United States, Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Federal Satellite Low, La Tuna, Texas (Agency) and American Federation of Government Employees, Local 83, Council of Prisons Locals 33 (Union)

[ v59 p374 ]

59 FLRA No. 52

UNITED STATES
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
FEDERAL SATELLITE LOW
LA TUNA, TEXAS
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
LOCAL 83
COUNCIL OF PRISONS LOCALS 33
(Union)

0-AR-3674

_____

DECISION

September 30, 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 exception to an award of Arbitrator Ed W. Bankston 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.

      For the reasons that follow, we grant the Agency's exceptions because the Arbitrator's award is contrary to law.

II.      Background and Arbitrator's Award

      The Agency assigns correctional officers to posts on various shifts in its minimum/low security facility. [n2]  However, when an officer fails to work a given shift, the Agency may reassign another officer from his or her post to the vacated post, offer an officer overtime to stay and fill the vacated post, or choose to not fill the vacated post. Award at 11. The Union filed a grievance alleging that leaving posts vacant pursuant to this process violated Article 18, Section (r) and Article 27, Section (a) of the parties' agreement. [n3] 

      The parties' stipulated to the following issue:

Whether the Agency has violated Articles 18 and 27 of the Master Agreement by assigning personnel and work in accordance with 5 U.S.C. Section 7106 (Tr. 15), and then vacating without "good reason" those Correctional post assignments? (Jt. Ex. 2) If so, what is the proper remedy?

Award at 4.

      In his award, the Arbitrator found that the Agency's decision to vacate posts was "routinely performed simply to minimize the number of employees involved in providing coverage for everyday non-crisis related work activities." Id. at 39. In this regard, the Arbitrator noted that the Agency is budgeted to fill 41 positions, but has routinely chosen to have only 36 employees on staff and operates at a marginal level of manpower. Id. at 11, 39, 41-43. As such, the Arbitrator found that posts were being vacated despite a lack of any emergency. Id. at 39. Accordingly, the Arbitrator determined that the Agency had violated Article 27 because leaving posts vacant failed to lower "inherent hazards to the lowest possible level." Id. at 44 (citing Article 27). In addition, the Arbitrator found that the Agency had violated Article 18 because it regularly changed the quarterly roster without "good cause." Id. at 38. To remedy these contract breaches, the Arbitrator determined that in the future the Agency would be precluded from vacating posts "for other than good cause, and then only for reasons of emergency." Id. at 45.

III.      Positions of the Parties

A.     Agency's Exception

      The Agency argues that the award excessively interferes with its rights under § 7106(a) of the Statute to assign work and determine internal security practices [ v59 p375 ] because it prohibits the Agency from vacating posts except for good cause, which the Arbitrator has defined as an emergency situation. [n4]  Exception at 6 (citing United States DOJ, Fed. Bureau of Prisons, Fed. Corr. Inst., Lompoc, Cal., 58 FLRA 301, 303 (2003) (Chairman Cabaniss concurring, Member Pope dissenting) (BOP, Lompoc). In this respect, the Agency argues that the Authority has previously found that "awards enforcing the Master Agreement which prevent the Agency from leaving posts vacant under any non-emergency circumstances - whether for work reasons, security reasons, or both - excessively interfere with those [§ 7106(a)] rights." Id. (citing DOJ, Fed. Bureau of Prisons, Fed. Corr. Inst., Forrest City, Ark., 58 FLRA 118, 120 (2002) (BOP, Forrest City); DOJ, Fed. Bureau of Prisons, Fed. Transfer Ctr., Okla. City, Okla., 58 FLRA 109, 110 (2002) (BOP, Oklahoma City).

      Additionally, the Agency contends that before vacating any post it "balanced internal security concerns and the need to deal with staffing vacancies and workload issues in making decisions to vacate correctional posts." Exception at 5 n.5.

B.     Union's Opposition

      The Union contends that the cases relied upon by the Agency are distinguishable on two grounds. First, it argues that this award "does not excessively interfere with management's rights to assign employees and determine internal security because the award merely requires the Agency to comply with its own Staffing Guidelines and procedures established in the Master Agreement[.]" Opposition at 13 n.3. Second, it contends that "the arbitrator correctly determined that the Agency had repudiated the Master Agreement and ordered the Agency to remedy this repudiation." Id.

      Specifically, the Union argues that Article 27 constitutes an appropriate arrangement. Id. at 16. In this respect, it states that the "practice of vacating posts put employees at a significantly higher risk of bodily injury." Id. It refers to the record and contends that violence at the facility has only occurred when correctional officers have not been present because of vacated posts. Id. at 6-7 (citing Tr. at 157, 172). Moreover, as one example, it notes that because of a lack of staff, an inmate had to extinguish a burning mattress because no correctional officers were available. Id. at 16-17.

      Additionally, the Union argues that the award does not excessively interfere with management's rights because the Agency is merely required to comply with its own quarterly rosters under Article 18 and with its "Staffing Guidelines," that require 41 correctional officers in order to be fully staffed. Moreover, the Union contends that the award does not preclude the Agency from waiving or changing these staffing guidelines. Furthermore, it argues that the Agency is "free to choose the means by which it assures that the Staffing Guidelines are adhered to[,]" such as assigning "employees to work overtime, assign non-Correctional Officers to work vacant posts, or [it] can hire additional staff." Id. at 18.

      Finally, the Union contends that the Arbitrator found that the Agency had essentially committed an unfair labor practice by repudiating the parties' agreement. In this regard, the Union argues that the Arbitrator found that the Agency had routinely violated Article 18 because the Agency without good cause would change the roster on a daily basis. Id. at 20. Accordingly, the Union contends that the Agency had committed "an unfair labor practice and a contract violation through its actions" and that the award directing the Agency to cease its routine practice of vacating correctional officer posts was proper. Id. at 21.

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. 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 [ v59 p376 ] 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. BOP, Lompoc, 58 FLRA at 302.

A.    To the Extent That the Union Contends That the Staffing
        Guidelines Constitute an Applicable Law Within the
        Meaning of § 7106(a)(2) of the Statute, The Union's
        Argument Is a Bare Assertion

      While we note that the Union contends that the Arbitrator merely required the Agency to comply with its own "staffing guidelines," the Union has failed to submit those guidelines to the Authority. Accordingly, even if we were to construe the Union's assertion that the staffing guideline constitutes an applicable law within the meaning of § 7106(a)(2), in the absence of this evidence, the Union's contention is a bare assertion. See, e.g., AFGE, Local 1872, 58 FLRA 344, 353 (2003).

B.     The Award Affects the Agency's Rights to Assign Work and
        Determine Internal Security Practices  [n5] 

      As we stated in BOP, Lompoc, "[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." BOP, Lompoc, 58 FLRA at 302. In this case, the Arbitrator's award prohibits the Agency from leaving posts vacant except for good cause in emergency situations. Thus, consistent with BOP, Lompoc, the award affects the Agency's rights to assign work and determine internal security practices.

C.     The Award Fails to Satisfy Prong I of BEP

      Under prong I, as applied here, the Authority first determines whether Article 18 and/or Article 27 were 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). 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 United States DOJ, Fed. Bureau of Prisons, Fed. Corr. Complex, Coleman, Fla., (BOP, Coleman), 58 FLRA 291; BOP, Sheridan, 58 FLRA 279; BOP, Forrest City, 58 FLRA 118.

1.     Article 18 and Article 27 Constitute Arrangements

      The Authority has noted that a collective bargaining provision constitutes an arrangement within the meaning of § 7106(b)(3) if it is intended to ameliorate the adverse effects flowing from the exercise of a management right. Federal Aviation Admin., Wash., D.C., 55 FLRA 1233, 1236-37 (2000). Here, as noted by the Arbitrator, the Union states that Article 18 is intended to allow employees to plan days off and request preferences for day shift or night shift while giving the Agency the ability to change shifts for good reason. Award at 24. We find that this provision constitutes an arrangement under § 7106(b)(3) of the Statute because it provides employees relief from the Agency exercising its right to assign work. See e.g., BOP, Sheridan, 58 FLRA at 284 (finding this same provision, Article 18, Section (r), an arrangement that excessively interfered with management's right to determine internal security and assign work).

      With respect to Article 27, in BOP, Lompoc, the Authority determined that Article 27 constituted an arrangement for employees adversely affected by the Agency's exercise of its rights to assign work and determine internal security practices. BOP, Lompoc, 58 FLRA at 302-303. As neither party argues that Article 27 does not constitute an arrangement, and for the reasons expressed in BOP, Lompoc, we also find that Article 27 constitutes an arrangement. Id.

2.     Article 18 and Article 27 Excessively Interfere 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. BOP, Oklahoma City, 58 FLRA at 111. Here, by its plain terms, and as interpreted by the Union, Article 18 benefits employees by limiting the Agency's ability to vacate posts and by allowing employees to have advance notice of when [ v59 p377 ] they are expected to work. Morever, the Arbitrator determined that Article 27 provides a benefit to employees by reducing post vacancies which, in turn, reduces safety hazards because it allows more officers to respond to hazardous situations. Award at 43, 44.

      However, we find that these benefits to employees are outweighed by the intrusion on the exercise of management's rights to assign work and determine internal security practices. In this respect, the Arbitrator interpreted and applied both Article 18 and Article 27 as prohibiting the Agency from vacating posts except in an emergency. Award at 45. We note that in BOP, Lompoc and BOP, Sheridan, the Authority found under similar circumstances that awards, which 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 in BOP, Sheridan, "would preclude the Agency from not assigning overtime work, with no qualification on that finding identified by the [a]rbitrator, if using such overtime work would lessen the number of vacated correctional officer posts." BOP, Sheridan, 58 FLRA at 284. Here, the Arbitrator's award has an identical effect -- the Agency would be required to utilize overtime to avoid vacating a post unless the vacancy resulted from an emergency. [n6]  Therefore, consistent with BOP, Lompoc and BOP, Sheridan, this burden on the Agency's right to assign work is substantial and excessive.

      Additionally, we find that Articles 18 and 27, as interpreted and applied by the Arbitrator, have 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 needed to maintain the security of a facility. BOP, Lompoc, 58 FLRA at 303; Fraternal Order of Police, Lodge 1F (R.I.) Fed., 32 FLRA 944, 957-58 (1988). Here, the Arbitrator's determination to allow the Agency to leave a correctional officer post vacant only in an emergency, effectively removes the Agency's authority to determine the staffing needed 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, Lompoc, "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." BOP, Lompoc, 58 FLRA at 303 (citing Bell v. Wolfish[,] 441 U.S. 520, 547 (1979)). Accordingly, we find that the award places an excessive and significant burden on the Agency's right to determine internal security practices that outweighs the benefit employees are afforded under both Article 18 and 27.

      Therefore, we find that Articles 18 and 27, as interpreted and applied by the Arbitrator, excessively interfere 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, neither Article 18 nor Article 27 constitutes an appropriate arrangement under § 7106(b)(3) and, consequently, the award fails to satisfy Prong I of BEP. Accordingly, the award is deficient.

V.     Decision

      The award is deficient and set aside.


Member Carol Waller Pope, concurring:

      I agree with the majority's decision. I write separately to explain why I agree to apply the "excessive interference," rather than the "abrogation," standard in this case even though, in previous cases, I disagreed with the majority's adoption and application of this standard to determine whether a contract provision, as interpreted and applied in arbitration, was negotiated under § 7106(b)(3) of the Statute. See, e.g., United States DOJ, Fed. Bureau of Prisons, Fed. Corr. Inst., Lompoc, Cal., 58 FLRA 301, 306 (2003) (BOP Lompoc); United States DOJ, Fed. Bureau of Prisons, Fed. Corr. Inst., Sheridan, Or., 58 FLRA 279, 288-90 (2003) (BOP Sheridan); United States DOJ, Fed. Bureau of Prisons, Fed. Transfer Ctr., Okla. City, Okla., 58 FLRA 109, 116-17 (2002).

      For reasons expressed previously, I continue to believe that the abrogation standard is appropriate in this context. However, it is now well-established that the Authority applies the excessive interference standard. [ v59 p378 ] The fact that neither party challenges the excessive interference standard supports a conclusion that it is appropriate to apply here. Cf. AFGE, Local 3529, 57 FLRA 172, 175 n.6 (2001) (where parties did not request Authority to revise framework for determining whether a proposal constituted a procedure under § 7106(b)(2), Authority applied that framework). In addition, the fact that this case involves a record that was developed, a hearing that was held, and an award that issued after the Authority announced that it would apply the excessive interference test in the arbitration context eliminates concerns I previously expressed about the injustices resulting from retroactive application of a newly-adopted standard. See, e.g., BOP Lompoc, 58 FLRA at 306 n.1; BOP Sheridan, 58 FLRA at 288-89. Accordingly, in this case (and in future, similar cases), I will apply the Authority's excessive interference test to determine whether a contract provision, as interpreted and applied in arbitration, was negotiated under § 7106(b)(3).

      I note that, in a previous decision, I found that an award similar to the award here -- that permitted an agency to vacate posts only in emergencies -- was not deficient because it did not abrogate management rights. See United States DOJ, Fed. Bureau of Prisons, Fed. Corr. Inst., Forrest City, Ark., 58 FLRA 118, 123 (2002) (Dissenting Opinion of Member Pope). If I were to apply the abrogation standard, then I would reach the same conclusion here. However, applying the excessive interference standard to the instant award, I agree with the majority that, on balance, the award excessively interferes with management's rights. I note, in this connection, that the Authority previously has found proposals that restrict management from taking certain action except in emergencies excessively interfere with management rights. See, e.g., Dist. No. 1, Marine Eng'rs Beneficial Ass'n, (AFL-CIO), Pan. Canal Area, 49 FLRA 461, 463-65 (1994) (proposal precluding agency from assigning an employee to work alone except in emergencies); Colo. Nurses Ass'n, 25 FLRA 803, 819-20 (1987), rev'd on other grounds sub nom. Colo. Nurses Ass'n v.FLRA, 851 F.2d 1486 (D.C. Cir. 1988) (proposal preventing agency from reassigning nurses except in emergencies).

      For the foregoing reasons, I concur with the majority's conclusion that the award is deficient and must be set aside.



Footnote # 1 for 59 FLRA No. 52 - Authority's Decision

   Member Pope's separate opinion is set forth at the end of this decision.


Footnote # 2 for 59 FLRA No. 52 - Authority's Decision

   The Arbitrator noted that the facility houses both minimum security inmates (those who leave the facility and work offsite during the day) and low security inmates (who are confined to the facility). Award at 11.


Footnote # 3 for 59 FLRA No. 52 - Authority's Decision

   As relevant here, Article 18, Section (r) states:

Normally, nonprobationary employees, . . . will remain on the shift/assignment designated by the quarterly roster for the entire roster period.

While pertinent portions of 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 # 4 for 59 FLRA No. 52 - Authority's Decision

   Within the right to assign work, the Agency noted in its brief to the Arbitrator that such right includes "the right to assign overtime and to determine when overtime will be performed." Agency's Closing Arguments at 8.


Footnote # 5 for 59 FLRA No. 52 - Authority's Decision

   The Authority has addressed Article 27 in several decisions. These decisions include: United States DOJ, Fed. Bureau of Prisons, Fed. Corr. Inst., Marianna, Fla., 56 FLRA 467, 469-70 (2000); United States DOJ, Fed. Bureau of Prisons, Metro. Det. Ctr., Guaynabo, P.R., 57 FLRA 331 (2001) (Chairman Cabaniss Dissenting); United States DOJ, Fed. Bureau of Prisons, United States Penitentiary, Atlanta, Ga., 57 FLRA 406, 409 (2001) (Chairman Cabaniss dissenting); BOP, Lompoc; United States DOJ, Fed. Bureau of Prisons, Fed. Corr. Inst., Sheridan, Or., (BOP, Sheridan); BOP, Oklahoma City; BOP, Forrest City.


Footnote # 6 for 59 FLRA No. 52 - Authority's Decision

      The Arbitrator did not specifically define the term "emergency," which according to Webster's New World Dictionary means, "a sudden, generally unexpected occurrence or set of circumstances demanding immediate action." Webster's New World Dictionary, Third College Edition (1986). We note, however, that the Authority does occasionally refer to dictionary definitions of terms to supply meaning where none has otherwise been provided. United States DOJ, Fed. Corr. Facility, El Reno, Okla., 51 FLRA 584, 591 n.6 (1995). Therefore, applying the above meaning to the circumstances of this case, we find that the Agency's decision to assign or not as