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United States Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Ashland, Kentucky (Agency) and American Federation of Government Employees, Local 1286 (Union)

[ v58 p137 ]

58 FLRA No. 25







September 30, 2002


Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator W. Scott Thomson (the Arbitrator) filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. § 7101 et seq., and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

      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. For the reasons that follow, we remand the matter to the parties for resubmission to the Arbitrator, absent settlement.

II.     Background and Arbitrator's Award

      The Federal Correctional Institution (the prison or the Agency) involved announced that on the day shift only one unit officer would be assigned to C/D Units of the prison. The Union President informed the warden that the Union was exercising its right to bargain over the change. The warden refused to bargain over the substance of the change but agreed to impact and implementation bargaining.

      Bargaining was subsequently expanded to include an additional change to the quarterly roster for Units E/F. The parties met on three separate days to conduct impact and implementation bargaining on the proposed changes to the C/D and E/F units. No written minutes were prepared of these three negotiation sessions. A fourth negotiation session was held, at which time the parties reached an impasse in negotiations.

      The Union filed a grievance that ultimately gave rise to this arbitration. [n2]  About two months later, the prison outlined future staffing changes pertaining to J/K and L/M units and asked whether the Union wished to bargain over the impact and implementation of these changes. The record reflects no separate grievance was filed by the Union regarding the proposed changes affecting the J/K and L/M units.

The Arbitrator framed the issue as:
Whether Management wrongly refused to bargain and negotiate change, impact and implementation of housing units to be consolidated in Units C/D, E/F, J/K and L/M?

Award at 4.

      The Arbitrator found that Article II, Section d of the parties' agreement requires the Agency to prepare minutes of the items discussed and agreements reached during negotiations. [n3]  The Arbitrator concluded that "[c]learly this presents an arbitrable issue." Id. at 10. The Arbitrator determined that the record was void of any direct evidence presented by either party during these negotiation meetings. The Arbitrator concluded that he had no alternative but to order the parties to "begin afresh with bargaining over job change, impact and implementation" of staff being assigned in the Housing Units. Id. The Arbitrator's award found that the prison had not violated the "good faith" requirement. Id. at 11. However, the Arbitrator found that the prison [ v58 p138 ] had still violated the "bargaining process by failing to bargain a change in working conditions and its impact and implementation, and in preparation of minutes on the three meetings." Id.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency contends that "the award is extremely unclear, rendering implementation of the award impossible." Exceptions at 9. The Agency maintains that the award is unclear as to its basis and whether it orders substantive or impact and implementation bargaining. The Agency argues that "it is impossible" to implement an award requiring both substantive bargaining and `I&I' bargaining over the same management decision." Id. at 9-10.

      The Agency also contends that the Arbitrator decided two issues that were not placed before him. First, the Agency asserts that the Arbitrator's inclusion of units J, K, L, and M in his consolidated framing of the arbitration issue is improper because the underlying grievance that was submitted to arbitration did not include those units. According to the Agency, the staffing consolidations of units J, K, L, and M were not proposed and did not occur until after the grievance was filed. The Agency also notes that the parties did not mutually agree to amend the grievance to include the additional units.

      In particular, the Agency contends that Article 31, Section (d) of the parties' agreement requires all grievances to be filed within 40 days of the alleged grievable occurrence. The Agency argues that because the grievance can only deal with occurrences that happened 40 days prior to the date the grievance was filed, the Arbitrator exceeded his authority by including in the issue an occurrence which happened not only outside the 40-day window, but more than 3 months after the grievance was filed. See Exceptions at 21.

      Second, the Agency argues that the Arbitrator exceeded his authority by addressing whether minutes were taken of the parties' bargaining sessions. The Agency contends that the matter of taking minutes during bargaining was not an issue submitted to arbitration. The Agency further contends that the matter of taking minutes was not encompassed in the issue framed by the Arbitrator for arbitration. The Agency argues that "the Arbitrator exceeded his authority by finding that management violated the bargaining process by not keeping minutes, a topic outside the scope of the issue as formulated by him." Exceptions at 22.

      The Agency further contends that the change at issue here is a reserved management right and as such, the only type of bargaining that was required was impact and implementation bargaining. The Agency asserts that it fulfilled this obligation by meeting with the Union on four occasions prior to implementing the change and by negotiating in good faith, as determined by the Arbitrator. Award at 11.

      The Agency argues that the award clearly affects and impermissibly conflicts with management's right to assign work and its right to determine internal security practices. Under the framework established by the Authority in United States Dep't of the Treasury, Bureau of Engraving and Printing, Wash., D.C., 53 FLRA 146, 151-54 (1997) (BEP), the Agency contends that the award does not satisfy prong I and that, even if it is assumed that prong I of the BEP framework is met, the award fails to satisfy prong II because it does not represent a reconstruction of what management would have done if it had not failed to follow the agreement's bargaining process.

B.     Union's Opposition

      The Union objects to a third party, the Department of Justice, filing an exception in this case. According to the Union, Article 32, Section h of the parties' master agreement provides that:

The arbitrator's award shall be binding on the parties. However, either party, through its [headquarters], may file exceptions to an award as allowed by the [s]tatute.

Opposition at 2. The Union maintains that the prison's headquarters is its Central Office, as defined by the Agency itself. The Union relies on a web site introduction entitled "The Bureau in Brief" in which the Agency's Central Office has the word "headquarters" placed in parentheses following its name.

      The Union contends that because the exceptions to the award were filed by the Department of Justice, it constitutes a violation of the parties' master agreement and thus provides no basis for finding the award deficient. The Union argues that, absent a written authorization from a party, grievants or other non-parties do not have standing to file exceptions to an arbitrator's award under 5 C.F.R. 2421.11(3)(ii). [ v58 p139 ]

IV.     Analysis and Conclusions

A.     The Department of Justice has standing to file exceptions on behalf of the Bureau of Prisons

      The Union relies on a provision in the parties' master agreement that permits a party's headquarters to file exceptions. However, the Union does not indicate that the term "headquarters" is defined in the parties' agreement for the purpose of filing appeals to arbitration awards, and provides no other evidence regarding this matter. [n4] 

      The Authority has long held that a party is free to designate its own representative and that national headquarters personnel may file exceptions on behalf of their organizational elements. See Soc. Sec. Admin., 51 FLRA 1700, 1704-05 (1996); Puget Sound Naval Shipyard, 33 FLRA 56, 58 (1988). As noted therein, nothing in the Authority's Regulations requires exceptions to be filed solely by a party's representative at an arbitration hearing. Therefore, a party is free to designate different representatives for different purposes. See United States Dep't of the Navy, Norfolk Naval Shipyard, Portsmouth, Va., 36 FLRA 304, 308-09 (1990). We note that the Union submitted no evidence indicating that the Department of Justice is precluded from filing exceptions on the Agency's behalf. We also note that the Bureau of Prisons has not objected to the Department of Justice's filing of this appeal on the Bureau of Prison's behalf. Accordingly, there is no basis to find that the Department of Justice lacked standing to file the exceptions.

B.     The Arbitrator did not exceed the scope of his authority

      An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. United States Dep't of the Navy, Naval Base, Norfolk, Va., 51 FLRA 305, 307-08 (1995).

      An award is deficient when the arbitrator determines an issue not submitted to arbitration. Veterans Admin., 24 FLRA 447, 450 (1986). However, the Authority, like the Federal courts, will accord an arbitrator's interpretation of the parties' stipulation of the issue, or the arbitrator's formulation of the issue to be decided in the absence of a stipulation, the same substantial deference accorded an arbitrator's interpretation and application of a collective bargaining agreement. United States Dep't of Housing & Urban Dev., 24 FLRA 442, 444 (1986).

      The agreement provision referenced by the Agency neither provides, on its face, any guidance as to the issue of whether an already-filed grievance may be amended to include supplemental issues, nor does it, on its face, establish any specific limitation on an arbitrator's authority. Accordingly, because arbitrators are accorded substantial deference in forming the issues before them, the Agency has not established that the Arbitrator exceeded his authority on this ground. See Dep't of Health and Human Servs., Soc. Sec. Admin., 27 FLRA 706, 711 (1987).

      As to the other contention that the Arbitrator exceeded his authority, the Agency contends that note taking is an issue that was not submitted to arbitration and not contained within the issue as framed by the Arbitrator. The issue the Arbitrator framed dealt with whether "[m]anagement wrongly refused to bargain and negotiate." Award at 4. We find that taking minutes of bargaining sessions is sufficiently related to the bargaining process and, thus, is encompassed within the issue as framed by the Arbitrator.

      Accordingly, 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.

      We note that the Agency also argues in support of this exception that the Arbitrator cited to and applied the incorrect portion of the parties' agreement, requiring the prison to take minutes of certain national level meetings, rather than the section of the agreement on local level meetings, which would be applicable, that merely recommends that minutes be taken. Assuming, arguendo, this constituted a separate, essence exception, we would not find that the agreement interpretation in the award: (1) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to "manifest an infidelity to the obligation of the arbitrator"; or (2) does not represent a plausible interpretation of the agreement; or (3) 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). [ v58 p140 ]

C.     The award is contrary to law

      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.

      The Arbitrator expressly found that the Agency violated the note-taking provision of Article II, Section d and violated the "bargaining process" by its conduct. Award at 11. Other than Article II, Section d, the Arbitrator cited no other contractual provision that was violated. In our view, the Arbitrator did not find two separate, independent violations of the agreement. Rather, by stating that the bargaining process was violated, the Arbitrator was simply restating his finding that the Agency had not complied with its obligation to take notes at the parties' bargaining sessions. Therefore, we find that the Arbitrator's finding of a contract violation is limited to a violation of Article II, Section d.

      The Agency claims that the Arbitrator's remedy for that violation, namely, requiring the Agency to bargain, is deficient because the remedy affects the Agency's rights to assign work and to determine its internal security practices. 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. Id. at 153. 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. Id. at 154. If the arbitrator's remedy reflects such a reconstruction, the Authority will find that the award satisfies prong II.

      We find that the award affects management's rights, as alleged. We also find that prong I of the BEP test has been met. In this regard, we note particularly that the Agency makes no claim that the award fails to satisfy prong I, insofar as it concerns the Arbitrator's finding of a violation of Article II, Section d.

      However, we find that the portion of the award requiring the Agency to "begin afresh with bargaining" fails to satisfy prong II of BEP. Award at 10. In this respect, 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, is 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 must be set aside. Absent any evidence in the record as to what the appropriate remedy would be, it is proper to remand this 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. [n5] 

V.     Decision

      We find that the Department of Justice has standing to file exceptions on behalf of the Bureau of Prisons. We also find that the Arbitrator did not exceed his authority. However, for the above stated reasons, we remand the award to the parties for resubmission to the Arbitrator, absent settlement, for action consistent with this decision. [ v58 p141 ]


Article 2 - Joint Labor Management Relations Meetings

. . . .

Section d. The Employer will prepare minutes (summary) of the items discussed, agreements reached, and/or suspense dates set for follow-up action. The minutes will be reviewed and approved by the parties upon conclusion of discussion of each issue. A final copy of the minutes will be reviewed and signed by the parties prior to the conclusion of the meeting, and a copy will be provided to each participant.
. . . .
Section f. The parties at the national level endorse the concept of regular labor management meetings at the local level. It is recommended that such meetings occur at least monthly, that there be an established method of written minutes, and that there be suspense dates for responses or corrective action. The actual procedures for local labor management meetings will be negotiated locally.

File 1: Authority's Decision in 58 FLRA No. 25 and Appendix
File 2: Opinion of Member Pope

Footnote # 1 for 58 FLRA No. 25 - Authority's Decision

   Member Pope's opinion, dissenting in part, is set forth at the end of the decision.

Footnote # 2 for 58 FLRA No. 25 - Authority's Decision

   The grievance stated:

On numerous occasions Local 1286 and Management have met to negotiate impact and implementation. Bargaining was had on the proposed custodial roster slated to begin on October 3, 1999. Management has filed (sic) to bargain in good faith over the Safety and Health Issues that have been raised. These changes affect conditions of employment, and there are numerous employees that are affected by these changes. Management has also failed to follow their own procedures policy in implementing change.

Award at 7.

Footnote # 3 for 58 FLRA No. 25 - Authority's Decision

   The text of pertinent portions of the parties' agreement is set forth in the Appendix to this decision.

Footnote # 4 for 58 FLRA No. 25 - Authority's Decision

   We take notice that the Bureau of Prisons is a subdivision of the United States Department of Justice according to the United States Government Manual 2000/2001 published by the Office of the Federal Register, National Archives and Records Administration. See Manual at 269, 276.

Footnote # 5 for 58 FLRA No. 25 - Authority's Decision

   In light of this determination, we need not address the Agency's other exceptions.