53:0278(38)AR - - Justice, Federal Bureau of Prisons, Federal Correctional Institution, Cumberland MD and AFGE Council of Prisons Local 4010 - - 1997 FLRAdec AR - - v53 p278

[ v53 p278 ]
The decision of the Authority follows:

53 FLRA No. 38
















August 22, 1997


Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member.

I. Statement of the Case

This case is before the Authority on exceptions to an award of Arbitrator Charles Feigenbaum filed by the Activity 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.

The Arbitrator sustained a grievance challenging a correctional officer's 3-day suspension for failure to respond to "duress alarms" set off by prison inmates. As his award, the Arbitrator rescinded the suspension.

We conclude that the Agency has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.

II. Background and Arbitrator's Award

After experiencing inmate "disturbances" at some of its prison sites, the Federal Bureau of Prisons instituted a bureau-wide "lockdown." Award at 4. The lockdown, which confined prisoners to their cells with limited exceptions, extended to the Activity even though none of the disturbances occurred there. When normal operations resumed, inmates at the Activity went "on strike" to protest being punished despite having done nothing wrong. Id. The Activity responded by reinstituting the lockdown.

During the second lockdown, the grievant was on a relatively new assignment as Officer in Charge (OIC) of the Special Housing Unit (SHU). The SHU is a high-security unit used to discipline inmates. Only the OIC has authority to unlock the SHU when staff members need to enter or exit. Each SHU cell has a "duress button" for inmates in need of urgent attention. Id. at 3. When the button is pressed, one duress alarm lights up by the cell door and another lights up on the "duress panel" in the officers' station. Id. If the alarms remain on for more than 90 seconds, a third lights up in the Activity's Control Center. Duress alarms are reset only after prison staff arrive on the scene and tend to the matter.

One day during the grievant's assignment as OIC, an "unusually large number" of inmates needed to be "processed into" the SHU. Id. at 4. Duress alarms began to light up while the grievant was processing the new arrivals. The number of alarms, as well as the noise level, increased as more were admitted. Eventually, "[a]s one duress alarm was reset, another was pressed." Id. at 7. As the disturbance escalated, the grievant determined that it would be "impossible to reset every duress alarm." Id. Understanding his "highest priority" to be "the processing of new inmates[,]" the grievant decided to complete that task before responding further to the alarms. Id.

As the grievant continued to process new inmates, a problem arose, and the grievant called two officers to the SHU for assistance. The officers proceeded to the noisiest SHU quadrant, where they observed an inmate lying on the floor and twitching. His roommate was "frantic[,]" stating that "the man was down" and that "no one was helping[.]" Id. at 5. The afflicted inmate was removed on a stretcher, assessed by the Activity health staff, and sent to a local hospital.

The grievant was relieved of his duties "because the SHU was out of control and matters had not been taken care of as they should have been." Id. at 6. In connection with this action, it was proposed that the grievant be suspended for 10 days because his failure "to regularly check the inmate duress panels" constituted "inattention to duty." Exceptions, Attachment 3 at 1. Although the deciding official agreed that the suspension was "in the interest of the efficiency of the service[,]" he reduced it to 3 days because it was the grievant's first disciplinary offense in 3 years of service. Id., Attachment 4 at 1.

The Union filed a grievance that proceeded to arbitration. The Arbitrator framed the issue as: "Was the three day suspension given the Grievant taken for just and sufficient cause? If not, what shall the remedy be?" Award at 2.(1) The Arbitrator determined that there was "no evidence" to support the allegation that the grievant was "inattentive to his duties." Id. at 9. According to the Arbitrator, the grievant's failure to check the duress alarms resulted from his decision to focus exclusively on inmate-processing duties--not from his "[being] asleep, reading a book, or doing anything else that was not part of his job." Id.

Considering the "highly unusual situation" in the SHU, the grievant's "relative[] inexperience[]" as an OIC, the "large influx of new inmates at a very tense time[,]" and the extreme noise and abuse of duress alarms, the Arbitrator found that the grievant committed "honest mistakes" that fell short of "misconduct." Id. at 9, 10. Concluding that "discipline was not warranted," the Arbitrator stated that "[t]he proper correctives . . . are counseling, training, and/or the clarification of instructions." Id. at 11. Accordingly, the Arbitrator rescinded the suspension.

III. Positions of the Parties

A. Activity

The Activity challenges the Arbitrator's award on four grounds. First, the Activity contends that the award is contrary to 5 U.S.C. § 7503(a), which requires that suspensions of 14 days or less be "for such cause as will promote the efficiency of the service." Exceptions at 4. According to the Activity, Authority precedent applying section 7503(a) establishes that agencies may suspend employees for 14 days or less for carelessness, negligence, or lack of judgment--not only for intentional misconduct. The Activity also cites Merit Systems Protection Board (MSPB) precedent applying 5 U.S.C. § 7513 for support.

Second, the Activity contends that the award affects its right to discipline employees and, therefore, is contrary to section 7106(a)(2)(A) of the Statute. According to the Activity, although management rights can be limited by negotiated arrangements, "the Arbitrator . . . has pointed to no . . . arrangement" limiting suspensions of 14 days or less to cases involving intentional misconduct. Id. at 9.

Third, the Activity contends that the award is deficient under section 7122(a)(2) of the Statute because the Arbitrator exceeded his authority. In the Activity's view, "the parties never empowered the Arbitrator to decide whether" failure to respond to duress alarms "could be a disciplinable offense." Id. at 10. The issue presented to the Arbitrator, the Activity argues, was the extent to which discipline should be imposed--not whether discipline could be imposed. "By determining that the [Activity] could not discipline [the grievant] at all[,]" the Activity asserts, "the Arbitrator resolved an issue that had not been submitted to him for consideration." Id.

Finally, the Activity contends that the award is deficient under section 7122(a)(2) of the Statute because it does not draw its essence from the parties' collective bargaining agreement. In particular, the Activity argues that the just-cause provision in Article 30(a) of the agreement has the same meaning as the just-cause provision in 5 U.S.C. § 7503(a) and, therefore, the precedent cited to support its section 7503(a) argument is "equally instructive" here. Id. at 12.

B. Union

With respect to 5 U.S.C. § 7503(a), the Union contends that "arbitrators may determine that all or part of a disciplinary penalty does not promote the efficiency of the service[.]" Opposition at 3. In support of that argument, the Union cites a line of cases based on Department of Justice, Federal Prisons Systems, El Reno Federal Correctional Institution, El Reno, Oklahoma and American Federation of Government Employees, Council of Prisons Locals, Local No. 171, 35 FLRA 329 (1990) (El Reno).

As for the Agency's section 7106(a)(2)(A) argument, the Union contends that "an arbitrator's award vacating or mitigating discipline does not conflict with management's right to take disciplinary action . . . ." Opposition at 5. The Union again cites El Reno for support.

The Activity's "exceeded authority" exception, the Union asserts, "mischaracterize[s] the nature of the issue before the [A]rbitrator." Id. According to the Union, the Arbitrator's formulation of the issue accurately framed the dispute and is entitled to substantial deference.

Finally, the Union contends that the award does not fail to draw its essence from the just-cause provision of the agreement. The Union states that "the evidence and testimony submitted by both parties and accepted by the [A]rbitrator . . . support[] the [finding] that at all times during the . . . incident . . . 'the grievant was engaged in the performance of his official duties.'" Id. at 6 (quoting Award at 9).

IV. Analysis and Conclusions

As the Activity's first two exceptions allege that the Arbitrator's award is contrary to law, we review them 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)).

A. The Award Is Not Contrary to 5 U.S.C. § 7503(a)

5 U.S.C. § 7503(a) states: "Under regulations prescribed by the Office of Personnel Management [OPM], an employee may be suspended for 14 days or less for such cause as will promote the efficiency of the service . . . ." (Emphasis added.) The underscored language is not defined in 5 U.S.C. chapter 75, in the legislative history to 5 U.S.C. chapter 75, or in OPM's regulations. See 5 U.S.C. § 7501; S. Rep. No. 95-969, at 47 (1978), reprinted in 1978 U.S.C.C.A.N. 2723, 2769; 5 C.F.R. § 752.101, 752.201-752.203. In addition, the MSPB has not interpreted the underscored language because suspensions of 14 days or less are not appealable to it. See Pugh v. U.S. Postal Service, 55 MSPR 32, 34 n.2 (1992); 5 C.F.R. § 1201.3(a). Such suspensions, as relevant here, are appealable only through grievance and arbitration procedures negotiated under section 7121 of the Statute. See 5 C.F.R. § 752.203(f).

Under Authority precedent, arbitrators are not required to apply a particular standard or burden of proof in reviewing disciplinary action taken under section 7503(a). E.g., U.S. Department of Justice, Immigration and Naturalization Service, New York District Office and American Federation of Government Employees, Immigration and Naturalization Service Council, Local 1917, 42 FLRA 650, 655 (1991). In addition, contrary to the Activity's assertion, arbitrators need not apply section 7503(a) in the same manner that the MSPB applies 5 U.S.C. § 7513. See National Air Traffic Controllers Association, MEBA/NMU and U.S. Department of Transportation, Federal Aviation Administration, Memphis, Tennessee, 52 FLRA 787, 791-92 (1996).

As the Activity points out, the effect of Authority precedent is to give arbitrators the same broad discretion to interpret and apply section 7503(a) that they have to interpret and apply collective bargaining agreement provisions. See, e.g., American Federation of Government Employees, Local 1760 and Social Security Administration, Northeastern Program Service Center, 22 FLRA 195, 198 (1986) (stating that contractual "just cause" provision "constituted the parties' capsulation of [section 7503(a)]" and that arbitrator's contract analysis, therefore, disposed of the section 7503(a) issue).

In applying section 7503(a), the Arbitrator found that the grievant's decision to admit new inmates rather than respond to duress alarms was an "honest mistake[] made . . . in an admittedly difficult situation." Award at 10-11. That finding led the Arbitrator to conclude that the "proper correctives" were "counseling, training, and/or the clarification of instructions." Id. at 11. We construe those statements as a determination that when unintentional misconduct occurs under extenuating circumstances, remedial measures, rather than disciplinary action, would more effectively promote the efficiency of the service.

Although the Activity cites a number of Authority decisions sustaining suspensions for acts or omissions falling short of intentional misconduct, those decisions merely illustrate the range of outcomes that are possible when grievances involving suspensions of 14 days or less proceed to arbitration. In addition, unlike here, none of the decisions cited by the Activity involve exceptions claiming that the arbitrator's award is contrary to section 7503(a).

Consistent with the foregoing, we conclude that the award is not deficient as contrary to 5 U.S.C. § 7503(a). Accordingly, we deny the exception.

B. The Award Is Not Contrary to Section 7106(a)(2)(A) of the Statute

Awards that affect management's right to discipline are reviewed under the framework established by the Authority in Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309, 313-14 (1990) (Customs Service). U.S. Department of Veterans Affairs, Medical Center, Birmingham, Alabama and American Federation of Government Employees, Local 2207, 51 FLRA 270, 274 (1995) (VAMC, Birmingham).(2) Under that framework, the award will not be found deficient under section 7106(a) of the Statute if the collective bargaining agreement provision enforced by the arbitrator: (1) constitutes an arrangement under section 7106(b)(3) of the Statute, and (2) does not abrogate the exercise of a management right. Customs Service, 37 FLRA at 313-14.

With respect to the first prong of Customs Service, the Authority has held that collective bargaining provisions establishing general standards, such as "fair" or "for just or specific cause," to guide the exercise of management's right to discipline are appropriate arrangements within the meaning of section 7106(b)(3). VAMC, Birmingham, 51 FLRA at 273. The provision enforced by the Arbitrator, Article 30(a), requires disciplinary action to be based on "just and sufficient cause" and "to promote the efficiency of the service." Exceptions, Attachment 2 at 35. Like the provision at issue in VAMC, Birmingham, Article 30(a) establishes general standards governing agency disciplinary action. Accordingly, we find that Article 30(a) is an arrangement within the meaning of section 7106(b)(3) of the Statute.

With respect to the second prong of Customs Service, the Authority has held that "just cause" provisions "reserve to management the right to discipline employees for all conduct for which management can establish that the standards have been met