United States, Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Otisville, New York (Agency) and American Federation of Government Employees, Local 3860 (Union)

[ v58 p307 ]

58 FLRA No. 70

UNITED STATES
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS,
FEDERAL CORRECTIONAL INSTITUTION
OTISVILLE, NEW YORK
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
LOCAL 3860
(Union)

0-AR-3519

_____

DECISION

January 22, 2003

_____

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

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Herbert L. Haber 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 Arbitrator sustained a grievance alleging that the Agency violated the parties' master bargaining agreement by refusing to negotiate with the Union over the creation of a roster committee to place support services employees in work assignments on a unit-wide basis. [n1]  For the reasons that follow, we find that the Agency has failed to demonstrate that the award is deficient under § 7122(a) of the Statute. Accordingly, we deny the Agency's exceptions.

II.     Background and Arbitrator's Award

      The Agency is a medium security federal prison with six housing units. Each housing unit includes a team of employees who provide support services to inmates. A roster for each housing unit is established by the Agency, which designates the work assignments of the employees in each unit. The Union sought to negotiate with the Agency for the creation of a roster committee, whose duty would be to place support services employees in work assignments on a unit-wide basis. The Agency refused and the Union filed a grievance, alleging that the Agency's refusal to negotiate over creation of a roster committee violated Article 18, sections d. and f. of the parties' master agreement. [n2]  The grievance was unresolved and submitted to arbitration, where, as relevant here, the parties stipulated to the following issue: "[D]id the Agency violate Article 18, sections d. and f. of the [m]aster [a]greement by denying the union the right to form roster committees within the [support services] departments?" Award at 2.

      The Arbitrator concluded that the Agency violated the parties' master agreement by refusing to negotiate with the Union over the creation of a roster committee and the committee's procedures. In reaching this conclusion, the Arbitrator interpreted the agreement as providing for the formation of a roster committee for each department and found that all of the support services employees working within the six housing units comprised the staff of one "Correctional Programs Department." Id. at 14. Accordingly, the Arbitrator sustained the grievance and ordered the Agency to bargain with the Union over the "formation of a single roster committee and the development of procedures by which that committee will [place support services employees in work] assignments on a [unit]-wide basis." Id.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency argues that the award will have the effect of allowing support services employees to rotate from one housing unit to another, which will threaten the security of the Agency and prevent the Agency from making appropriate work assignments. Therefore, according to the Agency, the award affects the Agency's rights under § 7106(a) of the Statute to determine internal security practices, assign work, and assign employees. [ v58 p308 ]

      Citing United States Dep't of the Treasury, Bureau of Engraving and Printing, Wash., D.C., 53 FLRA 146 (1997) (BEP), the Agency asserts that the award fails to satisfy prong I of the BEP test because Article 18 of the parties' master agreement, as interpreted by the Arbitrator, does not constitute an appropriate arrangement under § 7106(b)(3) of the Statute. The Agency asserts that even if prong I of BEP was satisfied, the award does not satisfy prong II of BEP because it does not reflect a reconstruction of what management would have done if it had not violated the agreement.

      Finally, the Agency argues that the award fails to draw its essence from the parties' agreement. In this regard, the Agency notes that Article 18, Section f. of the master agreement specifically refers to roster "committees" being formed unless waived by the "department head" and the Union. Therefore, according to the Agency, because each support services team has a department head, it is clear that the master agreement does not provide for one, unit-wide roster committee for support services staff. The Agency also contends, in this regard, that the Arbitrator ignored the clear wording of Article 18, Section f. of the parties' local supplemental agreement, which refers to roster committees in "any" department and to procedures being negotiated in "each" department. [n3] 

B.     Union's Opposition

      As a threshold matter, the Union asserts that the Agency's exceptions are untimely. On the merits, the Union contends that the Agency's management rights are "limited by the procedures" that the parties negotiated in Article 18, sections d. and f. in accordance with § 7106(b)(2) of the Statute. Opposition at 4. The Union also asserts that the Arbitrator's award draws its essence from the agreement.

IV.     Preliminary Issue

      The time limit for filing exceptions to an arbitration award is 30 days beginning on the date the arbitrator serves the award on the filing party. See 5 C.F.R. § 2425.1(b). The date of service is the date the arbitration award is deposited in the United States mail or is delivered in person. See 5 C.F.R. § 2429.27(d). If the award is served by mail, then five days are added to the period for filing exceptions. See 5 C.F.R. § 2429.22.

      The Arbitrator's award was served on the parties by mail on February 13, 2002. Considering the 35 days for filing exceptions permitted in these circumstances, the due date was Tuesday, March 19, 2002. As the Agency's exceptions were filed on March 19, 2002, the exceptions were filed timely.

V.     Analysis and Conclusions

A.     The award is not contrary to law.

      The Agency argues that the award is contrary to § 7106(a) of the Statute. The Authority reviews questions of law raised by an arbitrator's award and an exception to it de novo. NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citation omitted). In applying a standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. See United States Dep't of the Air Force, Warner Robins Air Force Base, Ga., 56 FLRA 541, 543 (2000) (citation omitted). In making such a determination, the Authority defers to the arbitrator's underlying factual findings. Id.

      Where a party files exceptions alleging that an award violates management's rights under § 7106 of the Statute, the Authority first assesses whether the award affects the rights being relied on. See United States Dep't of Veterans Affairs, Med. Ctr., Coatesville, Pa., 56 FLRA 966, 971 (2000) (VAMC, Coatesville). If the award affects such rights, then the Authority applies the two-prong test set forth in BEP, 53 FLRA at 151-54. See VAMC, Coatesville, 56 FLRA at 971. If the award does not affect the rights, then the BEP analysis is not required and the exception is denied. See id.

      Here, the Arbitrator ordered the Agency to meet and negotiate with the Union over the "formation of a single roster committee and the development of procedures by which that committee will [place support services employees in work] assignments on a [unit]-wide basis." Award at 14. According to the Agency, this award will have the effect of allowing support services employees to rotate from one housing unit to another, thus affecting its rights to determine internal security practices, assign work, and assign employees. However, the award, on its face, simply requires that the Agency and Union bargain over procedures to be implemented by a roster committee. There is nothing in the award that requires the parties to agree to any particular procedures the roster committee must follow in conducting its responsibility. [ v58 p309 ]

      Therefore, contrary to the Agency's assertion, the award will not automatically result in the rotation of support services employees from one housing unit to another. [n4]  In this connection, the award does not require that the negotiated procedures include a provision enabling support services employees to bid for, and be placed in, positions in any of the six units, nor does it prohibit the parties from negotiating procedures that require support services employees to bid on work assignments only in the housing unit where they are assigned. As the results of this bargaining cannot be known at this time, the effect on management rights cannot be known at this time either, and an assessment of such effects is premature.

      Accordingly, we conclude that the award does not affect the Agency's rights to determine its internal security practices, assign work or assign employees, and analysis of the award under BEP is not required. See VAMC, Coatesville, 56 FLRA at 971. [n5] 

      We therefore find that the award is not contrary to law as alleged.

B.     The award does not fail to draw its essence from the parties' agreement.

      For an award to be 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 purposes 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. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990). The Authority's long-established standard in reviewing an arbitrator's interpretation of contract provisions is deferential because it was the arbitrator's interpretation for which the parties bargained. See United States Dep't of the Air Force, Seymour Johnson Air Force Base, N.C., 56 FLRA 249, 251 (2000) (citing Dep't of Health and Human Servs., Soc. Sec. Admin., 32 FLRA 79, 88 (1988)).

      As noted above, the Arbitrator interpreted Article 18, sections d. and f. of the parties' master agreement as requiring the Agency to negotiate with the Union over the formation of a roster committee to place support services employees in work assignments on a unit-wide basis. Among other things, the Arbitrator relied on the fact that a different prison operating under the same master agreement negotiated the establishment of a roster committee for support services employees. The Agency has not demonstrated that the Arbitrator's interpretation of the master agreement is implausible or irrational.

      Similarly, the Agency has not demonstrated that the award fails to draw its essence from Article 18 of the parties' local agreement. We note, in this connection, that the stipulated issue before the Arbitrator was whether the Agency violated the parties' master -- not local -- agreement. Nevertheless, nothing in the wording of the local agreement renders implausible the Arbitrator's conclusion that the Agency was obligated to bargain over the creation of a roster committee.

      Based on the foregoing, we find that the Agency has not demonstrated that the award fails to draw its essence from the parties' agreement.

VI.     Decision

      The Agency's exceptions are denied.



Footnote # 1 for 58 FLRA No. 70 - Authority's Decision

   The Arbitrator also found that the grievance was arbitrable. No exceptions were filed to this finding, and it will not be discussed further in this decision.