United States Department of Justice, Federal Bureau of Prisons, Federal Correctional Complex, Beaumont, Texas (Agency) and American Federation of Government Employees, Local 1010 (Union)

[ v62 p100 ]

62 FLRA No. 27

UNITED STATES
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL COMPLEX
BEAUMONT, TEXAS
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1010
(Union)

0-AR-3995

_____

DECISION

May 31, 2007

_____

Before the Authority: Dale Cabaniss, Chairman, and
Wayne C. Beyer and Carol Waller Pope, Members

I.     Statement of the Case

      This matter is before the Authority on an exception to an award of Arbitrator Louise B. Wolitz filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and 5 C.F.R. Part 2425. The Union filed an opposition to the Agency's exception.

      The Arbitrator sustained the grievance, which alleged that the Agency violated the parties' agreement by assigning additional duties to the grievant, and ordered two Agency officials to provide the grievant a letter of commendation for her performance of the duties. For the reasons set forth below, we find that the award is deficient and set it aside.

II.     Background and Arbitrator's Award

      The grievant is a Safety Specialist working in the Agency's Shared Services Department, which serves the administrative needs of three institutions -- the Federal Correctional Institution - Low; the Federal Correctional Institution - Medium; and the Penitentiary. While deployed to the Federal Correctional Institution - Low, the warden assigned the grievant meal rotation inspection duties in addition to her Safety Specialist duties. The Union filed a grievance regarding the assignment of the meal rotation inspection duties to the grievant. The grievance was unresolved and was submitted to arbitration. The Arbitrator stated the issue to be: "Did the Agency violate any portion of the Master Agreement, particularly its responsibility to treat all employees fairly and equitably in all aspects of personnel management, when it assigned weekly meal rotation inspection duties, which are not in her Position Description, to [the grievant], and, if so, what should the remedy be?" Award at 6.

      The Arbitrator noted the parties' stipulations that meal inspection rotation duties are not mentioned in the Safety Specialist Position Description, that Safety Specialists in the Correctional Institution - Medium and the Penitentiary are not assigned such duties, and that the grievant was the only Safety Specialist assigned the duties. According to the Arbitrator, the Agency assigned the grievant "duties which other Safety Specialists working under an identical Position Description at the same complex were not assigned." Id. at 15. The Arbitrator noted that the meal rotation inspection duties are typically assigned to management officials. The Arbitrator also noted that the grievant's supervisor testified that he "did not think that [the grievant] had been treated fairly and equitably" because she was assigned duties different from those assigned to other Safety Specialists. Id. at 13. In addition, the Arbitrator found that when the grievant attempted to resolve questions regarding her assignment informally, "her [claims] were not fully investigated [or] taken seriously" and "management never considered whether or not it was treating [the grievant] fairly and equitably[.]" Id. at 14, 15.

      Based on the foregoing, the Arbitrator found that the Agency violated Article 6, Section (b)(2) of the parties' agreement because "the Agency did not treat [the grievant] fairly and equitably with respect to the other Safety Specialists." [n1]  Id. at 16.

      As for the remedy, the Arbitrator found that the Agency had previously "rescinded the meal rotation inspection duties" assigned to the grievant. Id. at 15. The Arbitrator also determined there was "no evidence that [the grievant] suffered any financial or quantifiable loss[.]" Id. at 15-16. In these circumstances, the Arbitrator found that the "most appropriate remedy would be to acknowledge" the grievant for her extra duties. Id. at 16. Accordingly, the Arbitrator directed the grievant's [ v62 p101 ] supervisor and the warden to "write a letter of commendation" to be placed in the grievant's personnel file indicating that she had performed additional duties. Id. In addition, the Arbitrator directed that "no reprisals be taken against [the grievant] for filing this grievance." Id. The Arbitrator retained jurisdiction for the purpose of "seeing that th[e] remedy is carried out and resolving any disputes that might occur over the remedy." Id.

III.     Positions of the Parties

A.     Agency's Exception

      The Agency claims that the award is contrary to law because it violates management's right to assign work under § 7106 of the Statute. In this regard, the Agency asserts that, by ordering the grievant's supervisor and the warden to write a letter of commendation to be placed in the grievant's permanent personnel file, the award assigns duties to specific Agency officials. See Exception at 6-7.

      Applying the Authority's framework for establishing whether an award is contrary to management's rights set forth in United States Dep't of the Treasury, BEP, Wash., D.C., 53 FLRA 146, 151-54 (1997) (BEP), the Agency asserts that the award does not satisfy prong I of the BEP test. In this connection, the Agency contends that Article 6, Section (b)(2), as interpreted by the Arbitrator, does not constitute an arrangement for adversely affected employees and, even if it does, the provision "excessively interfere[s] with [m]anagement's right[s]" and, therefore, is not an appropriate arrangement. Exception at 10. In this regard, the Agency asserts that the provision, as interpreted, "would never allow Management to assign duties to one employee that it did not assign to every employee who had the same position description." Id. at 10. With regard to prong II of the BEP test, the Agency claims that "awarding the grievant a letter of commendation is not what Management would have done had it not violated the contract." Id. at 13. The Agency asserts that what it would have done, and what it did, was stop assigning meal rotation inspection duties to the grievant. See id.

B.      Union's Opposition

      The Union disputes the Agency's claim that the award affects management's right to assign work. In this connection, the Union claims that the remedy is "appropriate and legal." Opposition at 12. With regard to prong I of the BEP test, the Union asserts that Article 6, Section (b)(2) is a "Section 7106(b) procedure[.]" Id. at 8. The Union also asserts that the provision, as interpreted and applied by the Arbitrator, is an appropriate arrangement to rectify the "harm" that the grievant suffered when the Agency assigned her extra duties that it did not assign to similar employees. Id. at 13. According to the Union, the provision does not "excessively interfere with management's right to assign" work because it does not "require mathematically precise assignments . . . ." Id. Regarding prong II of the BEP test, the Union contends that the award reflects what management would have done had it not violated the parties' agreement because treating all employees fairly under Article 6, Section (b)(2) requires the Agency to assign all Safety Specialists the meal rotation inspection duties or recognize the grievant for her extra work. See id. at 14.

IV.      Analysis and Conclusions

A.      Standard of Review

      The Authority reviews questions of law raised by an exception 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.

      When resolving an exception that alleges an award violates management rights under § 7106(a) of the Statute, the Authority first determines whether the award affects a management right under § 7106(a) of the Statute. See United States Small Bus. Admin., 55 FLRA 179, 184 (1999). If it does, then the Authority will apply the framework established in BEP. Under prong I of the BEP framework, 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. See BEP, 53 FLRA at 151-54. Under prong II, the Authority considers whether the award reflects a reconstruction of what management would have done had management not violated the law or contractual provision at issue. See id. at 154.

B.      The Award Excessively Interferes With Management's Right To Assign Work Under § 7106(a)(2)(B) of the Statute

      The Agency asserts that the award affects management's right to assign work because it requires the Agency to assign duties to specific Agency officials. See Exception at 7. The right to assign work under [ v62 p102 ] § 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 position the duties will be assigned. See AFGE, Local 3529, 56 FLRA 1049, 1050 (2001); AFGE, Local 1985, 55 FLRA 1145, 1148 (1999). In addition, the assignment of specific duties to identified individuals, including management officials, affects management's right to assign work under § 7106(a)(2)(B). See NLRB, Wash., D.C., 61 FLRA 154, 161 (2005) (Member Armendariz dissenting on other grounds); AFGE, Local 1923, 44 FLRA 1405, 1428 (1992); Patent Office Prof'l Ass'n, 47 FLRA 10, 23 (1993).

      Here, the Arbitrator found that the Agency violated Article 6, Section (b)(2) of the parties' agreement by not treating the grievant "fairly and equitably" when it assigned her duties that were "not in her Position Description" and that other employees in her position "did not have to perform[.]" Award at 16. As a remedy, the Arbitrator directed the grievant's supervisor and the warden to "write a letter of commendation to be placed in [the grievant's] permanent personnel file . . . ." Id. As the remedy portion of the award assigns specific duties to specific management officials, we find that the award affects management's right to assign work under § 7106 of the Statute.

      As noted above, the Union contends that Article 6, Section (b)(2) constitutes a procedure under § 7106(b) of the Statute. However, the Union does not explain its argument in this regard or provide any legal support for its claim that the award enforces a procedure. Consequently, the Union's claim is a bare assertion and it does not provide a basis for the Authority to conclude that the award is consistent with law. See Prof'l Airways Sys. Specialists, 60 FLRA 609, 612 (2005) (rejecting as a bare assertion union's claim that proposals constitute negotiable procedures). 

      The Union also contends that Article 6, Section (b)(2), as interpreted and applied by the Arbitrator, is an appropriate arrangement under § 7106(b)(3) of the Statute. In determining whether a contract provision constitutes an appropriate arrangement under § 7106(b)(3) of the Statute, the Authority first determines whether the provision is an arrangement. See NTEU, 59 FLRA 978, 981 (2004). If it is, then the Authority determines whether the arrangement is appropriate or whether it is inappropriate because it excessively interferes with the affected management right. See id. In assessing whether an arrangement excessively interferes with a management right, the Authority weighs the benefits afforded to employees under the provision against the intrusion on the exercise of management's rights. See id.

      The parties dispute whether Article 6, Section (b)(2), as interpreted and applied by the Arbitrator, is an arrangement for employees adversely affected by management's exercise of its right to assign work. The Arbitrator found that, by assigning the grievant extra duties that were not assigned to other employees, the Agency created "time management challenges" for the grievant. Award at 15. In so doing, the Arbitrator essentially found that the Agency's exercise of its right to assign work adversely affected the grievant. The Arbitrator interpreted Article 6, Section (b)(2) to ameliorate this adverse affect by requiring assignments to be fair and equitable. Thus, the Arbitrator enforced an arrangement for employees adversely affected by the Agency's exercise of its right to assign work. See, e.g., NFFE, Local 1214, 45 FLRA 1121, 1129 (1992) (proposal to prevent management from assigning duties not on position description found to be an arrangement for employees adversely affected by management's exercise of its right to assign work).

      The Union asserts that Article 6, Section (b)(2), as interpreted and applied by the Arbitrator, is an appropriate arrangement because it does not excessively interfere with management's right to assign work. However, as the Agency notes, the Arbitrator's interpretation and application of Article 6, Section (b)(2) would preclude the Agency from assigning duties to an employee that are not contained in the employee's position description without also assigning those same duties to all employees with the same position description. Such an interpretation and application of the provision unduly burdens the Agency by requiring it to amend an employee's position description every time it wishes to assign a duty that is not already contained in the employee's position description. The Agency's only alternative to amending the position description would be to assign all employees with the same position description the additional duty, which would also unduly burden the Agency if the Agency has not determined that it is necessary for the other employees to perform that duty. On balance, the burden on management's right to assign work outweighs the benefit to the grievant of suffering fewer time management challenges. See, e.g., NFFE, Local 1214, 45 FLRA at 1130-31 (finding proposal excessively interfered with management's right to assign work that required agency to amend position descriptions before assigning new duties).

      Based on the foregoing, we find that the award does not enforce an appropriate arrangement within the [ v62 p103 ] meaning of § 7106(b)(3) of the Statute and, therefore, is deficient as contrary to management's right to assign work under § 7106(a)(2) of the Statute. [n2] 

V.     Decision

      The award is set aside.



Footnote # 1 for 62 FLRA No. 27 - Authority's Decision

   Article 6, Section (b)(2) states: "[t]he 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 . . . to be treated fairly and equitably in all aspects of personnel management[.]" Exception, Attachment C at 10.


Footnote # 2 for 62 FLRA No. 27