United States, Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Sheridan, Oregon (Agency) and American Federation of Government Employees, Local 3979 (Union)

[ v58 p279 ]

58 FLRA No. 65

UNITED STATES
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
SHERIDAN, OREGON

(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
LOCAL 3979
(Union)

0-AR-3473

_____

DECISION

January 15, 2003

_____

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 Paul P. Tinning 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.

      The grievance alleged that the Agency violated the parties' local and master collective bargaining agreements by vacating correctional posts, failing to pay an employee a uniform allowance, failing to properly post sick and annual leave relief rosters, making frequent roster adjustments and failing to maintain scheduled days off without good reason. The Arbitrator found that the Agency violated the agreement by vacating certain posts without good cause or for administrative convenience and by failing to provide certain employees with a second uniform allowance.

      In United States Dep't of Justice, Federal Bureau of Prisons, Federal Transfer Center, Oklahoma City, OK, 58 FLRA 109 (2002) (BOP, Oklahoma City), the Authority addressed another arbitrator's award involving the vacating of correctional posts, 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 portion of the award relating to the vacating of correctional posts is deficient and we set it aside. However, we deny the Agency's exceptions as to uniform allowances.

II.     Background and Arbitrator's Award

      The Agency's facilities hold approximately 1900 prisoners guarded by approximately 158 Correctional Officers. [n2]  Those Correctional Officers, who are required to wear a uniform consisting of a white shirt and gray slacks, receive an annual uniform allowance. Several Correctional Officers, who were temporarily assigned to positions requiring uniforms different than those worn by Correctional Officers, did not receive a uniform allowance to cover the costs of the different uniforms that they were required to wear.

      Further, the Agency reassigned several Correctional Officers from their assigned posts or tours of duty, thereby vacating posts. These reassignments lasted between one shift and one quarter. On several occasions, these reassignments resulted in certain posts remaining unoccupied.

      The Union filed a grievance alleging that the Agency's actions detailed above violated a number of the provisions of the parties' local and master agreements. After the parties could not resolve the matter, they submitted it to the Arbitrator for his consideration.

      As relevant here, the Arbitrator first found that the Agency violated Article 18, Section r [n3]  and Article 27, section a [n4]  of the parties' master agreement by vacating Correctional Officer posts for administrative convenience and without good reason. The Arbitrator, citing [ v58 p280 ] United States Dep't of Justice, Fed. Bureau of Prisons, United States Penitentiary, Atlanta, Ga., 57 FLRA 406 (2001) (Chairman Cabaniss dissenting) (BOP, Atlanta), found that vacating correctional posts did not reduce safety hazards to the lowest possible level. The Arbitrator also cited to the Authority's rulings in United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Marianna, Fla., 56 FLRA 467, 469-70 (2000) (BOP, Marianna) and United States Dep't of Justice, Fed. Bureau of Prisons, Metro. Det. Ctr., Guaynabo, P.R., 57 FLRA 331 (2001) (BOP, Guaynabo) (Chairman Cabaniss dissenting), to support his finding that the Agency violated the master agreement.

      The Arbitrator next determined that the Agency had improperly failed to provide a Correctional Officer, who was detailed to a position requiring a different uniform, with a uniform allowance to cover the cost of the uniform for the position to which he was detailed. In making this determination, the Arbitrator relied on Article 28, Section i.5 of the parties' local supplemental agreement, which permits an employee to receive an additional uniform allowance when he or she is detailed to another position. [n5]  Further, the Arbitrator noted that, under the Agency's uniform policy, employees who are detailed to positions requiring a different uniform are entitled to an appropriate uniform allowance for the new uniform. [n6] 

      To remedy these contractual violations, the Arbitrator ordered the Agency to reimburse those Correctional Officers, who were roster adjusted for administrative convenience or without good reason, for any loss of differential or Sunday premium pay that they suffered as a result of that action. He also directed the Agency to pay the Correctional Officer, who was detailed to a position requiring a different uniform, an appropriate uniform allowance for the uniform he was required to wear during his detail. Further, he directed the Agency to grant an additional uniform allowance to any other Correctional Officer who was required to purchase and wear a uniform other than that worn by Correctional Officers. [n7] 

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency argues that the portion of the award finding that the Agency cannot vacate correctional posts or make roster adjustments for administrative convenience and without good reason violates its rights under § 7106 of the Statute to assign work, assign employees and determine its internal security practices, under the framework established in United States Dep't of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 53 FLRA 146, 151-54 (1997) (BEP).

      The Agency first claims that the award affects its right to assign work because the award would affect the Agency's right to determine the particular duties to be assigned, when work assignments would occur, and to whom or what positions the duties would be assigned. Additionally, the Agency contends that, to comply with the terms of the award, it might have to use overtime assignments, cancel leave or training, or even assign management personnel to posts.

      The Agency next asserts that the award affects management's rights to assign employees because the Authority has consistently held that the decision whether or not to fill a vacant position is encompassed within an agency's right to assign employees. Additionally, the Agency claims that the Authority has found that [ v58 p281 ] proposals requiring agencies to fill vacancies interfere with management's rights.

      The Agency also asserts, citing BOP, Atlanta, 57 FLRA at 409, that the award affects management's right to determine its internal security practices because it limits the Agency's exercise of its judgment regarding the degree of staffing necessary to carry out its security function.

      Having argued that the award affects a number of management rights, the Agency then claims that the award does not satisfy Prong I of the BEP test as Article 27, Section a and Article 18, Section r of the master agreement, as interpreted by the Arbitrator, do not constitute appropriate arrangements. The Agency asserts that the Arbitrator's interpretation of those provisions would require the Agency to fill temporary vacancies even if the positions have become vacant as a result of a voluntary action by an employee and not because of a management action. Therefore, the Agency contends that the proposal is not an appropriate arrangement because it is not sufficiently tailored to ameliorate only the adverse effects of the exercise of a management right.

      Further, the Agency argues that the provisions, as interpreted by the Arbitrator, abrogate management rights to assign work, assign employees and determine internal security practices. The Agency claims that the award would preclude the Agency from deciding not to fill certain posts that are temporarily vacant. Because the award obligates the Agency to exercise its rights under the Statute, the Agency contends that the award fails to meet the first prong of the BEP test.

      The Agency then urges the Authority to replace the abrogation standard used to determine if arbitration awards violate management rights with the "excessive interference" standard used in negotiability appeals to determine if proposals and provisions violate management rights. The Agency contends that the abrogation standard is inappropriate given the de novo standard of review that the Authority employs in analyzing questions of law raised by arbitration awards. The Agency argues that there is no justification for applying different standards in different fora. The Agency further asserts that the award is deficient if the "excessive interference" standard were applied to the case for all of the reasons asserted by the Agency in connection with the application of the abrogation standard.

      The Agency next contends that the Arbitrator's order requiring the Agency to reimburse employees for any loss of night differential pay and Sunday premium pay violated 5 U.S.C. § 5545(a) and the Back Pay Act, 5 U.S.C. § 5596. [n8] 

      The Agency then argues that the Arbitrator's order regarding an additional uniform allowance is contrary to 5 U.S.C. § 5901(a)(2) and the Back Pay Act, 5 U.S.C. § 5596. With regard to the former, the Agency argues that that provision and the Agency's uniform policy permit only the payment of one uniform allowance up to $400 per year. Because the Arbitrator's award permits certain employees to receive $700 in uniform allowances in a year, the Agency maintains that the award is contrary to 5 U.S.C. § 5901(a)(2). With regard to the Back Pay Act, the Agency first disputes the Arbitrator's finding that the Agency's actions violated the parties' agreement. Further, the Agency asserts that the award fails to satisfy the requirements of the Back Pay Act because the Arbitrator failed to identify which specific employees were entitled to an additional uniform allowance.

      The Agency then claims that the award of backpay regarding those same night differential and Sunday pay claims fails to draw its essence from Article 27, Section a and Article 18, Section r of the master agreement.

      The Agency further claims that the portion of the award granting certain employees an additional uniform allowance fails to draw its essence from Article 28, Section h of the master agreement. [n9]  The Agency contends that that provision incorporates the language of the Agency's uniform policy into the master agreement and that the Arbitrator ignored the terms of that policy, which the Agency claims specifically states that employees may not receive both a dress and a work uniform allowance.

      Finally, the Agency maintains that the portion of the award granting employees an additional uniform allowance fails to draw its essence from Article 3, Section a.1 of the master agreement. [n10]  The Agency claims that the Arbitrator's determination, that the local supplemental agreement takes precedence over the terms of [ v58 p282 ] the Agency's uniform policy, is contrary to Article 3, Section a.1, as that provision dictates that local supplemental agreements are subordinate to Agency-wide policies.

B.     Union's Opposition

      The Union contends that the issues in this case are the same that the Authority faced in BOP, Atlanta and like the award in that case, nothing here prevents the Agency from exercising its right to assign work. Similarly, the Union cites to the Authority's decision in BOP, Guaynabo, in which the Authority found that an award did not implicate the Agency's right to assign employees, to support its position that the award does not violate its right to assign employees. Further, the Union, again citing BOP, Atlanta, argues that the award does not interfere with management's rights to determine its internal security practices. The Union maintains that the award is carefully written not to abrogate management's rights.

      With regard to the Arbitrator's order to provide certain employees with an additional uniform allowance, the Union claims that 5 U.S.C. § 5901 does not preclude the Agency from paying an allowance to employees for each uniform required. Rather, the Union argues that that provision mandates only a maximum for each uniform and does not prohibit the payment of an allowance in excess of $400 when more than one uniform is required. The Union also disputes the Agency's argument that its policy on uniforms prohibits the payment of an additional uniform allowance.

      Finally, the Union disputes the Agency's contention that the award, as it relates to uniforms, violates the Back Pay Act. The Union contends that a review of the Agency's records would reflect the employees eligible for the additional allowance.

IV.     Analysis and Conclusions

A.     That portion of the award pertaining to the vacating of posts violates the Agency's rights under § 7106(a)

      The Agency's exception that the award is contrary to various management rights established in § 7106 of the Statute challenges the award's consistency with law. Therefore, the Authority reviews the question of law raised by the exception and the Arbitrator's award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a de novo standard of review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

      Where an agency asserts that an arbitrator's award violates management's rights, the Authority first determines whether the award affects management's rights. See United States Small Business Admin., 55 FLRA 179, 184 (1999). If it does, then the Authority applies the two-prong test set forth in BEP, 53 FLRA at 151-54, to determine if the award is deficient. If the award does not affect management's rights, then the BEP analysis is not required.

      Under prong I of the BEP test, the Authority examines whether the award provides a remedy for a violation of either an applicable law, within the meaning of § 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to § 7106(b) of the Statute. BEP, 53 FLRA at 153. If the award provides such a remedy, the Authority will find that the award satisfies prong I of the framework and will then address prong II. Under prong II of the BEP framework, the Authority considers whether the arbitrator's remedy reflects a reconstruction of what management would have done if management had not violated the law or contractual provision at issue. Id. at 154. If the arbitrator's remedy reflects such a reconstruction, then the Authority will find that the award satisfies prong II. An award that fails to satisfy either prong I or prong II will be set aside or remanded to the parties, as appropriate. See United States Dep't of Def., Def. Logistics Agency, Def. Distrib. Depot, Norfolk, Va., 54 FLRA 180, 185 (1998).

      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 [ v58 p283 ] appropriate arrangement within the meaning of § 7106(b)(3)). [n11] 

      Examining the award under BEP, as modified by BOP, Oklahoma City, we conclude that the Arbitrator's enforcement of Article 27 excessively interferes with management's rights to determine its internal security practices under § 7106(a)(1) and to assign work under § 7106(a)(2)(B).

      The Authority has addressed Article 27 in many recent cases. [n12]  In BOP, Guaynabo; BOP, Atlanta; BOP, Oklahoma City; and BOP, Forrest City, the Authority concluded that the awards affected management's rights to determine its internal security practices and to assign work. In each of these cases, the Authority found that the limitations on the Agency's authority to leave posts vacant affected management's rights to determine its internal security practices and to assign work. We reach the same conclusion here. Accordingly, and for the reasons stated more fully in the above-cited cases, we find that the award affects management's rights to determine its internal security practices and to assign work. Therefore, under prong I of BEP, we must determine whether Article 27, as interpreted and applied by the Arbitrator, was negotiated pursuant to § 7106(b).

      In each of the above-cited cases, the Authority found that Article 27, as interpreted and applied by the arbitrators, constituted an arrangement within the meaning of § 7106(b)(3). In this case, the Arbitrator found in agreement with previous arbitrators that Article 27 addresses the adverse effects on safety when correctional posts are vacated. Accordingly, we reach the same conclusion here and find, for the reasons set forth more fully in the above-cited cases, that Article 27 constitutes an arrangement within the meaning of § 7106(b)(3).

      Having determined that Article 27, as interpreted and applied by the Arbitrator, constitutes an arrangement, we must determine whether its enforcement by the Arbitrator excessively interferes with management's rights to determine its internal security practices and to assign work.

      As interpreted and applied 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 BOP, Oklahoma City, we determined that the arbitrator's enforcement of Article 27 excessively interfered with management's rights because it left virtually no circumstances under which the Agency could leave posts vacant. In this case, the Arbitrator has enforced Article 27 in a similar manner.

      The impact on the Agency's rights from Articles 18 and 27, as interpreted by the Arbitrator, is substantial when compared to the employee benefit noted above, especially in light of those matters in the record which help to illuminate what the Arbitrator meant when he concluded that it was improper to vacate posts for "administrative purposes and convenience" or without "good reason." Award at 67. The Arbitrator criticized the Agency (and found a violation of the contract) for assigning correctional officers to "captain's details," which constitute the assignment of work relating to the preparation of program reviews, preparing post orders or writing breaching plans. Award at 22 and 67. There has been no assertion, and it is not otherwise readily apparent, that the work performed on these "captain's details" is improper or otherwise not a legitimate assignment of work for these employees to be performing, yet the Arbitrator found that such legitimate work assignments would violate the contract, with no qualification on that finding identified by the Arbitrator.

      Because the decision defines legitimate work assignments (away from the post being vacated) as an improper "administrative convenience" and/or as not constituting a "good reason" for vacating the post, the Arbitrator's decision effectively insulates correctional officers from ever having to do work that does not involve being at their assigned post. That burden on the Agency's right to assign work is substantial and excessive when compared to the counterbalancing benefit noted above. The award also excessively interferes with the Agency's ability to assign work as it relates to those employees who would otherwise be working elsewhere (but who have been pulled off of those duties to occupy these posts), or who otherwise would not be at work at [ v58 p284 ] all during this period (such as those who would otherwise be validly absent from work due to approved leave, training, or having the day off), given how the Arbitrator's actions have defined "good reason" and "administrative convenience".

      The Arbitrator also took specific issue with the Agency failing to pay more overtime to the employees to provide more post coverage, although the record reflected that some overtime was being paid. Award at 69. From that we conclude that failing to use overtime to provide fewer vacated posts, as the Agency here did, constitutes an improper "administrative convenience" or lack of a "good reason" for vacating the post and thus would violate the contract every time it was shown to be a reason why any post(s) was left unfilled. The provision, then, as interpreted by the Arbitrator, would preclude the Agency from not assigning overtime work, with no qualification on that finding identified by the Arbitrator, if using such overtime work would lessen the number of vacated correctional officer posts. Again, that burden on the Agency's right to assign work is substantial and excessive when compared to the counterbalancing benefit noted above.

      The award also substantially impacts the Agency's ability to determine its internal security practices. While the record is clear in reflecting various employees' disagreements with the Agency's internal security determinations regarding staffing levels, the effect of the award is to totally override any Agency internal security staffing determinations, no matter how necessary or critical, that do not align with the contractual obligation found by the Arbitrator to not vacate these correctional officer posts. As noted by the Agency, internal security within a correctional facility constitutes an even greater management concern and consideration than it normally is, and a higher standard of deference should be accorded to prison administrators regarding such matters, per Bell v. Wolfish, 441 U.S. 520, 547 (1979), and Rhodes v. Chapman, 452 U.S. 337 (1981). This burden, then, on the Agency's right to determine its internal security practices, when compared to the counterbalancing benefit above, is substantial and excessive.

      Therefore, having found that Articles 18 and 27, as interpreted by the Arbitrator, excessively interfere with the Agency's rights to determine its internal security practices and assign work under § 7106(a)(1) and (2)(B), respectively, we determine that those provisions, as interpreted by the Arbitrator, do not constitute appropriate arrangements under § 7106(b)(3) and therefore this portion of the award is contrary to law. [n13] 

B.     The Arbitrator's order to the Agency to pay additional uniform allowances is not contrary to law

1.     The award is not contrary to the Back Pay Act

      The Agency claims that the Arbitrator's award in this regard violates the Back Pay Act, 5 U.S.C. § 5596. Under the Back Pay Act, an award of backpay is authorized only where an arbitrator finds that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; and (2) the personnel action has resulted in the withdrawal or reduction of the employee's pay, allowances, or differentials. 5 U.S.C. § 5596(b). See also United States Dep't of Def., Def. Commissary Agency, Ft. Lee, Va., 56 FLRA 855, 859 (2000). The Agency acknowledges that a breach of a collective bargaining agreement constitutes an unjustified or unwarranted personnel action. See GSA, 55 FLRA 493, 496 (1999). Nonetheless, the Agency contests the Arbitrator's finding that its failure to grant the affected employees an additional uniform allowance violated the parties' agreements. The Authority, however, defers to an Arbitrator's interpretation of a collective bargaining agreement in this context. See id. Therefore, the found violation of the collective bargaining agreement constituted an unjustified or unwarranted personnel action. [n14] 

      The Agency also argues that the Arbitrator failed to specifically identify which employees would be entitled to an additional uniform allowance. The Back Pay Act, however, does not require the Arbitrator to make such findings. Rather, he must only identify the specific circumstances giving rise to the backpay entitlement. See FCI, Sheridan, 55 FLRA at 29. In this case, the Arbitrator ordered the Agency to grant an additional [ v58 p285 ] uniform allowance to those Correctional Officers who were required to purchase and wear a uniform other than that worn by Correctional Officers. Award at 73. The Arbitrator, then, identified the circumstances under which an employee would be entitled to an additional uniform allowance. The Back Pay Act does not require him to specifically identify those employees by name. See FCI, Sheridan, 55 FLRA at 29. Therefore, we find that the awarding of the additional uniform allowance does not violate the Back Pay Act.

2.     We will not consider the Agency's argument that the award is contrary to 5 U.S.C. § 5901(a)

      The Agency argues that the awarding of an additional uniform allowance violates 5 U.S.C. § 5901. A review of the award and the Agency's brief to the Arbitrator indicates that the Agency did not present that argument to the Arbitrator. The Authority will not consider arguments that could have been, but were not, presented in a proceeding before an arbitrator. 5 C.F.R. § 2429.5. Here, there is no reason why the Agency could not have asserted its argument that the awarding of multiple uniform allowances, in excess of $400, would violate 5 U.S.C. § 5901 to the Arbitrator. Absent any evidence in the record that the argument was previously raised by the Agency, we will not consider it.

C.     The award does not fail to draw its essence from the agreement

      For an award to be found deficient as failing to draw its essence from the collective bargaining agreement, it must be established that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purpose of the agreement as to manifest an infidelity to the obligation of an arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. United States Dep't of Def., Def. Logistics Agency, Def. Distrib. Ctr., New Cumberland, Pa., 55 FLRA 1303, 1307 (2000) (Member Cabaniss concurring); United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).

      Although we have found it unnecessary to address the Agency's argument that the award fails to draw its essence from Articles 18 and 27 of the master agreement, we must still address whether the award, as it relates to employee uniform allowances, fails to draw it essence from the agreement.

      The Agency argues that the award fails to draw its essence from the agreement because it ignores the plain language of Article 28, Section h of the master agreement, which incorporates the Agency's uniform policy into the agreement. The Arbitrator, however, did not fail to consider the policy. Rather, he explicitly relied on that policy in making his decision. See Award at 71. Given this reliance, the Agency cannot show that the award evidences a manifest disregard of the agreement or is unconnected with the wording of the agreement.

      The Agency further maintains that the award fails to draw its essence from the agreement because the Arbitrator found, contrary to Article 3, Section a.1 of the master agreement, that the local supplemental agreement took precedence over the Agency's uniform policy. Article 3, Section a.1, however, does not address the interaction between local supplemental agreements and Agency-wide policies. Rather, that portion of the agreement addresses the interplay between local agreements and local policies. Therefore, the Agency has not shown that the award is unconnected with the wording of the agreement.

V.     Decision

      The portions of the award related to the vacating of posts and the granting of night and Sunday differential pay are set aside. The Agency's exceptions to the award of uniform allowances are denied.


APPENDIX

5 U.S.C. § 5596(b)(1) provides, in pertinent part:

An employee of an agency who . . . is found by appropriate authority under applicable law, rule, regulation, or collective bargaining agreement, to have been affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction or all or part of the pay, allowances, or differentials of the employee-
(A) is entitled, on correction of the personnel action, to receive for the period for which the personnel action was in effect-
(i) an amount equal to all or any part of the pay, allowances, or differentials, as applicable which the employee normally would have earned or received during the period if the personnel action had not occurred . . . .

5 U.S.C. § 5545(a) provides, in pertinent part:

Except as provided by subsection (b) of this section, nightwork is regularly scheduled work [ v58 p286 ] between the hours of 6:00 p.m. and 6:00 a.m., and includes-
(1) periods of absence with pay during these hours due to holidays; and
(2) periods of leave with pay during these hours if the periods of leave with pay during a pay period total less than 8 hours.


File 1: Authority's Decision in 58 FLRA No. 65 and Appendix
File 2: Chairman Cabaniss Opinion
File 3: Member Pope's Opinion


Footnote # 1 for 58 FLRA No. 65 - Authority's Decision

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


Footnote # 2 for 58 FLRA No. 65 - Authority's Decision

   162 positions are authorized, but only 158 are funded.


Footnote # 3 for 58 FLRA No. 65 - Authority's Decision

   Article 18, Section r of the master agreement provides:

Normally, nonprobationary employees, other than those assigned to sick and annual relief, will remain on the shift/assignment designated by the quarterly roster for the entire roster period. When circumstances require a temporary [less than five (5) working days] change of shift or assignment, the Employer will make reasonable efforts to assure that affected employee's days off remain as designated by the roster.

Footnote # 4 for 58 FLRA No. 65 - Authority's Decision

   Article 27, Section a of the master agreement provides, in pertinent part:

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 # 5 for 58 FLRA No. 65 - Authority's Decision

   Article 28, Section i.5 of the parties' local supplemental agreement provides, in pertinent part:

[A]ny employee detailed to another position requiring a uniform or a different uniform than the employee usually wears, is entitled to a minimum of one-half of the uniform allowance for the detailed position. Any determinations of a reasonable allowance over the minimum is to be made on a case-by-case basis. Loans will not be used to avoid detail entitlement of uniform allowance.

Award at 9-10.


Footnote # 6 for 58 FLRA No. 65 - Authority's Decision

   The Agency's uniform policy provides, in pertinent part:

Employees, detailed in non-emergency situations to positions requiring a different uniform, are entitled to an appropriate uniform allowance for the new uniform. For example, an employee who is detailed for a period of six months or less may receive an allowance no more than half of the annual authorized amount.

Union's Opposition at 6.


Footnote # 7 for 58 FLRA No. 65 - Authority's Decision

   The Arbitrator also determined that the grievance was arbitrable and that the Agency had violated the master agreement by failing to post sick and annual relief rosters. Neither party has objected to these findings. Therefore, those matters are not before the Authority.


Footnote # 8 for 58 FLRA No. 65 - Authority's Decision

   The relevant portions of 5 U.S.C. § 5545(a) and 5 U.S.C. § 5596 are set forth in the Appendix.


Footnote # 9 for 58 FLRA No. 65 - Authority's Decision

   Article 28, Section h of the master agreement provides, in pertinent part:

Uniforms for all staff will be in accordance with policy, and only those staff occupying positions outlined in policy will be eligible for a uniform allowance.

Footnote # 10 for 58 FLRA No. 65 - Authority's Decision

   Article 3, Section a.1 of the master agreement provides:

[L]ocal supplemental agreements will take precedence over any Agency issuance derived or generated at the local level.

Footnote # 11 for 58 FLRA No. 65 - 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 concurring opinion in BOP, Oklahoma City, would apply the abrogation test.


Footnote # 12 for 58 FLRA No. 65 - Authority's Decision

   In addition to BOP, Oklahoma City, the previous Authority decisions addressing awards of other arbitrators who applied the same contractual provision are: BOP, Marianna; BOP, Guaynabo; BOP, Atlanta; United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Forrest City, Ark., 58 FLRA 118 (2002) (BOP, Forrest City).


Footnote # 13 for 58 FLRA No. 65 - Authority's Decision

   Having so found, we find it unnecessary to determine whether the portion of the award addressing the vacating of Correctional Officer posts excessively interferes with management's right to assign employees, violates 5 U.S.C. § 5545 or 5 U.S.C. § 5596, or fails to draw its essence from the agreement. Chairman Cabaniss, however, would find that the award also excessively interferes with the Agency's right to assign employees.


Footnote # 14 for 58 FLRA No. 65 - Authority's Decision

   To the extent that the Agency challenges the Arbitrator's interpretation of