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58 FLRA No. 25
U. S.. Dept. of Justice, Federal Bureau of Prisons, Federal Correctional Institution Ashland, Kentucky and AFGE, Local 1286, 0-AR-3411 (Thomson, Arbitrator)
The Arbitrator sustained a grievance over the refusal by the Agency to bargain regarding a change in consolidation of housing units and its impact and implementation. The Authority remanded the matter to the parties for resubmission to the Arbitrator, absent settlement.
The Authority concluded that the Department of Justice had standing to file exceptions on behalf of the Bureau of Prisons and that the Arbitrator did not exceed the scope of his authority. The Authority found that because the matter of taking minutes during bargaining sessions was part of the issue before him, the Arbitrator did not exceed his authority when he included it in his award.
However, the Authority held that the award was contrary to law. The Authority noted that where an agency alleges that an award affects the exercise of management's rights, the Authority applies the test set forth in BEP 53 FLRA 146 (1997). Under that test, the Authority first determines whether an award affects a management right under § 7106(a). If it does, the Authority then applies a two-prong test. Under prong I, the Authority examines whether the award provides a remedy for a violation of either applicable law, within the meaning of § 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to § 7106(b) of the Statute. If the award provides such a remedy, then the Authority will find that the award satisfies prong I and will address prong II. Under prong II, the Authority considers whether the arbitrator's remedy reflects a reconstruction of what management would have done if it had not violated the law or contractual provision at issue. If the arbitrator's remedy reflects such a reconstruction, the Authority will find that the award satisfies prong II.
In this case, the Authority found that the award affected management's rights, and that prong I of the BEP test was met. However, the Authority found that the portion of the award requiring the Agency to begin afresh with bargaining failed to satisfy prong II of BEP. The Authority noted that the Arbitrator's bargaining order, whether intended to require the Agency to bargain over the substance of the change in consolidation of housing units, or only over the impact and implementation of the change, was not a proper reconstruction of what the Agency would have done had it not violated the note-taking provision of the parties' agreement. Therefore, that portion of the award was set aside. The Authority remanded the case to the parties for resubmission to the Arbitrator, absent settlement, to determine an appropriate remedy for the only contractual violation found by the Arbitrator-namely, the violation of Article II, Section d of the parties' agreement.