United States Department of Justice, Federal Bureau of Prisons, Federal Transfer Center, Oklahoma City, Oklahoma (Agency) and American Federation of Government Employees, Local 171, Council of Prison Locals #33 (Union)

[ v58 p109 ]

58 FLRA No. 21

UNITED STATES DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL TRANSFER CENTER
OKLAHOMA CITY, OKLAHOMA
(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 171
COUNCIL OF PRISON LOCALS #33
(Union)

0-AR-3438

_____

DECISION

September 30, 2002

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.     Statement of the Case

      This matter is before the Authority on exceptions to two awards of Arbitrator M. Zane Lumbley filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union did not file an opposition to the Agency's exceptions.

      The Arbitrator found that the Agency violated the parties' collective bargaining agreement by vacating correctional officer posts and ordered the Agency to cease and desist. He also ordered the Agency to appoint a representative designated by the Union to serve on the Agency's manpower committee. For the following reasons, we find that the awards are deficient.

II.     Background and Arbitrator's Awards

      These awards, like several others involved in recent Authority decisions, address whether the Agency violated Article 27, Section a of the parties' agreement [n2] by vacating correctional officer posts. [n3] 

      In this case, in an initial award, the Arbitrator determined that the Agency had violated Article 27 by vacating posts for the purpose of avoiding the payment of overtime. In this regard, the Arbitrator found that the Agency's decisions to vacate posts were made for purposes of "do[ing] more with less." Initial Award at 9. Applying Article 27, the Arbitrator ruled that "any decision to vacate posts for administrative convenience, whether it is tied to overtime specifically, to financial considerations generally, to needs created by training requirements, medical escort trips, sick leave, and vacations . . .or to the more amorphous balancing of considerations such as `safety, security, budget and organizational objectives'" violates the pledge of Article 27 to lower inherent hazards to the lowest possible level. Id. at 10. The Arbitrator ordered the Agency to cease and desist the practice of vacating posts to avoid the payment of overtime or for any other reason of administrative convenience, and directed the parties to submit arguments concerning additional remedies.

      Subsequently, in a "remedy award," the Arbitrator ordered the Agency to appoint a representative designated by the Union to serve on the Agency's manpower committee. In explanation, the Arbitrator stated that the appointment constituted "both a reasonable remedy for the violation of the Master Agreement found in this case and an appropriate arrangement." Remedy Award at 20. In doing so, the Arbitrator referenced Article 10, Section a of the parties' agreement, which pertains to union membership on committees. [ v58 p110 ]

III.     Agency's Exceptions

      The Agency contends that the awards are contrary to § 7106 of the Statute and fail to draw their essence from the collective bargaining agreement.

      The Agency argues that the initial award is contrary to § 7106 because it fails to satisfy prong I of the Authority's analysis set forth in United States Dep't of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 53 FLRA 146 (1997) (BEP). The Agency claims that the initial award affects management's rights to determine its internal security practices, to assign employees, and to assign work. The Agency asserts that the initial award fails to satisfy prong I because Article 27 was not negotiated pursuant to § 7106(b)(3). Specifically, the Agency maintains that Article 27 does not constitute an arrangement within the meaning of § 7106(b)(3) and its enforcement by the Arbitrator both excessively interferes with and abrogates the enumerated rights. Although the Agency argues that the award is deficient under both an "excessive interference" standard and the "abrogation" standard, the Agency asserts that the abrogation standard is contrary to law and should be replaced by an excessive interference standard.

      The Agency similarly argues that the remedy award fails to satisfy prong I of BEP because it impermissibly affects management's right to assign work under § 7106(a)(2)(B) and to determine the method and means of performing work under § 7106(b)(1). In addition, the Agency asserts that the remedy award fails to satisfy prong II of BEP because the ordered appointment does not reflect a reconstruction within the meaning of prong II.

IV.     Analysis and Conclusions

A.     Applicable Standard

      For the reasons set forth below, we find that the initial award and remedy award are deficient because they are contrary to § 7106 of the Statute.

      In BEP, the Authority set forth the framework it uses to resolve exceptions which contend that an arbitrator's award is contrary to a management right under § 7106 of the Statute. As applicable here, under prong I of BEP the Authority examines whether the award provides a remedy for the violation of a contract provision that was negotiated pursuant to § 7106(b) of the Statute. In examining under BEP whether an award has enforced a contract provision negotiated pursuant to § 7106(b)(3), the Authority has applied the analysis set forth in Dep't of the Treasury, United States Customs Serv., 37 FLRA 309 (1990) (Customs Service). Under Customs Service, the Authority examines the award to determine: (1) whether the provision of the collective bargaining agreement as interpreted by the arbitrator constitutes an arrangement; and (2) whether its enforcement is improper because it abrogates the exercise of a management right.

      We will continue to apply BEP to determine whether an award has enforced a contract provision negotiated pursuant to § 7106(b)(3). In doing so, we will also continue to examine whether the provision of the collective bargaining agreement, as interpreted and applied by the arbitrator, constitutes an arrangement within the meaning of § 7106(b)(3). However, in determining whether an arbitrator's enforcement of such a provision is authorized under the Statute, we will no longer apply the "abrogation" standard. Rather, consistent with the Authority's practice prior to Customs Service, we will examine whether the contract provision, as interpreted and applied by the arbitrator, excessively interferes with the exercise of a management right. See, e.g., The Washington Plate Printers Union Local No. 2, I.P.D.E.U., 31 FLRA 1250, 1255-57 (1988) (the Authority applied the excessive interference test established in NAGE Local R14-87, 21 FLRA 24 (1986) (commonly referred to as KANG) in determining that the provision of the agreement was an enforceable appropriate arrangement within the meaning of § 7106(b)(3)). [n4] 

B.     The Initial Award is Deficient

      Applying the analysis set forth above to this case, we conclude that the initial award fails to satisfy prong I because the Arbitrator's enforcement of Article 27 in the initial award excessively interferes with management's rights to determine its internal security practices under § 7106(a)(1) of the Statute and to assign work under § 7106(a)(2)(B) of the Statute.

      As noted above, the Authority has addressed Article 27 in several recent cases. In BOP, Guaynabo, 57 FLRA at 333, and BOP, Atlanta, 57 FLRA at 409, the Authority found that awards that, respectively, allowed posts to remain vacant only for good reason and not on a routine basis for administrative convenience, and only in emergency situations, affected management's rights to assign work. Specifically, the Authority stated that [ v58 p111 ] limitations on an agency's authority to leave posts vacant affected the right to determine whether and when work will be performed and, as such, affected the right to assign work under § 7106(a)(2)(B) of the Statute. In BOP, Atlanta, 57 FLRA at 409, the Authority also found that restrictions on the agency's authority to staff its facility with fewer correctional officers than it had scheduled limited the agency's authority to determine the degree of staffing necessary to maintain the security of its facility. As such, the Authority found that the award affected the right to determine internal security practices under § 7106(a)(1) of the Statute.

      We reach the same results here. Accordingly, and for the reasons more fully set forth in BOP, Guaynabo and BOP, Atlanta, we find that the initial award affects management's rights to assign work and to determine its internal security practices. Therefore, under prong I of BEP, we must next determine whether Article 27, as interpreted and applied by the Arbitrator in the initial award, was negotiated pursuant to § 7106(b).

      For the reasons more fully explained in BOP, Guaynabo and BOP, Atlanta, we also find that Article 27, as interpreted and applied by the Arbitrator in the initial award, constitutes an arrangement within the meaning of § 7106(b)(3). "Because Article 27 addresses Agency actions in response to vacancies, and applies only to posts that contribute to the level of safety at the Agency's facility, it ameliorates the adverse effects flowing from the Agency's decision to vacate posts." BOP, Atlanta, 57 FLRA at 410.

      Having determined that Article 27, as interpreted and applied by the Arbitrator in the initial award, constitutes an arrangement, we next must determine whether its enforcement by the Arbitrator excessively interferes with management's rights to determine its internal security practices and to assign work. In making this determination, we weigh the benefits afforded employees under Article 27 against the intrusion on the exercise by management of its rights to determine internal security practices and to assign work.

      As interpreted by the Arbitrator, Article 27 provides a benefit to unit employees by decreasing the number of vacated correctional officer posts. This, in turn, provides more correctional officers to respond to inmate hazards to employees and, thereby, increases employees' safety.

      However, we find that the benefits to employees are outweighed by the intrusion on the exercise of management's rights. In this respect, the Arbitrator interpreted and applied Article 27 to prohibit the Agency, without exception, from vacating posts for administrative convenience. While the Arbitrator did not explicitly define what he meant by the term "administrative convenience," he specifically ruled that it included any consideration by the Agency of finances, training, medical escort trips, sick leave, vacations, safety, security, budget, or organizational objectives. In view of this exhaustive list, and the fact that the award does not specify any situations in which the Agency could fail to assign an employee to a vacant post, we conclude that Article 27, as interpreted and enforced by the Arbitrator in his initial award, is so severely circumscribed that it leaves virtually no circumstance - whether related to work reasons, security reasons, or both - under which the Agency may leave posts vacant.

      Accordingly, we find that the Arbitrator's enforcement of Article 27 in the initial award excessively interferes with management's rights to determine internal security practices and to assign work, and for that reason fails to satisfy prong I of BEP. Consequently, the initial award is deficient as contrary to § 7106 of the Statute. [n5] 

C.     The Remedy Award is Deficient

      Under prong II of BEP, an arbitrator's remedy for the violation of a collective bargaining agreement that affects a management right must reflect a reconstruction of what management would have done had it not violated the agreement. See BEP, 53 FLRA at 154.

      The Agency argues that the Arbitrator's order directing the Agency to appoint a representative designated by the Union to serve on the Agency's manpower committee affects management's right to assign work. We agree. The right to assign work includes the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what positions the duties will be assigned. United States Dep't of the Treasury, United States Customs Serv., El Paso, Tex., 55 FLRA 553, 558 (1999). The Agency asserts, and the Union does not dispute, that the manpower committee determines, among other things, to whom work will be assigned. Therefore, we conclude that the remedy award affects the Agency's right to assign work. See Fed. Aviation Admin., Washington, D.C., 55 FLRA 1233, 1236 (2000) (award ordering union participation on selection committee affected agency's § 7106(a) rights). [ v58 p112 ]

      In ordering a remedy that affects management's right to assign work, the Arbitrator did not find, explicitly or implicitly, that Article 27, which is the only provision that he found had been violated, concerned or required such an appointment to the committee. Moreover, although the Arbitrator referenced Article 10, Section a of the parties' agreement pertaining to union membership on committees, he did not find that the Agency violated this provision. As Article 27 was the only violation he found, the reference to Article 10 provides no support for his remedy. Thus, the appointment of a Union designee to the Manpower Committee does not constitute a reconstruction of what the Agency would have done had it not violated the parties' agreement.

      Accordingly, we find that the remedy award fails to satisfy prong II of BEP. As such, the remedy award is deficient as contrary to § 7106 of the Statute. [n6] 

V.     Decision

      The awards are set aside.


File 1: Authority's Decision in 58 FLRA No. 21
File 2: Opinion of Chairman Cabaniss
File 3: Opinion of Member Armendariz and Opinion of Member Pope


Footnote # 1 for 58 FLRA No. 21 - Authority's Decision

   The separate concurring opinions of Chairman Cabaniss, Member Armendariz, and Member Pope are set forth at the end of this decision.


Footnote # 2 for 58 FLRA No. 21 - Authority's Decision

   Article 27, Section a provides, in pertinent part, as follows:

There are essentially two (2) distinct areas of concern regarding the safety and health of employees in the Federal Bureau of Prisons:
1.     the first, which affects the safety and well-being of employees, involves the inherent hazards of a correctional environment[.]
. . . .
With respect to the first, the Employer agrees to lower those inherent hazards to the lowest possible level, without relinquishing its rights under 5 USC 7106. The Union recognizes that by the very nature of the duties associated with supervising and controlling inmates, these hazards can never be completely eliminated. . ..

Footnote # 3 for 58 FLRA No. 21 - Authority's Decision

   The previous Authority decisions addressing awards of other arbitrators who applied the same contractual provision are as follows: United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Marianna, Fla., 56 FLRA 467 (2000) (BOP, Marianna); United States Dep't of Justice, Fed. Bureau of Prisons, Metro. Det. Ctr., Guaynabo, P.R., 57 FLRA 331 (2001) (Chairman Cabaniss dissenting) (BOP, Guaynabo), and United States Dep't of Justice, Fed. Bureau of Prisons, United States Penitentiary, Atlanta, Ga., 57 FLRA 406 (2001) (Chairman Cabaniss dissenting) (BOP, Atlanta).


Footnote # 4 for 58 FLRA No. 21 - Authority's Decision

   Chairman Cabaniss applies the excessive interference standard in such cases for the reasons stated in her concurring opinion. Member Armendariz applies the excessive interference standard for the reasons stated in his concurring opinion. Member Pope disagrees with the decision to apply the excessive interference standard and, for the reasons set forth in her concurring opinion, would apply the abrogation test.


Footnote # 5 for 58 FLRA No. 21 - Authority's Decision

   Because we find that the award excessively interferes with these rights, we do not need to address the Agency's remaining contentions as to why the initial award is deficient.


Footnote # 6 for 58 FLRA No. 21 - Authority's Decision

   In view of our determination that the remedy award is deficient on this groun