal to perform, work. The Agency maintains that as a result, management would be precluded from disciplining the grievant, in violation of section 7106(a)(2)(A).

The Union contends that the award is not deficient because the Arbitrator merely enforced the established procedures in the parties' agreement for the scheduling of employees' annual leave and these procedures neither directly interfere with management's rights nor prevent management from acting. The Union also contends that section 7106(b)(3) of the Statute "was designed to enable employees impacted by any application of reserved management rights to negotiate on proposals promising some mollification of consequences." Opposition at 3. The Union argues that if the Agency prevails, Article 19 would effectively be invalidated and the employees would be adversely affected.

B. Analysis and Conclusions

We conclude that the Agency fails to establish that the award is contrary to law.

In Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309 (1990) (U.S. Customs Service), we recently reexamined our approach to cases in which an agency contends that an arbitrator's award, enforcing a provision of the parties' collective bargaining agreement, is contrary to management's rights under section 7106(a). We held that when an agency makes such a contention, we will examine the provision enforced by the arbitrator to determine: (1) if it constitutes an arrangement for employees adversely affected by the exercise of management's rights; and (2) if, as interpreted by the arbitrator, it abrogates the exercise of a management right. We explained that if it is evident that the provision constitutes an arrangement and, as interpreted by the arbitrator, does not abrogate management's rights, the provision is within the range of matters that can be bargained under the Statute. Accordingly, we held that we will not find that such an award is contrary to law and we will deny the exception. We also held that if the arbitrator's interpretation does result in an abrogation of management's rights under section 7106(a), the award will be found deficient as contrary to law, but the contractual provision, susceptible to a different and sustainable interpretation by a different arbitrator, will not be affected.

Applying that approach in this case, we conclude that the Agency fails to establish that the award is contrary to section 7106(a) of the Statute. It is evident that Article 19 constitutes an arrangement and, as interpreted and applied by the Arbitrator, does not abrogate management's rights.

Article 19, Section a provides that an employee's annual leave will be scheduled as requested by that employee insofar as it does not decrease the safety, security, or mission accomplishments of the organization. Article 19, Section 1 permits a curtailment of leave only for training and other causes such as military leave. The Union indicates that Article 19 was negotiated to provide "some mollification of consequences" arising from management's decision "to curtail, cancel or deny annual leave." Opposition at 3. The Arbitrator found that the parties intended that an employee's preference for the scheduling of annual leave must prevail over insubstantial reasons by management to alter that schedule. It is clear that Article 19, Sections a and 1 constitute an arrangement for employees adversely affected by management's exercise of its rights to determine its internal security practices and to assign work.

Furthermore, we find that as interpreted and applied by the Arbitrator, Article 19 does not abrogate management's rights. In U.S. Customs Service, we held that an award "abrogates" a management right when the award "precludes an agency from exercising" that right. 37 FLRA at 314. Article 19, as interpreted and applied by the Arbitrator, requires only that an employee's preference for scheduling annual leave prevail over insubstantial reasons by management to alter that schedule. Article 19 certainly limits management's right to assign work in situations where management's reason for altering the schedule of requested annual leave is insubstantial, but it clearly does not abrogate the exercise of that right. Management's right to assign work in situations where management has a substantial reason to alter the schedule remains unaffected. Likewise, Article 19, as interpreted and applied by the Arbitrator, clearly does not abrogate management's internal security practice of maintaining an air conditioned dining room for inmates. Scheduling of leave as requested by the grievant certainly does not prevent the Activity from air conditioning the dining room. Therefore, the provision was enforceable by the Arbitrator consistent with management's rights. We also reject the Agency's contention that the award violates management's right under section 7106(a)(2)(A) to discipline the grievant for his absence from work or refusal to perform work on days on which his leave request was ordered to be approved. The Arbitrator merely enforced an arrangement negotiated by the parties in determining that the grievant's leave request should have been approved as scheduled by the grievant. Such enforcement provides no basis for finding the award contrary to management's right to discipline as claimed by the Agency. Accordingly, we deny the Agency's exception.

However, in denying the exception, we note that the Arbitrator directed management to schedule the grievant's annual leave on the dates that he had requested for 1989. Because this portion of the award cannot now be implemented, we will modify the award to direct that management schedule the grievant's annual leave in accordance with the parties' collective bargaining agreement.

IV. Second Exception

A. Positions of the Parties

The Agency contends that the Arbitrator interpreted the parties' collective bargaining agreement in such a way that it was rendered illegal. The Agency argues that the Arbitrator misinterpreted Article 19 and gave it a construction which is inconsistent with management's right to assign work and to determine internal security practices.

The Union contends that the Arbitrator correctly interpreted Article 19.

B. Analysis and Conclusions

We view the Agency's exception as contending that the award does not draw its essence from the collective bargaining agreement. In order to establish that an award is deficient on the basis that it does not draw its essence from the agreement, the party making the allegation must demonstrate that the award: (1) 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; or (2) does not represent a plausible interpretation of the agreement; or (3) cannot in any rational way be derived from the agreement or evidences a manifest disregard of the agreement. United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-77 (1990) (Department of Labor (OSHA)). Moreover, in U.S. Customs Service, we held that when a party establishes that the arbitrator's enforcement of the agreement does not represent a plausible interpretation of the agreement or evidences a manifest disregard of the agreement, we will find the award deficient, not because it is contrary to section 7106(a) of the Statute, but because the award fails to draw its essence from the parties' c