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58 FLRA No. 116
OF GOVERNMENT EMPLOYEES
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
April 16, 2003
Before the Authority: Dale Cabaniss, Chairman, and
arol 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 Barry Winograd filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions. [n2]
The Arbitrator denied the grievance after concluding that the Agency did not violate the parties' collective bargaining agreement when it denied the grievant's assignment request. For the following reasons, we conclude that the award is not deficient, and we deny the Union's exceptions.
II. Background and Arbitrator's Award
The grievant, a male correctional officer, requested an assignment to supervise an off-site work detail of female inmates. The grievant's request was denied, and the assignment was given to a female correctional officer who had less seniority.
A grievance was filed alleging that the grievant was "arbitrarily denied the assignment," in violation of the parties' collective bargaining agreement. Award at 7. When the grievance was not resolved, the parties submitted the matter to arbitration. As relevant here, the Arbitrator framed the issue as: "Did the Agency violate the collective bargaining agreement by failing to assign the grievant to his requested base officer position[?]" Id. at 2-3. The Arbitrator clarified that the "key question" for resolution was whether, "under Article 18.d.2.d, . . . the Agency was arbitrary or discriminatory when it denied the shift request on the basis that solely female staff would be assigned to a female-only work detail at the Presidio." Id. at 8.
The Arbitrator interpreted Article 18, § d.2.d of the parties' agreement as requiring the Agency to "`consider' preference requests in seniority order, and make reasonable efforts to grant the request[s]." [n3] Id. at 9. According to the Arbitrator, the agreement also permits the Agency to consider certain "discretionary factors" when making its decision. Id. at 10. Finally, the Arbitrator found that the agreement uses "arbitrary decision making as the standard" for determining whether the Agency's decision to deny a request violates the parties' agreement. Id. at 9.
The Arbitrator found that several factors "undermine[d] the Union's claim of arbitrary or discriminatory decision making." Id. In particular, the Arbitrator found that the work detail was assigned to a site located "dozens of miles" away from the Agency's facility, that the site was a "large spacious area with work assignments scattered throughout[,]" and that male officers assigned to this all female work detail potentially must conduct strip searches of female inmates, which could violate the inmates' privacy rights. Id. In light of these factors, the Arbitrator concluded that the Agency's determination that only females should be assigned to this particular work detail was not arbitrary, which was "the standard adopted in the contract." Id. at 12. Accordingly, the Arbitrator found that there was no violation of the contract, and he denied the grievance.
III. Union's Exceptions
The Union claims that the award fails to draw its essence from Articles 6, 18, and 22 of the parties' agreement. [n4] In this regard, the Union asserts that [ v58 p474 ] the parties' agreement permits the Agency to consider only seniority when selecting officers for assignments. According to the Union, the agreement also "prohibits gender-based discrimination" and requires "equal employment opportunities" for all employees. The Union argues that the award permits unlawful discrimination by denying equal employment opportunities to male employees. Exceptions at 6-7. In this connection, the Union argues that the arbitration award also is contrary to law because the Agency's rationale for denying the grievant's assignment request was "based solely on gender," in violation of Title VII of the Civil Rights Act. Id. at 2.
IV. Analysis and Conclusions
A. The Award Does Not Fail To Draw Its Essence From the Parties' Agreement
Applying a deferential standard of review, the Authority will find an award deficient as failing to draw its essence from a collective bargaining agreement when the award: (1) cannot in any rational way be derived from the agreement; (2) 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; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).
Article 18, § d.2.d. of the parties' agreement provides that the Agency will not "arbitrarily deny" preference requests. Award at 3. The Arbitrator interpreted this provision as permitting the Agency to consider discretionary factors in reaching its decision, including the location of the detail, the size of the work area, and the potential for privacy rights violations in denying the grievant's assignment request. According to the Arbitrator, these factors "undermine[d] the Union's claim of arbitrary or discriminatory decision making." Id. at 9. We find that the Arbitrator's interpretation and application of Article 18, §d.2.d. of the parties' agreement is not irrational, unfounded, or implausible. Accordingly, we deny the Union's exception. [n5]
B. The Union's Contrary to Law Exception Is Not Properly Before the Authority
It is well settled that the Authority will not consider issues that could have been, but were not, presented to the arbitrator. See 5 C.F.R. § 2429.5; see also Int'l Ass'n of Fire Fighters, Local F-89, 50 FLRA 327, 328 (1995). There is no indication in the record of this case that the issue of whether the Agency's actions were proper under Title VII was raised in arbitration. In this regard, the Arbitrator framed the issue as "[d]id the Agency violate the collective bargaining agreement by failing to assign the grievant [as] requested." Award at 2-3. The Arbitrator concluded that there was "no violation of the labor agreement." Id. at 10. As the issue could have been, but was not, raised in arbitration, it is not properly before the Authority. Accordingly, we will not consider the Union's contrary to law exception. [n6]
The Union's exception that the award fails to draw its essence from the parties' agreement is denied, and the Union's exception that the award is contrary to law is dismissed.
File 1: Authority's Decision in 58 FLRA No.
File 2: Chairman Cabaniss' Opinion
Footnote # 1 for 58 FLRA No. 116 - Authority's Decision
Footnote # 2 for 58 FLRA No. 116 - Authority's Decision
Footnote # 3 for 58 FLRA No. 116 - Authority's Decision
In relevant part, Article 18, § d.2.d states that the Agency "will consider preference requests in order of seniority and will make reasonable efforts to grant such requests. Reasonable efforts means that Management will not arbitrarily deny such requests." Award at 3 (citing the parties' agreement).
Footnote # 4 for 58 FLRA No. 116 - Authority's Decision
[T]here will be no restraint, harassment, intimidation, reprisal, or any coercion against any employee in the exercise of any employee rights provided for in this [a]greement and any other applicable laws, rules, and regulations, including the right: . . . [t]o be free from discrimination based on . . . sex . . . .
In relevant part, Article 22, § a of the parties' agreement provides that:
The [e]mployer and the Union agree to cooperate in providing equal opportunity for all qualified persons; to prohibit unlawful discrimination because of . . . sex . . . and to promote full realization of equal opportunity through a positive and continuing effort. Award at 4.
Footnote # 5 for 58 FLRA No. 116 - Authority's Decision
Consistent with our denial of the Union's exception to the Arbitrator's finding that the Agency did not discriminate against the grievant, we also deny the Union's claims that the award is inconsistent with Articles 6 and 22 of the parties' agreement, which prevent the Agency from discriminating against employees.
Footnote # 6 for 58 FLRA No. 116 - Authority's Decision
The fact that the Union could have grieved an alleged violation of Title VII-- either instead of or in addition to the alleged contract violation -- is not relevant in this case. See AFGE, Local 507, 58 FLRA No. 92, slip op. at 6 (March 21, 2003)(Chairman Cabaniss dissenting). Cf. Overseas Education Association v. FLRA, 824 F.2d 61, 69 (D.C. Cir. 1987) ("The way in which a contractual provision is interpreted and applied . . . may well differ from the manner in which similar (or identical) language in a statute may be interpreted or applied. . . . The fact that the agreement is similar or even identical to the statute cannot alter the fact that it is not a statute.").