United States, Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Lompoc, California (Agency) and American Federation of Government Employees, Council of Prisons Locals, Local 3048 (Union)

[ v58 p301 ]

58 FLRA No. 69

UNITED STATES
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
LOMPOC, CALIFORNIA
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
COUNCIL OF PRISONS LOCALS,
LOCAL 3048
(Union)

0-AR-3516

_____

DECISION

January 22, 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 Fredric R. Horowitz 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] 

      This decision is one in a series involving the same general issue. [n3]  In this case, as in others, the Arbitrator found that the Agency violated Article 27, Section a  [n4]  of the parties' master collective bargaining agreement by leaving work posts vacant, and ordered the Agency to cease vacating posts for certain reasons.

      For the following reasons, we find that the award in this case is deficient and under § 7122(a) of the Statute. Accordingly, we set the award aside.

II.     Background and Arbitrator's Awards

      The Agency assigns correctional officers to posts on various shifts. When officers fail to work scheduled shifts, the Agency either assigns other employees to those posts on an overtime basis or leaves the posts vacant. The Union filed a grievance alleging that leaving posts vacant violated Article 18, Section r and Article 27, Section a of the parties' agreement.

      The Arbitrator formulated the following issue: "Whether the Agency violated Articles 18(r) and 27(a) of the Master Agreement when it vacated Correctional Services posts[; and i]f so, what is the appropriate remedy?" Award at 2.

      Relying on BOP, Marianna; BOP, Atlanta; BOP, Guaynabo, and several arbitral awards, the Arbitrator found that the Agency's duty under Article 27, Section a "includes the obligation to avoid vacating posts without good cause, for administrative convenience, or the avoidance of overtime." Id. at 9. The Arbitrator found that the evidence established that posts are left vacant on a daily basis, and accordingly, that the Agency violated Article 27, Section a of the parties' agreement. To remedy the violation, the Arbitrator ordered the agency to cease vacating posts "except in emergency situations or for other good cause." Id. at 11.

III.     Agency's Exceptions

      The Agency argues that the award is contrary to its rights under § 7106(a) of the Statute to assign employees, assign work, and determine internal security practices because it precludes the Agency from leaving posts [ v58 p302 ] vacant. The Agency further argues that, as interpreted and applied by the Arbitrator, Article 27 is not enforceable under § 7106(b)(3) of the Statute because, by precluding management from vacating posts, it abrogates the exercise of management's rights. The Agency also contends that Article 27 is not sufficiently tailored to constitute an appropriate arrangement because it would ameliorate the adverse affects of vacancies created by employees who voluntarily choose not to work.

      Additionally, the Agency requests that the Authority replace the "abrogation test," which had been used to determine whether a contract provision is enforceable under § 7106(b)(3), with the "excessive interference test," which is used to determine whether a proposal is negotiable under § 7106(b)(3) that section. Nonetheless, the Agency argues that the award is deficient under either test and, in addition, that it fails to reconstruct appropriate actions under Article 27. Finally, the Agency argues that the award fails to draw its essence from the parties' agreement.

IV.     Analysis and Conclusions

      The Authority reviews questions of law raised by exceptions to an 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 standard of de novo review, the Authority determines 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 determination, the Authority defers to the arbitrator's underlying factual findings. See id.

      In resolving whether an arbitrator's award violates management's rights under § 7106 of the Statute, the Authority applies the framework established in United States Dep't of the Treasury, Bureau of Engraving and Printing, Wash., D.C., 53 FLRA 146 (1997) (BEP). Upon finding that an award affects a management right under § 7106(a), the Authority applies a two-prong test to determine if the award is deficient. Under prong I, the Authority examines whether the award provides a remedy for a violation of either 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. Under prong II, the Authority considers whether the arbitrator's remedy reflects a reconstruction of what management would have done if it had not violated the law or contractual provision at issue. An award that fails to satisfy either prong I or prong II will be set aside or remanded to the parties, as appropriate. Social Sec. Admin., Boston Reg. (Reg. 1), Lowell Dist. Office, Lowell, Mass., 57 FLRA 264, 269 (2001) (citation omitted) (SSA, Lowell).

1.     The award affects the Agency's rights to assign work and determine internal security practices.

      A limitation on an agency's ability to leave correctional officer posts vacant affects both its rights to assign work and to determine internal security practices. See BOP, Coleman, 58 FLRA No. 66, slip op. at 8; BOP, Sheridan, 58 FLRA No. 65, slip op. at 12. The Arbitrator's award prohibits the Agency from leaving posts vacant except in emergency situations or for other good cause. Thus, consistent with BOP, Sheridan and BOP, Coleman, the award affects the Agency's rights to assign work and determine internal security practices.

2.     The award fails to satisfy prong I of BEP.

      Under prong I, the Authority determines whether Article 27 was negotiated pursuant to § 7106(b) of the Statute. United States Dep't of Def., Def. Logistics Agency, Red River Army Depot, Texarkana, Tex., 55 FLRA 523, 526 (1999). As the Agency focuses solely on whether Article 27 of the parties' agreement constitutes an appropriate arrangement within the meaning of § 7106(b)(3) of the Statute, we limit review under prong I to that issue. See, e.g., Fed. Aviation Admin., Wash., D.C. 55 FLRA 1233, 1236-37 (2000) (FAA, Wash., D.C.).

      In order to determine whether a provision, as interpreted and applied by the arbitrator, was negotiated under § 7106(b)(3), the Authority assesses, pursuant to the standard set forth in BOP, Oklahoma City, 58 FLRA 109, whether the collective bargaining provision: (1) constitutes an arrangement under § 7106(b)(3); and (2) excessively interferes with the exercise of a management right. See BOP, Coleman, 58 FLRA No. 66; BOP, Sheridan, 58 FLRA No. 65; BOP, Forrest City, 58 FLRA 118.

a.     Article 27 constitutes an arrangement

      A provision constitutes an arrangement under Customs Service if it ameliorates the adverse effects flowing from the exercise of a management right. FAA, Wash., D.C., 55 FLRA at 1236-37. As in the cases set forth in footnote 3 supra involving Article 27 and this same issue, the Agency claims that Article 27 does not constitute an arrangement because, in some instances, posts are initially vacated due to voluntary employee action, such as use of sick leave, and not because of the exercise of a management right. However, as in those cases, the Arbitrator here did not find that the adverse effects result from the initial vacancy, but from the Agency's decision not to staff posts. See Award at 7, 10. Thus, Article 27, as interpreted and enforced by the Arbitrator, ameliorates the adverse effects flowing from the Agency's decision not to staff posts, which constitutes an exercise of both the right to assign work and the right to determine internal security practices. See BOP, [ v58 p303 ] Atlanta, 57 FLRA at 410. Accordingly, Article 27 constitutes an arrangement for employees adversely affected by the Agency's exercise of its rights to assign work and determine internal security practices. See BOP, Coleman, 58 FLRA No. 66; BOP, Sheridan, 58 FLRA No. 65; BOP, Forrest City, 58 FLRA 118; BOP, Oklahoma City, 58 FLRA 109.

b.     Article 27 excessively interferes with the Agency's right to assign work and determine internal security practices

      A provision excessively interferes with a management right under the standard set forth in BOP, Oklahoma City if the benefits afforded employees under the provision are outweighed by the intrusion on the exercise of management's rights. 58 FLRA at 110.

      As interpreted and applied by the Arbitrator, Article 27 provides a benefit to employees by decreasing the number of vacated correctional posts. This, in turn, provides more officers to respond to inmate hazards to employees and, thereby, increases employee's safety. The record indicates that the parties recognize the connection between filling posts and employee safety, as the Arbitrator found that following an inmate incident involving a knife, management made "every effort" to regularly fill the post -- which had routinely been left vacant -- at the location where the incident occurred. Award at 7.

      We find, however, that this benefit to employees is outweighed by the intrusion on the exercise of management's rights to assign work and determine internal security practices. The Arbitrator interpreted and applied Article 27 as prohibiting the Agency from vacating posts except in "emergency situations or for other good cause." Award at 11. While the Arbitrator did not define "other good cause," his finding that under Article 27, the Agency may not vacate posts "for administrative convenience[] or the avoidance of overtime," clearly indicates that neither factor -- administrative convenience or the desire not to pay overtime --constitutes a sufficient basis for vacating posts. Id. at 9.

      In BOP, Sheridan, the Authority found that the award, which similarly prohibited the Agency from vacating posts in situations where it did not want to or was unable to pay employees overtime excessively interfered with the agency's right to assign work. In this regard, the Authority found that Article 27, as interpreted by the arbitrator, "would preclude the Agency from not assigning overtime work, with no qualification on that finding identified by the [a]rbitrator, if using such overtime would lessen the number of vacated correctional officer posts." BOP, Sheridan, 58 FLRA No. 65, slip op. at 14. Here, the Arbitrator's award has an identical effect -- the Agency would be prohibited from not assigning overtime to avoid vacating a post, because avoiding paying overtime is not "good cause" as defined by the Arbitrator. See award at 9. Consistent with BOP, Sheridan, this burden on the Agency's right to assign work is substantial and excessive.

      In addition, as in BOP, Sheridan, the award here places a substantial and excessive burden on the Agency's ability to assign work as it relates to employees who, absent the award's prohibition on vacating posts, would either be working at a non-post location or would not be working at all (employees absent from work due to approved leave, training, or having the day off). In this regard, the award would require the Agency to assign such employees to a correctional post, if that post would otherwise be vacant, unless the Agency could demonstrate "good cause." Consistent with BOP, Sheridan, we find that these burdens on the Agency's right to assign work are substantial and excessive, and that they outweigh the benefits employees are afforded under Article 27.

      In addition, we find that Article 27, as interpreted and applied by the Arbitrator, has a substantial impact on the Agency's right to determine its internal security practices. In this regard, the Authority has held that the right specifically includes the right to determine the degree of staffing to maintain the security of a facility. Fraternal Order of Police, Lodge 1F (R.I.) Fed., 32 FLRA 944, 957-58 (1988). By prohibiting the Agency from exercising its authority to staff its facility with the number of correctional officers it deems appropriate and by requiring the Agency to staff vacated posts except in the particular circumstances permitted under the award, the award effectively removes the Agency's authority to determine the staffing necessary to maintain the security of its facility. The fact that the award effectively removes this authority is significant, given that the award concerns a correctional facility. As we noted in BOP, Sheridan, internal security within a correctional facility constitutes a greater than normal management concern, and a higher standard of deference should be accorded to prison administrators regarding such matters, pursuant to Bell v. Wolfish, 441 U.S. 520, 547 (1979) and Rhodes v. Chapman, 452 U.S. 337 (1981). 58 FLRA No. 65, slip op. at 14. Accordingly, we find that the award places an excessive and significant burden on the Agency's right to determine internal security practices, and that that burden outweighs the benefit employees are afforded under Article 27.

      Based on the foregoing, we find that Article 27, as interpreted and applied by the Arbitrator, excessively interferes with the Agency's rights to assign work and determine its internal security practices under §§ 7106(a)(1) and (2)(B) of the Statute. As such, Article 27 does not constitute an appropriate arrangement under § 7106(b)(3) and, therefore, the award fails to satisfy Prong I of BEP. Accordingly, the award is deficient. [n5] 

V.     Decision

      The award is set aside.


File 1: Authority's Decision in 58 FLRA No. 69
File 2: Chairman Cabaniss' Opinion
File 3: Member Pope's Opinion


Footnote # 1 for 58 FLRA No. 69 - 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. 69 - Authority's Decision

   The Union's opposition, which was due April 17, 2002, was filed June 24, 2002. Accordingly, the opposition is untimely and has not been considered.


Footnote # 3 for 58 FLRA No. 69 - Authority's Decision

   The previous decisions are: United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Complex, Coleman, Fla., 58 FLRA No. 66 (2002) (BOP, Coleman) (Chairman Cabaniss concurring and Member Pope concurring); United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Sheridan, Or., 58 FLRA No. 65 (2002) (BOP, Sheridan) (Chairman Cabaniss concurring and Member Pope dissenting); United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Forrest City, Ark., 58 FLRA 118 (2002) (Chairman Cabaniss concurring and Member Pope dissenting) (BOP, Forest City); United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Transfer Ctr., Oklahoma City, Oklahoma, 58 FLRA 109 (2002) (BOP, Oklahoma City) (Chairman Cabaniss concurring, Member Armendariz concurring, and Member Pope concurring); United States Dep't of Justice, Fed. Bureau of Prisons, United States Penitentiary, Atlanta, Ga., 57 FLRA 406 (2001) (Member Cabaniss dissenting) (BOP, Atlanta); United States Dep't of Justice, Fed. Bureau of Prisons, Metro. Det. Ctr., Guaynabo, P.R., 57 FLRA 331 (2001) (Member Cabaniss dissenting) (BOP, Guaynabo); United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Marianna, Fla., 56 FLRA 467 (2000) (BOP, Marianna).


Footnote # 4 for 58 FLRA No. 69 - Authority's Decision

   As relevant here, Article 27, Section a provides:

[T]he Employer agrees to lower . . . inherent hazards to the lowest possible level, without relinquishing its rights under 5 USC 7106.

Footnote # 5 for 58 FLRA No. 69 - Authority's Decision

   In view of this determination, we do not address the Agency's other exceptions. However, Chairman Cabaniss would find that the