United States Department of Justice, Federal Bureau of Prisons, Federal Correctional Complex, Coleman, Florida (Agency) and American Federation of Government Employees, Local 506, Council of Prison Locals (Union)

[ v63 p191 ]

63 FLRA No. 76

UNITED STATES
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL COMPLEX
COLEMAN, FLORIDA
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 506
COUNCIL OF PRISON LOCALS
(Union)

0-AR-4122

_____

DECISION

April 7, 2009

_____

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

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Peter E. Donnelly filed by the Agency under § 7122(a) of 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 Arbitrator determined that the Agency violated both Agency policy and the collective bargaining agreement in assigning overtime for the transport of prisoners for medical care and ordered the Agency to cease and desist from its violations. For the reasons that follow, we deny the Agency's exceptions.

II. Background and Arbitrator's Award

      The Agency operates a correctional complex at Coleman, Florida, which houses approximately 1,200 prisoners. There is a small medical facility at the complex, but, at times, it is necessary to transport prisoners to other area health care facilities for medical care. The transport of prisoners for medical care must be provided by a correctional officer who is certified in basic prisoner transportation (BPT).

      The Union filed a grievance, which claimed that, when a correctional officer is called in on overtime because of the need to transport a prisoner for medical care, the correctional officer called in on overtime is not always assigned the transport duties. The Union alleged that, instead, the correctional officer called in on overtime is, at times, assigned to replace a correctional officer on duty within the complex, who then performs the transport duties. The Union asserted that, when the correctional officer called in on overtime is certified in BPT, that officer must be assigned the transport duties. The grievance was not resolved and was submitted to arbitration.

      In pertinent part, the Arbitrator stated the issue to be whether the Agency violated written agency policy and the parties' collective bargaining agreement with respect to the assignment of overtime to correctional officers for the transport of prisoners for medical care. Award at 1-2. According to the Arbitrator, the Agency's Program Statement 5538.04 (program statement) specifically addressed overtime assignments for medical transport, as follows:

The correctional officer(s) receiving overtime pay must provide security for an inmate outside the institution while the inmate is transferred from the institution to the consultant or hospital, or while he/she is transported back to the institution. . . . Medical overtime may not be charged for security provided within the institution, except if:
A staff member on-duty and assigned to an inside post is the only qualified available person for the outside escort and must be replaced. Overtime may be given to the staff assigned to replace the individual on the inside post. Overtime may not be given to the staff member on the outside escort.

Id. at 2 (quoting program statement; emphasis in original). The Arbitrator found that this program statement "requires [the Agency] to assign prisoner transport to the officer called in to work the overtime at the overtime rate unless the officer called in for the overtime is not BPT certified." Id. at 3. The Arbitrator determined that the Agency did not consistently follow this policy because he found that, at times and for a variety of reasons, shift supervisors would assign prisoner transport duties to correctional officers assigned to an inside post and assign the correctional officer called in on overtime to replace the officer on the inside post. Accordingly, the Arbitrator concluded that the Agency violated its own policy, as set forth in the program statement. Id. at 5.

      [ v63 p192 ] The Arbitrator next addressed whether the Agency's actions violated Article 18, § (p)(1) of the parties' collective bargaining agreement, which pertinently provides:

[W]hen Management determines that it is necessary to pay overtime for positions/assignments normally filled by bargaining unit employees, qualified bargaining unit employees in the bargaining unit will receive first consideration for these overtime assignments, which will be distributed and rotated equitably among bargaining unit employees[.]

      Id. at 3 (quoting the agreement). The Arbitrator found that § (p)(1) "contemplates that whenever overtime is needed to fill any bargaining unit position/assignment, the next qualified bargaining unit employee on the overtime [roster] will be assigned to fill that position/assignment for which the overtime was required." Id. at 4. The Arbitrator interpreted § (p)(1) to mean that "[t]he Agency is not free to call in the next qualified bargaining unit employee and then assign that employee as it chooses." Id. Applying § (p)(1), the Arbitrator determined that the employee called in on overtime because of the need to transport a prisoner for medical care "is required . . . to fill the position/assignment that made the overtime necessary." Id. Accordingly, the Arbitrator concluded that, in addition to violating the program statement, the Agency violated the agreement.

      For these reasons, the Arbitrator sustained the grievance. As a remedy, the Arbitrator ordered the Agency to "cease and desist from assigning prisoner transport overtime to on duty inside post officers when the officer called in for such overtime work is qualified for prison transport." Id. at 5.

III.      Positions of the Parties

A.     Agency's Exceptions

      The Agency contends that the award is deficient because it fails to draw its essence from the parties' collective bargaining agreement and because it is contrary to management's rights to assign employees and work under § 7106(a) of the Statute.

      In contending that the award fails to draw its essence from the parties' collective bargaining agreement, the Agency argues that the Arbitrator's enforcement of the program statement disregards Article 3(a) of the agreement, which provides that the agreement -- Article 18, § (p)(1) -- takes precedence over Bureau of Prisons policy. The Agency notes that the Authority has held that collective bargaining agreements and not agency regulations govern the disposition of matters to which they both apply when there is a conflict between the agreement and an agency regulation. Exceptions at 14 (citing United States Dep't of the Army, Fort Campbell Dist., Third Region, Fort Campbell, Ky., 37 FLRA 186 (1990)). The Agency asserts that Article 18, § (p)(1) governs and requires only that overtime be distributed and rotated equally.

      As to the right to assign employees, the Agency asserts that the Authority has long held that an award requiring an agency to adhere to objective criteria in assigning overtime affects management's right to assign employees under § 7106(a)(2)(A). Id. at 6-7. The Agency further asserts that the Authority has also held that the right to assign employees includes temporary reassignments. Id. at 7. Accordingly, the Agency claims that, by ordering the Agency to cease and desist from deciding employee assignments when assigning overtime, the award affects management's right to assign employees. Id.

      As to the right to assign work, the Agency asserts that "[t]he Authority has long held that the right to assign work under § 7106(a)(2)(B) encompasses the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what positions the duties will be assigned." Id. at 5. The Agency further asserts that the right also includes "the right to assign overtime and to determine when the overtime will be performed." Id. at 5-6. Accordingly, the Agency claims that, by preventing the Agency from determining when work assignments will occur and to whom or what positions the work will be assigned, the award affects management's right to assign work. Id. at 6.

      Acknowledging the Authority's framework set forth in United States Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 53 FLRA 146 (1997) (BEP), the Agency next argues that the award does not satisfy either prong I or prong II of BEP. As to prong I, the Agency asserts that Article 18, § (p)(1), as interpreted by the Arbitrator, does not constitute either a procedure under § 7106(b)(2) or an appropriate arrangement under § 7106(b)(3). The Agency maintains that, as enforced by the Arbitrator, Article 18, § (p)(1) does not constitute a procedure because it prohibits management from assigning work to employees based on the needs of the Agency or the Agency's determination as to which employees are qualified or needed to do the work. The Agency maintains that, as enforced by the Arbitrator, Article 18, § (p)(1) does not constitute an appropriate arrangement because it excessively interferes with both management's [ v63 p193 ] right to assign employees and to assign work by completely prohibiting management from assigning to an inside post an employee who is BPT certified and who is called in on overtime. As to prong II, the Agency asserts that, if the Authority determines that the award satisfies prong I, then the Arbitrator's remedy fails to satisfy prong II because it does not reflect a reconstruction of what management would have done had it not violated Article 18, § (p)(1). The Agency argues that a reconstruction would merely have ordered the Agency to rotate equitably overtime assignments.

B.      Union's Opposition

      The Union contends that the Agency's exceptions should be denied. The Union asserts that the award does not fail to draw its essence from the agreement. In the Union's view, there is no issue of the agreement taking precedence over the program statement because the Arbitrator determined that the Agency violated both the program statement and the agreement. The Union also asserts that the award is not contrary to the Statute because requiring the Agency to follow its own program statement and the parties' collective bargaining agreement is not contrary to § 7106(a).

IV.      Analysis and Conclusions

A.      The Agency fails to establish that the award fails to draw its essence from agreement.

      The Authority will find that an award fails to draw its essence from a collective bargaining agreement when the appealing party establishes 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 the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. E.g., United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).

      The Arbitrator concluded that both the program statement and Article 18, § (p)(1) of the agreement required the Agency to assign prison transport to the officer called in to work overtime unless the officer called in on overtime is not BPT certified. The Agency argues that Article 18, § (p)(1) does not prohibit management from making a determination as to what post it wants to assign an employee who has been called in for overtime and that, under Article 3(a) of the agreement, Article 18, § (p)(1) governs.

      In concluding that the agreement required the Agency to assign prison transport to the officer called in to work overtime, the Arbitrator found that the language of § (p)(1) "contemplates that whenever overtime is needed to fill any bargaining unit position/assignment, the next qualified bargaining unit employee on the overtime [roster] will be assigned to fill that position/assignment for which the overtime was required." Award at 4. He expressly interpreted § (p)(1) to mean that "[t]he Agency is not free to call in the next qualified bargaining unit employee and then assign that employee as it chooses" and that the employee called in on overtime because of the need to transport a prisoner for medical care "is required . . . to fill the position/assignment that made the overtime necessary." Id.

      Nothing in the plain wording of Article 18, § (p)(1) speaks to, or limits, assignment of prisoner transport or the qualifications to perform such assignments. That is, the provision is silent as to this particular kind of assignment. In these circumstances, the Agency fails to establish that the Arbitrator's interpretation of Article 18, § (p)(1) is irrational, unfounded, implausible, or disregards the agreement. See, e.g., AFGE Local 2357, Nat'l Joint Council of Food Inspection Locals, 62 FLRA 375, 376 (2008).

      As the Agency provides no basis for finding deficient the Arbitrator's interpretation of Article 18, § (p)(1), the Agency also provides no basis for finding deficient the Arbitrator's conclusion that both Article 18, § (p)(1) and the policy statement required the Agency to assign prison transport to the officer called in to work overtime unless the officer called in on overtime is not BPT certified. Further, as there is no conflict between the program statement and Article 18, § (p)(1), the Agency fails to demonstrate that the award disregards Article 3(a) of the agreement.

      For these reasons, we deny this exception.

B.      The Agency fails to establish that the award is c