U.S. DEPARTMENT OF JUSTICE FEDERAL BUREAU OF PRISONS WASHINGTON, D.C. and COUNCIL OF PRISON LOCALS 33, AMERICAN FEDERATION GOVERNMENT EMPLOYEES, AFL-CIO

In the Matter of:

U.S. DEPARTMENT OF JUSTICE

FEDERAL BUREAU OF PRISONS

WASHINGTON, D.C.

 

 

 

 

 

Case No. 96 FSIP 162

and

COUNCIL OF PRISON LOCALS 33, 

AMERICAN FEDERATION GOVERNMENT 

EMPLOYEES, AFL-CIO

 

ARBITRATOR'S OPINION AND DECISION

BACKGROUND

    The Council of Prison Locals 33, American Federation of Government Employees, AFL-CIO (hereafter "CPL" or "Union"),(1) filed a request for assistance with the Federal Service Impasses Panel (hereafter "Panel") to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (hereafter "Statute"), 5 U.S.C. § 7119, between it and the U.S. Department of Justice, Federal Bureau of Prisons, Washington, D.C. (hereafter "BOP" or "Agency").(2) Following investigation of the request for assistance, the Panel determined that the impasse relating to the dispute at issue, should be resolved through the mediation-arbitration process and delegated the undersigned to engage in such process. In doing so, the Panel indicated that should mediation efforts fail, the Arbitrator was to proceed by selecting one party’s final offer on an article-by-article basis to resolve the dispute.

    Accordingly, commencing on December 17, 1996, and continuing through December 19, 1996, representatives from the Union and the BOP, along with the undersigned, met at the Panel’s offices in Washington, D.C. Thereafter, the parties engaged in extensive mediation efforts/arbitration proceedings (hereafter "MED-ARB"), in which each side presented oral arguments and exhibits, and each had the opportunity to raise objections and contest the evidence presented by the other party. The mediation efforts were unsuccessful and all or parts of nine articles remained unresolved.

Parties’ Post-Hearing Objections:

      On or about January 21, 1997, both parties submitted closing briefs in support of their final proposals. On or about January 30, 1997, the Union filed Objections to all documents -- Attachments 1 through 3, that were submitted with the Agency’s closing brief. In doing so, the Union argued that the Arbitrator had clearly indicated at the hearing that he would not accept new exhibits, with the exception of case law as attachments to the parties’ briefs. According to the Union, Agency Attachments 1, 2 and 3 do not fall within the ambit of case law and should accordingly, be rejected. However, as its proposed remedy, the Union submitted four attachments that it argued should be considered by the Arbitrator in making his determination on various articles at impasse. On or about February 3, 1997, the Agency filed its Response to the Union’s Objections, denying any wrongdoing and requesting that the Union’s submitted attachments be excluded as violative of the Arbitrator’s instructions.

    In addressing these objections, I find that there is some merit to both parties’ understanding of the Arbitrator’s limitations on post-hearing briefs. While the Union is correct that the Arbitrator stated that "case law" would be acceptable as an attachment to the briefs, the Agency is also correct in stating the position that the Arbitrator indicated he would not accept "new evidence" in the form of exhibits or attachments, as part of the briefs. Turning then to a review of the Agency’s attachments, I find that attachments 1 and 2 are not new evidence and not violative of the Arbitrator’s instructions, but rather, a recitation of Article 11, Official Time, currently existing as part of the Master Agreement (already a part of the record — attachment 1); and a duplication of those portions of Article 11, Official Time, that had already been agreed to by the parties as part of the current negotiations — attachment 2, and which had previously been submitted by the Agency during the MED-ARB hearings as BOP Exh. #4/11. With regard to Agency attachment 3, which is an Agency-wide order establishing procedures and interpreting the scope of, inter alia, 5 U.S.C. § 7114(c)(2), I find such attachment to fall within the umbrella of "case law" as was meant by the Arbitrator. Accordingly, in view of the foregoing, the Union’s objections to Agency attachments 1 through 3 are rejected.

     Upon review of Union attachments 1 through 4 to the Union’s Objections to Agency’s Closing Brief, I find that all of them constitute new evidence involving different incidents or interpretations, that do not fall within the ambit of "case law". Accordingly, the Agency’s request to exclude those documents from consideration by the Arbitrator is granted.

THE ARTICLES AT IMPASSE(3)

1. ARTICLE 3 - GOVERNING REGULATIONS [all]

    a. The Agency’s position — the BOP’s proposal is as follows:

Section a. In the administration of all matters covered by this Agreement, officials and employees are governed by existing or future laws and regulations of appropriate higher authorities.

1. any changes made by this Agreement to existing national policy will be incorporated into said policy; and

2. should a supplement to this Agreement be negotiated at the local level, any changes made by the supplement to existing local policy will be incorporated into said policy.

Section b. Due to the nature of the Bureau of Prisons’ unique mission, both parties agree that the timely issuance of policy in the Bureau of Prisons is imperative to the safe, secure, and orderly operation of the Agency.

All policy issuances, including policy manuals, which propose to change personnel policies, practices, or conditions of employment of bargaining unit employees will be sent to the President of the Council of Prison Locals by the Chief, Labor Management Relations and Security Branch. The President of the Council of Prison Locals, or designee, will have thirty (30) calendar days from the documented date of receipt to request bargaining and submit proposals, in writing.

Bargaining must commence within the next thirty (30) days. If no agreement is reached within thirty (30) days, the Agency may implement the policy issuance, continuing to recognize its bargaining obligation.

Where an employee’s pay or employment benefits are adversely affected by a practice resulting from an issued policy, which practice is later changed in bargaining in a quarterly labor-management meeting, the Employer will make reasonable attempts to make the employee whole.

It is further understood by the parties that changes to the Employer’s policy issuances which change personnel policies or practices or conditions of employment will not be made through the use of oral or written directives outside the Employer’s formal policy issuances.

Section c. Institution supplements which derive from Bureau-level policy issuances, and which change local working conditions or personnel policies and practices for members of the unit, will be subject to negotiation with the local Union. When local supplements are proposed in response to national policy:

1. management will provide the local president with a copy of the proposed local supplement;

2. the local president has no less than ten (10) working days to request bargaining and to submit written proposals to the chief executive officer or designee;

3. negotiations must begin within ten (10) working days from the date the Union submits its written proposals; and

4. if the parties have not reached agreement after ten (10) days of bargaining, the institutional supplement shall be implemented and the Agency will continue to fulfill its bargaining obligation under the Statute.

Section d. Any other local issuances, either oral or written, not derived from national policy, which change personnel policies or practices or conditions of employment, shall be subject to local negotiations prior to implementation.

Section e. Declarations of emergency such as to override the provisions of this Agreement will not be declared merely as a result of routine problems. When emergency procedures are invoked, the local Union will be notified immediately (or as soon as possible) and the Employer will inform the local Union President of the circumstances causing the emergency and its expected duration. At the conclusion of the emergency, the local Union will be briefed on the emergency by the chief executive officer, or designee.

The crux of the impasse on Article 3 revolves around the timing of negotiations and the implementation of changes in terms and conditions of employment. As historical background, the Agency indicated that the parties contractual collective bargaining relationship dating back to 1985 and continuing through the present impasse, in effect, allowed the Agency to implement policy changes and negotiate after the fact, making such subsequent adjustments, if any, that the parties were able to agree upon during the after the fact negotiations. During the course of the present negotiations, in August of 1995, the Union formally notified the Agency that it intended to withdraw its "waiver" concerning the Agency’s continued ability to make changes in the terms and conditions of employment prior to good faith impasse or agreement. Although the Agency maintains that the system in place worked well, with few exceptions over the years, it has now added within Section (b), what amounts to a thirty-day cooling off period for collective bargaining negotiations to take place, prior to the Agency being able to implement a change in the conditions of employment. After the thirty (30) days, the Agency can implement and the parties will continue to negotiate and dependent upon their success, adjustments will be made subsequent thereto. The Agency asserts that this is a big step forward and should alleviate any remaining concerns of the Union on this subject.

b. The Union’s Position — the CPL’s final proposal reads as follows:

Section a. Both parties mutually agree that this Agreement takes precedence over any Bureau policy, procedure, and/or regulation which is not derived from higher government-wide laws, rules, and regulations.

1. Local Supplemental Agreements will take precedence over any Agency issuance derived or generated at the local level.

Section b. In the administration of all matters covered by this Agreement, Agency officials, Union officials, and employees are governed by existing and/or future laws; rules and government-wide regulations in existence at the time this agreement goes into effect.

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 USC 7106, 7114, and 7117, and other applicable government-wide laws, and regulations, prior to implementation of any policies, practices and/or procedures.

Section d. All proposed National Policy Issuances, including policy manuals and program statements will be provided to the Union. If the provisions contained in the proposed policy manual and/or program statement changes or affects any personnel policies, practices, or conditions of employment[sic]. Such policy issuances will be subject to negotiation with the Union, prior to issuance and implementation.

1. When National Policy Issuances are proposed, the Employer will ensure that the President, Council of Prison Locals, each member of the Executive Board of the Council of Prison Locals, and each Local President receives a copy of the proposed policy issuance within thirty (30) calendar days that the proposed policy issuances is completed. This will be accomplished by the policy issuance being sent, by certified mail, to the appropriate Union official at the institution/location where the Union official is employed.

2. After the last Council of Prison Locals Executive Board member receives the proposed policy issuance, the Union, at the National level, will have thirty (30) calendar days to invoke negotiations regarding the proposed policy issuance. The date on the signed "Return Receipt" card will serve to verify the date the last Council Executive Board member was notified.

3. Should the Union invoke their right to negotiate the proposed policy issuance, absent an overriding exigency, the issuance and implementation of the policy will be postponed, pending the outcome of the negotiations.

4. Should the Union, at the National Level, fail to invoke the right to negotiate the proposed policy issuance within the time required, above, the Agency may issue and implement the proposed policy issuance.

5. When Local proposed policy issuances are made, the Local Union President will be notified as provided for above and the manner in which Local negotiations are conducted will parallel this Article.

Section e. Negotiations, under this section, will take place within thirty (30) calendar days of the date that negotiations were invoked. Negotiations will take place at a location that is mutually agreeable to the parties and the Agency will pay all expenses related to the negotiations.

Section f. Declarations of true emergency situations, escapes/escape attempts, work/food strikes, riot/group disturbances, or any other similar situation that requires a recall of staff, will be the only recognized and permitted activity that may override the provisions of this Agreement.

1. Where a drill is implemented to simulate an emergency, such non-emergency program will not constitute cause for disregarding any provision of the collective bargaining agreement.

2. The Agency will ensure that the appropriate Regional Vice-President and the President of the Council of Prison Locals is informed immediately of any and all situations that result in emergency procedures being invoked at Bureau facilities, with the exception of Emergency Preparedness Drills/Exercises.

The Union, for the most part, acknowledged the past history, but claimed that the Agency had never withheld implementation of proposed changes, despite numerous requests by the Union over the years to do so. It was as a result of these problems that the Union was prompted to seek a return to its statutory collective bargaining rights under 5 U.S.C. Section 7116, culminating in the submission of this proposal.

Conclusions:

    It is significant to note that the above-described Union proposal was submitted during the course of the MED-ARB hearings, after extensive discussion with Agency officials who had voiced negotiability concerns with the Union’s prior version of Article 3. As a result of those discussions, both parties informed the Arbitrator that the Union’s proposal now under consideration had alleviated and satisfied the Agency’s prior negotiability concerns -- so that the subject of negotiability would not be an issue that would have to be addressed by the Arbitrator.

    Upon due consideration of the parties arguments and documents submitted in support thereof, the Arbitrator adopts the Union’s proposal. While the Arbitrator is somewhat sympathetic to the Agency’s past history argument, he considered that if that system had worked so well, the Union would not now be attempting to change it in accordance with its statutory collective bargaining rights,(4) which when weighed together tipped the scales in favor of the Union’s proposal.

2. ARTICLE 10 - UNION REPRESENTATION ON COMMITTEES [part]

    a. The Agency’s Position — the BOP’s proposal reads as follows:

Section a. The Union at the appropriate level will have membership on at least the following committees, where they exist, which are charged with making recommendations to the appropriate authorities on specific issues. These committees are:

1. Health and Safety, in accordance with Article 27;

2. Incentive Awards (to help oversee the system and review suggestions only);

3. Affirmative Action;

4. Staff Housing (whenever members of the unit are being considered); and

5. Commissary.

When committees, work groups, or task forces are formed to make recommendations on matters directly affecting working conditions of bargaining unit employees, the Employer will fill a position on the committee, work group, or task force with a representative designated by the Union at the appropriate level. A Union representative selected to participate on these committees will be a working member with the same rights and responsibilities as other members. This includes an adequate opportunity to present their thoughts and ideas on whatever subject is being discussed. Each Union representative so selected will have a Union designated alternate to serve when the representative is unavailable.

Both parties recognize the Union will, on occasion, need to train some of its representatives on the operation and functions of committees, work groups, and task forces. With the chief executive officer’s approval and workload permitting, the Union will be permitted to have one (1) other representative attend the meeting in a training, nonparticipatory role. The Agency, at its option, may pay any expenses or grant official time for this second attendee.

Both the Union and management agree that smaller committees, work groups, and task forces are preferred, in that they are generally more productive.

If the Union representative participating on the committee, work group, or task force so desires, the chairperson of the committee, work group, or task force, in preparing the final report, will accept and specifically include the Union representative’s concerns that were voiced at the meeting. The Union representative will be provided a copy of the final committee, work group, or task force report at the same time through the same applicable distribution procedures as other committee, work group, or task force members.

The Union at the appropriate level will be provided the same advance notification of the committee, work group, or task force meeting at the same time as any other member of the committee, work group, or task force. This notification will allow for sufficient travel time.

In this proposal, relating to the scope of Union participation on what were formerly Agency-only designated individuals on committees dealing with certain terms and conditions of employment, the Agency’s position is that it has adequately broadened the scope of the Union’s participation and addressed the concerns of the Union. To that end, and as historical background information, a BOP official stated during the MED-ARB proceeding, that prior to 1994 there was no Union participation on any of the referenced committees. Moreover, that the submitted proposal constituted an expansion of the Union’s participation under the status quo of the Master Agreement. Finally, the Agency indicated that it properly addressed two apparent key concerns of the Union by allowing the Union committee member to comment and memorialize his position as part of the record of the applicable committee and as an attachment to the committee reports; and by allowing other Union representatives on an as-needed basis to be properly trained for service on such committees.

    b. The Union’s Position — the CPL’s final proposal reads as follows:

Section a. The Union at the appropriate level will have membership on at least the following committees, which are charged with making recommendations to the appropriate authorities on specific issues. These committees are:

1. Health and Safety, in accordance with Article 27;

2. Incentive Awards (to help oversee the system and review suggestions only);

3. Affirmative Action;

4. Staff Housing (whenever members of the unit are being considered); and

5. Commissary.

6. Training (to help oversee the system and make recommendations for consideration).

When committees, work groups, or task forces are formed to consider matters directly affecting working conditions of bargaining unit employees, the Employer will fill a position on the committee or work group with a representative(s) designated by the Union at the appropriate level. A Union representative(s) selected to participate on these committees will be a working member with the same rights and responsibilities as other members. This includes an adequate opportunity to present their thoughts and ideas on whatever subject is being discussed. Each Union representative(s) so selected will have a Union designated alternate to serve when the representative is unavailable.

Both parties strongly endorse and recognize the Union’s need to train some of its representatives on the operation and functions of committees, work groups, and task forces. The Warden will be the final approving authority for another representative at the local level for training purposes. The Union will be permitted to have one other representative attend committees, work groups, and task forces at the National level.

Both the Union and management agree that smaller committees, work groups, and task forces are preferred, in that they are generally more productive.

If the Union representative(s) participating on the committee, work group, or task force so desires, the chairperson of the committee, work group, or task force, in preparing the final report, will accept and specifically include the Union representative(s) concerns that were voiced at the meeting. The Union representative(s) will be provided a copy of the final committee, work group, or task force report at the same time through the same applicable distribution procedures as other committee, work group, or task force members.

The Union at the appropriate level will be provided the same advance notification of the committee, work group, or task force meeting at the same time as any other member of the committee, work group, or task force. This notification will allow for sufficient travel time.

    The Union characterized the parties’ difference on this proposal as essentially a difference of numbers with the Union wanting two participants with equal rights to management representatives on the various committees while the Agency was limiting it to one representative. The Union asserted that it needed two representatives in order to avoid potential intimidation through large numbers of management representatives and in order to have each Union representative act as a record keeper for the other and in effect, have a check and balance system to more accurately reflect the record of the committees. The Union also sought to have the option of another representative on the committees in a training capacity who would have participatory rights at such committee meetings.

Conclusions:

    While the Arbitrator can understand the Union’s desire to have two, rather one representative on the various committees, it is the Arbitrator’s opinion that the need for two representatives is somewhat alleviated through the opportunity to memorialize written comments to be a part of the committee’s reports and records as proposed by the Agency. In addition, while there seemed to be a clear understanding among both parties during the MED-ARB proceedings, that what the Union was seeking was not more than two representatives, it is the Arbitrator’s opinion that the Union’s proposal in that regard was not clear and unambiguous, i.e., after each insertion of the word "representative" in the Union’s proposal set forth above, appears the following: "(s)". While that designation can be interpreted as two, as was done by the parties at the hearing, it can also, in its plural form, be interpreted as meaning any number more than two. With the difficulty of these parties in negotiating a successor agreement (over 1,000 hours in negotiations), and the ever-present possibility of changing administrations for both parties, the need for clarity becomes even more significant in order to avoid even the remote possibility of future battles over the construction of the language in the agreement. It is also noted that this subject was raised at the hearing and both parties were afforded the opportunity to revise their proposals during the hearing and post-hearing, as well.(5) Finally, with respect to the training aspects of the proposals, I found the Agency’s proposal to be a positive first step in addressing the Union’s concerns in that area, on an as-needed basis. While depending on the nature of the committee, there would more or less be a need for some training, and I believe the Agency’s proposal was fashioned in that manner — I felt there was insufficient information and data presented by the Union to fully explain the parameters, scope and role of a training representative. Accordingly, I have decided to accept the Agency’s proposal on this Article.

3. ARTICLE 11 - OFFICIAL TIME [part]

    a. The Agency’s Position — the BOP’s proposal reads as follows:

Section d. The Council President will be on 100% official time. He/she will also be entitled to a bank of two thousand and eighty (2,080) hours of official time on a yearly basis, beginning with the effective date of this Agreement. These hours may be allocated to the six (6) Regional Vice Presidents and the one (1) national Secretary/Treasurer for the purposes outlined in Section c. These hours may not be carried over if not used.

1. no later than the fifteenth of each month, the Council President will provide the Chief, Labor Management Relations and Security Branch, with a written report of the proposed time bank allocations for each national officer for the following month. Within ten (10) days of receiving this request, the Chief of the Labor Management Relations and Security Branch will approve or disapprove such allocations. Normally, these allocations will be approved;

2. use of the time bank will be required for all instances of official time used by the national Union officers with the exception of training time which is covered in Section h. of this article, and to attend meetings called by management officials at the national level. This time does not cover any Union official other than the six (6) Regional Vice Presidents and the one (1) Secretary/Treasurer; and

3. allocations from the time bank are not to be used for internal Union business. If a national officer desires to engage in such business, the time for conducting same must be from his/her own bank of annual leave or leave without pay. It is understood that such forms of leave are subject to approval by the employee’s supervisor.

The President of the Council of Prison Locals may request additional hours for the bank in increments of forty (40) hours based upon demonstrated need. Any such request will be made in writing to the Chief, Labor Management Relations and Security Branch.

Section e. Any Union representative not on 100% official time will be granted official time in accordance with Section c. of this article.

Section f. Those national representatives utilizing official time from the time bank will be assigned to the day shift, Monday through Friday, while using this time.

Section g. When an employee is elected or appointed to a national officer’s position, there will normally be no delay in his/her ability to begin utilizing time from the time bank. Conversely, those representatives who are no longer in office, either through election or appointment, will be removed from this status as soon as practicable.

Section h. Employee Union representatives will be excused from duty, workload permitting, to attend training which is designed to advise representatives on matters within the scope of 5 USC, and which is of mutual benefit to the Employer and the Union. The employee Union representative wishing to attend such training will present a vendor’s written description of the course to the Employer which demonstrates which portion of the training is mutually beneficial. Union representatives attending training authorized under this section shall be assigned to the day shift, Monday through Friday, while attending training.

The parties agree that training under this section is generally of mutual benefit when it covers areas such as contract administration, grievance handling, and information related to federal personnel/labor relations laws, regulations, and procedures. Training is not mutually beneficial when it deals with matters related to internal Union business.

Each local will be entitled to eighty (80) hours per calendar year of official time for such training during the term of this Agreement.

Forty-two hundred (4200) hours per calendar year will be authorized to the President, Council of Prison Locals, to meet additional training needs under this section. These hours will be automatically increased by an additional fifty (50) hours each time the Employer opens a new institution. For the purposes of accountability for this time, as such allocations are made, the Council President will notify the Chief, Labor Management Relations and Security Branch, and the respective institution chief executive officer, in writing. The Chief of the Labor Management Relations and Security Branch will also be provided with a quarterly report by the Council President itemizing the current use and balance of such training. Such reports will be submitted no later than the fifteenth calendar day following the end of a quarter. Failure to submit such reports in a timely manner will result in the discontinuance of these training hours.

The President of the Council of Prison Locals will be allocated a one time bank of 2,080 hours of official time to distribute as he/she sees fit to assist in the training of Union officials concerning this Agreement. As allocations are made by the Council President for this purpose, a report will be made to the Chief, Labor Management Relations and Security Branch.

Section i. Once the term of office of employees elected or appointed to full time Union representative positions expires, said employees will return to work in the position of record, or a comparable position determined by management, at the same grade level and location as the position of record, whenever possible.

    The primary difference in the parties’ proposals on official time can be summarized in one word: hours, with the Agency taking the position that its proposal represents significant positive movement over the official time provided for in the existing contract (the 92' to 95' agreement); while the Union asserts that management’s proposal falls way below the Union’s actual needs in order to properly represent and train its representatives in a bargaining unit consisting of over twenty thousand employees, in approximately eighty (80) institutions around the country.

    As rationale for its proposal, the Agency articulated as follows: 1) that under the existing contract, official time was limited to six specific functions, while under the new Article 11, section c, already agreed to by the parties, the list of approved uses for official time was expanded to twelve areas, which in and of itself would lead to a substantial increase in the use of official time; 2) the Agency was providing for an additional bank of hours that could be used by the Union’s vice-presidents for official time; 3) as provided for in section e, union officials not on 100% official time, would be granted official time for the twelve areas listed under section c; and 4) the Agency was doubling the time available for training while maintaining a national time bank which could be used for Union officers and to supplement the training needs at various locals of the Union. Finally, the Agency also raised what could be interpreted to be negotiability issues with reference to subsections g(2) and g(3) of the Union’s proposal, indicating in essence that subsection g(2) would result in an abrogation of management’s unilateral right to reassign employees, and that subsection g(3) seems to provide for union representatives to be placed in assignments outside the bargaining unit.

    b. The Union’s Position — the CPL’s final proposal reads as follows:

Section d. The President of the Council of Prison Locals and members of the Council Executive Board will receive 100% official time for union business appropriate under 5 USC 7131(d).

Section e. Each union local representing 100 or more bargaining unit employees at an employer facility will be entitled to one representative receiving 75% discretionary official time for union business appropriate under 5 USC 7131(d), excluding official time used for management-initiated meetings and events; such as, LMR meetings, attendance at formal meetings held by management officials with employees, supervisory disciplinary meetings with employees, preparation and attendance for negotiations, meetings with union officials called by management, and similar non-discretionary uses of official time beyond the control of the union representative.

1. Representatives from facilities with less 100 bargaining-unit employees, and all other representatives not identified in Section (d), will be authorized to utilize official time in accordance with Sections (a), (b), and (c) of this article.

2. Official time provided for by law (non-discretionary) and other provisions of this agreement will not be charged to the total in Section (e); i.e., similar to those activities referenced in this Section, above.

Section f. The work hours of union representatives utilizing 100% official time will be at the discretion of the representatives. Union representatives utilizing 75% official time will submit a schedule for the usage of official time to a designated management official for each pay period in advance, not later than the start of the pay period for which it will be used. Such schedules need not be confined to the next immediate pay period but may be as far in advance as may be reasonable and efficient. The parties recognize that union representatives may be required to give up their use of official time under this section in the event of emergencies.

Section g. When employees are elected or appointed to positions, their entitlement to the use of official time will take effect immediately. It is recognized that when a union representative is entitled to percentage blocks of official time, the representative is not being removed from his or her position.

1. When the representative leaves office and management determines that the employee’s skills should be refreshed, management will determine the appropriate training and provide it to the employee.

2. Upon mutual agreement between union and management, union representatives returning to regular employment duties after serving in extended periods of official time, the parties may agree to a reassignment at the employer’s expense. It is understood that the employee must be qualified for such reassignment.

3. Where management deems it necessary, positions of serving union representatives may be administratively detailed or temporarily reassigned to the employer’s labor-relations or other personnel sections for more efficient administration of the personnel overhead for the period of service as a union representative, which does not involve any geographic relocation. Such temporary arrangements will not be considered adverse to the employee’s career.

Section h. The parties agree that training of both parties’ representative in labor-relations and employee-relations is of mutual benefit in their relationship.

1. The employer agrees that official time will be granted to employee union representatives for travel and attendance at training, sponsored or approved by the union, which is designed to advise on representational matters which are not solely concerned with internal union business.

2. Each union local will be entitled to 240 hours per year to be utilized for training under Section (h). Unused time will be added to the next year’s portion for the period of the contract.

3. The Council will be entitled to 10,000 hours of official time to be utilized for training each year. This time will be used by the Council for training national, regional, and local union representatives, and for supplementing the training time of locals needing time in excess of the amount in subsection (2) of this section, above. Unused time will be added to the next year’s portion for the period of the contract.

4. To assist in the administration and accounting for the use of official time as required by the Office of Personnel Management and other appropriate agencies, the Council will submit a quarterly report to the employer at the quarterly national LMR meetings of the amount of official time used by Council officers.

    In contrast to the Agency’s proposal calling for only the Council President to be on 100% official time status, the Union’s proposal calls for all eight (8) Council level officers to be placed on 100% official time. In support of its proposal, the Union had a number of its officers testify during the MED-ARB hearings, including Mr. Manuel Borquez, Jr., its western regional Vice-President, who indicated that his requests for official time to perform his representative duties involving the twelve institutions in his region, were repeatedly denied, forcing him to work almost exclusively on Union business during his off-duty time. As a result of the experiences of Borquez and other officers around the country, the Union’s proposal of 100% official time for such officers would alleviate that problem and afford the Council officers with the time necessary to be able to carry out their duties as envisioned under 5 U.S.C. § 7131. The problem described by Borquez also provided the impetus for the Union’s 75% official time proposal in sections e and f relating to official time for local union officers.

    Another major area of concern for the Union was the perceived lack of sufficient training time for its representatives and participants throughout the year. For example, the Union complained that after September of 1996, under the present contract, they had run out of official time for training and, accordingly, could not conduct any type of training during the fourth quarter of the year. Thus, its proposal calling for 240 hours per year for each local and 10,000 hours allotted to the Council was reasonable and necessary in order to keep up with changing times, "Reinventing Government", new performance systems, workers’ compensation laws and other regulatory reforms impacting on their terms and conditions of employment.

Conclusions:

    While the testimony of Borquez at the hearing was convincing with regard to the ability to obtain supervisory approval in the western region, the testimony of other union officials was not as compelling in showing a need for 100% official time for all council level officers, and at least one official indicated that his requests for official time had never been turned down. In addition, the Arbitrator finds merit in the Agency’s position that as a result of the expansive definition of official time in subsection c, from six areas to twelve areas, as agreed to by the parties’ in these negotiations -- the use of official time may be increased substantially to meet the Union’s representational needs and serve as a sort of check and balance on the Agency, by providing a grievance mechanism to deal with alleged instances of Agency abuse over the denial of warranted official time.

    Addressing the Agency’s objections to Union subsections g(2) and g(3), as described above, in the Arbitrator’s opinion, they do pose a dilemma. Although subsection g(2) is somewhat ambiguous, it could be interpreted as placing conditions on reassignments, i.e., Union representatives may be reassigned "at the Employer’s expense" and only to positions for which they are "qualified". Such an interpretation could conceivably render the proposal nonnegotiable, as it would conflict with management’s right to reassign under §7106(a)(2)(A) of the Statute. Moreover, an examination of FLRA case law reveals that the Authority has consistently held that management’s right to assign employees under §7106(a)(2)(A) encompasses the assignment of employees to positions, including both the initial assignment and reassignments. See National Treasury Employees Union and U.S. Nuclear Regulatory Commission, Washington, D.C., 47 FLRA 370, 382 (1993); and American Federation of Government Employees, AFL-CIO, Local 378 and Department of the Army, Combined Arms Center and Fort Leavenworth, Fort Leavenworth, Kansas, 33 FLRA 380, 382 (1988).

    Turning to subsection g(3), while at first blush the proposal would not appear to interfere with any management rights since it includes the introductory phrase, "[w]here management deems it necessary . . . . ."; the wording at the end of the sentence becomes a problem where it says "which does not involve any geographic relocation" — which could be interpreted as limiting management’s right to reassign by restricting the geographical area to which a Union official could be reassigned or detailed.

    In view of the foregoing, including but not limited to this Arbitrator’s assignment to select one party’s offer on an article-by-article basis, the negotiability problems raised by Union subsections g(2) and g(3), and the Arbitrator’s overall assessment that on balance the Agency’s proposal was a positive step forward in relation to the use of official time, the Arbitrator adopts the Agency’s proposals on this Article.

4. ARTICLE 22 - EQUAL EMPLOYMENT OPPORTUNITY [part]

    a. The Agency’s Position — the BOP’s proposal reads as follows:

Section b. The Employer and the Union will continue to cooperate in supporting all affirmative action programs.

1. in order to fulfill the goals in Sections a. and b. of this article, the Council of Prison Locals will be entitled to send one representative to the LULAC, NABCJ, and FEW national conferences attended by the Employer, provided the Employer is not responsible for any of the costs associated with this attendance.

    The Agency’s position is that their proposal is a positive step forward from the provisions in the status quo Master Agreement, in that it provides the Union with the opportunity to send one representative to attend the special emphasis conferences/seminars of the organizations identified therein. As further articulated by the Agency, the opportunity to send one Union representative is consistent with Section c of this same Article (which is not in dispute and or impasse), allowing the Union to have one representative at each institution of the Agency. In addition, the Agency also pointed out that the Union had no history of indicating a problem with the scope of its representation on existing Affirmative Action Committees and assuming arguendo, that its interest was genuine in attending the special emphasis conferences, the Union had failed to validly articulate the need for as many as six (6) regional vice presidents to attend such conferences.

    b. The Union’s Position — the CPL’s final proposal reads as follows:

Section b. The Employer and the Union will continue to cooperate in supporting affirmative action programs relating to women, African Americans, Hispanics and other minorities.

(1) in order to fulfill those goals in section (a) and (b) of this article, the employer will provide the opportunity to send each Regional Vice President or their designee to those conferences attended by the employer (i.e. LULAC, NABCJ, etc.). The Union Representatives will be authorized to attend in the same leave status as other Agency participants and have all costs associated with the conference paid by the employer. Any other participants from the Union may be agreed to at the Local Level.

    For its part, one of the arguments raised by the Union at the hearing was that if management was requiring the Union to pay the cost of its Union representative to attend the special emphasis conferences, then why should it be limited to one representative. By allowing more than one Union representative at the conferences, the representatives would have the ability to attend different topic sessions that could be valuable and then be disseminated to the thousands of employees represented by the Union at the different institutions around the country. Finally, the Union presented excerpts from the Agency’s Affirmative Action Plan showing its involvement throughout the program as further support for its multiple representative proposal on special emphasis programs.

Conclusions:

    In determining which proposal to select, and upon review of the entire article and section (a) in particular, the Arbitrator found noteworthy the parties emphasis on acting as "partners", to wit:

"The Union agrees to become a positive force in this endeavor and to become a partner with the Employer in the exploration and implementation of ideas and programs whereby equal employment opportunities will be achieved." (Emphasis added).

    In weighing the two proposals, I found that the Agency’s was clearly a step forward from the status quo. However, as raised by the Union, I found the Agency’s proposal somewhat lacking with respect to a true partnership approach in its failure to provide the one Union representative with the same leave status (albeit official time granted) and cost-subsidization as other Agency sent individuals to such conferences. On the other end of the scale, I was not convinced that the Union had presented enough data to justify going from no representatives to six (6) fully Agency subsidized Union representatives to attend such special emphasis conferences. The affirmative action plan data that was presented appeared to illustrate a plan that was working, rather than one where the cost of subsidization of six Union representatives would derive enough benefits to both parties to warrant the justification of such proposal at this time. In sum, this being a final offer article-by-article selection process, I find the Agency final proposal, on balance, to most warrant adoption by the Arbitrator.

5. ARTICLE 28 - UNIFORM CLOTHING [part]

    a. The Agency’s Position — the BOP’s proposal reads as follows:

Section f. The Employer will pay an allowance each year to each employee who is required by statutes or regulations to wear a uniform in the performance of their official duties. Recognizing that uniform prices differ depending upon the occupational area, this amount could be up to the maximum amount allowable as outlined in Chapter 59 of Title 5 of the U.S. Code. The allowance for each prescribed uniform will be in accordance with policy.

1. employees who are entitled to a uniform allowance will be paid the allowance each year, which will be provided to the employee on or before the anniversary of his/her entry on duty with the Bureau of Prisons;

2. new employees covered by this section will be issued an allowance within the first week of employment; and

3. employees who transfer or are reassigned from a non-uniform position to a uniform position will receive an allowance, in the full amount, within the first week of assuming uniform duties.

Section g. Footwear for uniformed employees will be shoes or boots, as specified in the existing uniform clothing allowance program statement.

1. safety shoes will be worn by all employees who work in areas designated as foot hazard areas by the institution supplement. The supplement must also address employees who are required by the nature of their jobs (electricians, powerhouse operators, welders, HVAC foremen, etc.) to wear a shoe with special qualities (non-conductive, steel/safety toed, non-slip, etc.) When safety shoes are so required, they will be provided/issued at government expense to uniformed and nonuniformed employees alike. For uniformed employees, this will be in addition to the uniform allowance. Each eligible employee is entitled to two (2) pairs of shoes on initial issue and one pair every nine (9) months. Exceptions may be made for loss or damage associated with official duty, if the employee’s negligence has not contributed to the loss or damage; and

2. safety shoes should be obtained according to required acquisition procedures.

Section h. Uniforms for all staff will be in accordance with policy, and only those staff occupying positions outlined in policy will be eligible for a uniform allowance.

Section i. Any additional uniform items, when appropriate for health and safety reasons (smocks, coveralls, etc.), with the exception of Section i(1) below, is at the chief executive officer’s discretion. The chief executive officer will consider input from the local Union in this regard.

1. employees required to wear the dress uniform will be permitted to wear a black, oxford toe, plain leather chukka boot. This is the only style of boot that is authorized to be worn with the dress uniform.

    As presented at the hearing and the parties post-hearing briefs, there are essentially four primary areas of contention as articulated by the Agency with reference to the final proposals submitted by the Union in sections (f) through (i), to wit: 1) the Union’s request for the uniform allowance to be no less than $400.00 per year, per uniformed employee(6) as compared to the Agency’s flexible amount which for some employees would amount to $400.00 per year, the maximum currently allowed pursuant to Chapter 59 of Title 5 of the U.S. Code; 2) the Union allowance for a choice of "style" in shoes or boots as long as they are black and round toed; 3) the Union’s clause in section (g)(1) providing for negotiations on the designation of "foot hazard areas"; and 4) the Union’s clause in section (h) providing for negotiations on policy uniform changes prior to their implementation.

    First, with regard to the amount of the allowance, the Agency indicated that there were several different departments such as correctional service, construction and maintenance, food service, medical and recreation and that the cost of uniforms varied from department to department depending upon the type of work performed, the environment worked in, etc., such that food service as an example had a uniform allowance of $300.00. In support of the differing amounts, the Agency furnished a chart showing the actual costs of the various uniforms. However, the testimony of witnesses at the hearing appeared to indicate that the chart reflected 1993 prices rather than current prices. Nevertheless, the Agency took the position that the Union had failed to justify an increase for certain groups of employees who would therefore receive a proportionately higher increase than other employees.

    Second, the Agency argued that to allow for a "style"(7) of boots or shoes would undermine the Agency’s policy of ensuring a similarity of dress for employees performing similar functions.

    Third, the Agency argued that the Union’s request to negotiate over the designation of "foot hazard areas" infringed on management responsibilities and therefore presented a negotiability issue.(8)

    Fourth, the Union’s request to negotiate policy uniform changes prior to their implementation also infringed on management rights and therefore posed a negotiability problem.(9)

    For all of these reasons, the Agency asserted that their proposal should be adopted by the Arbitrator.

b. The Union’s Position — the CPL’s final proposal reads as follows:

Section f. The Employer will pay an allowance each year to each employee who is required by policy to wear a uniform in the performance of their official duties. The allowance for each prescribed uniform will be no less than $400.00 per year, per uniformed employee.

1. Employees who are entitled to a uniform allowance will be paid the allowance each year, which will be provided to the employee on or before the anniversary of his/her entry on duty with the Bureau of Prisons;

2. New employees covered by this section will be issued an allowance within the first week of employment; and

3. Employees who transfer or are reassigned from a non-uniformed position to a uniform position will receive an allowance, in the full amount, within the first week of assuming uniform duties.

Section g. Safety toed footwear for uniformed and non-uniformed employees (when such employees work in a designated foot hazard area) will be shoes or boots at the discretion of the individual employee. The cost and quality of said footwear will be negotiated locally. The "style" of the shoe and/or boot will be black, round toed.

1. Safety shoes will be worn by all employees who work in areas designated as foot hazard areas by the Institution Supplement, as negotiated by management and the Local Union.

2. Each eligible employee is entitled to two (2) pairs of shoes and/or boots on initial issue and one pair every nine (9) months thereafter.

Section h. Uniforms for all staff will be in accordance with policy, and only those staff occupying positions outlined in policy will be eligible for a uniform allowance. Policy will not be changed or implemented until negotiated with the union.

Section i. Any additional uniform items, when appropriate for health and safety reasons will be negotiated at the local level.

1. The dress uniform will be worn on specified posts agreed to by the parties at the local level. On all other uniformed posts, ties will be worn with the long sleeved shirt, sweater, or blazer. Employees will have the option of wearing a tie when wearing the short sleeved shirt.

2. For posts where the uniform/personal clothing may become excessively soiled, additional uniform/clothing items may be negotiated at the local level.

    For its part, the Union argued through witnesses and documents presented at the hearing and post-hearing brief that its $400.00 uniform allowance proposal would not disproportionately benefit any particular group of employees, but rather, provide a standard and reasonable amount of compensation in accordance with the caps provided in Chapter 59 of Title 5 of the U.S. Code. In support thereof the Union argued that employees working in mechanical services and food service, by virtue of the nature of the jobs they performed, would go through uniforms more quickly than correctional officers.

    In addition, the Union indicated that its "style" clause was not intended to be open-ended, indeed, the style of the boot or shoe was narrowly defined: "will be black, round toed", and was simply meant to provide some flexibility to the bargaining unit employees working in approximately 83 institutions around the country working under different internal and external environmental conditions. Accordingly, the Union argued that the "style" clause and the other request to negotiate clauses pertaining to foot hazard designations and uniform policy changes did not unduly interfere with management’s rights.

Conclusions:

    Upon due consideration of all of the testimony and accepted documents provided by the parties on this issue, the Arbitrator adopts a modified version of the Union’s proposal on this Article for the following reasons:

    First, with reference to the $400.00 uniform allowance, the Arbitrator finds such amount to be reasonable in light of ever-increasing cleaning costs incurred by all employees. Related thereto, I was not convinced by the evidence presented that there would be a disproportionate balance between different groups of employees as asserted by the Agency.

    Second, with regard to the "style" and negotiability arguments raised by the Agency, I interpret the Union’s wording in Section (h) only to require the Agency to negotiate over changes in uniform policy, prior to implementing such changes, to the extent required by law. With this understanding, I conclude that there is no merit to the negotiability arguments presented by the Agency regarding this section, and see no impediment to ordering its adoption. In addition, however, I find that Authority case law does not clearly establish my authority to order the adoption of those portions of Section (g) to which the Agency objects. Accordingly, the Union’s proposal will be modified to remove such wording.

6. ARTICLE 31 - GRIEVANCE PROCEDURE [part]

    In relation to the Grievance Procedure proposals, the parties’ dispute revolve around three groups of subsections, to wit: subsection c(3) of the Agency as contrasted with subsections c(3) and (4) of the Union’s; along with subsections f and j of each party’s proposals.

A. The Parties’ subsection c proposals:

1) The Agency’s subsection c proposal reads as follows:

Section c. Any employee has the right to file a formal grievance with or without the assistance of the Union.

1. after the formal grievance is filed, the Union has the right to be present at any discussions or adjustments of the grievance between the grievant and representatives of the Employer. Although the Union has the right to be present at these discussions, it also has the right to elect not to participate;

2. if an employee files a grievance without the assistance of the Union, the Union will be given a copy of the grievance within two (2) working days after it is filed. After the Employer gives a written response to the employee, the Employer will provide a copy to the Union within two (2) working days. All responses to grievances will be in writing;

3. the Union has the right to be notified and given an opportunity to be present for representation during any settlement or adjustment of a grievance. This does not apply to MSPB or EEOC cases in which the Union is not the exclusive representative;(10) and

4. the Union has the right to file a grievance on behalf of any employee or group of employees.

2) The Union’s subsection c proposal reads as follows:

Section c. Any employee has the right to file a formal grievance with or without the assistance of the Union.

1. after the formal grievance is filed, the Union has the right to be present at any discussions or adjustments of the grievance between the grievant and representatives of the Employer. Although the Union has the right to be present at these discussions, it also has the right to elect not to participate; and

2. if an employee files a grievance without the assistance of the Union, the Union will be given a copy of the grievance within two (2) working days after it is filed. After the Employer gives a written response to the employee, the Employer will provide a copy to the Union within two (2) working days. All responses to grievances will be in writing;

3. the Union has the right to be notified and given an opportunity to be present during any settlement or adjustment of any grievance.(11)

4. no settlement agreement will be considered to be valid unless it is signed by the employee, the Union, and the Employer. This does not apply to MSPB or EEOC cases in which the Union is not the exclusive representative.(12)

5. the Union has the right to file a grievance on behalf of any employee or group of employees.

The Positions of the Parties:

    For its part, the Agency took the position that its subsection c(3) proposal was justified based upon the premise that since employees are allowed to present grievances on their own, inherent in such right would be the employee’s ability to resolve such grievances without union involvement or interference, especially where the union was not a party to the complaint, as in EEO or MSPB matters. In setting forth its position at the hearing and in its post-hearing brief, the Agency did not provide any case law or regulatory support for its proposal. Contrary to the Agency, the Union, at the hearing and post-hearing submission of documents argued that the Agency’s attempt to exclude it from the representation process in EEO or MSPB cases was a violation of 5 U.S.C. § 7114(a)(2)(A), and cited Authority case law in support of its position.(13)

    With regard to Union subsections c(3) and (4), the Union argued that the c(3) language merely protected its right to participate in grievance proceedings, including EEO and MSPB cases as interpreted by the Authority in the Department of Labor case. In addition, with reference to the c(4) language, the Union stated that since they had a statutory right to protect their contract, the signing off on settlements was merely an arrangement to insure the continued integrity of the contract. For its part, the thrust of the Agency’s attack was directed at the c(4) language, articulating that since an employee has a statutory right to present grievances on his own behalf, without the assistance or representation of a union, it would follow that a union’s insistence on the signing off of a settlement agreement before it could be deemed valid, was an undue infringement on the employee’s rights under 5 U.S.C. § 7121(b)(1)(C)(ii)(14) of the Statute.

B. The Parties’ subsection f proposals:

1) The Agency’s subsection f proposal reads as follows:

Section f. Formal grievances must be filed on Bureau of Prisons "Formal Grievance" forms and must be signed by the grievant or the Union on the grievant’s behalf. The local Union president is responsible for estimating the number of forms needed and informing the local human resource manager in a timely manner of this number. The human resource manager, through the Employer’s forms ordering procedures, will ensure that sufficient numbers of forms are ordered and provided to the Union. Sufficient time must be allowed for the ordering and shipping of these forms.

1. grievances must be filed with the head of the installation where the alleged violation took place and the grievant works, or designee;

2. when filing a grievance regarding a violation occurring at a location other than that where the grievant works, the grievance must be filed with the head of the facility where the alleged violation took place, or designee;

3. in cases of violations occurring throughout a specific region, the Union Regional Vice President may file a grievance with the specific Regional Director, or designee;

4. in cases of violations occurring at the national level, only the President of the Council of Prison Locals or designee may file such a grievance. This grievance must be filed with the Chief, Labor Management Relations and Security Branch, Central office, or designee; and

5. grievances filed by the Employer must be filed with a corresponding Union official.

The Union retains the right to send an informational copy of any grievance against the local chief executive officer to the appropriate Regional Director.

2) The Union’s subsection f proposal reads as follows:

Section f. Formal grievances must be filed on Bureau of Prisons "Formal Grievance" forms and must be signed by the grievant or the Union. The local Union president is responsible for estimating the number of forms needed and informing the local human resource manager in a timely manner of this number. The human resource manager, through the Employer’s forms ordering procedures, will ensure that sufficient numbers of forms are ordered and provided to the Union. Sufficient time must be allowed for the ordering and shipping of these forms.

1. when filing a grievance, the grievance will be filed with the CEO of the institution/facility, if the grievance pertains to the action of an individual for which the CEO of the institution/facility has disciplinary authority over;

2. when filing a grievance against the CEO of an institution/facility, or when filing a grievance against the actions of any manager or supervisor who are not employed at the grievants institution/facility, the grievance will be filed with the appropriate Regional Director;

3. when filing a grievance against a Regional Director, the grievance will be filed with the Director of the Bureau of Prisons, or, designee;

4. in cases of violations occurring at the national level, only the President of the Council of Prison Locals or designee, may file such a grievance. This grievance must be filed with the Chief, Labor Management Relations and Security Branch, Central office; and

5. grievances filed by the Employer must be filed with a corresponding Union official.

The Positions of the Parties:

    Here, in the parties’ agreed upon two-step process of the filing of a grievance with the applicable official, and then if not resolved, going to arbitration, the essence of the dispute is whether to maintain the status quo where most grievances are filed at the local CEO level, or to go to a system where more grievances would be filed at the Regional Director level, as requested by the Union. The Union taking the position that in disciplinary cases, the filing of a grievance at the CEO level is unproductive because in most instances the CEO would have been the deciding official, who would then be reluctant to change his or her adverse decision. The Agency, on the other side, argued that the CEO’s, even when they have been the deciding officials, could change their minds based upon the presentation of new evidence or a further review of the facts; and further articulated that a substantial percentage of grievances, both disciplinary and non-disciplinary were resolved without going through the arbitration stage. In addition, the Agency argued that to involve Regional Directors, who had fifteen or more institutions under their authority, from the inception of the grievances would be non-productive in that many involved minor matters that should properly be handled and resolved by the appropriate official at the particular institution. Finally, the Agency pointed out that the Union’s concern was alleviated through the fact that the Agency’s proposal allowed the Union to send "an informational copy of any grievance against the local chief executive officer to the appropriate Regional Director".

C. The Parties’ subsection j proposals:

1) The Agency’s subsection j proposal reads as follows:

Section j. In the event that an unfair labor practice charge is dismissed by the Federal Labor Relations Authority (FLRA) on the basis that the matter involves differing and arguable interpretations of this Agreement, the Union shall be entitled to file a grievance on the same matter only to the extent permitted by the Statute.

2) The Union’s subsection j proposal reads as follows:

Section j. In the event that an unfair labor practice charge is dismissed by the Federal Labor Relations Authority on the basis that the matter involves differing and arguable interpretations of this Agreement, the time limit for filing a grievance under the negotiated grievance procedure will be filed within thirty (30) days of the post-mark.

The Positions of the Parties:

    Here, in the Agency’s final proposal, the Agency seems to support its proposal by raising an election of remedies issue with regard to the Union’s proposal. It is noted that in the Agency’s earlier counter-proposal (Article 31 - Attachment 5 of Union’s submission), the only difference between the parties’ proposals was that the Union was seeking "thirty (30) days of the post-mark", while the Agency was seeking "twenty (20) days from the date of the order to file said grievance."

Conclusions:

    First, with reference to the Agency’s subsection c(3) language, for the reasons described above, including the Department of Labor case explained in footnote 13, supra, I find that there may be merit to the Union’s contention, in essence, that the Agency’s language may be non-negotiable, and accordingly, decline to consider the Agency’s c(3) language within its proposal.

    Turning then to the Union’s subsection c(4) language, the Arbitrator finds that there may be merit to the Agency’s argument that the Union’s insistence on signing off on all settlement agreements may unduly infringe on individual employee rights to settle grievances on their own behalf, pursuant to 5 U.S.C. § 7121(b)(1)(C)(ii). Thus, in National Federation of Federal Employees, Local 1001 and Department of the Air Force, Vandenberg Air Force Base, California, 15 FLRA 804 (1984) ("Vandenberg"), the Authority held that unit employees had a right to represent themselves under the negotiated grievance procedure. In addition, the Authority has also found nonnegotiable a proposal which prohibited the use of "last chance agreements" without the prior agreement of the union; the Authority concluding that the proposal interfered with employees’ rights under § 7121(b)(1)(C)(ii) to represent themselves in grievances filed under the negotiated grievance procedure.(15) Accordingly, in view of the holdings in Vandenberg and Local 48, I find that the Union’s c(4) language may also be nonnegotiable and therefore decline to consider that language within the Union’s proposal.

    Second, with reference to the subsection f proposals, it is the Arbitrator’s opinion that the Union’s filing of grievances with the Regional Directors, rather than the CEO deciding officials, inter alia, will not create an undue burden on such Regional Directors, but rather, may very well promote more accountability and resolutions of grievances, without the need for time-consuming and costly arbitration.

    Third, in the context of the wording of subsection j, to wit: "on the basis that the matter involves differing and arguable interpretations of this Agreement", I am not convinced that the Agency’s election of remedies argument has merit to it. Moreover, in view of the clear thirty (30) day guideline contained within the Union’s proposal (no guideline within Agency’s proposal), I find, on balance, the Union’s proposal to have the most merit.

    In sum, based upon all of the foregoing, the Arbitrator adopts the Union’s Grievance Procedure proposals with the exception of the Union’s subsection c(4) language, which is removed from the Article and declined to be considered by this Arbitrator.(16)

7. ARTICLE 41 - FURLOUGHS [part]

    a. The Agency’s position — the BOP’s proposal is as follows:

Section c. When a furlough is necessary, and management decides to furlough some, but not all, employees:

1. the Agency will determine the number and types of positions which will be vacated in consideration of the workload and staffing levels needed to perform essential functions;

2. employees who wish to be furloughed will be given priority, provided they fall within a group of employees scheduled for furlough. If there are an insufficient number of volunteers, and management has no legitimate work related reason to retain some employees in the group and furlough others, employees in the group will be selected for furlough in an equitable manner; and

3. employees who will be furloughed on less than a full time basis will be allowed to submit a preference for furlough days, and will have those preferences considered in developing the roster of furloughed employees.

In addressing this Article, it must first be noted that the impasse revolves around the issue of what weight, if any, should be accorded to seniority in furloughs of "thirty (30) days or less due to a lack of work, funds, or operating authority."(17) The Agency’s position is that it will determine in an equitable manner what employees will be furloughed. That the Union’s insistence on furlough by inverse seniority with attached bumping rights would be cumbersome and lead to the selection of unqualified staff to replace those originally selected.

    The Union’s Position — the portion of the Union’s final proposal which is really in dispute with the Agency’s, reads as follows:

Section c. When a furlough is necessary, and management decides to furlough some, but not all, employees:

2. Employees who wish to be furloughed will be given priority, provided they fall within a group of employees scheduled for furlough.

a. If an inadequate number of employees volunteer for furlough within a given group scheduled; additional employees will be selected by inverse seniority.

b. If an employee is to be furloughed within a group of employees, he/she may revert to a position within a group of employees that are not scheduled to be furloughed, provided that he/she is qualified to perform that position. The employee replaced will be the least senior employee within that group.

    The Union’s position, simply stated, is that in the event of short-term furloughs, senior employees be protected as they are in RIF procedures. Rather than have the potential for furlough selections to be based on totally subjective criteria, the Union seeks a selection process based upon a combination of seniority and qualifications to perform the job.

Conclusions:

    Based upon the documents of record and the testimony made at the hearing, I was convinced by the Agency that the Union’s proposal would be burdensome to administer, and unwarranted in the case of furloughs which, by their very nature, are short-term measures. Accordingly, the Arbitrator adopts the Agency’s proposal on this Article that remained at impasse.

8. ARTICLE 45 - PUBLICATION AND DISTRIBUTION OF THIS AGREEMENT [part]

    a. The Agency’s position — the BOP’s proposal is as follows:

Section c. This agreement will be published and distributed within ninety (90) days of the completion of the ratification process and Agency head review.

    The difference between the parties on this Article is a matter of fifteen (15) days, with the BOP articulating that its ninety-day time frame for the printing and distribution of the CBA is reasonable and in line with existing goal guidelines that give due consideration for volume of prior orders and work disturbances unique to the prison environment where the work is performed.

    b. The Union’s Position:

    The Union’s final proposal calls for a seventy-five (75) day time frame to publish and distribute the CBA after completion of the ratification process and Agency head review. In doing so, the Union indicated that 75 days should be more than sufficient to publish and distribute the CBA and more in line with the statutory guidelines set forth at 5 USC §7114(c)(2), for completion of the agency head review process (30 days).

Conclusions:

    The Arbitrator adopts the Union’s final proposal. While the BOP’s proposal provides an extended and convenient time frame for the publication and distribution of the CBA to the bargaining unit employees, I was not convinced by the Agency that with proper prioritization of the job, i.e., the publication and distribution of a CBA impacting on approximately 23,000 employees (a project taking place every three years or so), and the significance of the guidelines set forth at 5 USC §7114(c)(2) — that it could not accomplish the publication and distribution of the CBA within the 75-day proposed period, which I find to be reasonable in this case.

9. ARTICLE 46 - EFFECTIVE DATE AND DURATION OF THIS AGREEMENT [all]

    a. The Agency’s position — the BOP’s proposal is as follows:

Section a. This Agreement will take effect ninety (90) days after completion of the Union ratification and Agency head review process in accordance with 5 USC, Section 7114(c).

    This is the Agency’s companion proposal to Article 45, setting forth a 90-day transition period for the Agreement to become effective after the completion of the Agency head review. Here again, the Agency asserts that the 90-day transition period is necessary in order to provide the parties with ample time to educate their constituents as to the terms and conditions of the new Agreement, with more substantive changes than any other successor agreement negotiated since 1968, when exclusive recognition was first established.

    b. The Union’s Position — the CPL’s final proposal reads as follows:

Section a. This Agreement will take effect upon completion of the Union ratification and Agency head review process in accordance with 5 USC, Section 7114(c).

    The Union maintains that it’s proposal simply follows the mandate set forth at 5 USC § 7114(c)(2) and (3), to wit: that an agreement will take effect either when a) it is approved by an agency head within 30 days from the date of its execution or, b) on the 31st day following execution of the agreement if the agency head takes no action within the 30-day time frame.(18)

Conclusions:

    While the Agency asserted in its closing brief that its 90-day transition period was in full compliance with the provisions contained at 5 USC § 7114(c)(2) and (3), because pursuant to the Agency’s own interpretive regulations,(19) it had granted an "exception" falling within the coverage of 5 USC § 7114(c)(2), I was not convinced on the merits that such a 90-day transition period is necessary for the agreement to become effective after the ratification process and the additional 30 days granted to the agency head by statute. Rather, during the ratification and subsequent agency head review time frames, it would appear that there would be enough time to commence to properly educate the bargaining unit on the terms and conditions contained in the prospective agreement. I see no justifiable basis at this time to depart from the standards contained at 5 USC § 7114(c), and accordingly will adopt the Union’s proposal on this Article.

AWARD:

1. ARTICLE 3 - GOVERNING REGULATIONS: The Union’s proposal.

2. ARTICLE 10 - UNION REPRESENTATION ON COMMITTEES: The Agency’s proposal.

3. ARTICLE 11 - OFFICIAL TIME: The Agency’s proposal.

4. ARTICLE 22 - EQUAL EMPLOYMENT OPPORTUNITY: The Agency’s proposal.

5. ARTICLE 28 - UNIFORM CLOTHING: The Union’s proposal, except that Section (g) shall be modified as follows:

Section g. Safety toed footwear for uniformed and non-uniformed employees (when such employees work in a designated foot hazard area) will be shoes or boots at the discretion of the individual employee. The cost and quality of said footwear will be negotiated locally.

1. Safety shoes will be worn by all employees who work in areas designated as foot hazard areas by the Institution Supplement.

2. Each eligible employee is entitled to two (2) pairs of shoes and/or boots on initial issue and one pair every nine (9) months thereafter.

6. ARTICLE 31 - GRIEVANCE PROCEDURE: The Union’s proposal, with the exception of the Union’s subsection c(4) language, which is removed from the Article and declined to be considered by this Arbitrator.

7. ARTICLE 41 - FURLOUGHS: The Agency’s proposal.

8. ARTICLE 45 - PUBLICATION AND DISTRIBUTION OF THIS AGREEMENT: The Union’s proposal.

9. ARTICLE 46 - EFFECTIVE DATE AND DURATION OF THIS AGREEMENT: The Union’s proposal.

 

Dated: May 16, 1997

Davie, Florida 

Gilbert Carrillo, Arbitrator

 

1.The Union represents approximately 23,000 employees, both professional and nonprofessional, who work at 83 installations throughout the country. Representative occupations include correctional officer, case manager counselor, clerk, secretary, psychologist, x-ray technician, drug treatment specialist, maintenance mechanic foreman, plumber, electrician, warehouseman, and HVAC technician; and the range in grades is from GS-5 through -14 and WG-3 through -12.

2.The Employer’s mission is to operate Federal correctional institutions. Although the parties collective bargaining agreement (hereafter “CBA”) expired in August 1995, its terms and conditions remain in effect until a successor agreement is implemented.

3.In setting forth the Articles at impasse, if the whole article is at impasse, the word “all” shall appear in brackets “[ ]” at the title line; if a part of the article is at impasse, the word “part” shall appear in brackets at the title line.

4.See HHS, Office of Civil Rights, 46 FLRA 396 (1992); Bureau of Engraving and Printing, 25 FLRA 113 (1987).

5.While the Union did submit revised Articles 11 and 28, Post-Hearing, it did not revise Article 10.

6.See Section (f), top paragraph of both the Union and Agency proposals.

7.See Section (g) of Union proposal.

8.See Section (g)(1) of Union proposal.

9.See Section (h) of Union proposal.

10.Emphasis added.

11.Emphasis added.

12.Emphasis added.

13.See U.S. Department of Labor, Office of the Assistant Secretary for Administration and Management, Chicago, Illinois and American Federation of Government Employees, Local 648, AFL-CIO, 32 FLRA 465 (1988) (hereafter “Department of Labor”). In that case, the Authority concluded that the employer violated the Statute when it failed to afford the union an opportunity to be present at, and denied its request to attend, a formal discussion which occurred as a result of an MSPB settlement agreement.

14.This section of the Statute was renumbered in 1994; it was formerly § 7121(b)(3)(B).

15.See American Federation of Government Employees, Local 48 and U.S. Department of the Navy, Strategic Weapons Facility Pacific, Bremerton, Washington, 38 FLRA 1055 (1990)(“Local 48").

16.In doing so, subsections d and e of the Union’s proposals are also adopted and set forth herein for purposes of completeness. Neither of the parties addressed the minute differences of these subsections