[ v58 p291 ]
58 FLRA No. 66
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL COMPLEX
OF GOVERNMENT EMPLOYEES,
January 15, 2003
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 James L. Stern 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 grievance alleged, and the Arbitrator found, that the Agency violated a provision of the parties' collective bargaining agreement and an Agency regulation by assigning only one Correctional Officer to guard two housing units.
In United States Dep't of Justice, Federal Bureau of Prisons, Federal Transfer Center, Oklahoma City, OK, 58 FLRA 109 (2002) (BOP, Oklahoma City), the Authority addressed another arbitrator's award involving the same agreement provision, and set forth the standard for reviewing exceptions alleging that an award does not constitute an appropriate arrangement under United States Dep't of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 53 FLRA 146 (1997) (BEP).
Applying the standard described in BOP, Oklahoma City, we find that the award is deficient and we set it aside.
II. Background and Arbitrator's Award
At its low- and medium-security facility, the Agency reduced the staffing coverage during the day from one Correctional Officer covering each housing unit to one Correctional Officer covering two housing units.
The Union filed two grievances over these actions, one of which grieved the reduction in coverage at the medium-security facility, the other of which grieved the reduction of coverage at the low-security facility. After the parties could not resolve these matters, they submitted each grievance to a different arbitrator.
The Arbitrator here considered only the Union's grievance concerning the reduction in coverage at the Agency's low-security facility. The Arbitrator framed the issue as follows:
Did the Employer violate Article 27, Section A of the Master Agreement [n2] and Program Statement 5500.09 of the Correctional Services Manual [n3] when it decreased the staffing by assigning one correctional officer for every two housing units [ v58 p292 ] during the day rather than one correctional officer for each housing unit? If so, what is the remedy?
The Arbitrator ruled that the Agency had violated Article 27 when it created an increased inherent risk by assigning one Correctional Officer to two housing units. The Arbitrator relied upon the decision of another arbitrator who had reached the same conclusion after considering the commensurate reduction in staffing levels at the Agency's medium-security facility. The Arbitrator rejected arguments advanced by the Agency regarding its management rights, stating, "[t]o the degree that an interpretation of Article 27 limits the traditional management rights, it is a limit agreed to by the parties in Article 27, not a new limit imposed by an arbitrator." Award at 5. To remedy the found violation of the agreement, the Arbitrator ordered the Agency to place Correctional Officers "in all twelve (12) housing units on each shift per the correctional services manual (program statement 5500.09)." Award at 5.
III. Positions of the Parties
A. Agency's Exceptions
The Agency argues that the award violates its rights under § 7106 of the Statute to assign work, assign employees and determine its internal security practices under the framework established in United States Dep't of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 53 FLRA at 151-54. With regard to its claim that the award affects its rights to assign work, the Agency argues that, to comply with the terms of the award, it may have to use overtime assignments, cancel leave or take other actions that prevent the Agency from determining when work assignments will occur and to whom or what positions the work will be assigned.
The Agency then asserts that the award does not satisfy prong I of the BEP test because the provision, as interpreted by the Arbitrator, does not constitute an appropriate arrangement. The Agency contends that the proposal is not sufficiently tailored to constitute an appropriate arrangement because, under certain circumstances, it would ameliorate adverse effects flowing from voluntary choices by employees.
The Agency further argues that the award does not satisfy prong I of the BEP test because it abrogates management's rights under the Statute. In this connection, the Agency contends that the right to take actions pursuant to § 7106(a) of the Statute encompasses the right to not take such actions and that provisions obligating management to exercise its management rights are outside the duty to bargain.
The Agency also distinguishes awards that the Authority found did not abrogate management rights in United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Marianna, Fla., 56 FLRA 467, 469-70 (2000) (BOP, Marianna), United States Dep't of Justice, Fed. Bureau of Prisons, Metro. Det. Ctr., Guaynabo, P.R., 57 FLRA 331 (2001) (BOP, Guaynabo) (Chairman Cabaniss dissenting) and United States Dep't of Justice, Fed'l Bureau of Prisons, United States Penitentiary, Atlanta, Ga., 57 FLRA 406, 409 (2001) (BOP, Atlanta) (Chairman Cabaniss dissenting). The Agency maintains that the award in this case, unlike the awards is those cases, imposes an unqualified burden on the Agency to maintain certain staffing levels without exceptions for emergencies, good cause or other factors. Therefore, the Agency maintains that the award abrogates management rights and fails to satisfy prong I of the BEP test.
The Agency then urges the Authority to replace the abrogation standard used to determine if arbitration awards violate management rights with the "excessive interference" standard used in negotiability appeals to determine if proposals and provisions violate management rights. The Agency contends that the abrogation standard is inappropriate given the de novo standard of review that the Authority employs in analyzing questions of law raised by arbitration awards. The Agency argues that there is no justification for applying different standards in different fora. The Agency further asserts that the award is deficient if the "excessive interference" standard were applied to the case. The Agency contends that the award excessively interferes with its management rights because of the sweeping and unlimited restrictions on management rights contained therein.
Finally, the Agency claims that the award fails to draw its essence from the agreement because it ignores the plain language of Article 27, which the Agency asserts preserves management's statutory rights. Moreover, the Agency maintains that the Arbitrator's failure to acknowledge this language is inconsistent with the purpose of the provision, the balancing of the Agency's obligation to reduce workplace hazards against its management rights.
B. Union's Opposition
The Union argues that the Agency is merely reiterating arguments concerning management rights that the Authority has previously rejected. The Union maintains that the Authority has previously found that the Arbitrator's interpretation of Article 27, Section A of the agreement satisfies both prongs of the BEP test.
IV. Analysis and Conclusions
The Agency's exception that the award is contrary to various of the management rights established in § 7106 of the Statute challenges the award's consistency [ v58 p293 ] with law. Therefore, the Authority reviews the question of law raised by the exception and the Arbitrator's award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a de novo standard of review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
Where an agency asserts that an arbitrator's award violates management's rights, the Authority first determines whether the award affects management's rights. See United States Small Business Admin., 55 FLRA 179, 184 (1999). If it does, then the Authority applies the two-prong test set forth in BEP, 53 FLRA at 151-54, to determine if the award is deficient.
Under prong I of the BEP test, the Authority examines whether the award provides a remedy for a violation of either an 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. BEP, 53 FLRA at 153. If the award provides such a remedy, the Authority will find that the award satisfies prong I of the framework and will then address prong II. Under prong II of the BEP framework, the Authority considers whether the arbitrator's remedy reflects a reconstruction of what management would have done if management had not violated the law or contractual provision at issue. Id. at 154. If the arbitrator's remedy reflects such a reconstruction, then the Authority will find that the award satisfies prong II. An award that fails to satisfy either prong I or prong II will be set aside or remanded to the parties, as appropriate. See United States Dep't of Defense, Defense Logistics Agency, Defense Distrib. Depot, Norfolk, Va., 54 FLRA 180, 185 (1998).
For the reasons stated in BOP, Oklahoma City, we will continue to apply BEP to determine whether an award has enforced a contract provision negotiated pursuant to § 7106(b)(3). In doing so, we will also continue to examine whether the provision of the collective bargaining agreement, as interpreted and applied by the arbitrator, constitutes an arrangement within the meaning of § 7106(b)(3). As we stated in BOP, Oklahoma City, in determining whether an arbitrator's enforcement of such a provision is authorized under the Statute, we will examine whether the contract provision, as interpreted and applied by the arbitrator, excessively interferes with the exercise of a management right. See, e.g., The Washington Plate Printers Union Local No. 2, I.P.D.E.U., 31 FLRA 1250, 1255-57 (1988) (the Authority applied the excessive interference test established in NAGE Local R14-87, 21 FLRA 24 (1986) (commonly referred to as KANG) in determining that the provision of the agreement was an enforceable appropriate arrangement within the meaning of § 7106(b)(3)). [n4]
Examining the award under BEP, as modified by BOP, Oklahoma City, we conclude that the Arbitrator's enforcement of Article 27 excessively interferes with management's rights to determine its internal security practices under § 7106(a)(1) and to assign work under § 7106(a)(2)(B).
The Authority has addressed Article 27 in many recent cases. [n5] In BOP, Guaynabo; BOP, Atlanta; BOP, Oklahoma City; and BOP, Forrest City, the Authority concluded that the awards affected management's rights to determine its internal security practices and to assign work. In each of these cases, the Authority found that the limitations on the Agency's authority to leave posts vacant affected management's rights. Similarly, in this case, the Arbitrator's award directing the Agency to place Correctional Officers in all housing units on each shift affects management's rights to determine its internal security practices and to assign work. In addition, because the award requires the Agency to create and fill additional posts, it also affects the Agency's right to assign employees. Therefore, under prong I of BEP, we must determine whether Article 27, as interpreted and applied by the Arbitrator, was negotiated pursuant to § 7106(b).
In each of the above-cited cases, the Authority found that Article 27, as interpreted and applied by the arbitrators, constituted an arrangement within the meaning of § 7106(b)(3). In this case, the Arbitrator found in agreement with previous arbitrators that Article 27 addresses the adverse effects on safety when correctional posts are vacated. Accordingly, we reach the same conclusion here and find, for the reasons set forth more fully in the above-cited cases, that Article 27 constitutes an arrangement within the meaning of § 7106(b)(3).
Having determined that Article 27, as interpreted and applied by the Arbitrator, constitutes an arrangement, [ v58 p294 ] we must determine whether its enforcement by the Arbitrator excessively interferes with management's rights to determine its internal security practices, to assign work, and to assign employees.
As interpreted and applied by the Arbitrator, Article 27 provides a benefit to unit employees by increasing the number of correctional officers on each housing unit on each shift, which, in turn, provides more correctional officers to respond to inmate hazards to employees and, thereby, increases the safety of employees. However, we find that the benefits to employees are outweighed by the intrusion on the exercise of management's rights.
In BOP, Oklahoma City, we determined that the arbitrator's enforcement of Article 27 excessively interfered with management's rights because it left virtually no circumstances under which the Agency could leave posts vacant. In this case, the Arbitrator has similarly enforced Article 27 to leave no circumstances under which the Agency could do anything other than assign correctional officers to all housing units on all shifts. In particular, the award requires the Agency to assign, without qualification or exception, additional employees to provide inmate coverage, thereby substantially affecting, without recourse, the Agency's ability to determine the particular duties to be assigned to those employees who must now occupy these correctional officer positions, as well as when such work assignments will occur. The Agency would also need to reassign employees from other areas of its facility where the Agency would otherwise have these employees perform work, thereby impacting the Agency's ability to have work accomplished in those other areas. The award does not permit the Agency to decrease staffing levels for good cause, emergencies, internal security considerations or any other reason. In light of these significant restrictions, we find that the benefits afforded to employees by Article 27, as interpreted, are outweighed by the significant restrictions on management's rights to assign work and to determine internal security practices. Therefore, Article 27, as interpreted, excessively interferes with management's rights to assign work and determine its internal security practices and does not constitute an appropriate arrangement under § 7106(b)(3). As such, the award is contrary to law. [n6]
The award is deficient and is set aside.
File 1: Authority's Decision in 58 FLRA No.
File 2: Chairman Cabaniss and Member Pope's Opinion
Footnote # 1 for 58 FLRA No. 66 - Authority's Decision
Footnote # 2 for 58 FLRA No. 66 - Authority's Decision
There are essentially two (2) distinct areas of concern regarding the safety and health of employees in the Federal Bureau of Prisons:
the first, which affects the safety and well-being of employees, involves the inherent hazards of a correctional environment; and
. . . .
With respect to the first, the Employer agrees to lower those inherent hazards to the lowest possible level, without relinquishing its rights under 5 USC 7106. The Union recognizes that by the very nature of the duties associated with supervising and controlling inmates, these hazards can never be completely eliminated. . . .
Exceptions at 1 n.2.
Footnote # 3 for 58 FLRA No. 66 - Authority's Decision
The number of housing units will vary. A housing unit is defined "as that area that can be safely and securely supervised by a single officer". This definition has been interpreted as follows:
1. A unit is a single housing area (range, wing, pod) that is self-contained and can only be safely and securely supervised by one officer. Thus, each wing or pod is a unit- not the entire structure.
Award at 4.
Footnote # 4 for 58 FLRA No. 66 - Authority's Decision
Chairman Cabaniss applies the excessive interference standard for the reasons stated in her concurring opinion. Member Armendariz applies the excessive interference standard for the reasons stated in his concurring opinion in BOP, Oklahoma City. Member Pope disagrees with the decision to apply the excessive interference standard and, for the reasons set forth in her concurring opinion in BOP, Oklahoma City, would apply the abrogation test.
Footnote # 5 for 58 FLRA No. 66 - Authority's Decision
In addition to BOP, Oklahoma City, the previous Authority decisions addressing awards of other arbitrators who applied the same contractual provision are: BOP, Marianna; BOP, Guaynabo; BOP, Atlanta; United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Forrest City, Ark., 58 FLRA 118 (2002) (BOP, Forrest City); United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Sheridan, Oregon, 58 FLRA No. 65 (2003) (BOP, Sheridan).
Footnote # 6 for 58 FLRA No. 66 - Authority's Decision