70 FLRA No. 150                                                                                                                                                              

 

UNITED STATES

DEPARTMENT OF JUSTICE

FEDERAL BUREAU OF PRISONS

FEDERAL CORRECTIONAL COMPLEX

FLORENCE, COLORADO

(Agency)

 

and

 

AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES

LOCAL 1169

COUNCIL OF PRISON LOCALS #33

(Union)

 

0‑AR‑5342

 

_____

 

DECISION

 

July 27, 2018

 

_____

 

Before the Authority:  Colleen Duffy Kiko, Chairman, and Ernest DuBester and James T. Abbott, Members

(Member DuBester dissenting)

 

1.         Statement of the Case

 

This case reflects another attempt by the American Federation of Government Employees to force bargaining whenever it is dissatisfied with the way that the Bureau of Prisons assigns work under Article 18 of the parties’ collective-bargaining agreement (Article 18).^[1]  Here, Arbitrator Joe H. Henderson found that the Agency was contractually obligated to bargain before increasing assignments of non‑custody correctional officers to custody posts.  We find that the Agency’s assignment of work, in compliance with Article 18, did not trigger a duty to bargain.  Therefore, the Arbitrator’s contrary conclusion fails to draw its essence from the parties’ agreement, and we set aside his award. 

 

2. Background and Arbitrator’s Award

 

The Agency operates a federal prison complex, staffed by correctional officers in custody and              non-custody departments.  When certain custody posts are vacant, the Agency assigns non‑custody employees to work those posts – a practice called augmentation.  After the Agency increased its use of augmentation, the Union filed a grievance alleging that the Agency’s failure to bargain before doing so violated the parties’ agreement.

 

The grievance went to arbitration, where the Arbitrator focused on the Agency’s contractual bargaining obligations in Articles 4 and 7.  Article 4 provides, in pertinent part, that the Agency will not change “practices” or implement “changes . . . in working conditions” without negotiating with the Union.^[2]  In relevant part, Article 7 states that, consistent with law and the agreement, the Agency will give the Union notice of, and an opportunity to bargain over, “any changes in conditions of employment.”^[3] 

 

The Agency argued that its increased use of augmentation was an exercise of its assignment discretion under Article 18 and, therefore, was not a change that triggered a bargaining obligation under Article 4 or 7.^[4]  However, the Arbitrator found that the Agency’s unilateral decision to increase augmentation was a change within the meaning of Articles 4 and 7, and that the Agency’s failure to provide the Union with notice of, and an opportunity to bargain over, that change violated the parties’ agreement.  As a remedy, he directed the parties to bargain over procedures to be used when the      Agency augments custody posts.

 

On January 12, 2018, the Agency filed exceptions to the Arbitrator’s award, and on February 15, 2018, the Union filed an opposition to those exceptions.

 

3. Analysis and Conclusion:  The award fails to draw its essence from the parties’ agreement.

 

The Agency argues that the award fails to draw its essence from the parties’ agreement.^[5]  Specifically, the Agency argues that its increased use of augmentation was an exercise of its assignment discretion under Article 18 and, thus, that the Arbitrator erred when he found that the Agency made a change that triggered a contractual bargaining obligation.^[6] 

 

The Arbitrator found that the Agency had the contractual right, under Article 18,                                 “to reassign employees for any reason,”^[7] and he defined augmentation as the “reassignment” of a non-custody employee to work a custody post on a short‑term basis.^[8]  Because the parties’ agreement does not use the term “augmentation,”^[9] he concluded that the Agency’s increased use of augmentation was a “change” that triggered a bargaining obligation under Articles 4 and 7.^[10]  However, the Agency’s broad assignment discretion under Article 18 necessarily includes the frequency with which the Agency augments.^[11]  Here, because the Agency acted in compliance with that established discretion,^[12] it did not make a change.^[13]  As Articles 4 and 7 clearly and unequivocally require bargaining only over changes, the Arbitrator’s finding of a contractual duty to bargain in this case fails to draw its essence from the parties’ agreement.  Accordingly, we grant the Agency’s essence exception and set aside the award.^[14]

 

4. Decision

 

We set aside the award.^[15]

 

 

 

Member DuBester, dissenting:                                                       

                The decision in this case is another example of the majority’s determination not to give appropriate deference to arbitrators’ contract interpretations.1  In addition, the majority’s decision is another instance where the majority gives no weight to parties’ past practices, and to the legal and policy reasons for enforcing those past practices when interpreting the parties’ collective-bargaining agreements.2  Moreover, the majority’s tone in the decision’s opening sentence continues a theme of other majority decisions:  opposition to the Statute’s adoption of collective bargaining as an effective and efficient means of avoiding and resolving workplace conflicts.3  Because the majority’s conclusion to set aside the Arbitrator’s award is based on these mistakes, I dissent. 

 

                The majority barely acknowledges the deferential standard of review the Authority applies when it resolves claims that an award does not draw its essence from the parties’ agreement.4  This ignores the      Supreme Court’s declaration that “[t]he federal policy of settling labor disputes by arbitration would be undermined if [a reviewing body] ha[s] the final say on the merits of [an] award[]”5; a reviewing  body has       “no business overruling” an arbitrator simply because “[its] interpretation of the contract is different.”6

 

                To the contrary, when reviewing an arbitrator’s interpretation of a collective‑bargaining agreement, Authority precedent applies the deferential standard of review that federal courts use in reviewing arbitration awards in the private sector.7  Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the parties’ agreement when the appealing party establishes that 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.8  The Authority and the courts defer to arbitrators in this context “because it is the arbitrator’s construction of the agreement for which the parties have bargained.”9  When reviewing a challenge to an arbitrator’s interpretation of a parties’ agreement, the Authority also applies this deferential standard of review to an arbitrator’s determination of how parties’ past practices have modified the express terms of an agreement.10

 

                The Arbitrator’s award in this case draws its essence from the parties’ agreement.  The Arbitrator finds that the parties had an established past practice of augmenting the custody roster with non-custody staff in limited situations; only during “mandatory training, i.e., annual refresher training [and] firearms training.”11  But in this case, the Arbitrator finds, the Agency used augmentation to deal with “serious budget concerns.”12  The Arbitrator accordingly determines that “[a]ugmentation procedures were changed”13 by the Agency.  These are factual findings to which the Authority should defer.

 

                Further, applying the parties’ agreement to the facts, the Arbitrator finds that Articles 4 and 7 “give[] the Union the right to negotiate changes in working conditions and assignments.”14  And, rejecting that Agency’s argument that augmentation is “covered by” the parties’ national agreement, the Arbitrator finds that the Agency “presented” “no documentation . . . to substantiate that statement.”15  The Arbitrator observed, among other things, that neither the topics of “Reassignment” nor of “Augmentation” are found in the parties’ national agreement.^[16] 

 

                Although the Arbitrator’s past-practice finding is at the heart of his award, the majority carefully avoids any mention of that determination.  As I have stated in other separate opinions, the majority’s determination, to give no weight to parties’ past practices to resolve contract-interpretation issues, erroneously “reverses the Authority’s past‑practice precedent and conflicts with the clear weight of other authority that has addressed the subject.”^[17]  Contrary to the majority, I agree with the predominant view of the courts and arbitrators, the Authority’s well established precedent, and Elkouri & Elkouri that “[a]n arbitrator’s award that appears contrary to the express terms of the agreement may nevertheless be valid if it is premised upon reliable evidence of the parties’ intent.”^[18] 

 

                In this case, the majority does not deferentially analyze or dispute the Arbitrator’s past-practice finding.  Indeed, the majority does not even mention it.  Because the majority has determined to eliminate deference to arbitrators’ interpretations of collective-bargaining agreements from the Authority’s current decisions, contrary to fundamental principles and policies underlying the Federal Service Labor-Management Relations Statute, and to arrogate to itself that function, I dissent. 

 

                I would deny the Agency’s claim that the award fails to draw its essence from the parties’ agreement.  And I would reach the Agency’s remaining exception.