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59 FLRA No. 54
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
COUNCIL OF PRISON LOCALS 33
(Union)
and
UNITED STATES
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
WASHINGTON, D.C.
(Agency)
0-AR-3686
_____
DECISION
October 9, 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 exceptions to an award of Arbitrator Mary P. Bass 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.
The Arbitrator found that the Agency did not violate the parties' agreement, federal law or regulations, or Agency policy by not paying a uniform allowance to employees who are not required to wear uniforms. For the reasons discussed below, we deny the Union's exceptions.
II. Background and Arbitrator's Award
Due to "chronic shortages" in the correctional services staff, the Agency has a practice of assigning non-uniformed staff to posts which are otherwise primarily staffed by employees in the correctional services department. Award at 10. The Agency requires correctional services employees to wear uniforms and pays them a uniform allowance. However, the Agency does not require the non-uniformed staff to wear uniforms when they are assigned to correctional officer posts and does not pay them the uniform allowance.
The Union filed a grievance alleging that the Agency has been using non-correctional services staff to work correctional services positions and "has refused to provide those staff a uniform allowance to enable them to wear uniforms while working posts requiring the wearing of a uniform." Id. at 2. [n1]
The parties agreed to the following issue before the Arbitrator:
[W]hether management violated the Master Agreement, 5 U.S.C., and Agency policy by not paying a uniform allowance to employees not required to wear uniforms, and if so, what the remedy shall be.
Id. at 2. [n2]
The Arbitrator denied the grievance. She found that "the intent of the parties as expressed in the Agreement and incorporated [uniform] policy was not to pay a uniform allowance to employees in non-uniformed positions who are assigned to correctional officer posts." Id. at 12.
In reaching this result, the Arbitrator found that Article 28, Sections f and h of the parties' agreement refer to the Agency's uniform policy and "clearly contemplate the wearing of uniforms and the payment of a uniform allowance to employees in certain positions only." Id. at 11. [n3] The Arbitrator further found that, under Section 9 of the Agency's uniform policy, the non-uniformed employees "are not employees in the Correctional Services department, and they are accordingly not required to wear uniforms." Id. at 12. [n4] Referencing the non-uniformed employees' position descriptions, the Arbitrator also found that "the assignment of non-uniformed staff on a regular and recurring basis to correctional officer posts does not constitute a change in position for the non-uniformed staff[,]" and [ v59 p382 ] that the assignment of correctional officer duties to non-uniformed employees "does not represent in and of itself a transfer, reassignment or detail of an employee." Id. at 11.
Based on the above, the Arbitrator denied the Union's grievance.
III. Positions of the Parties
A. Union's Exceptions
The Union claims that the Arbitrator's award fails to draw its essence from the parties' agreement, is based on nonfact, and does not conform with law, rule or regulation. Exceptions at 1.
Specifically, the Union argues that Article 28, Section f of the parties' agreement refers to a mandatory uniform policy with which the award "does not conform[.]" Id. at 2-3. The Union alleges that the policy requires "employees performing correctional services duties to wear the approved uniform, which is the Dress Uniform." Id. at 3. The Union also asserts that Article 16, Section c of the parties' agreement provides further support for its contention that uniforms are mandatory for employees performing correctional services duties. [n5] In this connection, the Union argues that correctional service duties "are not reasonably related to the [non-uniformed] employee's basic job description." Id. at 4.
The Union also disputes the Arbitrator's finding that non-uniformed employees who temporarily perform correctional services duties are not "detailed" to that position. In this connection, the Union cites Chapter 9, Section 5, Part b(4) of the of the Agency's uniform policy which provides that "[e]mployees detailed in non-emergency situations to positions requiring a different uniform, are entitled to an appropriate uniform allowance for the new uniform." Id. at 2.
B. Agency's Opposition
The Agency argues that the Union's exceptions fail to show that the award does not draw its essence from the parties' agreement.
The Agency also notes that in United States Dep't of Justice, Fed. Bureau of Prisons, Metropolitan Detention Ctr., Guaynabo, P.R., 58 FLRA 553 (2003) (BOP, Guaynabo), the Authority held that the Agency's uniform policy and the parties' master agreement could not be interpreted to entitle non-correctional employees to uniform allowances when they did not actually have to wear uniforms while temporarily staffing correctional posts.
IV. Analysis
It is well-settled that when a collective bargaining agreement incorporates the regulations with which an award allegedly conflicts, the matter becomes one of contract interpretation because the agreement, not the regulation, governs the matter in dispute. See United States Dep't of Defense, Hale Koa Hotel, 55 FLRA 651, 652 (1999); United States Dep't of the Army, Fort Campbell Dist., Third Reg., Fort Campbell, Ky., 37 FLRA 186, 194 (1990). In this case, it is undisputed that the parties' agreement expressly incorporates the Agency's uniform policy. Accordingly, the Union's challenge to the Arbitrator's application of the uniform policy presents a question of contract interpretation and does not raise a valid contrary to law claim.
For an award to be deficient as failing to draw its essence from the parties' agreement, it must be established 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 agreement as to manifest an infidelity to the obligation of an arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).
Applying and interpreting Article 28 of the parties' agreement, as well as the Agency's uniform policy, the Arbitrator found that only certain positions, including those in the Correctional Services department, are [ v59 p383 ] required to wear uniforms and entitled to receive the uniform allowance. The Arbitrator found that the employees in this case are non-uniformed employees who temporarily perform --but are not detailed to -- correctional services duties; are not employees in the Correctional Services department; are not required to wear uniforms; and are not entitled to receive the uniform allowance.
The Union's exceptions fail to establish that the Arbitrator's award is deficient as failing to draw its essence from the parties' agreement. Under the parties' agreement and Agency policy, the requirement to wear a uniform is a precondition to the Agency's obligation to provide employees a uniform allowance. As the Arbitrator found that non-correctional employees are not required to wear a uniform when temporarily staffing correctional posts, neither the agreement or the policy authorizes a uniform allowance in this case. See BOP, Guaynabo, 58 FLRA at 554 (the Authority found that the same contract provision did not entitle non-correctional employees to a uniform allowance).
Accordingly, we find that the award does not fail to draw its essence from the parties' agreement and deny the Union's exceptions. [n6]
V. Decision
The Union's exceptions are denied.
Footnote # 1 for 59 FLRA No. 54 - Authority's Decision
The grievance also alleged that the Agency "refused to provide an additional uniform allowance to those uniformed staff required to work uniformed posts requiring them to wear a different uniform than the uniform required of their primary position." Award at 2. This matter was not addressed by the Arbitrator and we do not address it further.
Footnote # 2 for 59 FLRA No. 54 - Authority's Decision
The Arbitrator also determined that the grievance was timely filed and that the Union properly invoked arbitration. As no exceptions were filed to these findings, we do not address them.
Footnote # 3 for 59 FLRA No. 54 - Authority's Decision
Article 28, Section f of the parties' agreement provides, in pertinent part, that "[t]he Employer will pay an allowance each year to each employee who is required by policy to wear a uniform in the performance of their official duties." Award at 4.
Article 28, Section h provides, in pertinent part, that "[u]niforms for all staff will be in accordance with policy, and only those staff occupying positions outlined in policy will be eligible for a uniform allowance." Id.
Footnote # 4 for 59 FLRA No. 54 - Authority's Decision
The agency's uniform policy, as relevant, states as follows:
9. Authorized Uniforms. Unless otherwise indicated in this section or by the Regional Director, all employees performing duties in the services described below are required to wear the approved uniform while performing official duties. . . .
a. Dress Uniform.
The dress uniform is authorized for Inmate Systems Management employees, Correctional Counselors, and Correctional Services employees . . . .
Award at 6-7, 12.
Footnote # 5 for 59 FLRA No. 54 - Authority's Decision
Article 16, Section c of the parties' agreement provides, in relevant part:
In regard to the phrase "other duties as assigned" or its equivalent, as used in position descriptions, it is understood that it will not be used to regularly assign work to an employee that is not reasonably related to the employee's basic job description. This does not preclude the Employer from detailing employees to other assignments in accordance with applicable laws.
Exceptions at 3 (emphasis omitted).
Footnote # 6 for 59 FLRA No. 54 - Authority's Decision
The Union offers no support for its claim that the award is based on a nonfact. As such, we dismiss this claim as a bare assertion. See, e.g., United States Dep't of Veterans Affairs Med. Ctr., Coatesville, Pa., 56 FLRA 966, 971 (2000).