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57 FLRA No. 67
UNITED STATES DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
METROPOLITAN DETENTION CENTER
GUAYNABO, PUERTO RICO
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 4052
COUNCIL OF PRISON LOCALS
June 29, 2001
Before the Authority: Dale Cabaniss, Chairman; Donald S. Wasserman and Carol Waller Pope, Members. [n1]
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Craig E. Overton filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.
The Arbitrator found that the Agency violated the parties' collective bargaining agreement by leaving certain work posts temporarily vacant. He ordered the Agency to cease reassigning on-duty employees to fill such vacancies except under emergency circumstances.
For the reasons that follow, we find that the Agency has failed to show that the award is deficient under § 7122(a) of the Statute. Therefore, we deny the exceptions.
II. Background and Arbitrator's Award
The Agency creates work schedules for correctional officers in order to fill established posts at its prison facility. When an officer fails to work a scheduled shift, the Agency either assigns officers to work on an overtime basis or reassigns officers on duty to the unoccupied post. Posts that become vacant as a result of a reassignment sometimes remain vacant for the duration of the shift.
The Union filed a grievance alleging that, in leaving posts vacant, the Agency violated Article 27 of the parties' agreement. [n2] The grievance was submitted to the Arbitrator, where the parties stipulated to the following issue: What shall be the disposition of the grievance, including remedy, if any? Award at 2.
The Arbitrator found that Article 27 of the parties' agreement required the Agency to reduce hazards to its employees to the lowest possible level and that, by leaving correctional officer posts vacant, the Agency did not reduce hazards to the lowest possible level. In this regard, the Arbitrator stated that, as the Agency made a valid case and received approval to staff all the posts on the quarterly assignment roster, it must be determined that each of those posts/positions are necessary and essential to the efficient operation of the Agency. Id. at 24. The Arbitrator found, in this connection, that when posts are left vacant, it has to have an adverse impact on safety. Id. The Arbitrator rejected the Agency's argument that Article 27 infringed on its management rights under § 7106 of the Statute. The Arbitrator stated, in this connection, that the right to assign employees does not encompass a right to reassign them.
Based on the foregoing, the Arbitrator concluded that the Agency violated Article 27 of the parties' agreement. As a remedy, the Arbitrator ordered the Agency to cease allowing posts to remain vacant except in emergency situations.
III. Positions of the Parties
A. Agency's Exceptions
The Agency asserts that the award impermissibly affects its rights to assign employees and work under 5 U.S.C. § 7106(a). The Agency asserts that the Arbitrator failed to properly apply Authority precedent finding a union proposal similar to the Arbitrator's interpretation of Article 27 to affect management's right to assign work. See Exceptions at 12-13 (discussing AFGE, Local 1302, 55 FLRA 1078 (1999)). The Agency further argues that the award fails Prong I of the Authority's analysis set forth in United States Dep't of the Treasury, Bureau of Engraving and Printing, Wash., [ v57 p332 ] D.C., 53 FLRA 146 (1997) (BEP). In this regard, the Agency claims that, as interpreted by the Arbitrator, Article 27: (1) is not sufficiently tailored because it would ameliorate adverse effects of vacancies created by employees who voluntarily choose not to work; and (2) abrogates the Agency's right to assign employees.
Finally, the Agency contends that the award fails to draw its essence from the parties' agreement. The Agency argues that the Arbitrator failed to consider contractual wording preserving the Agency's rights under § 7106.
B. Union's Opposition
The Union asserts that the appropriate arrangement of protecting staff safety supercedes the Agency's right to assign work. Opposition at 4. The Union also asserts that the Agency has not shown that the Arbitrator's award does not draw its essence from the parties' agreement.
IV. Analysis and Conclusions
A. The Award is Not Contrary to the Agency's Rights to Assign Employees and/or Work.
The Authority reviews questions of law raised by an arbitrator's award and an exception to it de novo. NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citation omitted). In applying a standard of de novo review, the Authority assesses whether the Arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. United States Dep't of the Air Force, Warner Robins Air Force Base, Ga., 56 FLRA 541, 543 (2000) (citation omitted). In making such a determination, the Authority defers to the arbitrator's underlying factual findings. Id.
In resolving whether an award violates management's rights under § 7106(a) of the Statute, the Authority applies the framework established in BEP. Upon finding that an award affects a management right under § 7106(a), the Authority applies a two-prong test to determine if the award is deficient. 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 negotiated pursuant to § 7106(b) of the Statute. Under Prong II, the Authority considers whether the award reflects a reconstruction of what management would have done if it had not violated the law or contractual provision at issue. Id.
1. Right to Assign Employees
It is well established that "the right to assign employees under section 7106(a)(2)(A) is the right to assign employees to positions." AFGE, 55 FLRA 1145, 1152 (1999) (citing AFGE, AFL-CIO, 2 FLRA 604, 613 (1980), aff'd sub nom. Department of Def. v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied, 455 U.S. 945 (1982)). The right to assign employees includes the right to refrain from assigning employees. See AFGE, Local 3354, 54 FLRA 807, 812 (1998) (Local 3354). The assignment of employees also may be implicated by temporary reassignments, details and loans. [n3] United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Marianna, Fla., 56 FLRA 467, 469-70 (2000) (BOP, Marianna) (citations omitted).
The Authority recently held that an arbitrator's award ordering an agency to comply with a contractual provision identical to Article 27 by vacating posts only for good cause and not on a routine basis did not affect the agency's right to assign employees. BOP, Marianna, 56 FLRA at 467-70. The Authority reasoned that the award d[id] not require the Agency to hire additional employees or fill vacant positions, d[id] not limit the Agency's ability to determine the qualifications and skills necessary for the employees to perform the duties of their position, and d[id] not prohibit the Agency outright from vacating posts. Id. at 470. For the same reasons, the award in this case does not affect the Agency's right to assign employees.
We disagree with our dissenting colleague's assertion that the right to assign employees is implicated in this case. The dissent's interpretation of the right to assign employees is at odds with long-standing, unchallenged Authority precedent, and unnecessarily blurs the distinction between the management rights under § 7106(a) to assign employees and to assign work. In this regard, it is well established that a restriction on where an employee performs duties previously assigned to his or her position does not affect the right to assign employees. See NAGE, Local R4-45, 54 FLRA 218, 224 (1998) (citation omitted); AFGE, AFL-CIO, 5 FLRA 83, 86-87 (1981). Here, the Agency's correctional officers are assigned to various posts throughout the prison on various shifts, and nothing in the record remotely suggests that they perform duties not previously assigned to their positions when they are reassigned to any given post. Award at 3.
Consistent with BOP, Marianna, the Authority has long held that temporary reassignments, details, and [ v57 p333 ] loans implicate the right to assign employees only when they require the assignment of an employee to a new position or the assignment to an employee of duties not previously assigned to his or her position. BOP, Marianna, 56 FLRA at 470; NFFE, Local 1482, 39 FLRA 1169, 1188 (1991); AFGE, AFL-CIO, 5 FLRA at 86-87. There is no argument that the Authority's precedent on these matters is incorrect. Accordingly, contrary to the dissent, we see no reason to overturn our recent decision in BOP, Marianna and alter well-settled law in order to hold that the Agency's actions in this case -- which neither reassigned employees to new positions nor assigned to them duties not previously assigned to their positions -- implicate the right to assign employees.
2. Right to Assign Work
The right to assign work under § 7106(a)(2)(B) of the Statute includes 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. United States Dep't of the Treasury, United States Customs Serv., El Paso, Tex., 55 FLRA 553, 558 (1999) (El Paso) (citation omitted). The right to assign work encompasses the right to refrain from assigning work. Local 3354, 54 FLRA at 812.
The Authority has found that requiring an agency to assign work to more employees than the number it would otherwise choose affects the agency's right to assign work. AFGE, Local 3807, 54 FLRA 642, 646 (1998). Consistent with this, the Arbitrator's award in this case affects the Agency's right to assign work.
a. The Award Satisfies Prong I of BEP
Under Prong I, the Authority determines whether Article 27 was negotiated pursuant to § 7106(b) of the Statute. United States Dep't of Def., Def. Logistics Agency, Red River Army Depot, Texarkana, Tex., 55 FLRA 523, 526 (1999). As the parties focus solely on whether Article 27 of their agreement constitutes an appropriate arrangement within the meaning of § 7106(b)(3), we limit review under Prong I to that issue. See, e.g., Fed. Aviation Admin., Wash., D.C. 55 FLRA 1233, 1236-37 (2000) (FAA). To determine whether a provision was negotiated under § 7106(b)(3), the Authority assesses, pursuant to Dep't of the Treasury, United States Customs Serv., 37 FLRA 309 (1990) (Customs Service), whether the collective bargaining provision: (1) constitutes an arrangement under § 7106(b)(3) and (2) abrogates the exercise of a management right. See, e.g., United States Dep't of the Air Force, Seymour Johnson Air Force Base, N.C., 55 FLRA 163, 167 (1999). This analysis focuses on the provision as interpreted and applied by the arbitrator. See id.
With regard to the first aspect of the Customs Service analysis, the Agency claims that Article 27 does not constitute an arrangement because, in some instances, posts are initially vacated due to voluntary employee action, such as use of sick leave, and not because of the exercise of a management right. However, the Arbitrator did not find that the adverse effects in this case result from the initial vacancy. Instead, the Arbitrator specifically found that the adverse impact on safety results from the Agency's decision to leave posts vacant. Award at 23-24. The Arbitrator interpreted Article 27 as addressing the Agency's rights to decide who to assign and/or whether or not to use overtime to fill vacant positions, and confirmed that Article 27 is violated if any of the positions are left vacant. Id. at 23, 24 (emphases added). As interpreted and applied by the Arbitrator, Article 27 addresses the Agency's actions in response to a vacancy, and ameliorates adverse effects resulting from the Agency's decision not to fill vacant positions. As such, Article 27 ameliorates the adverse effects flowing from the exercise of management's right to assign work.
The Agency also claims, based on the same argument set forth above, that Article 27 is not sufficiently tailored. In a negotiability proceeding, determining whether a proposal or provision is sufficiently tailored is part of the analysis to determine whether the proposal or provision is an arrangement. AFGE, Local 225, 56 FLRA 686, 688 (2000). However, the Authority does not apply a tailoring test in resolving arbitration exceptions under BEP. See United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Transfer Ctr., Okla. City, Okla., 57 FLRA No. 40, slip op. at 6 (May 18, 2001) (Chairman Cabaniss dissenting) (BOP, Oklahoma City). [n4]
With regard to the second aspect of Customs Service, a provision abrogates a management right "if, as interpreted and applied by the arbitrator, it precludes an agency from exercising a management right[.]" El Paso, 55 FLRA at 559 (citation omitted). In this case, the award limits the Agency's ability to leave posts vacant. However, the limitation applies only to those posts that the Agency determined were necessary and [ v57 p334 ] which it requested, and received, approval for staffing. See Award at 20, 24. Nothing in the award prevents the Agency from changing its determination. Moreover, the award allows the Agency to leave posts vacant in emergency situations. As a result, the Arbitrator's award does not abrogate the Agency's right to assign work. See, e.g., United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Ashland, Ky., 37 FLRA 1261, 1265 (1990) (restriction of agency denial of leave requests to reasons not "insubstantial" did not abrogate right to assign work). See also El Paso, 55 FLRA at 559 (provision preventing assignment of certain employees absent concurrent assignment of other employees did not abrogate right to assign work).
b. The Award Satisfies Prong II of BEP
Under Prong II, the Authority determines whether the award is a proper reconstruction of what the Agency would have done had it not violated the parties' agreement. United States Dep't of Def., Def. Logistics Agency, Def. Distribution Ctr., Distribution Depot, Red River, Texarkana, Tex., 56 FLRA 690, 692 (2000). Here, the Arbitrator found that Article 27 required the Agency to refrain from leaving posts vacant. By enforcing that requirement, his award is a proper reconstruction of what the Agency would have done if it had not violated the parties' agreement. See United States Dep't of Veterans Affairs, Med. and Reg'l Ctr., Togus, Me., 55 FLRA 1189, 1196 (1999).
B. The Award Does Not Fail to Draw its Essence From the Parties' Collective Bargaining Agreement.
The Authority will find an arbitrator's award deficient for failing to draw its essence from a collective bargaining agreement when the appealing party establishes that the award: is so unfounded in reason and fact and so unconnected with the wording and purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; does not represent a plausible interpretation of the agreement; or cannot in any rational way be derived from the agreement or evidences a manifest disregard of the agreement. United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).
The Agency has not demonstrated that the Arbitrator's interpretation of Article 27 is implausible or irrational. Moreover, consistent with the foregoing recommendation, the award is not deficient as inconsistent with the Agency's rights to assign employees and work. Accordingly, the Agency has not demonstrated that the Arbitrator's award fails to draw its essence from the parties' agreement.
The Agency's exceptions are denied.
File 1: Authority's Decision in 57 FLRA No.
File 2: Opinion of Chairman Cabaniss
Footnote # 1 for 57 FLRA No. 67 - Authority's Decision
Footnote # 2 for 57 FLRA No. 67 - Authority's Decision
[T]he Employer agrees to lower those inherent hazards to the lowest possible level, without relinquishing its rights under 5 USC 7106.
Footnote # 3 for 57 FLRA No. 67 - Authority's Decision
As such, the Arbitrator's determination that the right to assign employees does not encompass a right to reassign them is erroneous. However, in view of our determination that the award in this case does not implicate the Agency's right to assign -- or reassign -- employees, the error does not render the award deficient.
Footnote # 4 for 57 FLRA No. 67 - Authority's Decision
For the reasons set forth in BOP, Oklahoma City, we adhere to the view that the analysis used by the Authority to determine whether a proposal is within the duty to bargain under § 7106(b)(3) of the Statute is not appropriate for determining whether an agreed-upon proposal incorporated into a collective bargaining agreement is enforceable as negotiated pursuant to § 7106(b)(3), and we reject our dissenting colleague's view to the contrary.