United States, Department of Justice, Federal Bureau of Prisons, Metropolitan Detention Center, Guaynabo, Puerto Rico (Agency) and American Federation of Government Employees, Council of Prison Locals, Local 4052 (Union)

[ v59 p787 ]

59 FLRA No. 141

UNITED STATES
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
METROPOLITAN DETENTION CENTER
GUAYNABO, PUERTO RICO
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
COUNCIL OF PRISON LOCALS
LOCAL 4052
(Union)

0-AR-3701

_____

DECISION

March 31, 2004

_____

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 Marcia L. Greenbaum 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.

      In the Arbitrator's interim opinion and award, the Arbitrator granted a grievance alleging that the Agency violated the parties' collective bargaining agreement (CBA) and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (Title VII), by the actions of a supervisor who engaged in acts of sexual harassment against female employees, and in particular against a certain female correctional officer. The Arbitrator remanded the remedies issue to the parties, including the question of compensatory damages, and retained jurisdiction in the event of any dispute.

      In the final award, the Arbitrator sustained the grievance and ordered remedies for the female employee, including: compensatory damages; various protective measures; and restrictions on the supervisor's interaction with the employee, including the requirement that the supervisor could not supervise the employee under any circumstances and that he had to remain more than 10 feet from her at all times and not speak to her except with regard to work-related matters.

      The Agency's exceptions challenge only the restrictions on the supervisor's interaction with the employee. For the reasons set forth below, we deny the exceptions.

II.     Background and Arbitrator's Award

A.     Interim Award and Opinion

      In the interim opinion and award, the Arbitrator set forth various incidents that had occurred between the supervisor and unit employees, especially the employee involved here.

      The Arbitrator found that the grievant, a petite woman, has been a Corrections Officer since August 31, 1997. On May 6, 2001, the grievant was informed by her supervisor at the 4:50 a.m. roll call that her assignment was being changed from 3-C unit officer-in-charge (OIC) to 4-C unit. Later, that same day, the grievant wrote a memorandum to her second-line supervisor on the subject of harassment. The memorandum stated the following:

This memorandum is to inform you of the continuo[us] harassment from [the supervisor]. As soon as I reported for . . . duty, the [supervisor] instructed me to report to unit 4C . . . . I was very surprise[d] because my daily assignment is 3C OIC, nevertheless, I reported to unit 4C and assumed my post.
At approximately, 7:30 a.m., [an employee] told me I had to relieve [another correction officer] for his lunch break. [This employee] was assigned to suicide watch and I went to relieve[] him at the hospital area. I sat down and started to read the post orders and the inmate's record when [the supervisor] arrived while conducting his rounds. [The Supervisor] was so close to me that he touched my right shoulder with his left hip. I tried to move away from him but I was so close to the wall and I felt threatened. [The supervisor intimidated me with his size and attitude. I was so afraid to raise my face because [the supervisor's] genital area was too close to my face. The bulge of his crotch was at approximately six (6) inches from my face. [The Supervisor] asked me how the inmate was doing and I told him . . . . I felt so uncomfortable and violated of the way that [the supervisor] supervises thr[ough] intimidation and sexual harassment. . . .

Interim Award and Opinion at 35-36. [ v59 p788 ]

      On May 9, 2001, the Union filed the instant grievance alleging that the Agency violated the parties' CBA, including Articles 6 and 37, Title VII of the Civil Rights Act, and any other applicable, Government-wide rule or regulation by the actions of the supervisor who engaged in acts of sexual harassment against female employees in general, and the grievant in particular. [n1] 

      The grievance was submitted to arbitration on the following issues:

1.     Is the grievance arbitrable?
2.     What disposition, including remedy, if any, shall be made of the grievance . . . .?

Id. at 1.

      Before the Arbitrator, the grievant described the supervisor's conduct as set forth in her memorandum above and other occurrences. As to the May 6 incident, she testified that in the suicide watch area on Saturdays, Sundays, and holidays, there is no one at the hospital except the Physician's Assistant (PA), who leaves to distribute medicine between 7:30 to 8:30 a.m. She testified that there is only one way into and out of the hallway where she was located. The Arbitrator found that the grievant, in describing the supervisor's close contact with her in the suicide area, testified that she tried to move away from him, but she was so close to the wall she could not do so. According to the Arbitrator, "[a]t this point in her testimony [the grievant] was so upset that she broke down and cried. Upon composing herself, she testified that she was so scared; she could not move, and felt trapped." Id. at 39. The Arbitrator found that the grievant testified that the supervisor weighed 235 pounds and was 6' 2", and that when he turned to her, and she was facing down, his genital area was about four to six inches from her face, such that if she turned her head "she was smelling his crotch area." Id. The Arbitrator found that the grievant "had no other physical contact with [the supervisor]," however, she testified that "lots of times when he came to the unit and started talking with her, he started scratching his genital area, and this made her uncomfortable." Id. The Arbitrator found other incidents that the supervisor engaged in prior to the May 6 incident that were demeaning to the grievant.

      Noting the parties' CBA, in particular, Articles 6 and 37, the Arbitrator stated that the CBA "not only requires that employees be treated fairly and equitably and be free from discrimination, but it also incorporates law, rules and regulations, particularly those which relate to sexual harassment, including Title VII[.]" Id. at 115[n2]  The Arbitrator noted other events involving the supervisor, but found that because the grievance was limited to events involving the grievant, she would limit her consideration of whether a violation occurred to those events. Based on the evidence in the record, the Arbitrator found that the supervisor's conduct towards the grievant "constitute[d] the elements of sex discrimination in general, and a hostile work environment, in particular, in violation of Title VII." Id. at 130. The Arbitrator further cited incidents involving the supervisor and noted that these incidents were mentioned to "alert management . . . that permitting [the supervisor] to serve as a supervisor and act in [the manner cited] is setting up a work place for potential violence." Id. at 133.

      The Arbitrator directed the Agency to, among other things, require the supervisor to take sensitivity training, issue the grievant a body alarm, not permit the grievant to be supervised by the supervisor, and require the supervisor to remain at least 10 feet from the grievant at all times, and not speak to her except concerning work-related matters. The Arbitrator remanded the issue of compensatory damages to the parties for fact finding and settlement negotiation and retained jurisdiction in the event of a dispute. [ v59 p789 ]

      Subsequently, the parties met on August 28, 2002 to discuss compensatory damages, but were unable to reach an agreement. The matter was referred to the Arbitrator for disposition. On February 27, 2003, the Arbitrator awarded, among other things, sick leave, back pay for hindering the grievant's career advancement (GS-8 promotion), and missed overtime, which were all remanded to the parties for determination of the proper amount. The Arbitrator retained jurisdiction over the entire remedy award in the event of a dispute by the parties. The parties were unable to resolve the matter with respect to the promotion issue and the Agency submitted additional information to the Arbitrator.

B.     Final Award

      On May 23, 2003, the Arbitrator issued her "Final Award." Final Award at 14. The Arbitrator found the grievance was arbitrable and on the merits sustained the grievance. With respect to the remedy, the Union asserted that the failure to promote the grievant deprived her of pay and missed overtime at a higher rate to which she otherwise would have been entitled. The Arbitrator found that the evidence did not establish that the failure to promote the grievant was based on sexual discrimination or harassment because the supervisor had nothing to do with the promotion. Therefore, the Arbitrator denied the grievant's request for back pay and missed overtime. Concerning the remaining remedies sought, the Arbitrator ordered a variety of remedies only two of which are challenged by the Agency: (1) the supervisor not supervise the grievant under any circumstances; and (2) the supervisor remain more than ten feet from the grievant at all times, and not speak to her except with regard to work-related matters.

III.     Positions of the Parties

A.     Agency's Exceptions

      With respect to the challenged remedies mentioned above, the Agency asserts that they are contrary to law because they excessively interfere with management's rights under § 7106 of the Statute.

      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 violates both prongs of the two-part framework set forth in BEP. The Agency contends that the right to assign work under § 7106(a)(2)(B) of the Statute encompasses the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what the positions the duties will be assigned. According to the Agency, the remedies in dispute affect management's right to assign work because they preclude the supervisor from supervising the grievant at all or from even approaching within ten feet of her in performing his duties.

      The Agency contends that the issue presented is "whether the award's attempt to enforce the Title VII requirements incorporated into Article 37 of the [CBA] constitutes an appropriate arrangement" under § 7106(b)(3) or whether it excessively interferes with the exercise of a management right. Exceptions at 4. The Agency argues that the challenged portions of the award "excessively interfere with management's right to assign work and is deficient under [p]rong I." Id. The Agency further contends that the award is deficient under prong II because it does not constitute a reconstruction of what management would have done if it had not violated the law or contractual provision.

B.     Opposition

1.     Procedural Matters

      First, the Union contends that the exceptions are untimely. According to the Union, in order to be considered timely, the exceptions had to be filed within 30 days beginning on the date the award was served on the filing party. The Union asserts that the Agency filed the exceptions 11 months after the award was served on the parties. According to the Union, the Arbitrator issued her award on July 19, 2002, and the Agency did not file the exceptions until June 26, 2003.

      The Union disputes the Agency's claim that the award was not final until May 23, 2003. The Union asserts that even though the Arbitrator retained jurisdiction to resolve problems or disputes of the parties, the award still became final and binding on July 19, 2002.

      Second, the Union contends that the award is moot. The Union asserts that the Agency has implemented preventive measures to prevent the supervisor from supervising the grievant. The Union refers to a memorandum issued by the Agency on February 5, 2002, prior to the arbitration hearing, that directed the supervisor not to come into contact with the grievant. See Interim Award and Opinion at 53. The Union argues that after the hearing the supervisor continued to harass the grievant and that the Arbitrator "simply followed the [A]gency's lead" in issuing the remedy respecting the supervisor's supervision of the grievant. Opposition at 6. [ v59 p790 ]

2.     Merits

      The Union asserts that management's right to assign work is subject to appropriate arrangements and that the "right to assign work does not override the employee's right to work in an environment free of sexual harassment and discrimination." Id. at 7. According to the Union, "the Arbitrator applied external law and followed guidance from the EEOC." Id. at 4. The Union asserts that the grievant elected to pursue her sexual harassment claim through the grievance procedure and the election of this procedure to pursue a discrimination claim "does not change the law to be applied in such cases." Id. The Union contends that Title VII establishes the guiding principles regardless of whether the complaint is brought under EEO or the negotiated grievance procedure. According to the Union, the Arbitrator applied EEO law and policy in rendering her decision. In support, the Union cites, among other authorities, Cornelius v. Nutt, 472 U.S. 648 (1985) and 29 C.F.R. § 1604.11 (a regulation concerning EEOC Enforcement Guidance).

IV.     Analysis and Conclusions

A.     Procedural Matter

1.     The Exceptions Are Timely

      In its opposition, the Union argues that the exceptions are untimely because they were not filed within 30 days of the date of service, July 19, 2002, of the initial award and opinion. On July 19, 2002, the Arbitrator issued the initial award finding liability on the part of the Agency and awarding some remedies, but remanding the issue of the employee's entitlement to compensatory damages to the parties, and retaining jurisdiction over the remedies issues.

      The Authority ordinarily will not resolve exceptions filed to an arbitration award unless the award constitutes a complete resolution of all of the issues submitted to arbitration. See, e.g., United States Dep't of HHS Centers for Medicare and Medicaid Services, 57 FLRA 924, 926 (2002) (HHS). In other words, the Authority ordinarily will not resolve exceptions to an arbitration award until the arbitrator has issued a final decision on the entire proceeding. Id. Consistent with this principle, the Authority has repeatedly held that where an arbitrator declines to issue a remedy, directing instead that the parties attempt to develop an appropriate remedy on their own, the award does not constitute a final decision to which exceptions can be filed. See United States Dep't of Health and Human Services, Navajo Area, Indian Health Service, 58 FLRA 356, 357 (2003) (HHS, Navajo Area); HHS, 57 FLRA at 926.

      Turning to this case, the parties stipulated the issue to be resolved as "what disposition, including remedy . . . shall be made of the grievance . . . ." Interim Award and Opinion at 1. In the initial award, the Arbitrator did not render a final award on the entire dispute, because the Arbitrator did not fashion a complete remedy. Instead, the Arbitrator ordered the parties to discuss and attempt to resolve a significant part of the remedy and retained jurisdiction for the purpose of resolving the remedy issue if the parties could not do so. Therefore, consistent with Authority precedent and contrary to the Union's assertion, the Arbitrator's initial award was not a final award. The award did not become final until the Arbitrator issued the May 23, 2003 award resolving the entire dispute. Accordingly, as the Agency's exceptions were filed within 30 days of the final award, they were timely.

2.     The Award Is Not Moot

      The Union contends that the portion of the award restricting the supervisor from supervising the grievant under any circumstances and from coming into contact with the grievant is moot because the Agency implemented measures to restrict the supervisor from supervising the grievant prior to the arbitration hearing.

      It is well established that a dispute becomes moot when the parties no longer have a legally cognizable interest in the outcome and that the burden of demonstrating that neither party has a legally cognizable interest is a heavy one and is on the party urging mootness. See, e.g., Soc. Sec. Admin., Boston Region (Region 1), Lowell Dist. Office, Lowell, Mass., 57 FLRA 264, 268 (2001) (SSA). The party urging mootness meets its burden by demonstrating that: (1) there is no reasonable expectation that the alleged violation will recur; and (2) interim relief or events have completely or irrevocably eradicated the effects of the alleged violation. Id.

      In this case, the Union has not established that the Agency no longer has a legally cognizable interest in the disputed requirement of the award. Although the Agency may have restricted the supervisor from supervising the grievant at the time, there is no Agency guarantee that this restriction will remain in place and a possibility exists that in the future the supervisor could, as the Agency asserts, be called upon to supervise the grievant again. Therefore, the Union has not established that there is no reasonable expectation of the situation addressed by this portion of the award recurring and this issue is not moot. See SSA, 57 FLRA at 268 (award was not moot which required agency to reassign the grievant to a different supervisor). [ v59 p791 ]

B.     Merits

The Award Is Not Contrary to Law

      The Agency asserts that paragraphs 3.c and d. are contrary to § 7106(a)(2)(B) of the Statute because they excessively interfere with management's rights under § 7106 of the Statue. The Agency contends that these paragraphs preclude the supervisor from supervising the grievant at all or from even approaching within ten feet of her or from speaking to her except with regard to work-related matters.

      The Agency's exception 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). The Authority has held that precluding a supervisor from performing certain duties affects management's right to assign work. See AFGE, Local 3529, 56 FLRA 1049, 1051 (2001). As the award precludes the supervisor from supervising the grievant, the award affects management's right to assign work.

      Where an award affects management rights under § 7106, the Authority assesses the legality of the award under a test that was developed in light of the Supreme Court's decision in Internal Revenue Service v. FLRA, 494 U.S. 922 (1990) (IRS); see United States Dep't of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 53 FLRA 146 (1997) (BEP). The two-prong BEP test provides as follows:

Under prong I, 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.

Soc. Sec. Admin., Boston Region (Region 1), Lowell Dist. Office, Lowell, Mass., 57 FLRA 264, 268-69 (2001) (Member Wasserman dissenting in part) (SSA).

      In SSA, the arbitrator found that the agency failed to treat the grievant with dignity, courtesy, and respect, as required by the parties' agreement, and ordered the agency to reassign the grievant to a different supervisor. The Authority found that the remedy was deficient because it failed to satisfy prong II of BEP. As to the requirement of reconstruction, the Authority stated that while it may be difficult in some cases to construct meaningful remedies, this fact does not render the reconstruction prong of BEP inapplicable. See SSA, 57 FLRA at 269. The Authority determined that the BEP requirements are "rooted squarely" in IRS, where the Supreme Court held that the only limitations on management's rights under § 7106(a) of the Statute are those contained within § 7106 itself. Id. The Authority further stated that in cases where an arbitrator has enforced a contract provision negotiated pursuant to § 7106(b) of the Statute, "determining that [the] provision was negotiated under § 7106(b) cannot end the inquiry." Id. The Authority explained that reconstruction is necessary to ensure that an agency's § 7106(a) rights are limited only to the extent to which the parties bargained. Accordingly, the Authority determined that "[r]egardless of whether allowing arbitrators to impose additional, different limitations on management's rights would be good policy, under IRS, it is not good law." Id. at 270.

      In the instant case, the Arbitrator found, in pertinent part, that the Agency violated Title VII of the Civil Rights Act because the supervisor had engaged in acts of sexual harassment against the grievant, and ordered that the supervisor not supervise the grievant under any circumstances, that he remain more than ten feet from her at all times, and that he not speak to her except with regard to work-related matters. The Agency contends that these remedies are deficient under prong II of BEP because they do not constitute a reconstruction of what management would have done if it had not violated Title VII. The Agency does not contend that the remedies [ v59 p792 ] are not provided for by Title VII of the Civil Rights Act, nor does it contest the Arbitrator's findings.

      As in SSA, it is clear, as the Agency contends, that these remedies do not constitute a reconstruction of what management would have done if it had not violated Title VII. However, there is a fundamental difference between SSA and the instant case. SSA, like BEP, involved an award of a remedy for a purely contractual violation, whereas the instant case involves, as relevant here, an award of a remedy for a violation of applicable law--namely, Title VII of the Civil Rights Act.

      Moreover, this case appears to be the first since the issuance of BEP in which an agency has specifically challenged, under prong II of BEP, a remedy provided for by an applicable law. For the following reasons, we hold that when an arbitrator issues a remedy for a violation of an applicable law such as Title VII, which provides for a remedy that affects management's rights under § 7106(a)(2)(A) of the Statute, it is not appropriate to apply prong II of BEP to assess whether the remedy is legal. Rather, the appropriate inquiry is whether the remedy is provided for by the relevant applicable law.

      Prior to BEP, the Authority did not apply a reconstruction requirement. Instead, the Authority's approach to an arbitrator's enforcement of applicable law in relation to the exercise of management rights under § 7106(a)(2) was to permit the arbitrator's remedy if the ordered actions were provided by the applicable law. See, e.g., Nat'l Aeronautics and Space Admin., Lewis Research Ctr., 17 FLRA 966 (1985) (the Authority denied exceptions to an arbitrator's remedy which required the agency to reinstate a grievant's duties after the agency's removal of those duties had been found to constitute a statutory prohibited personnel practice); United States Dep't of Labor, Washington, D.C., 16 FLRA 1075, 1076 (1984) (the award "in effect is no more than a restatement of that which the Agency must do under governing law and regulation").

      BEP, and cases following it, such as SSA, did not address applicable law, but rather only contract provisions and the need to ensure that management rights "are limited only to the extent the parties bargained for." SSA, 57 FLRA at 270. Enforcing remedies provided for by applicable law does not raise the issue of whether a contractually-based remedy was agreed to by the parties under § 7106(b) of the Statute. Allowing arbitrators to order remedies that are provided for under employment discrimination laws is fully consistent with the Statute and the counsel of IRS "that only constraints arising under § 7106 itself (through applicable laws or subsection (b)) are permissible." Id. at 269.

      In sum, insofar as SSA can be read as holding that prong II of BEP must be applied in all cases where an arbitrator's remedy affects a management right, we modify SSA. An arbitrator may lawfully award a remedy directing relief that is provided for by Title VII, irrespective of whether such a remedy affects a management right but fails to reflect reconstruction.

      In this regard, Title VII provides for victims of discrimination to receive "corrective, curative or preventive action . . . or measures adopted, to ensure that violations of the law similar to those found will not recur[.]" 29 C.F.R. § 1614.501(a)(2). The remedies provided under this entitlement are the types of remedies at issue in this case. These remedies by their very nature would never reflect a reconstruction of what an agency would have done had the agency not violated Title VII. Had an agency not engaged in discrimination it never would (and wouldn't have the need to) provide an employee with any "corrective, curative or preventive action . . . or measures adopted, to ensure that violations of the law similar to those found will not recur[.]"

      Further, under EEOC Compliance Guidelines and case law, employers are "required under Title VII to intervene promptly and effectively to put an end to workplace sexual harassment." Intlekofer v. Turnage, 973 F.2d 773, 778 (9th Cir. 1992) (Intlekofer); EEOC Regulation, 29 C.F.R. § 1604.11(f) (an employer should take all steps necessary to prevent sexual harassment from occurring). Also, "remedial measures should not adversely affect the complainant. Thus, for example, if it is necessary to separate the parties, then the harasser should be transferred unless the complainant prefers otherwise." EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, Section V.B.1(f). See also, Ellison v. Brady, 924 F.2d 872, 883 (9th Cir. 1991) (Ellison) (to avoid liability under Title VII for failing to remedy a hostile working environment, employers may even have to remove harasser from the workplace if mere presence would render the working environment hostile); [n3]  Intlekofer, 973 F.2d at 781 (court found that in the circumstances presented the Veterans Administration's formal separation of the harasser from the complainant was insufficient remedy under Title VII).

      As these cases reflect, Title VII, an applicable law, provides for the challenged remedies on a finding of sexual harassment in violation of Title VII. The Arbitrator ordered, among other things, that the supervisor not supervise the grievant, and that the supervisor [ v59 p793 ] remain at least 10 feet from the grievant at all times and not speak to her except concerning work related matters. The Arbitrator's remedy is based on evidence in the record showing action taken by the Agency to address the supervisor's sexual harassment of the grievant before the Arbitrator determined that such conduct constituted a violation of Title VII. Accordingly, we find that the contested remedies are not contrary to law. See, e.g., Intlekofer, 973 F.2d at 780 (initial remedy involved separating the harasser and the victim so that they did not work the same shifts or run into another at the change of shifts and requiring them to avoid each other except as necessary for agency work).

V.     Decision

      The Agency's exceptions are denied.



Footnote # 1 for 59 FLRA No. 141 - Authority's Decision

   Articles 6 and 37 provide, in pertinent part, as follows:

Article 6 - Rights of the Employee
Section b. The parties agree that there will be no restraint, harassment, intimidation, reprisal, or any coercion against any employee in the exercise of any employee rights provided for in this Agreement and any other applicable laws, rules, and regulations, including the right: . . .2. to be treated fairly and equitably in all aspects of personnel management; 3. to be free from discrimination based on . . . sex . . .                
Article