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59 FLRA No. 90
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
EL RENO, OKLAHOMA
OF GOVERNMENT EMPLOYEES
COUNCIL OF PRISON LOCALS
December 19, 2003
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator Michael B. McReynolds 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 exception.
The Arbitrator found that the Agency violated the parties' agreement by searching an employee's desk and workstation without having a Union representative present. The Arbitrator ordered the Agency to cease and desist from searching employees' desks and workstations without a Union representative present where there is no overriding exigency. For the following reasons, we deny the Agency's exception.
II. Background and Arbitrator's Award
An officer witnessed a lieutenant looking through another officer's personal belongings that were left unattended in a workstation. The Union filed a grievance alleging that the lieutenant had improperly searched the officer's personal belongings. When the grievance was unresolved, the parties submitted the matter to arbitration on this stipulated issue: "Did the [Agency] violate the Master Agreement and the Local [ v59 p537 ] Supplemental Agreement by searching an employee's desk, workstation, and personal items without proper authorization and without notifying the Union prior to the search? If so, what shall be the remedy?" Award at 2.
The Arbitrator found that the Agency violated Article 6, Section i (Article 6) of the parties' local supplemental agreement by conducting a search without the presence of a Union representative. [n1] Crediting the testimony of the Union's witnesses over that of the lieutenant, the Arbitrator rejected the Agency's claim that the lieutenant did not conduct a search of the officer's desk or belongings. Moreover, the Arbitrator found that "[n]o evidence was presented to establish that there was an overriding exigency that warranted conducting a search without the presence of a Union representative." Id. at 13.
The Arbitrator also found that Article 6 does not unduly restrict the Agency's right to determine its internal security practices. In doing so, the Arbitrator found that the Agency's reliance on the Authority's decision in AFGE, Council of Prison Locals, Local 919, 42 FLRA 1295 (1991) (AFGE) was misplaced. According to the Arbitrator, the proposal in AFGE, which the Authority found excessively interfered with management's right to determine its internal security practices, contained an "unqualified requirement that searches be witnessed[,]" whereas Article 6 requires "witnessing of searches absent an overriding exigency." Award at 9 (emphasis in original). Based on the foregoing, the Arbitrator sustained the Union's grievance. [n2]
As a remedy, the Arbitrator ordered the Agency to "cease and desist from conducting searches of employees' desks or workstations unless a Union representative is present, absent an overriding exigency." Id. at 14.
III. Positions of the Parties
A. Agency's Exception
The Agency claims the award is contrary to law because it violates the Agency's right to determine its internal security practices under § 7106(a)(1) of the Statute. Specifically, the Agency asserts that proposals requiring notice of, and witness to, searches or inspections of employees affect the right to determine internal security. [n3] The Agency further argues that Article 6, "as enforced by the [A]rbitrator, excessively interferes with that right" because "[t]he [A]rbitrator prohibited the Agency from searching employees' desks or workstations unless a union representative is present, absent an overriding exigency." Exception at 5.
The Agency disputes the Arbitrator's determination that Article 6 is distinguishable from the proposal in AFGE because it permits the Agency to conduct unannounced searches in exigent circumstances. According to the Agency, the Authority recently held that a proposal which limited the Bureau of Prison's right to determine internal security "with only limited exceptions for `good cause' or `emergency,' was not an appropriate arrangement and excessively interfered with the [agency's] right . . . to determine internal security practices under 5 U.S.C. § 7106." Id. at 7 (citing United States DOJ, Bureau of Prisons, Fed'l Corr. Inst., Lompac, Cal., 58 FLRA 301 (2003) (Chairman Cabaniss concurring and Member Pope dissenting) (BOP II) and United States DOJ, Bureau of Prisons, Fed'l Corr. Inst., Forrest City, Ark., 58 FLRA 118 (2002) (Chairman Cabaniss concurring and Member Pope dissenting) (BOP I)). The Agency points out that "the Authority specifically found that a higher standard of deference should be afforded to prison administrators making judgments on matters of internal security." Id. at 7-8.
B. Union's Opposition
The Union argues that the award enforces a negotiable procedure and/or an appropriate arrangement under § 7106(b) of the Statute. In this connection, the Union asserts that Article 6 affects only a small group of people and is limited to searches of desks and workstations. See Opposition at 8. Further, the Union argues that the Agency had no justification for conducting the search, such as suspected theft or smuggling of contraband, and the Arbitrator, therefore, was correct to enforce Article 6 as he did. According to the Union, Article 6 does not prevent the Agency from conducting searches of employees' desks or workstations without the Union present, so long as there is valid justification. [ v59 p538 ]
The Union disputes the Agency's reliance on Authority precedent and asserts that the Agency's exception is a late attempt to contest the negotiability of Article 6. In addition, the Union claims that Article 6 is enforceable because it only limits the Agency's ability to search employees' desks or workstations, and does not prevent the Agency from searching employees as they enter and leave the facility. See id.
According to the Union, several employees have access to the desks and workstations at issue here and there are no lockers for employees to secure their personal belongings. The Union further explains that inmates are allowed in these areas, sometimes without supervision. Therefore, the Union asserts that its presence during searches helps to ensure the integrity of the searches and the authenticity of any findings. See id. at 13.
IV. The Award Does Not Violate the Agency's Right To Determine Its Internal Security Practices Under § 7106(a)(1) of the Statute
The Authority reviews questions of law raised by exceptions to an 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 standard of de novo review, the Authority determines 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 determination, the Authority defers to the arbitrator's underlying factual findings. See id.
In determining whether the award violates a management right under § 7106(a) of the Statute, the Authority applies the framework established in United States Dep't of the Treasury, Bureau of Engraving and Printing, Wash., D.C., 53 FLRA 146 (1997) (BEP). Under prong I of that framework, upon finding that an award affects a § 7106(a) management right, the Authority examines whether the award provides a remedy for a violation of either an applicable law under § 7106(a)(2) of the Statute or a contract provision that was negotiated under § 7106(b) of the Statute. Under prong II, the Authority examines whether the arbitrator's remedy reflects a reconstruction of what management would have done had it 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. See SSA, Boston Reg. (Reg. 1), Lowell Dist. Office, Lowell, Mass., 57 FLRA 264, 269 (2001) (citation omitted).
The Union does not dispute that the award affects management's right to determine its internal security practices. With regard to prong I of BEP, the Union argues that the award enforces Article 6, which is a procedure within the meaning of § 7106(b)(2) of the Statute and/or an appropriate arrangement within the meaning of § 7106(b)(3). With regard to the § 7106(b)(3) claim, the Agency does not dispute the Union's claim that Article 6 is an arrangement for employees adversely affected by management's exercise of its rights. The Agency argues only that the arrangement is not appropriate because it excessively interferes with the Agency's right to determine its internal security practices under § 7106(a)(1) of the Statute.
For the following reasons, we conclude that, as interpreted and applied by the Arbitrator in this case, Article 6 does not excessively interfere with the Agency's right to determine its internal security practices and, as a result, is enforceable as an appropriate arrangement under § 7106(b)(3). [n4] Accordingly, we do not address whether the contract provision also would be enforceable under § 7106(b)(2).
In determining whether a contract provision, as interpreted and applied by an arbitrator, excessively interferes with a management right, the Authority weighs the benefits that the provision affords employees against the intrusion on the agency's exercise of its right. See BOP I, 58 FLRA at 120. As set forth above, Article 6 provides that management searches of employee desks or workstations will be conducted in the presence of a Union representative "absent an overriding exigency." The Arbitrator interpreted Article 6 consistent with its plain wording, finding that the Agency violated Article 6 in the circumstances of this case and requiring the Agency to cease and desist "from conducting searches of employees' desks or workstations unless a Union representative is present, absent an overriding exigency." Award at 14.
With regard to the benefits that Article 6 affords employees, the Union claims the article benefits employees by ensuring both the integrity of the search and the authenticity of any findings. We find that the provision does benefit employees and that these benefits are significant. [ v59 p539 ]
With regard to the intrusion on management's right to determine its internal security practices, the Agency claims that, as interpreted and applied by the Arbitrator, Article 6 "means that, absent an extraordinary or emergency situation, the Agency cannot conduct unannounced and unwitnessed searches or employee desks, workstations, or property." Exception at 5. Assuming that the phrase "overriding exigency" in Article 6 encompasses the "extraordinary or emergency situation" referenced by the Agency, this claim merely restates the requirements imposed by Article 6. How the phrase "overriding exigency" would be applied, however, is purely speculative. This is because, in this case, the Agency never claimed -- either before the Arbitrator or before the Authority -- that there was an overriding exigency permitting it to search the grievant's workspace without a Union representative present. [n5] Indeed, the Agency claimed throughout the proceeding that it never searched the workspace. As a result, the award does not in any way define the phrase "overriding exigency." Moreover, although the award requires the Agency to comply with Article 6 in the future, it imposes no additional requirements beyond those in the provision itself. It does not, for example, require the Agency either to notify the employee before conducting a search or to permit the employee to be present during the search. Furthermore, as the Union points out, the award concerns only searches of desks and workstations; the award does not concern, or limit, searches of employees themselves.
In addition, we find no support for a conclusion that, on its face -- apart from how it was interpreted and applied in this case -- Article 6 excessively interferes with the Agency's right to determine internal security practices. In this regard, the Agency's reliance on the Authority's decisions in BOP I and BOP II is misplaced because the awards in those cases interpreted and applied a different contract term in different circumstances. In particular, the awards in BOP I and BOP II interpreted and applied the contractual term "without good cause" to mean that the agency could not vacate posts absent an emergency. See BOP I, 58 FLRA at 120; BOP II, 58 FLRA at 303. The Authority found in BOP I that the award left "virtually no non-emergency circumstance - whether related to work reasons, security reasons, or both - under which the [a]gency may leave posts vacant." 58 FLRA at 120. In BOP II, the Authority found that the award "effectively remove[d] the [a]gency's authority to determine the staffing necessary to maintain the security of its facility." 58 FLRA at 303.
In this case, by contrast, there is no indication how the Arbitrator would interpret and apply the requirement for an "overriding exigency," and the Arbitrator's conclusion that there was no overriding exigency in this case was inevitable because the Agency never claimed to the contrary. Also unlike the BOP cases, the Arbitrator did not otherwise define the phrase "overriding exigency" as requiring the Agency to have a particular reason or justification for conducting a search. Indeed, as interpreted and applied by this Arbitrator, the Agency may, consistent with Article 6, conduct a search for any reason or for no reason at all, so long as the Union is present when there is no overriding exigency. As there is no claim or evidence that the Union's presence during searches, in and of itself, excessively interferes with the Agency's right to determine its internal security practices, we find no basis to reach that conclusion here.
Finally, the Agency's reliance on the Authority's decisions in AFGE, Fort Jackson, NAGE, and NFFE does not persuade us to reach a different result. In AFGE and Fort Jackson, the Authority never even considered whether the disputed proposals were negotiable under § 7106(b)(3). See AFGE, 42 FLRA at 1301 and Fort Jackson, 49 FLRA at 729. And, in NAGE and NFFE, where the Authority did address that issue, the Authority found the proposals nonnegotiable because one would have required the agency to give the union advance notice of "all" gate inspections, see NAGE, 45 FLRA at 960-62, and the other would have permitted the union, "in every instance, to observe spot checks of bargaining unit employees." NFFE, 47 FLRA at 883. Consequently, these cases are inapposite.
Based on the foregoing, we conclude that Article 6, as interpreted and applied by the Arbitrator in this case, is enforceable under § 7106(b)(3) and, therefore, satisfies prong 1 of the BEP framework. As the Agency does not challenge the award on prong 2 grounds, and as the award merely requires the Agency to comply with Article 6 of the parties' agreement, we find that the award is not deficient as contrary to the Agency's right to determine its internal security practices under § 7106(a)(1) of the Statute.
The Agency's exception is denied.
Footnote # 1 for 59 FLRA No. 90 - Authority's Decision
Article 6 of the parties' local supplemental agreement provides, in relevant part, that "[s]earches of employee's [sic] desks or workstations by management or a representative of the Employer will have a union representative present, absent an overriding exigency." Award at 5.
Footnote # 2 for 59 FLRA No. 90 - Authority's Decision
The Arbitrator also found that the Agency violated Article 36 of the parties' master agreement, which sets forth certain principles governing the parties' dealings with each other. See id. at 4-5. The Agency does not challenge the Arbitrator's findings with respect to Article 36. Therefore, we will not address this provision further.
Footnote # 3 for 59 FLRA No. 90 - Authority's Decision
The Agency cites NFFE, Local 1214, 49 FLRA 725, 728-29 (1994) (Fort Jackson); NFFE, Local 28, 47 FLRA 873, 876-80 (1993) (NFFE); NAGE, Locals R14-22 and R14-89, 45 FLRA 949, 960-61 (1992) (NAGE); and AFGE, 42 FLRA at 1298-1300.
Footnote # 4 for 59 FLRA No. 90 - Authority's Decision
As this case was litigated after the Authority determined to apply the excessive interference standard in resolving exceptions to arbitration awards, Member Pope joins in the Authority's decision to apply that standard here. See United States Dep't of Justice, Fed'l Bureau of Prisons, Fed'l Corr. Inst., Fed'l Satellite Low, La Tuna, Tex., 59 FLRA 374, 377 (2003) (Member Pope concurring).
Footnote # 5 for 59 FLRA No. 90 - Authority's Decision