United States Department of Justice, Federal Bureau of Prisons (Agency) and American Federation of Government Employees, Council of Prison Locals (Union)

[ v63 p132 ]

63 FLRA No. 50

UNITED STATES
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
(Agency)

and

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

0-AR-4146

_____

DECISION

March 16, 2009

_____

Before the Authority:
Carol Waller Pope, Acting Chairman and
Thomas M. Beck, Member

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Robert T. Moore 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 Union filed a grievance claiming that the Agency violated the parties' master agreement (CBA) and Government-wide regulations by failing to assign personnel to fill certain positions. The Arbitrator found that the Agency failed to bargain over the adverse effect on employees resulting from the Agency's action, ordered the Agency to bargain, and required the Agency to consider employee claims for back pay.

      For the reasons that follow, we deny the Agency's exceptions.

II.     Background and Arbitrator's Award

A.     Background

      Because of a budget shortfall, the Agency decided to cut payroll costs by discontinuing the assignment of personnel to certain posts within its prison facilities that were determined not to be critical to accomplishing the principal mission of those facilities. The Agency described this initiative as "Mission Critical Rosters" (critical roster program). Award at 5. No employees were released as a result of this initiative. Affected personnel were reassigned to other positions, often performing the same functions they had performed in their previous positions. In addition, none of the employees suffered a reduction in their pay rates. However, according to the Arbitrator, "[m]any of the eliminated post[s] were specialized positions that had been filled through merit promotions, and carried with them such perks as assigned days off and specified dut[y] hours as well as having to compete against a limited number of other employees when scheduling vacations and other use of annual leave[]." Id. After the implementation of the critical roster program, affected employees had to compete for posts, shifts, days off, and annual leave within a larger pool of employees. Nevertheless, most of those employees were able to obtain the posts, shifts, and days off for which they bid.

      When it became aware of the critical roster program, the Union requested negotiation prior to its implementation. The Agency met with the Union, but the parties were unable to reach an agreement. The Union then filed a grievance that claimed the Agency unilaterally changed its duty "rosters nation-wide which eliminated positions" that had been filled by employees who had been selected through merit promotion procedures. Id. The grievance also alleged that employees had not been given adequate notice of this reduction-in-force (RIF) action. The Agency denied the grievance and the matter was submitted to arbitration.

B.     Arbitrator's Award

      The parties were unable to agree on the issue. As relevant herein, the Arbitrator stated the issue as: "Did Management's adoption of [the critical roster program] violate any provisions of the [agreement], and if so, what should the remedy be?" Award at 2. [n1] 

      The Arbitrator found that, although the critical roster program had the "hallmarks" of a reorganization, "it had none of the consequences which would trigger displacement rights under [G]overnment-wide regulations for those employees who felt they were adversely affected by their reassignment to correctional services posts." Id. at 7.

      [ v63 p133 ] The Arbitrator also found that Agency officials met with Union officials on at least three occasions and concluded that the record refuted the Union's claim that the Agency refused to agree to impact and implementation negotiations. The Arbitrator noted that the negotiations were unsuccessful because the Union insisted on bargaining over the positions that would be subject to the critical roster program and the Agency refused to bargain because, in its view, the matter was covered by Article 5 of the CBA and concerned the exercise of management's rights under § 7106 of the Statute. In addition, the Arbitrator found that Article 18 of the CBA covered the formulation of "Quarterly" rosters and concluded that, "[b]y implication," under that article, "it is solely a [m]anagement prerogative to determine which posts will be filled each quarter." [n2]  Id. at 8.

      The Arbitrator further found that the parties' impact and implementation bargaining on the critical roster program "appear[s] never to have reached the subject[] of impact on affected employees, especially those who held positions being abolished which they had obtained through merit [promotion]." Id. However, according to the Arbitrator, even though "many of the Union's favored options for mitigating the effects of the removal of these employees' positions from the [critical roster program] were probably beyond the authority of the Agency to grant" because of the Office of Personnel Management (OPM) RIF regulations, that did not "mean that there were no other options . . . which could have been taken to lessen the adverse effects" of the program. Id. The Arbitrator found that the Agency erred by considering the Union's insistence on negotiating over the process for determining which posts were mission critical and OPM-RIF impact relief as affecting management's rights, and thus "as reasons for terminating the discussion[s] before undertaking serious discussions of appropriate . . . arrangements for employees adversely affected by the exercise of [management's right][.]" Id. at 8. Accordingly, the Arbitrator found that "the Agency failed to comply with its obligations under the provisions of the [CBA] calling for negotiations over changes in conditions of employment," as well as its obligation to negotiate on appropriate arrangements for employees adversely affected by the exercise of management's rights under § 7106(b)(3) of the Statute. Id. at 8-9.

      The Arbitrator noted evidence as to the effect of the critical roster program on employees, such as disruption of childcare arrangements and loss of certainty as to shift assignments, days off, leave scheduling, loss of a pay raise, and the termination of pay retention after two years. The Arbitrator also noted that the Union had requested information, that the Agency acknowledged was available, that would allow it to identify adversely affected employees.

      To remedy the violation, the Arbitrator ordered the Agency to negotiate with the Union "concerning steps it can take to ameliorate the adverse effect on those employees" who were "removed from their merit selection positions under the [critical roster program]." Id. at 11. The Arbitrator directed that such negotiations should be confined to "matters under the control and available at the discretion of the Agency to grant or adjust." Id. The Arbitrator retained jurisdiction to resolve any impasses that developed in such negotiations. The Arbitrator also ordered the Agency to provide the Union with appropriate information so that it "can identify . . . affected employees who may have been financially harmed" by the critical roster program. Id. The Arbitrator stated, in addition, that the Union had 60 days after the identification of adversely affected employees to present the Agency with individual claims for back pay, because the Agency's "refusal to pursue serious implementation and impact negotiations was unjustified and unwarranted[.]" Id. Finally, the Arbitrator set forth the manner in which the parties, if desired, could invoke his retained jurisdiction.

III.      Positions of the Parties

A.     Preliminary Matter

1.     Union's Threshold Issue

      As an initial matter, the Union argues that the Agency's exceptions are interlocutory because the award is not final and binding. According to the Union, the award will only become final when the Agency provides the information requested by the Union and the parties complete bargaining over the impact and implementation of the roster program.

2.     Authority's Show Cause Order and the Agency's Response

      The Authority issued an Order to Show Cause (Order) directing the Agency to show cause why its exceptions should not be dismissed as they appeared to be interlocutory. In this regard, the Order stated, among other things, that the "Arbitrator remanded a portion of the remedy to the parties ordering the Agency to negotiate with the Union and to `provide the Union with information' that will enable the Union to `identify . . . affected employees who may have been financially [ v63 p134 ] harmed[.]'" Order at 2 (citing Award at 11). The Order also noted the Arbitrator's retention of jurisdiction. The Order stated that "[g]iven that the parties have not identified or agreed on a remedy for these employees, and the Arbitrator has not determined an appropriate remedy, the award does not appear to contain a complete resolution of the remedy issue." Id. Accordingly, the Agency was ordered to show cause why its exceptions should not be dismissed as interlocutory.

      The Agency filed a timely response to the Order. In its response, the Agency contends that the award is a "full and final decision[.]" Response to Order to Show Cause at 3 (Response). Citing United States Dep't of the Interior, Bu. of Indian Affairs, Wapato Irrigation Project, 55 FLRA 152, 158 (1999) (Wapato), the Agency asserts that the fact that arbitrators do not in their awards specify the amount of back pay to which employees are entitled, and retain jurisdiction to resolve disputes, does not render an exception to those awards interlocutory. Response at 3-4.

      The Agency also contends that even if its exceptions are interlocutory, "exceptional circumstances exist" that warrant the Authority addressing its exceptions. Id. at 5. In this regard, the Agency asserts that the basis of its exceptions is that insofar as the award requires it to bargain with the Union it is contrary to law either because the Agency had no duty to bargain or because it discharged its duty. The Agency maintains that if it bargains over the use of the roster program, it would be precluded from filing exceptions at a later date because "the point would be mooted." Id. at 6. As a result, the Agency states, the award "would have . . . forced [the Agency] to bargain . . . . even though a requirement to bargain is contrary to law." Id.

B.     Merits

1.     Agency's Exceptions

      The Agency asserts that the award requiring negotiations with the Union concerning the critical roster program is contrary to law because the "use of [the critical roster program] is covered" by Article 18 of the CBA. Exceptions at 3. Specifically, the Agency maintains that, under Article 18, "the matter of what obligations [m]anagement has in regards to scheduling employees and creating rosters," including the critical roster program, "and as to how employees are to request shifts, is inseparably bound up with the parties' [CBA]" so as to be covered by the CBA within the meaning of the Authority's test. Id. at 6-7. In this regard, the Agency claims that, by ordering it to bargain with respect to the critical roster program, "the Arbitrator created an obligation that is contrary to law and must be set aside." Id. at 7.

      The Agency also argues that the award is contrary to law because it orders the Agency to bargain over the impact and implementation of the critical roster program despite the Arbitrator's findings that the Agency had met with the Union and had engaged in impact and implementation negotiations. Further, according to the Agency, the Arbitrator specifically found that: (1) the Union only attempted to bargain over the application of RIF rights to employees affected by the critical roster program; (2) the discussions "got nowhere" because the Union insisted on bargaining over the positions that would be subject to such program; and (3) the Union made no other, negotiable proposals. Id. at 8. The Agency asserts that "[w]here the Agency has fulfilled its duty to bargain[,] it would be contrary to law to order the Agency, [as the award does], to bargain further over the matter . . . ." Id. at 9.

2.     Union's Opposition

      The Union contends that the critical roster program is not covered by Article 18 because "nowhere in Article 18 does it address the situation of a correctional worker who is removed from a permanent position obtained by merit selection and unilaterally reassigned to another position where they may suffer monetary loss as well as impact on conditions of employment." Opposition at 2.

      The Union further contends that, as found by the Arbitrator, the Agency had a duty to bargain, but chose not to do so. In this regard, the Union asserts that the Arbitrator found that the parties never reached the subject of the impact of the critical roster program on affected employees. The Union claims that the Arbitrator properly ordered the Agency to bargain on the impact and implementation of the critical roster program.

IV.     Analysis and Conclusions

A.     Threshold Issue

      Section 2429.11 of the Authority's Regulations provides that: "the Authority . . . ordinarily will not consider interlocutory appeals." In arbitration cases, this means that, ordinarily, the Authority 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 Veterans Affairs, Western New York Healthcare Sys., Buffalo, N.Y., 61 FLRA 173, 174 (2005) and the cases cited therein. Consequently, an arbitration [ v63 p135 ] award that postpones the determination of an issue submitted to arbitration does not constitute a final award subject to review. See, e.g., United States Dep't of Transp., Fed. Aviation Admin., Wash., D.C., 60 FLRA 333, 334 (2004). On the other hand, an award is final when an arbitrator resolves all of the issues submitted to arbitration and the only matters left open are the steps the parties must take to comply with specific orders of the arbitrator. See, e.g., Social Security Admin., Balt., Md., 60 FLRA 32, 33 (2004) (SSA). In this case, we find that the Agency's exceptions are not interlocutory.

      In this regard, the Arbitrator framed the issues to be resolved to include: [D]id Management's adoption of its [critical roster program] violate any provisions of the [CBA], and if so, what should the remedy be?" Award at 2. The Arbitrator found that the Agency "failed to comply with . . . provisions of the [CBA] calling for negotiations over changes in conditions of employment, as well as under 5 USC § 7106(b)(3) governing permissible matters over which the Union may initiate negotiations." Id. at 8. The Arbitrator thus found that the Agency violated the CBA by failing to bargain with the Union over changes in conditions of employment and ordered the Agency to bargain with the Union with respect to steps it could take to ameliorate the adverse effects on employees of the implementation of the critical roster program. The Arbitrator also ordered the Agency to provide the Union with requested information. The Arbitrator retained jurisdiction, but only "[i]f either or both parties wish[] for [him] to invoke [his] retained jurisdiction[.]" Id. at 12. These findings show that the Arbitrator resolved the issue before him of whether the Agency violated the CBA in its adoption of the critical roster program, and that he remedied the violation by ordering the Agency to negotiate with the Union over the implementation of this program. As the Arbitrator resolved the issue before him and directed a remedy for such violation -- negotiations -- we find that the award is final. See, e.g., SSA, 60 FLRA at 33 (exception to an award where arbitrator ordered the parties, among other things, to meet and arrive at an agreement regarding specific remedies was not interlocutory).

      Accordingly, we find that the exceptions are not interlocutory.

B.     Merits

      When an exception involves an award's consistency with law, the Authority reviews any question of law raised by the exception and the award de novo. 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 the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. United States Dep't of Def., Dep'ts of the Army and the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. Id.

      We reject the Agency's claim that the award is contrary to law because the use of the critical roster program is "covered by" Article 18 of the parties' CBA and thus it has no duty to bargain with the Union over this matter.

      In this regard, the "covered by" doctrine is a well established defense to a claim that an agency failed to provide a union with notice and an opportunity to bargain over changes in conditions of employment. United States Dep't of the Treasury, IRS, Denver, Colo., 60 FLRA 572, 573 (2005) (citing United States Dep't of the Interior, Wash., D.C., 56 FLRA 45, 53 (2000). In this regard, the "covered by" doctrine excuses parties from bargaining on the ground that they have already bargained and reached agreement concerning the matter at issue. United States Dep't of Health and Human Services, Social Security Admin., Balt., Md., 47 FLRA 1004, 1015 (1993). The doctrine has two prongs. Under the first prong, if a party seeks to bargain over a matter that is expressly addressed by the terms of the parties' collective bargaining agreement, then the other party may properly refuse to bargain over the matter. United States Customs Serv., Customs Mgmt. Ctr., Miami, Fla., 56 FLRA 809, 814 (2000). Under the second prong, if a matter is not expressly addressed by the terms of the parties' collective bargaining agreement, but is nonetheless inseparably bound up with and, thus, an aspect of a subject covered by the terms of the agreement, then the other party may also properly refuse to bargain over the matter. Id.

      In the instant case, the Arbitrator found that the Agency, by terminating the discussion concerning the critical roster program before undertaking serious discussions of "appropriate . . . arrangements for employees adversely affected by the exercise of [management's right to undertake]" this program, "failed to comply with its obligations under the provisions of the [CBA] calling for negotiations over changes in conditions of employment, as well as under . . . § 7106(b)(3) governing permissible matters over which the Union may initiate negotiations[,]" and directed the Agency to bargain [ v63 p136 ] concerning the matter. [n3]  Award at 8-9. Although the Arbitrator did not explicitly state that the Agency failed to satisfy a statutory bargaining obligation, the Arbitrator, by finding that the Agency failed to comply with its obligations under the provisions of the CBA, which requires negotiations over changes in conditions of employment, "where required by [§§] 7106, 7114, and 7117 . . . prior to implementation of any policies, practices and/or procedures[,]" implicitly implied that the Agency failed to satisfy a statutory bargaining obligation as well. Award at 3. Thus, we address the Agency's claim that the critical roster program is "covered by" Article 18 of the CBA.

      In this regard, as relevant here, the Arbitrator's factual findings show that Article 18, which concerns "Hours of Work," provides for the formulation of "Quarterly [R]osters." Id. at 8, Exceptions, Attachment E at 38, 39. In this respect, Article 18, Section (d), provides, in part, that "`seven (7) weeks prior to the upcoming quarter the [Agency] will ensure that a blank roster for the upcoming quarter will be posted in an area that is accessible to all correctional staff, for the purpose of giving those employees advance notice of assignments, days off, and shifts that are available for which they will be given the opportunity to submit their preference requests.'" Id. at 39 (quoting Article 18, Section (d)). With respect to the critical roster program, the Arbitrator's factual findings show that this program concerned an Agency "initiative" involving Agency rosters that eliminated those posts which "[m]anagement . . . deemed not to be critical to carrying out" its mission, and in which affected employees assigned to those posts were reassigned -- many from "specialized positions" filled through merit promotions -- to correctional officer positions. Id. at 5.

      Based on the Arbitrator's factual finding, we find nothing in Article 18 that concerns the critical roster program. Article 18 concerns hours of work, and among other things, Quarterly Rosters, which are prepared on a quarterly basis, wherein employees are given advanced notice of assignments, days off, and available shifts for which they may submit their preference requests. On the other hand, the critical roster program concerns an initiative where an employee's specialized position or post obtained through merit promotion is abolished and the employee is reassigned to a correctional officer position, where the employee now has to "compete on the basis of seniority in a much larger poll of employees for shifts, posts, days off and scheduling of annual leave[.]" Award at 5. Although the matter involved here concerns a roster, there is nothing to show that Article 18 addresses critical rosters that involve the elimination of specialized positions or post assignments filled through merit promotions and the reassignment of employees filling those positions to correctional office positions. We find, therefore, that the critical roster program is not expressly contained in Article 18 or inseparably bound up with the matters contained in that provision. Accordingly, we find that the critical roster program is not covered by Article 18 of the CBA.

      As to the Agency's claim that the award is contrary to law because the award orders it to bargain over the impact and implementation of the critical roster program despite the Arbitrator's findings that it met with the Union concerning the implementation of this program, we find that such claim provides no basis for finding the award deficient. The Arbitrator did find that the Agency "met with . . . Union officials on at least three occasions[,]" concerning this program. Award at 8. However, the Arbitrator also found that because the Agency "treated" the Union's insistence on negotiating over the process for determining which posts were mission critical and OPM-RIF impact relief as affecting management's rights, "as reasons for terminating the discussion[s,]" the Agency terminated the discussions "before undertaking serious discussions of appropriate . . . arrangements for employees adversely affected by the exercise of [[m]anagement's right to undertake the [critical roster program]]." Id. at 8. As mentioned above, in assessing whether an arbitrator's legal conclusions are consistent with law, the Authority defers to the arbitrator's underlying factual findings. The Arbitrator's factual findings show that the Agency failed to negotiate over the impact of the change. Therefore, we find that the award is not deficient as contrary to law and deny the exception.

V.     Decision

      The Agency's exceptions are denied. [ v63 p137 ]


APPENDIX

The relevant text of the parties' CBA is set forth below:

Article 3. Governing Regulations

Section c.

The Union and Agency representatives, when notified by the other party, will meet and negotiate on any and all policies, practices and procedures which impact conditions of employment, where required by 5 [U.S.C. §§] 7106, 7114, and 7117 and other applicable government-wide laws and regulations, prior to implementation of any policies, practices and/or procedures.

Article 4. Relationship of this Agreement to Bureau Policies, Regulations, and Practices

a.     In prescribing regulations relating to personnel policies and practices and to conditions of employment, the Union and Management shall have due regard for the obligations imposed [on them] by 5 [U.S.C. §§] 7106, 7114, and 7117. The [Agency] further recognizes its responsibility for informing the Union of changes in working conditions at the local level.

b.     On matters which are not covered in supplemental agreements at the local level, all written benefits, or practices and understandings between the parties implementing this Agreement, shall not be changed unless agreed to in writing by the parties.

c.     The [Agency] will provide expeditious notification of changes to be implemented at the local level. Such changes will be negotiated in accordance with the provisions of this Agreement.

Award at 3.

Article 18 - Hours of Work

Section a. Describes the basic workweek.)

Section b. (Concerns requests for flexible and/or compressed work schedules.)

Section c. (Concerns travel.)

Section d. Quarterly rosters for Correctional Services employees will be prepared in accordance with the below-listed procedures.

1.     a roster committee will be formed which will consist of representative(s) of Management and the Union. The Union will be entitled to two (2) representatives. . . . .
2.     seven (7) weeks prior to the upcoming quarter, the [Agency] will ensure that a blank roster for the upcoming quarter will be posted in an area that is accessible to all correctional staff, for the purpose of giving those employees advance notice of assignments, days off, and shifts that are available for which they will be given the opportunity to submit their preference requests. Normally, there will be no changes to the blank roster after it is posted;
a.     employees may submit preference requests for assignment, shift, and days off, or any combination thereof, up to the day before the roster committee meets. Those who do not submit a preference request will be considered to have no preference. . . .
. . . .
d.     the roster committee will consider preference requests in order of seniority and will make reasonable efforts to grant such requests.
. . . .
Section e. (Concerns time limits for shifts)
Section f. (concerns roster committees outside the Correctional Services department)
Exceptions, Attachment E at 38-41.

Article 25 Reduction in Force, Transfer of Function and Reorganization

Section f.

"Reorganizations" as defined in Section b(3), which affect the working conditions of bargaining unit employees, are subject to bargaining, as appropriate.

Award at 4.



Footnote # 1 for 63 FLRA No. 50 - Authority's Decision

   The Arbitrator also noted a procedural arbitrability issue as to whether the grievance was filed at the proper level of Agency management under the grievance procedure. The Arbitrator found that the grievance was properly filed. As the Agency does not except to this finding, it will not be addressed further in this decision.


Footnote # 2 for 63 FLRA No. 50 - Authority's Decision

   The pertinent text of Article 18 is set forth in the Append