DEPARTMENT OF JUSTICE FEDERAL BUREAU OF PRISONS METROPOLITAN DETENTION CENTER LOS ANGELES, CALIFORNIA and LOCAL 4038, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
In the Matter of
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
METROPOLITAN DETENTION CENTER
LOS ANGELES, CALIFORNIA
Case No. 99 FSIP 11
LOCAL 4038, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO
ARBITRATOR’S OPINION AND DECISION
Local 4038, American Federation of Government Employees (AFGE), AFL-CIO (Union), filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under section 7119 of the Federal Service Labor-Management Relations Statute between it and the Department of Justice, Federal Bureau of Prisons (BOP), Metropolitan Detention Center, Los Angeles, California (Employer). After investigation of the request for assistance, the Panel asserted jurisdiction and directed that the parties’ dispute over allowances for safety-toed footwear be submitted to the undersigned for mediation-arbitration.
Accordingly, on January 28, 1999, the undersigned met with the parties at the Employer’s facility. Through mediation efforts, the parties resolved only two issues.(1) On the remaining two issues, they were afforded an opportunity to submit proposals and make supporting arguments. The record is now closed.
The BOP is responsible for "protect[ing] society by confining offenders in prisons and community-based facilities" and "provid[ing] work and other self-improvement opportunities to assist offenders to be law-abiding citizens." The Employer, which is in BOP’s Western Region, is 1 of 93 Federal correctional institutions nationwide; it houses about 1,035 inmates, most of whom are pretrial offenders (i.e., those incarcerated while awaiting trail in Federal courts for the Central District of California). The Union represents about 200 Wage Grade and General Schedule (GS) employees who are part of a nationwide bargaining unit of about 23,000; the overwhelming majority of them are correctional officers in pay grades GS-4 through -8. The dispute affects uniformed employees who make up almost all of the bargaining unit. The parties are covered by a Master Collective Bargaining Agreement (MCBA) between BOP and the Council of Prison Locals C-33, AFGE, AFL-CIO, which is due to expire on March 8, 2001.
The parties disagree over whether employees should be: (1) permitted to waive the allowance; and (2) required to provide a receipt as proof of purchase.
POSITIONS OF THE PARTIES
1. The Union’s Position
The Union proposes the following:
In regard to the notification process,  Local 4038 agree[s] that [the] staff shall be notified of their entitlement to safety-toed shoes as a result of working in foot hazard areas. The allocation of money direct[ly] deposited to the employee's account is for the purpose of purchasing safety-toed shoes. It is expected and required that each employee working in a foot hazard area wear safety-toed shoes.
The Union disagrees with a waiver and receipt system because these obligations are not part of the MCBA which states, in pertinent part, that "[t]he cost and quality of [safety-toed] footwear will be negotiated locally." Waivers are unnecessary and requiring purchase receipts and refund of unspent dollars is unjustified. Moreover, since the safety-toed footwear allowance is covered under the MCBA article entitled "Uniform Clothing," it should not be treated differently than the clothing allowance. The same process that applies to the disbursement of clothing allowance should apply to the shoe allowance; that process does not include providing proof of purchase or refunding any unused funds.
2. The Employer’s Position
The Employer proposes the following language:
As a result of the agency's requirement to purchase safety-toed footwear, employees will be required to provide a receipt for proof of purchase. Any allotted money not spent on safety toed footwear will be refunded to the U.S. Treasury Department.
Eligible staff may waive any safety-toed footwear allotment.
It is the responsibility of all eligible uniformed staff to submit an acknowledgment form for his/her safety-toed footwear to the Financial Management Department. (This form will be forwarded to each eligible employee by Financial Management staff one month prior to their eligibility date.)(2)
Eligible staff must purchase safety-toed footwear within 60 days of disbursement and provide proof of purchase to the Financial Management department. (Eligible uniformed staff who are unable to make the request to the Financial Management department due to illness or extended leave will not lose their allotment.)
The Employer asserts that the process it proposes assures the quality of safety-toed footwear, which is necessary because the agreement on cost does not guarantee quality; nor does it "ensure" that the employee has purchased the safety-toed footwear.
Management feels strongly that employees should have the right to waive the allowance if they do not need another pair of shoes. Furthermore, the shoe allowance is different from the clothing allowances; the former is provided for by contract, while the latter is provided for by statute.
Regarding waiver language, management wants employees to have the right to affirmatively waive the allowance, but still require them to wear safety-toed footwear in designated foot hazard areas. The Union indicated a willingness to consider permitting employees to waive the allowance, but only if more of the areas where employees work were designated foot hazard areas; it is unwilling to agree to such a waiver for the limited number of employees that management expects are assigned to designated foot hazard areas.(3) It appears to the undersigned that this is really a "one time" issue which arose because the initial allowance was not made in March 1998. In other words, had eligible employees received the initial allocation on March 10, 1998, and the second allocation nine months later (December 1998), this would not be an issue.Since employees in designated foot hazard areas must wear the safety-toed footwear, and the MCBA clearly specifies the entitlement to the shoe allotment, the arbitrator is not persuaded that an affirmative waiver provision is necessary to address this one time implementation issue. In any case, if an employee does not request the allocation following notification of eligibility from management, the funds will not be disbursed to the employee; the employee, in effect, waives the allocation. Requiring employees to request the allotment after notification of their eligibility is consistent with the clothing policy and, therefore, reasonable.
On the proof of purchase issue, the undersigned is persuaded that proof of purchase is not required because management will be able to observe whether or not employees have purchased the required footwear. Moreover, once an employee signs the form acknowledging receipt of the allocation and agreeing to purchase the footwear, he can be disciplined for failing to wear it in designated foot hazard areas.
Based on the foregoing discussion, the undersigned orders the adoption of the following compromise language:
Eligible employees assigned to designated foot hazard areas shall be notified by management of their initial entitlement to an allowance for two pairs of shoes, and their subsequent entitlement to an allowance for one pair of shoes every 9 months.
Eligible employees must then request the allowance by submitting an acknowledgment form which, in addition to employee identifying data, includes the statement: "I acknowledge that I am receiving an allocation for the purchase of safety-toed shoes as provided in Article 28, section (g), of the Master Agreement which I am required to wear in designated foot hazard areas." This form will be forwarded to each eligible employee by management 1 month prior to their allowance eligib