United States Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Forrest City, Arkansas (Agency) and American Federation of Government, Employees Council of Prison, Locals 33, Local 0922 (Union)

[ v58 p118 ]

58 FLRA No. 22

UNITED STATES DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
FORREST CITY, ARKANSAS
(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL OF PRISON
LOCALS 33, LOCAL 0922
(Union)

0-AR-3422

_____

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 an award of Arbitrator Joe D. Woodward 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 filed an opposition to the Agency's exceptions. [n2] 

      The Arbitrator found that the Agency violated the parties' collective bargaining agreement by leaving work posts vacant for administrative convenience and/or to avoid paying overtime, and ordered the Agency to cease and desist from doing so.

      In United States Dep't of Justice, Federal Bureau of Prisons, Federal Transfer Center, Oklahoma City, OK, 58 FLRA No. 21 (2002) (BOP, Oklahoma City), issued today, the Authority addressed another arbitrator's award involving the same provision, and set forth the standard for reviewing exceptions alleging that an award does not constitute an appropriate arrangement under United States Dep't of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 53 FLRA 146 (1997) (BEP).

      Applying the standard described in BOP, Oklahoma City, we find that the award is deficient and we set it aside.

II.     Background and Arbitrator's Award

      These awards address whether the Agency violated Article 27, Section a of the parties' agreement by vacating correctional officer posts. [n3] 

      The Agency assigns correctional officers to posts on various shifts. The Agency vacates posts on a daily or regular basis. The Union filed a grievance claiming that the Agency's practice of vacating posts violates Article 27, Section a of the parties' agreement.

      The Arbitrator found that the Agency vacates posts "in order to effect cost containment, avoid overtime and generally, as an administrative convenience." Award at 16. He found that vacating posts for other than emergency reasons increases the inherent hazard of the correctional environment and violates the Agency's pledge under Article 27 to lower those hazards.

      In addition, citing other arbitration awards concerning Article 27 and the decision of the Authority in United States Dep't of Justice, Fed. BOP, FCI, Marianna, Fla., 56 FLRA 467 (2000) (BOP, Marianna) the Arbitrator stated that this issue "should now be well settled between these parties." Id. at 18. He explained that "[a]ll of these cases have a strong influence on the case at hand if [they are] not, in fact[,] [r]es judicata." Id. at 19.

      As a remedy, the Arbitrator sustained the grievance and ordered the Agency to cease and desist from violating Article 27 by vacating posts for administrative convenience and/or to avoid paying overtime. [ v58 p119 ]

III.     Agency's Exceptions

      The Agency argues that the award is contrary to § 7106 of the Statute 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 award affects management's rights to determine its internal security practices and to assign work, and that 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 abrogates the specified rights.

      In addition, the Agency argues that the Arbitrator incorrectly applied BOP, Marianna; that the Arbitrator improperly granted precedential value to other arbitration awards; and that the award fails to draw its essence from the collective bargaining agreement.

IV.     Analysis and Conclusions

A.     Applicable Standard

      For the reasons set forth below, we find that the award is deficient because it is 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. For the reasons stated in BOP, Oklahoma City, 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). As we stated in BOP, Oklahoma City, in determining whether an arbitrator's enforcement of such a provision is authorized under the Statute, 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 Award is Deficient

      Applying the analysis set forth above to this case, we conclude that the 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 United States Dep't of Justice, Bureau of Prisons, Metro. Det. Ctr., Guaynabo, P.R., 57 FLRA 331, 333 (2001) (Chairman Cabaniss dissenting) (BOP, Guaynabo), and United States Dep't of Justice, Bureau of Prisons, United States Penitentiary, Atlanta, Ga., 57 FLRA 406, 409 (2001), (Chairman Cabaniss dissenting) (BOP, Atalnta) 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 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). [ v58 p120 ]

      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, 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 from vacating posts in non-emergency situations for administrative convenience and/or to avoid paying overtime. [n5]  The Arbitrator did not define or place any limitations on the term "administrative convenience." In these circumstances, the lack of any effective limitation on the term "administrative convenience" has the same consequence as the exhaustive listing set forth by the arbitrator in BOP, Oklahoma City[n6]  In both cases, Article 27, as interpreted and enforced by the arbitrators, leaves virtually no non-emergency 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 excessively interferes with management's rights to determine its internal security practices and to assign work, and for that reason fails to satisfy prong I of BEP. Consequently, the award is deficient as contrary to § 7106 of the Statute. [n7] 

V.     Decision

      The award is set aside.


File 1: Authority's Decision in 58 FLRA No. 22
File 2: Chairman Cabaniss Opinion
File 3: Member Pope's Opinion


Footnote # 1 for 58 FLRA No. 22 - Authority's Decision

   Chairman Cabaniss' concurring opinion and Member Pope's dissenting opinion are set forth at the end of this decision.


Footnote # 2 for 58 FLRA No. 22 - Authority's Decision

   The opposition was untimely and has not been considered.


Footnote # 3 for 58 FLRA No. 22 - 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 # 4 for 58 FLRA No. 22 - Authority's Decision

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


Footnote # 5 for 58 FLRA No. 22 - Authority's Decision

   The Arbitrator found that vacating posts for "other than emergency reasons" increases the inherent hazard of the correctional environment. Award at 17. In light of this statement, we construe the award as not applying to situations involving emergency reasons.


Footnote # 6 for 58 FLRA No. 22 - Authority's Decision

   In BOP, Oklahoma City, the arbitrator ruled that