American Federation of Government Employees, Council of Prison Locals 33 (Union) and United States, Department of Justice, Federal Bureau of Prisons, Washington, D.C. (Agency)
[ v59 p381 ]
59 FLRA No. 54
OF GOVERNMENT EMPLOYEES,
COUNCIL OF PRISON LOCALS 33
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
October 9, 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 Mary P. Bass filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.
The Arbitrator found that the Agency did not violate the parties' agreement, federal law or regulations, or Agency policy by not paying a uniform allowance to employees who are not required to wear uniforms. For the reasons discussed below, we deny the Union's exceptions.
II. Background and Arbitrator's Award
Due to "chronic shortages" in the correctional services staff, the Agency has a practice of assigning non-uniformed staff to posts which are otherwise primarily staffed by employees in the correctional services department. Award at 10. The Agency requires correctional services employees to wear uniforms and pays them a uniform allowance. However, the Agency does not require the non-uniformed staff to wear uniforms when they are assigned to correctional officer posts and does not pay them the uniform allowance.
The Union filed a grievance alleging that the Agency has been using non-correctional services staff to work correctional services positions and "has refused to provide those staff a uniform allowance to enable them to wear uniforms while working posts requiring the wearing of a uniform." Id. at 2. [n1]
The parties agreed to the following issue before the Arbitrator:
[W]hether management violated the Master Agreement, 5 U.S.C., and Agency policy by not paying a uniform allowance to employees not required to wear uniforms, and if so, what the remedy shall be.
Id. at 2. [n2]
The Arbitrator denied the grievance. She found that "the intent of the parties as expressed in the Agreement and incorporated [uniform] policy was not to pay a uniform allowance to employees in non-uniformed positions who are assigned to correctional officer posts." Id. at 12.
In reaching this result, the Arbitrator found that Article 28, Sections f and h of the parties' agreement refer to the Agency's uniform policy and "clearly contemplate the wearing of uniforms and the payment of a uniform allowance to employees in certain positions only." Id. at 11. [n3] The Arbitrator further found that, under Section 9 of the Agency's uniform policy, the non-uniformed employees "are not employees in the Correctional Services department, and they are accordingly not required to wear uniforms." Id. at 12. [n4] Referencing the non-uniformed employees' position descriptions, the Arbitrator also found that "the assignment of non-uniformed staff on a regular and recurring basis to correctional officer posts does not constitute a change in position for the non-uniformed staff[,]" and [ v59 p382 ] that the assignment of correctional officer duties to non-uniformed employees "does not represent in and of itself a transfer, reassignment or detail of an employee." Id. at 11.
Based on the above, the Arbitrator denied the Union's grievance.
III. Positions of the Parties
A. Union's Exceptions
The Union claims that the Arbitrator's award fails to draw its essence from the parties' agreement, is based on nonfact, and does not conform with law, rule or regulation. Exceptions at 1.
Specifically, the Union argues that Article 28, Section f of the parties' agreement refers to a mandatory uniform policy with which the award "does not conform[.]" Id. at 2-3. The Union alleges that the policy requires "employees performing correctional services duties to wear the approved uniform, which is the Dress Uniform." Id. at 3. The Union also asserts that Article 16, Section c of the parties' agreement provides further support for its contention that uniforms are mandatory for employees performing correctional services duties. [n5] In this connection, the Union argues that correctional service duties "are not reasonably related to the [non-uniformed] employee's basic job description." Id. at 4.
The Union also disputes the Arbitrator's finding that non-uniformed employees who temporarily perform correctional services duties are not "detailed" to that position. In this connection, the Union cites Chapter 9, Section 5, Part b(4) of the of the Agency's uniform policy which provides that "[e]mployees detailed in non-emergency situations to positions requiring a different uniform, are entitled to an appropriate uniform allowance for the new uniform." Id. at 2.
B. Agency's Opposition
The Agency argues that the Union's exceptions fail to show that the award does not draw its essence from the parties' agreement.
The Agency also notes that in United States Dep't of Justice, Fed. Bureau of Prisons, Metropolitan Detention Ctr., Guaynabo, P.R., 58 FLRA 553 (2003) (BOP, Guaynabo), the Authority held that the Agency's uniform policy and the parties' master agreement could not be interpreted to entitle non-correctional employees to uniform allowances when they did not actually have to wear uniforms while temporarily staffing correctional posts.
It is well-settled that when a collective bargaining agreement incorporates the regulations with which an award allegedly conflicts, the matter becomes one of contract interpretation because the agreement, not the regulation, governs the matter in dispute. See United States Dep't of Defense, Hale Koa Hotel, 55 FLRA 651, 652 (1999); United States Dep't of the Army, Fort Campbell Dist., Third Reg., Fort Campbell, Ky., 37 FLRA 186, 194 (1990). In this case, it is undisputed that the parties' agreement expressly incorporates the Agency's uniform policy. Accordingly, the Union's challenge to the Arbitrator's application of the uniform policy presents a question of contract interpretation and does not raise a valid contrary to law claim.
For an award to be deficient as failing to draw its essence from the parties' 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