[ v58 p511 ]
58 FLRA No. 127
DEPARTMENT OF THE ARMY
UNITED STATES ARMY SIGNAL CENTER
AND FORT GORDON
FORT GORDON, GEORGIA
OF GOVERNMENT EMPLOYEES
May 2, 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 E. Frank Cornelius 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 did not file an opposition to the Agency's exceptions.
The grievance alleged that the Agency violated the parties' collective bargaining agreement (CBA) and an Agency regulation by dispatching fire trucks to fires with only two firefighters aboard, rather than four as required by the regulation. The Arbitrator found that the Agency violated the regulation as alleged.
For the reasons set forth below, we find that the award is deficient, and we set it aside.
II. Background and Arbitrator's Award
The Agency's fire department took over the emergency medical responsibilities previously held by another Agency facility. Subsequently, the Agency began dispatching two firefighters on a fire truck and two more on an emergency vehicle, rather than four firefighters on a fire truck. Later, the Union became aware of the staffing of the emergency vehicles and filed the instant grievance in accordance with Article 35 of the CBA contending that the Agency violated Article 17 of the CBA and Agency regulation (AR) 420-90 and Department of Defense Instruction (DODI) 6055.6 by under staffing fire trucks. [n2] The Agency denied the grievance, stating that "[t]he actual risk to the soldiers, their family members, civilian employees and visitors to the installation without emergency responders far outweighs the risk to Fire and Emergency Service personnel." Award at 9.
The grievance was submitted to arbitration and the Arbitrator framed the issue as follows:
Whether the staffing requirements of DODI 6055.6 . . . may be met by dispatching a fire truck with two firefighters and an emergency vehicle with two more?
The Arbitrator found that the "crux of the Union's complaint is that fire trucks are dispatched to fires with only 2 firefighters aboard, not the 4 required by the DOD Instruction." Id. at 12. The Arbitrator determined that the instruction "unequivocally calls for fire trucks to be staffed by a crew of four[.]" Id. Referring to Chapter 35, Section 12.e of the CBA, the Arbitrator stated that even if he was sympathetic to the Agency's position, he would be powerless to override the "clear mandate of the [DoD] staffing requirement." Id. at 13. The Arbitrator found that the Agency's use of two firefighters on the truck and two in the emergency vehicle could not work. According to the Arbitrator, this staffing places firefighters and fire victims at an increased risk. The Arbitrator stated that "even if [he] were authorized to grant dispensation from the regulations, he would not be inclined to do so under the facts presented." Id.
The Arbitrator next noted that in its grievance letter, the Union had requested the fire department to "discontinue Basic Life Support until staffing can be maintained a[t] the initial response levels per AR 420-90 and DODI 6055.6." Id. at 14. However, according to the Arbitrator, in its post-arbitration brief, the "Union asks only that `management will not in the future go below minimum stan[ards] on fire apparatus . . . .'" Id. The Arbitrator further stated that the CBA states that "`[a]ccident prevention is a management responsibility,' [ v58 p512 ] and the Arbitrator leaves that task to management." Id. at 15. According to the Arbitrator, he ruled only that the cross-staffing provision of AR-420-90 provides no justification for deviating from the staffing requirements of DODI 6055.6.
The Arbitrator sustained the grievance and directed, "[e]ffective immediately, no fire truck (structural or aerial) shall be dispatched to a fire with fewer than four firefighters aboard." Id. at 16. Also, he denied the remedy originally requested by the Union.
III. Positions of the Parties
The Agency asserts that in its decision denying the grievance, it stated that "the risk to soldiers, their families, civilian employees and visitors to the installation without emergency responders would far outweigh risks to fire department personnel in the existing situation." Exceptions at 2. According to the Agency, the remedy directing no fire truck shall be dispatched to a fire with fewer than four firefighters aboard overrides any Agency policies and practices on responses to fire alarms and "deprives management of its right to determine how to respond to the very dangerous situation of a fire" on its premises. Id. at 5. The Agency contends, therefore, that the Arbitrator's remedy affects its right to determine its internal security practices under § 7106(a)(1) of the Statute. The Agency asserts that the threat to personnel and property from a burning fire is readily apparent, but under the award, if such fire should occur, management would be forbidden from responding to it unless and until four firefighters were assigned to a fire truck.
The Agency contends that the award directly affects its ability to bring firefighters from elsewhere on the facility to the fire scene, to use smaller crews when necessary because of absences or attrition, or to adapt fire department procedures to handle fire emergencies and by doing so, directly affects its ability to decide how best to protect personnel and property.
The Agency next asserts that the award violates its right to assign employees and work under § 7106(a)(2)(A) and (B) of the Statute. According to the Agency, the award would preclude management from assigning any firefighters to respond to a fire alarm on a fire truck unless there were four available to assign the task. The Agency contends that the award completely takes away its right to assign the work of protecting personnel and property from fires, unless firefighters proceed to that work in groups of four. The Agency further asserts that it had argued to the Arbitrator that the initial remedy requested by the Union "would violate its right to determine the personnel by which [A]gency operations are conducted and to assign work under [§] 7106(a)(2)(B)" of the Statute. Id. at 8. The Agency contends that the Arbitrator fashioned an entirely different remedy from the one the Union had requested in its grievance, so the interference with management's right in the remedy actually ordered could not have been anticipated.
The Agency contends that the award is not based on the enforcement of a contract provision and, therefore, the two prong test set forth in United States Dep't of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 53 FLRA 146 (1997) (BEP), is not applicable. However, the Agency asserts that even if BEP was applicable, the Arbitrator did not provide a remedy for a violation of any law, since he did not refer to any laws in his award and further none of the contract provisions cited by the Arbitrator constitute a negotiable procedure under § 7106(b)(2).
Concerning whether the award enforces an appropriate arrangement, the Agency asserts that Article 17 and Article 35, Sections 8.b and 12.e of the CBA do not meet the first prong of the BEP test because the provisions are not appropriate arrangements negotiated under § 7106(b)(3) of the Statute. The Agency further asserts that even if the Authority finds one of the provisions to be an arrangement, the award would still be deficient because it abrogates management's rights in that it completely precludes the Agency from responding to fire alarms unless a specified number of firefighters were aboard the fire truck. [n3] The Agency contends that the award does not satisfy the second prong of the BEP test.
The Union did not file an opposition to the exceptions.
IV. Analysis and Conclusions
A. Standard of Review and Framework
When an exception challenges an award as contrary to law, the Authority reviews any question of law [ v58 p513 ] raised by the exception and the 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 the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See United States DoD, Dep'ts of the Army and the Air Force, Ala. National Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
In BEP, the Authority set forth the framework it uses to resolve exceptions which contend that an arbitrator's award is contrary to management rights under § 7106 of the Statute. 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 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. 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. An award that fails to satisfy either prong I or prong II will be set aside or remanded to the parties, as appropriate. United States Dep't of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Lompoc, Calif., 58 FLRA No. 69, slip op. at 4-5 (2003).
For the reasons stated in BOP, Oklahoma City, the Authority continues to apply BEP to determine whether an award has enforced a contract provision negotiated pursuant to § 7106(b)(3). In doing so, the Authority continues 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 the Authority 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. BOP, Oklahoma City, 58 FLRA at 110.
B. The Award Affects Management's Right to Determine its Internal Security Practices under § 7106(a)(1) of the Statute [n4]
Management's right to determine its internal security practices under § 7106(a)(1) of the Statute includes the right to determine the policies and practices that are part of an agency's plan to secure and safeguard its personnel and physical property and to prevent the disruption of the agency's activities and operations. See, e.g., United States Dep't of Justice, Federal Bureau of Prisons, United States Penitentiary, Atlanta, Ga., 57 FLRA 406, 409 (2001) (DOJ) (Chairman Cabaniss dissenting on other matters). When there is a link or reasonable connection between an agency's goal of safeguarding personnel or property or of preventing disruption of agency operations and the disputed practice, the Authority will find that the disputed practice constitutes the exercise by management of its right under § 7106(a)(1) to determine its internal security practices. Id. The right to determine internal security practices includes an agency's right to determine its firefighting operation because such operation is used by an agency to protect and safeguard its personnel and property from fire by preventing and extinguishing fires. See NFFE, Local 1214, 45 FLRA 1121, 1125 (1992).
In this case, the Agency's firefighting operation is used by the Agency to protect and safeguard its personnel and property by preventing and extinguishing fires, responding to medical emergencies, and handling hazardous materials and terrorist threats. When a fire occurs, the Agency dispatches a fire truck with two firefighters aboard and two firefighters in an emergency vehicle. The award requires that fire trucks be staffed with a minimum of four firefighters before the Agency can dispatch any fire truck to a fire. By restricting the Agency's authority to staff the fire truck with fewer firefighters than staffed, the award limits the Agency's authority to determine the degree of staffing necessary to maintain the security of its facility. As a result, the award affects the Agency's right to determine its internal security practices under § 7106(a)(1) of the Statute. See, e.g., DOJ, 57 FLRA at 409.
C. The Award Is Deficient
The Agency argues that even if BEP was applicable, the Arbitrator's award does not provide a remedy for a violation of any law, and even if Article 17 of the CBA constituted an arrangement negotiated under § 7106(b)(3), the award would be deficient because it abrogates management's right to determine its internal security practices. [ v58 p514 ]
Applying the analysis set forth above to this case, the award fails to satisfy prong I of the BEP test. First, there is no assertion or factual findings to show that the Arbitrator's award was enforcing any law nor is there any assertion or factual findings to show that the award was enforcing a procedure negotiated pursuant to § 7106(b)(2). Further, even if the Authority were to assume that Article 17 of the parties' CBA constituted an arrangement negotiated pursuant to § 7106(b)(3) and that the award was enforcing this provision, the award would excessively interfere with management's right to determine its internal security practices under § 7106(a)(1) of the Statute. The Arbitrator interpreted and applied the provision and regulation to prohibit the Agency from dispatching any fire truck (structural or aerial) to a fire without four firefighters aboard. In circumstances where a fire has been reported and there are less than four firefighters available, the award would preclude management from dispatching any fire truck to protect personnel and property from such fire. The award severely restricts management's right to dispatch fire trucks to respond to fire alarms and, by doing so excessively interferes with management's right to determine internal security practices. See, e.g., BOP, Oklahoma City, 58 FLRA at 110-11 (an award requiring an agency to cease vacating correctional officers posts did not constitute an appropriate arrangement).
Accordingly, because the award affects management's right to determine its internal security practices, and excessively interferes with management's exercise of this right, it fails to satisfy prong I of BEP. Therefore, the award is contrary to law under § 7122(a)(1) of the Statute. [n5]
The award is set aside.
Pertinent provisions of the Collective bargaining Agreement
Article 17, Safety and Health, in pertinent part, provides:
Section 1. The health and safety of employees is of paramount importance to the successful accomplishment of the mission of the Employer. Such matters are a collective effort and the Employer, the Local, and employees will cooperate to maintain high safety and health standards. All work practices and conditions pertaining to health and safety will be in keeping with OSHA Regulations, applicable laws, rules, and regulations.
Section 2. The Employer will extend every reasonable effort to provide and maintain safe working conditions so as to protect the safety and health of the employees. Accident prevention is a management responsibility. Management must ensure compliance with the Safety Program and establish necessary additional requirements to ensure the safety of personnel . . . .
Section 13. An employee or group of employees who believe that they are being required to work under conditions which are unnecessarily unsafe or unhealthy beyond the normal hazards inherent to the operation in question, shall have the right and are encouraged to bring these situations to the attention of the appropriate official for corrective action. If the situation or conditions are not resolved, the employee shall have the right to file a grievance . . . .
Award at 6.
Article 35, Negotiated Grievance and Arbitration Procedure
Section 8, in pertinent part, provides:
Grievances submitted at steps which require the grievance to be in writing will contain the following information:
a. [Lists the type of information, including the provision(s) of the law(s), rule(s), or regulations(s) which have been allegedly violated].
Id. at 6.
Army Regulation 420-90
AR Regulation 420-90, in pertinent part, provides:
This regulation implements statutes and DODI 6055.6, DOD Fire & Emergency Services [ v58 p515 ] (F&ES) Program, requirements. It prescribes Army policies and responsibilities covering all fire fighting (structural, aircraft, and wildland) by civilians or military, fire prevention . . . hazardous materials . . . response, emergency medical services (EMS), confined space rescue, disaster preparedness, and ancillary services. . . .
DODI 6055.6 provides, in pertinent part, as follows:
MINIMUM STAFFING REQUIREMENTS FOR FIRE AND EMERGENCY SERVICES APPARATUS
FIRE APPARATUS IDENTIFIERS STAFFING REQUIRED
1. ARFF Apparatus 3
2. Structural Apparatus 4
3. Aerial Fire Apparatus 4
Id. at 8
Note: Only Structural and Aerial Fire Apparatus are at issue in this case.
Concurring Opinion of Member Pope:
I believe, for the reasons set forth in my concurring opinion in BOP, Oklahoma City, 58 FLRA 109 (2002), that the abrogation test -- not the excessive interference test -- is appropriate to determine whether Article 17 is enforceable under § 7106(b)(3) of the Statute. I need not restate those reasons here. Applying the abrogation test, I would find that the award effectively abrogates the Agency's exercise of its right to determine its internal security practices. The award provides, in pertinent part, that: "Effective immediately, no fire truck (structural or aerial) shall be dispatched to a fire with fewer than four firefighters aboard." Award at 16. This award leaves no circumstance in which the Agency would be permitted to dispatch a fire truck to a fire without four firefighters aboard. Cf. BOP, Atlanta, 57 FLRA 406 (2001) (agency may leave a work post vacant for good reason or if the post has no contribution to the level of safety); BOP, Guaynabo, 57 FLRA 331 (2001) (agency may leave post vacant in an emergency). As such, I would find that the award abrogates the Agency's right to determine its internal security practices and, therefore, fails prong 1 of the BEP framework. I would, therefore, set aside the award.
Footnote # 1 for 58 FLRA No. 127 - Authority's Decision
Footnote # 2 for 58 FLRA No. 127 - Authority's Decision
Footnote # 3 for 58 FLRA No. 127 - Authority's Decision
As to the Agency's reference to the abrogation test, the Agency's exceptions were filed before the Authority issued its decision in United States Dep't of Justice, Federal Bureau of Prisons, Federal Transfer Center, Oklahoma City, OK, 58 FLRA 109 (2002) (Chairman Cabaniss, Member Armendariz, and Member Pope separately concurring) (BOP, Oklahoma City), wherein the Authority set forth the standard for reviewing exceptions alleging that an award does not constitute an appropriate arrangement under BEP.
Footnote # 4 for 58 FLRA No. 127 - Authority's Decision
The Agency's denial of the grievance on the basis that the risk to soldiers, their families, civilian employees and visitors to the installation without emergency equipment responders would far outweigh risks to fire department personnel, is construed as an assertion that the staffing levels sought by the Union affected its right to determine its internal security.
Footnote # 5 for 58 FLRA No. 127 - Authority's Decision