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59 FLRA No. 134
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL DETENTION CENTER
OF GOVERNMENT EMPLOYEES
COUNCIL OF PRISON LOCALS
March 11, 2004
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 Raymond L. Britton 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 Arbitrator found that the Agency violated the parties' collective bargaining agreement by failing to conduct a roster committee that considers preference requests in order of seniority. As a remedy, the Arbitrator ordered the Agency to conduct a roster committee in accordance with the collective bargaining agreement.
For the following reasons, we set aside the award.
II. Background and Arbitrator's Award
The Union president submitted a memo to the associate warden advising him that the Union intended to "[exercise its] right to develop a roster committee in Inmate System[s] Management [ISM] . . . in accordance with the Master Agreement, Article 18, sec. f." Award at 2. [n2]
The parties met to discuss the procedure for establishing a roster committee but no agreement was reached. Shortly thereafter, the Union filed a grievance alleging that the Agency violated Article 18(f) of the parties' collective bargaining agreement by failing to conduct a roster committee in ISM and failing to post and issue a blank roster. [n3]
The grievance was not resolved and was submitted to arbitration. The Arbitrator stated the issue as follows:
Is Management violating the Master Agreement in the method used to assign staff in the Inmate Systems Department? If so, what is the remedy?
Award at 1. The Arbitrator found that the primary matter before him was "whether the Union has a right to invoke seniority-based roster committees." Id. at 8.
The Arbitrator rejected the Agency's argument that the use of the word "recommended" in Article 18, Section f. "leaves the decision [as to what procedures to use] up to the Chief Executive Officer of the institution." Id.
Further, the Arbitrator found that "the express language of Article 18, Section d.2.d of the Master Agreement directly and unequivocally provides that the roster committee (comprised of labor and management representatives) will consider preference requests in order of seniority." Id. at 9. As such, the Arbitrator found that "the Union has a right to invoke [s]eniority based roster committees and that the Agency violated Article 18, Sections d. and f. of the Master Agreement." Id. As a remedy, the Arbitrator ordered that a roster committee be conducted in ISM in accordance with the parties' agreement.
III. Agency's Exceptions
The Agency argues that the award is contrary to law because it violates management's rights to assign work and assign employees under § 7106(a)(2)(B) and § 7106(a)(2)(A), respectively. In this regard, the Agency asserts that the award fails to satisfy both prongs of United States Dep't of the Treasury, Bureau [ v59 p745 ] of Engraving and Printing, Washington, D.C., 53 FLRA 146 (1997) (BEP).
As to prong I, the Agency contends that neither Article 18, Section d nor Article 18, Section f is an arrangement for employees adversely affected by the exercise of management's rights. Further, the Agency argues that the award abrogates management's rights under the standard set forth in Dep't of the Treasury, United States Customs Serv., 37 FLRA 309 (1990) because it prohibits management from assigning members of the ISM staff specific duties and precludes it from rotating employees through the department as Agency policy requires. [n4]
Further, the Agency argues that, even assuming that the Authority finds the award satisfies prong I of BEP, the award nonetheless fails to satisfy prong II of BEP because it does not reflect a reconstruction of what management would have done had it not violated the parties' collective bargaining agreement. In this regard, the Agency argues that management would not have utilized a seniority-based roster selection process because Agency policy requires that "`legal technicians and Inmate Systems Officers must be exposed to all areas of Inmate Systems.'" Exceptions at 14, quoting Inmate Systems Management Manual.
Finally, the Agency asserts that the award fails to draw its essence from the parties' collective bargaining agreement because the award ignores the plain language of Article 18, section f of the agreement.
IV. Analysis and Conclusions
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 resolving whether an arbitrator's award violates management's rights under § 7106 of the Statute, the Authority applies the framework established in BEP. 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 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. United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Lompoc, Cal., 58 FLRA 301, 303 (2003) (Chairman Cabaniss concurring, Member Pope dissenting) (BOP Lompoc).
The right to assign work under § 7106(a)(2)(B) of the Statute encompasses the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what positions the duties will be assigned. See, e.g., AFGE Local 3529, 56 FLRA 1049, 1050 (2001). The Authority has recently stated that a proposal requiring selection based on seniority can affect management's right to assign work under § 7106(a)(2)(B) in certain circumstances. See AFGE Local 3935, 59 FLRA 481, 482 (2003). As the right to assign work includes the right to establish qualifications and skills needed for a particular position, a provision that requires assignment by seniority, where management does not retain the authority to determine that the employees are equally qualified for the work assignments, affects the right to assign work. Id. Here, the Arbitrator's award effectively requires the Agency to rotate the employees in various departments of Inmate Systems Management solely in order of seniority, and does not allow management to make the determination as to whether the employees are equally qualified for the work assignments. We also note that there was no finding by the Arbitrator, nor any argument from the Union, that the employees were equally qualified. Thus, the Arbitrator's enforcement of Article 18 to invoke seniority-based roster committees affects management's right to assign work under § 7106(a)(2)(B). [n5]
Under prong I of BEP, the Authority must first determine whether Article 18 was negotiated pursuant to § 7106(b) of the Statute. United States Dep't of Def., Def. Logistics Agency, Red River Army Depot, Texarkana, [ v59 p746 ] Tex., 55 FLRA 523, 526 (1999). In order to determine whether a provision, as interpreted and applied by the arbitrator, was negotiated under § 7106(b)(3), the Authority assesses, pursuant to the standard set forth in BOP Oklahoma City, whether the collective bargaining provision: (1) constitutes an arrangement under § 7106(b)(3); and (2) excessively interferes with the exercise of a management right. See United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Complex, Coleman, Fla., 58 FLRA 291 (2003); United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Sheridan, Or., 58 FLRA 279 (2003) (BOP Sheridan); United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Forrest City, Ark., 58 FLRA 118 (2002).
A collective bargaining provision constitutes an arrangement within the meaning of § 7106(b)(3) if it is intended to ameliorate the adverse effects flowing from the exercise of a management right. Federal Aviation Admin., Washington, D.C., 55 FLRA 1233, 1236-37 (2000). The Authority has found in other cases that Article 18 constitutes an arrangement under § 7106(b)(3) of the Statute because it is intended to allow employees to plan days off and shift preferences, providing employees relief from the Agency exercising its right to assign work. See, e.g., United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Fed. Satellite Low, La Tuna, Tex., 59 FLRA 374 (2003), BOP Sheridan, 58 FLRA at 284.
A provision excessively interferes with a management right under the standard set forth in BOP Oklahoma City if the benefits afforded employees under the provision are outweighed by the intrusion on the exercise of management's rights. BOP Oklahoma City, 58 FLRA at 111. Here, Article 18 benefits employees by allowing employees to have advance notice of when they are expected to work. However, this benefit to employees is outweighed by the intrusion on the exercise of management's right to assign work. In this regard, the Arbitrator's interpretation of Article 18, Section f requires that the Agency establish roster committees and comply with the requirements in Article 18, Section d unless waived by the parties. Further, the Arbitrator interpreted Article 18, Section d to "[provide] that the roster committee . . . consider preference requests in order of seniority." Award at 9. The Agency claims, and the Union does not controvert, that this interpretation has the effect of requiring that preference requests be made and granted in order of seniority. Such an interpretation effectively precludes the Agency from rotating ISM employees throughout the department in accordance with Agency policy. See AFGE, Local 3935, 59 FLRA at 483-84 (proposal requiring that only seniority be considered when assigning and reassigning employees excessively interferes with management's right to assign work).
By denying the Agency the ability to assign the employees as it deems necessary within ISM, the award prevents management from determining the "particular duties to be assigned, when work assignments will occur, and to whom or what position the duties will be assigned." See Nat'l Weather Serv. Employees Org., 37 FLRA 392, 399 (1990). (describing the right to assign work under § 7106(a)(2)(B)). In addition, the Agency would be required to confine work assignments to senior employees who chose a specific rotation and preclude management from assigning work to other employees. This places a significant burden on the Agency. See NTEU, Chapter 26, 22 FLRA 314, 325 (1986) (proposals that could have the effect of completely abrogating the agency's right to assign a particular employee to perform a particular job excessively interfered with management's right to assign work). On balance, we find that the intrusion on the exercise of management's right to assign work outweighs any benefits to employees.
Accordingly, we conclude that the award excessively interferes with management's right to assign work under § 7106(a)(2)(B) of the Statute, and set aside the award. [n6]
The award is set aside. [ v59 p747 ]
Article 18 - Hours of Work
Section d. Quarterly rosters for Correctional Services employees will be prepared in accordance with the below listed procedures.
1. A roster committee will be formed which will consist of representative(s) of Management and the Union. The Union will be entitled to two (2) representatives. The Union doesn't care how many managers are attending;
2. Seven (7) weeks prior to the upcoming quarter, the Employer will ensure that a blank roster for the upcoming quarter will be posted in an area that is accessible to all correctional staff, for the purpose of giving those employees advance notice of assignments, days off, and shifts that are available for which they will be given the opportunity to submit their preference requests. Normally, there will be no changes to the blank roster after it is posted;
a. Employees may submit preference requests for assignment, shift, and days off, or any combination thereof, up to the day before the roster committee meets. Those who do not submit a preference request will be considered to have no preference. Preference requests will be made on the Employee Preference Request form in Appendix B or in any other manner agreed to by the parties at the local level. The Employer will ensure that sufficient amounts of forms are maintained to meet the needs of the employees;
b. Employee preference requests will be signed and dated by the employee and submitted to the Captain or designee. Requests that are illegible, incomplete, or incorrect will be returned to the employee. In order to facilitate Union representation on the roster committee, the employee is also encouraged to submit a copy of this request to the local Union President or designee.
. . . .
d. The roster committee 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. (Seniority is defined in Article 19).
3. The roster committee will meet and formulate the roster assignments no later than five (5) weeks prior to the effective date of the quarter change;
4. The committee's roster will be posted and accessible to all Correctional Services employees no later than the Friday following the roster committee meeting;
5. Once the completed roster is posted, all Correctional Officers will have one (1) week to submit any complaints or concerns. Correctional Officers will submit their Complaints or concerns in writing to the Captain or designee. The employee may also submit a copy to the local President or designee. No later than the following Wednesday, Management and the Union will meet to discuss the complaints or concerns received, and make any adjustments as needed;
6. The roster will be forwarded to the Warden for final approval;
7. The completed roster will be posted three (3) weeks prior to the effective date of the quarter change. Copies of the roster will be given to the local President or designee at the time of posting; and
8. The Employer will make every reasonable effort, at the time of the quarter change, to ensure that no employee is required to work sixteen (16) consecutive hours against the employee's wishes.
. . . .
Section f. Roster committees outside the correctional services department will be formed to develop a roster unless mutually waived by the department head and the Union. It is recommended that the procedures in Section d. be utilized. These rosters will be posted three (3) weeks prior to implementation. Copies will be given to the local President or designee at the time of posting.
File 1: Authority's Decision in 59 FLRA No.
File 2: Opinion of Member Pope
Footnote # 1 for 59 FLRA No. 134 - Authority's Decision
Footnote # 2 for 59 FLRA No. 134 - Authority's Decision
Footnote # 3 for 59 FLRA No. 134 - Authority's Decision
Inmate Systems Management is comprised of three functional areas: the records office, the mail room, and receiving and discharge. Unlike the practice in Correctional Services, employees assigned to ISM are required to rotate through various posts. See Exceptions, Attachment E.
Footnote # 4 for 59 FLRA No. 134 - Authority's Decision
After the Agency filed its exceptions, the Authority held in United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Transfer Ctr., Oklahoma City, Okla., 58 FLRA 109, 110 (2002) (BOP Oklahoma City) (Chairman Cabaniss and Member Armendariz concurring; Member Pope concurring as to result), that in determining whether an award is consistent with § 7106 because it has enforced a contract provision negotiated pursuant to § 7106(b)(3), the Authority will examine whether the contract provision, as interpreted and applied by the arbitrator, excessively interferes with the exercise of a management right, not whether it abrogates the exercise of a management right.
Footnote # 5 for 59 FLRA No. 134 - Authority's Decision
In United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Otisville, N.Y., 58 FLRA 307 (2003) (BOP Otisville ), the Authority found that an award involving the same contractual provisions as in this case (Article 18, Sections d. and f.) simply required bargaining and did not affect the exercise of management's rights. The Authority noted, however, that "if, as asserted by the Agency, the award had the effect of . . . preventing the Agency from assigning employees in a manner it judged necessary for its security, then it would affect management's rights to determine its internal security practices and assign work, and application of the BEP analysis would be necessary." BOP Otisville, 58 FLRA at 309 n.5.
Footnote # 6 for 59 FLRA No. 134 - Authority's Decision