51:1126(91)AR - - Justice, Bureau of Prisons, Medical Facility for Federal Prisons and AFGE Local 1612 - - 1996 FLRAdec AR - - v51 p1126
[ v51 p1126 ]
The decision of the Authority follows:
51 FLRA No. 91
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
MEDICAL FACILITY FOR FEDERAL PRISONS
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
April 12, 1996
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald Wasserman, Members.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Robert H. Kubie 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 sustained a grievance claiming that the Agency had violated the parties' collective bargaining agreement when it placed two entries into the grievant's performance log stating that her performance was minimally satisfactory.
For the following reasons, we conclude that the Agency's exceptions fail to establish that the Arbitrator's award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.
II. Background and Arbitrator's Award
The grievant, a corrections officer, sent a memorandum to her higher level supervisors, bringing to their attention an inmate's behavior problem and stating that she believed the inmate "could possibly harm female staff." Award at 5. The grievant had observed the inmate's behavior on three consecutive days during the afternoon "head count," when the inmate was taking a shower instead of standing next to his bunk. Id. at 3. The grievant sent the memorandum 3 days after the first observed occurrence. Upon receiving a copy of the memo, the grievant's first line supervisor counseled the grievant, advising her that she should have submitted an incident report to him within 24 hours of the first occurrence. In addition, the supervisor made two entries in the grievant's performance log indicating that her performance was minimally satisfactory in the performance elements of inmate supervision and communication.
The Union filed a grievance claiming that the Agency had violated the parties' agreement by harassing and intimidating the grievant and by taking punitive action against her for raising an employee safety concern. When the grievance was not resolved, it was submitted to arbitration.
The Arbitrator did not frame the issues. The Union and Agency submitted issues separately. The Union's issues were:
1. Did the agency harass, intimidate, restrain, and punish [the grievant] for submitting a memo of concern to management as outlined in the Master Agreement, Article 6, section b[?](1)
2. Did the agency fail to follow the Master Agreement, Article 27, section a when they failed to recognize the possible hazard that the inmate could have been to female staff?(2)
3. Did the agenc[y, by its] action of writing [the grievant] two minimal satisfactory log [entries,] have just and sufficient cause and did they promote the efficiency of the service, (or were they a punitive action taken by a supervisor who believed that his subordinate neglected to use the chain of command) as outlined by the Master Agreement, Article 30, section a[?](3)
Attachment to Union's Opposition, Union's Post-Hearing Brief at 1.
The Agency's issue was: "Did the Agency have just cause to assign [the grievant] the . . . performance log entry?" Attachment to Union's Opposition, Agency's Closing Statement at 1.
Before the Arbitrator, the Agency argued that the grievant failed to comply with applicable portions of 28 C.F.R. § 541. In examining the regulation, the Arbitrator found that there were "contradictions and ambiguities" between 28 C.F.R. § 541.11(b), Table 1 (hereinafter Table 1)(4) and 28 C.F.R. § 541.14(a) (hereinafter section 14(a)).(5) In particular, the Arbitrator found that Table 1 is "contrary" to section 14(a) because the latter "says nothing about 'dropping the charge[,]'" whereas the former permits an officer to "resolve informally or drop the charge." Award at 13-14.
The Arbitrator resolved the conflict by stating that section 14(a) should be construed to mean that a corrections officer could "either informally resolve [the violation] or write an incident report--not always both[,]" and that this construction was "in fact, how the regulation has been construed by both employees and management." Id. at 15 (emphasis in original). The Arbitrator also interpreted the portion of Table 1 that permits officers to "drop the charge," as permitting officers to take no action.
Concerning the grievant's reporting of the inmate's behavior, the Arbitrator stated that the rule against inmates taking showers during the count was not rigorously enforced by the Agency. The Arbitrator also found that a number of officers had written memos about the same inmate's behavior instead of incident reports, "without adverse comment[s]" being made by their supervisors. Id. at 16. The Arbitrator concluded that the grievant had discretion to treat the inmate's offenses either "as matters requiring the initiation of immediate disciplinary action or as matters to be reported to her superiors . . . ." Id. at 17. The Arbitrator added that, "in exercising that discretion to postpone initiating disciplinary action . . . [,] she made a reasonable judgment call and did not abuse her discretion." Id. The Arbitrator found that the disputed entries in the grievant's performance log were "unmerited and constitute[d] restraint, intimidation, harassment, reprisal and coercion of the [g]rievant in her exercise of a right guaranteed her under Article 6, [section] b" to raise a safety concern. Id. He ordered the entries expunged and replaced with more favorable performance notations.
III. Positions of the Parties
The Agency claims that the award is deficient on five grounds.
A. Agency Exception That the Award Is Deficient Because the Arbitrator Lacked Jurisdiction To Construe an Agency Regulation
The Agency claims that the award is deficient because the resolution of the grievance turned on the construction and application of 5 C.F.R. § 541 ("Inmate Discipline and Housing Units"), a regulation over which the Arbitrator lacked jurisdiction. The Agency claims that 28 C.F.R. § 541 was promulgated to affect inmates' constitutional due process rights, as well as the Agency's mission and security practices, and did not concern employee conditions of employment within the meaning of section 7103(a)(9)(C)(ii) of the Statute. The Agency states that "Congress intended to preclude arbitrators from entertaining grievances 'predicated on a claim of violation of a law that is not directed toward employee working conditions' regardless of whether such a claim is made on the face of the grievance, or, as here, made in response to an agency's affirmative statutory or regulatory defense to the grievance." Exceptions at 24, citing U.S. Customs Service v. FLRA, 43 F.3d 682, 689 (D.C. Cir. 1994) (U.S. Customs Service)(emphasis in original).
The Union claims that the Arbitrator acted within the scope of his authority under the parties collective bargaining agreement.(6) According to the Union, the Agency "agreed to the conditions of arbitration" under the parties' agreement and had submitted 28 C.F.R. § 541 to the Arbitrator as an applicable regulation. Opposition at 3.
B. Agency Exception That the Award Is Deficient as Contrary to an Agency Regulation
The Agency asserts that the award is deficient under section 7122(a)(1) of the Statute because the Arbitrator failed to defer to the Agency's interpretation of 28 C.F.R. § 541.14(a). The Agency claims that the Arbitrator interpreted the regulation to give the grievant the "discretion to decline to take any action when the incidents occurred[,]" even though the regulation requires an officer to either informally resolve an incident at the time that it occurs or file an incident report. Exceptions at 26. According to the Agency, the Arbitrator misconstrued the portion of Table 1 stating that officers "may resolve informally or drop the charge." The Agency argues:
[T]here is no comma between the words "informally" and "or drop." In other words, while "or" is frequently used in order to create a disjunctive, the author's intent here was not to indicate that officers had a third option of ignoring an offense . . . an option not authorized by 28 C.F.R. § 541.14(a) itself. Rather, the phrase "or drop the charges" was merely another way of characterizing one of the ways an officer may [informally resolve a charge].
Id. at 20. Although the Agency states that it did not have "occasion prior to this case to publicly announce its interpretation of [section 14(a)] in a case arising under [the Statute]," the Agency claims that its interpretation is controlling because it is "not litigation inspired" and is consistent with that of previous court decisions. Id. at 26.
The Union claims that the award is consistent with 28 C.F.R. § 541. In that connection, the Union claims that, as neither 28 C.F.R. § 541 nor Agency policy has defined the term "informal resolution," the grievant had the discretion to decide how to informally resolve the incident. The Union states that the grievant's submission of a memo constituted an informal resolution and that the grievant followed a procedure expressly referenced under 28 C.F.R. § 541.10(b)(6).(7) In addition, the Union contends that the grievant's actions were consistent with 28 C.F.R. § 541.11, Table 2,(8) which permits an officer to suspend disciplinary proceedings for up to 2 weeks while attempting an informal resolution.
C. Agency Exceptions That the Award Is Deficient as Contrary to the Agency's Rights To Assign Work and Determine Internal Security Practices
The Agency contends that the award is deficient under section 7106(a)(2)(A) and (B) of the Statute because it interferes with management's right to direct employees and assign work. The Agency states that the "effect" of the award is that management "cannot insist that the [g]rievant (or her similarly situated fellow officers) carry out . . . standing instructions" which concern enforcing prison rules and reporting inmate misconduct. Exceptions at 30. The Agency also claims that the award is deficient under section 7106(a)(1) of the Statute because it interferes with the Agency's right to determine its internal security practices. According to the Agency, the Arbitrator substituted his judgment for that of the Agency on whether "inmates should be required to stand in the area by their bunks during head counts." Id. at 32.
The Union did not address these exceptions in its opposition.
D. Agency Exception That the Arbitrator Exceeded His Authority
The Agency states that the Arbitrator exceeded his authority by resolving an issue not submitted by the parties. In particular, the Agency argues that, instead of resolving the issues as the Union framed them, the Arbitrator resolved a "hybrid violation" made up of violations of Article 6 and Article 30. Id. at 36. In response, the Union claims that the Arbitrator did not exceed his authority. According to the Union, the Arbitrator responded to the issues that the parties had separately submitted. Moreover, the Union states that, absent an agreement by the parties on the issues, the Arbitrator had the discretion to frame the issues before him.
IV. Analysis and Conclusions
A. The Arbitrator Did Not Lack Jurisdiction To Consider the Grievance
In U.S. Customs Service, the court held that a grievance seeking to enforce a statutory provision related to international trade, 19 U.S.C. § 1448, was outside both the arbitrator's and the Authority's jurisdiction.(9) The court held that "[a] grievance claiming a 'violation, misinterpretation, or misapplication of a law, rule, or regulation' may be brought under [section] 7103(a)(9)(C)(ii) (assuming the relevant agreement tracks the statutory definition) if the particular legal authority relied upon was fashioned for the purpose of regulating the working conditions of employees." 43 F.3d at 690-91. In so doing, the Court stated that "a 'grievance' predicated on a claim of violation of a law that is not directed toward employee working conditions is outside both the arbitrator's and the FLRA's jurisdiction." Id. at 689. (Emphasis in original). In U.S. Department of the Treasury, U.S. Customs Service, Pacific Region and National Treasury Employees Union, 50 FLRA 656, 659 (1995), petition for review filed sub nom. NTEU v. FLRA, No. 95-70714 (9th Cir. Sept. 18, 1995), the Authority acquiesced in the court's conclusion that 19 U.S.C. § 1448, before its 1993 amendment, was not a law "affecting conditions of employment" under section 7103(a)(9)(C)(ii) of the Statute.
The court's decision in U.S. Customs Service is distinguishable in all respects from this case. In U.S. Customs Service, the Union sought to enforce a statute. Here, the Union is seeking to enforce provisions of the parties' contract. Furthermore, in U.S. Customs Service, the Agency contested the arbitrability of the grievance, and the Arbitrator's arbitrability ruling was the issue to which the Agency then excepted. Here, by contrast, the Agency agreed that the grievance was arbitrable and, itself, submitted the now contested regulation to the Arbitrator to interpret and apply. This is not a case, therefore, where the grievance is "predicated on a claim of violation of a law . . . ." Id., 43 F.3d at 689 (emphasis omitted).
Even if the grievance in this case had been predicated on a claimed violation of 28 C.F.R. § 541, U.S. Customs Service also does not compel a conclusion that the award is deficient. The court stated that the terms "affecting working conditions" in section 7103(a)(9)(C)(ii) of the Statute must "have been thought to impose a real limitation on an arbitrator's authority[,]" and could not be interpreted to mean that "any law could under some circumstances have some adverse consequences on the working conditions of one or more employees." Id. The court held that section 7103(a)(9)(C)(ii) of the Statute confines grievances to alleged violations of a statute or regulation "that can be said to have been issued for the very purpose of affecting the working conditions of employees--not one that merely incidentally does so." Id.
Unlike the statutory provision involved in U.S. Customs Service, which referred to employees only generally, the regulatory provision involved in this case, 28 C.F.R. § 541, is directed, at least in part, toward employee working conditions. In this connection, we note that 28 C.F.R. § 541 itself clearly and specifically addresses the responsibilities and duties of the staff with regard to inmate discipline. For example, section 541.10, entitled "Purpose and scope," states, in subsection (b)(1) that "[o]nly institution staff may take disciplinary action." (Emphasis added).(10) In subsection (b)(2), the regulation states that "staff shall take disciplinary action at such times and to the degree necessary to regulate an inmate's behavior . . . and to promote a safe and orderly institution environment." (Emphasis added). Moreover, in subsection (b)(6), the regulation states that "[i]f it appears at any stage of the disciplinary process that an inmate is mentally ill, staff shall refer the inmate to a mental health professional . . . ." (Emphasis added).
Further, FBOP P.S. 5270.07, an Agency regulation that restates, explains and augments 28 C.F.R. § 541, clarifies the duties that staff or employees are expected to perform. For example, in Chapter 5, page 1 of P.S. 5270.07, the regulation states that "[t]he reporting employee should complete immediately Part 1 of the Incident Report . . . ." Addendum to the Union's Opposition, JEX-1-15 (emphasis added). The regulation states also that "[a]ll facts about the incident which are known by the employee . . . should be recorded." Id. (Emphasis added).
In view of these specific and repeated references to staff and employee working requirements, we are not persuaded that, as in U.S. Customs Service, the disputed regulation "merely incidentally" affects working conditions. 43 F.3d at 689. Accordingly, we reject the Agency's argument that, applying U.S. Customs Service, the Arbitrator lacked jurisdiction to interpret and apply 28 C.F.R. § 541. Therefore, we find that the Agency's exception does not demonstrate that the award is deficient, as inconsistent with section 7102(a)(9)(c)(ii) of the Statute.
B. The Award Is Not Deficient Under Section 7122(a)(1) of the Statute, as Inconsistent With an Agency Regulation
Section 7122(a)(1) of the Statute provides that an arbitration award will be found deficient if it conflicts with any rule or regulation. For purposes of 7122(a)(1), the Authority has defined rule or regulation to include both Government-wide and governing agency rules and regulations. U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186, 195 (1990). In reviewing arbitration awards for consistency with rule or regulation, the Authority "must review the questions of law raised by the Arbitrator's award and the Union's exception 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, 43 F.3d at 686-87.
An agency's interpretation of its own regulations is controlling unless it is "plainly erroneous or inconsistent" with the language of the regulation. FLRA v. U.S. Department of the Treasury, Financial Management Service, 884 F.2d 1446, 1454 (D.C. Cir. 1989) (citation omitted) (FLRA v. Treasury), cert. denied, 493 U.S. 1055 (1990). However, "[c]ourts have sometimes declined to defer at all to agency counsel's litigative positions." FLRA v. Treasury, 884 F.2d at 1455 (citation omitted). In this regard, such positions may not reflect the views of the agency head involved and/or may be developed "hastily, or under special pressure, or without an adequate opportunity for presentation of conflicting views." Id. Accordingly, "[t]o carry much weight . . . , the interpretation must be publicly articulated some time prior to the agency's embroilment in litigation over the disputed provision." Nordell v. Heckler, 749 F.2d 47, 48 (D.C. Cir. 1984).
We agree with the Agency that, as plainly worded, 28 C.F.R. § 541.14(a) requires an officer to either informally resolve an incident at the time that it occurs or file an incident report. It is clear and undisputed, in this regard, that the grievant did not file an incident report. As such, the issue is whether the grievant's actions constituted an informal resolution. The Agency asserts that the grievant's actions did not constitute appropriate informal resolution. The Arbitrator concluded that they did and, for the following reasons, we conclude that the award, based on that conclusion, is not deficient.
First, as the Agency concedes, it did not promulgate or announce the interpretation of the regulation it now asserts before the instant litigation. In this regard, the Agency fails to support its claim that its interpretation is entitled to deference because it is consistent with that of previous court decisions. None of the cases cited by the Agency concerns an interpretation of 28 C.F.R. § 541.14(a). There also is no indication that Agency's counsel's interpretation reflects the views of the Agency head, or that the interpretation was developed in a manner that reflects deliberate consideration. See FLRA v. Treasury, 884 F.2d at 1455. As such, it has not been established that deference is due the interpretation. See United States v. Paddack, 825 F.2d 504 (D.C. Cir. 1987) (Foreign Service Grievance Board did not err in refusing to accord deference to agency's interpretation of regulation issued only after formal grievance litigation was commenced).
Second, although the Agency claims that the grievant did not undertake informal resolution of the inmate's alleged violations of Agency policies, the Agency does not cite, and our examination of 28 C.F.R. part 541 does not disclose, a definition of "informal resolution." As such, even if, as the Agency asserts, the Arbitrator erred in concluding that Table 1 permitted the grievant to take no action at all with regard to the inmate's alleged violations, the Arbitrator's conclusion that the grievant properly exercised her discretion in this case to informally resolve the matters is not inconsistent with any provision of the Agency's regulations.
Third, the Arbitrator found that "[a] number of employees" had, like the grievant, written "memoranda concerning [the inmate's] behavior instead of incident reports, without adverse comment." Award at 16. The Agency does not dispute the Arbitrator's statement that the Agency attempted to distinguish "several"--but not all--of these instances on the ground that the employees attempted informal resolution in addition to writing memoranda. Id. Thus, there is record support for the Arbitrator's finding that the Agency did not interpret and apply the regulation the same for all employees.(11)
In sum, the Agency's interpretation of the disputed regulation was promulgated in the context of this litigation, and the record contains no indication that the interpretation reflects the views of the Agency head or was arrived at in a manner which supports a view that it is not entirely litigation inspired. Moreover, the regulation does not define the term "informal resolution" and, in at least some instances, the Agency has acted in a manner that is inconsistent with the interpretation it offers in this case. For all these reasons, we conclude that the Agency's exception does not provide a basis for finding the award deficient under section 7122(a)(1) of the Statute.
C. The Award Does Not Conflict With Management's Rights To Direct Employees and Assign Work or With Its Right To Determine Its Internal Security Practices
In claiming that the award is deficient under section 7106(a)(2)(A) and (B) of the Statute because it interferes with management's right to direct employees, to assign work and to determine its internal security practices, the Agency appears to have mischaracterized the award.
The Arbitrator did not direct the Agency to cease assigning the grievant or any other employees the duties of taking head counts and reporting inmate misconduct. Likewise, the Arbitrator did not order the Agency to cease evaluating employees' performance of those duties. The award states only that, in this case, the negative performance entries were "unmerited." Award at 17. The award does not constitute, as the Agency claims, an order for the Agency to cease assigning work or to cease evaluating employees for such work. Because the Arbitrator did not order the Agency to refrain from assigning work or refrain from evaluating employees for that work, the award does not conflict with section 7106(a)(2)(A) and (B) of the Statute. E.g., U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky and National Association of Government Employees, Local R5-184, 47 FLRA 498, 502 (1993) (VA Medical Center, Lexington).
The Arbitrator also did not, as the Agency claims, substitute his judgment for that of the Agency regarding whether inmates should be required to stand in the area by their beds during head counts. The Arbitrator stated only that the rule against inmates taking showers during head counts was not rigorously enforced by the Agency. As the Arbitrator did not order the Agency to take or refrain from taking any actions with regard to permissible inmate behavior, the award does not conflict with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. E.g., U.S. Department of the Treasury, Internal Revenue Service, Southeast Region, Atlanta, Georgia and National Treasury Employees Union, Chapter 6, 46 FLRA 572, 576 (1992).
D. The Arbitrator Did Not Exceed His Authority
The Agency has not demonstrated that the Arbitrator exceeded his authority by resolving an issue that was not submitted by the parties but, instead, was a "hybrid violation." Exceptions at 36. The Union's first submitted issue states: "Did the agency harass, intimidate, restrain, and punish [the grievant] for submitting a memo of concern to management as outlined in the Master Agreement, Article 6, section b[?]" Union's Post-Hearing Brief, Attachment to Union's Opposition. The Arbitrator resolved the issue by stating that the performance log entries were "unmerited and constitute restraint, intimidation, harassment, reprisal and coercion of the Grievant in her exercise of a right guaranteed her under Article 6, [section] b" for "writing her memo . . . ." Award at 17. As such, the Arbitrator's award is directly responsive to the Union's first submitted issue.
Although the Agency claims that the Arbitrator resolved a "hybrid violation" which involved Article 30, Disciplinary and Adverse Actions, the Arbitrator specifically stated that the grievance "was not tried as a discipline case[.]" Id. at 11. Moreover, the Agency's claim that the Union's first submitted issue concerned only the supervisor's counseling of the grievant, and not the supervisor's log entries, is unsupported. The first issue, as worded, was not limited to any particular management action. As the Arbitrator's award is directly responsive to the Union's first submitted issue, this exception provides no basis for setting aside the award. E.g., VA Medical Center, Lexington, 47 FLRA at 503. Moreover, the award would not be deficient even if the Arbitrator had resolved a "hybrid" issue. When the parties are unable to agree and do not stipulate the issues, an arbitrator does not exceed his or her authority when the arbitrator formulates and decides the issues. E.g., U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service and National Weather Service Employees Organization, 36 FLRA 352, 362 (1990). Accordingly, we conclude that, as the award is directly responsive to the issue as articulated, it is not deficient under section 7122(a)(2) of the Statute.
We deny the Agency's exceptions.
(If blank, the decision does not have footnotes.)
1. Article 6, section b, of the parties' agreement states:
Each employee shall have the right to bring matters of personal concern to the attention of appropriate management officials. The parties agree that there will be no restraint, harassment, intimidation, reprisal, or coercion against employees in the exercise of this right.
Attachment to Union's Opposition, JEX-1-17 at 6.
2. Article 27, section a, of the parties' agreement states, as pertinent here:
There are essentially 2 distinct areas of concern regarding the safety and health of employees in the Federal Bureau of Prisons:
1. [T]he first, which affects the safety and well-being of employees, involves the inherent hazards of a correctional environment[.]
Id. at 31.
3. Article 30, of the parties' agreement, entitled Disciplinary and Adverse Actions, states, as pertinent here:
Section a. The Employer and the Union recognize that the public interest requires the maintenance of the highest standards of employee conduct. Maintenance of these standards may require the initiation of disciplinary or adverse action against employees. Such action will be taken only for just and sufficient cause and to promote the efficiency of the service.
Id. at 35.
4. 28 C.F.R. § 541.11(b), Table 1 states, as relevant here:
Except for prohibited acts in the greatest or high severity categories, the writer of the report may resolve informally or drop the charges.
5. 28 C.F.R. § 541.14(a) states, in relevant part:
The Bureau of Prisons encourages informal resolution . . . of incidents involving violations of Bureau regulations. However, when staff witnesses or has a reasonable belief that a violation of Bureau regulations has been committed by an inmate, and when staff considers informal resolution of the incident inappropriate or unsuccessful, staff shall prepare an Incident Report and promptly forward it to the appropriate Lieutenant. . . .
6. The Union relies on Article 32, section f, of the parties' agreement, which states, as relevant:
The arbitrator shall have no power to add to, subtract from, disregard, alter, or modify any of the terms of:
1. this Agreement; or
2. published Federal Bureau of Prisons policies or regulations.
Opposition at 2.
7. 28 C.F.R. § 541.10(b)(6) states, as relevant here:
If it appears at any stage of the disciplinary process that an inmate is mentally ill, staff shall refer the inmate to a mental health professional for determination of whether the inmate is responsible for his conduct or is incompetent. Staff may take no disciplinary action against an inmate whom mental health staff determines to be incompetent or not responsible for his conduct.
8. 28 C.F.R. § 541.11, Table 2, Time Limits in Disciplinary Process, states in relevant part:
Staff may suspend disciplinary proceedings for a period not to exceed two calendar weeks while informal resolution is undertaken and accomplished. If informal resolution is unsuccessful, staff may reinstitute disciplinary proceedings at the same stage at which suspended. The time requirements then begin running again, at the sa