[ v59 p277 ]
59 FLRA No. 43
UNITED STATES
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
OAKDALE, LOUISIANA
(Agency)
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
COUNCIL OF PRISON LOCALS
LOCAL 3957
(Union)
0-AR-3563
_____
DECISION
September 30, 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 Ed W. Bankston 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 determined that the Agency violated the parties' collective bargaining agreements when it temporarily reassigned the grievant. As a remedy, he ordered a compensatory payment to the grievant in the amount of 20 hours of wages. We conclude that the award is deficient, in part.
II. Background and Arbitrator's Award
The grievant, an inmate systems officer, was reassigned as a correctional officer for one week. His shift was changed from evening watch to morning watch, and his work hours were changed from four 10-hour days with Friday, Saturday, and Sunday off to five 8-hour days with Saturday and Sunday off. The Union filed a grievance on the grievant's behalf claiming that the reassignment violated the parties' master agreement and compressed work schedule agreement.
The Arbitrator determined that the Agency violated Article 18, Sections r and s of the master agreement. [n2] He found that the Agency's confirmation to the grievant of the temporary work assignment by e-mail did not satisfy the explicit contractual notification requirements of Section s.
The Arbitrator also found that Section r entitled the grievant to remain on his designated shift for the entire roster period and that, accordingly, his temporary reassignment violated the agreement. The Arbitrator further found that the Agency violated the parties' compressed work schedule agreement because nothing in that agreement authorized the grievant's reassignment. Although the Arbitrator acknowledged that, under the compressed work schedule agreement, management retained the right to change duty hours to meet the demands of the "department," [n3] he viewed the grievant's reassignment to a correctional officer post to be outside the department.
The Arbitrator ruled that such reassignments are permissible under the master agreement and the compressed work schedule agreement only in emergency and crisis situations and that the Agency had failed to show that the grievant's reassignment was related to any emergency or crisis situation. Accordingly, the Arbitrator sustained the grievance. He determined that "[t]he grievance is to be remedied by the Agency's compensatory payment to the grievant in the amount of twenty (20) hours wages at regular time." Award at 24.
III. Exceptions
The Agency contends that the award fails to draw its essence from the parties' collective bargaining agreement [ v59 p278 ] and is contrary to the Back Pay Act and § 7106 of the Statute.
The Agency argues that the award fails to draw its essence from the parties' collective bargaining agreement because it ignores the plain language of the parties' compressed work schedule agreement. The Agency maintains that under the compressed work schedule agreement, management specifically retains the right to change duty hours when necessary to meet the demands of the department and that the grievant's reassignment was necessary for that purpose.
Further, the Agency asserts that the award is contrary to the Back Pay Act because it did not commit an unjustified or unwarranted personnel action and because the Arbitrator failed to find that any unwarranted action resulted in the reduction of the grievant's pay, allowances, or differentials.
Finally, the Agency argues that the Arbitrator's enforcement of the compressed work schedule agreement and Article 18, Section r of the master agreement is contrary to § 7106 of the Statute because it impermissibly affects management's rights to determine its internal security practices under § 7106(a)(1) and to assign employees and work under § 7106(a)(2)(A) and (B). The Agency maintains that by finding that the grievant was entitled to remain on his designated shift, the award affects these management rights. Addressing the framework established by the Authority in United States Dep't of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 53 FLRA 146 (1997) (BEP), the Agency argues that the award does not satisfy either prong I or prong II. With respect to prong I, the Agency argues that the Arbitrator's enforcement of the compressed work schedule agreement and Section r do not constitute an enforcement of a contract provision negotiated pursuant to § 7106(b). With respect to prong II, the Agency argues that the Arbitrator's order to pay the grievant 20 hours of wages does not reflect a reconstruction of what the Agency would have done if it had acted properly.
IV. Analysis and Conclusions
A. The award does not fail to draw its essence from the
collective bargaining agreement.
In order to establish that an award fails to draw its essence from the collective bargaining agreement, the appealing party must establish 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 so 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. See, e.g., United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).
In this case, the Arbitrator interpreted the term "department" in the compressed work schedule agreement as not encompassing the correctional services department. He further ruled that the Agency failed to show that the reassignment was related to an emergency or crisis situation, which he found necessary to permit a reassignment to a correctional officer post. The Agency has failed to establish that this interpretation is irrational, unfounded, or implausible or disregards the agreement. Accordingly, we deny this exception.
B. Standard of Review
We review questions of law raised by exceptions to an arbitrator's award de novo. See, e.g., NTEU Chapter 24, 50 FLRA 330, 332 (1995). In applying a standard of de novo review, we determine whether the arbitrator's legal conclusions are consistent with applicable law. See, e.g., NFFE Local 1437, 53 FLRA 1703, 1710 (1998).
C. The Arbitrator's enforcement of the compressed work
schedule agreement is not contrary to § 7106
It is well established that under the Work Schedules Act, alternative work schedules are fully negotiable and enforceable, subject only to the Work Schedules Act itself or other laws superseding it. See, e.g., AFGE, AFL-CIO, Local 2361, 57 FLRA 766, 767 (2002). Accordingly, the Agency's contention that the Arbitrator's enforcement of the compressed work schedule agreement conflicted with management rights under § 7106(a) of the Statute provides no basis on which to find the award deficient. See United States Environmental Protection Agency, Research Triangle Park, N.C., 43 FLRA 87, 92-93 (1991) (§ 7106 of the Statute provided no basis for finding award relating to alternative work schedules deficient because schedules are fully negotiable and enforceable without regard to the exercise of management rights).
D. The Arbitrator's enforcement of Article 18, Section r of the
master agreement is contrary to § 7106
When an agency asserts that an award is contrary to management rights under § 7106 of the Statute, we apply the framework set forth in BEP, 53 FLRA 146. Under BEP, when an award affects a management right under § 7106, we apply a two-prong test. See id. at 153-54. Under prong I, we examine whether the award provides [ v59 p279 ] a remedy for a violation of either an applicable law or a contract provision that was negotiated pursuant to § 7106(b). Under prong II, we determine whether the arbitrator's remedy reflects a reconstruction of what management would have done had it not violated the law or contract provision at issue. We conclude that the award affects management rights and we apply the two-prong test of BEP.
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). In agreement with the Agency, we conclude that the Arbitrator's enforcement of Article 18, Section r to prohibit the disputed reassignment of the grievant affects management's right to assign work under § 7106(a)(2)(B).
The right to determine 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. See, e.g., United States Dep't of Justice, Fed. Bureau of Prisons, United States Penitentiary, Atlanta, Ga., 57 FLRA 406, 409 (2001). Where there is a link or reasonable connection between an agency's goal of safeguarding personnel or property, or preventing disruption of agency operations, and the disputed practice, the practice constitutes the agency's exercise of its right to determine internal security practices. This right specifically includes the right to determine the degree of staffing to maintain the security of the facility. See id. As acknowledged by the Arbitrator, the Agency asserted that it rightfully reassigned the grievant "in order to ensure the internal security of the institution." Award at 12. In agreement with the Agency, we conclude that the Arbitrator's enforcement of Article 18, Section r to prohibit the disputed reassignment of the grievant affects management's right to determine its internal security practices under § 7106(a)(1).
Under prong I of BEP, we examine whether Article 18, Section r is enforceable as having been negotiated pursuant to § 7106(b). We conclude that the enforcement of Section r fails to satisfy prong I of BEP. The Union did not claim and it is not apparent that Section r was negotiated pursuant to § 7106(b)(1) or (b)(2). In addition, Section r is not enforceable as having been negotiated pursuant to § 7106(b)(3).
In order to determine whether a provision is enforceable as having been negotiated pursuant to § 7106(b)(3), we assess whether the provision constitutes an arrangement within the meaning of § 7106(b)(3) and whether its enforcement excessively interferes with the exercise of a management right. See United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Transfer Ctr., Oklahoma City, Okla., 58 FLRA 109, 110 (2002) (modifying the standard under BEP for determining whether a contract provision was enforceable under § 7106(b)(3)). The Arbitrator did not explain the intent or benefits of Article 18, Section r. However, even if we assumed that Article 18, Section r constituted an arrangement, we find that the award excessively interferes with management rights.
The Arbitrator interpreted and applied Article 18, Section r to prohibit the Agency from temporarily reassigning an employee unless the reassignment was reasonably related to an emergency or crisis situation. Consequently, whatever the benefits afforded employees by the quarterly roster of Section r, the award severely restricts management's right to modify shift assignments and days off in order to ensure the security of the institution and by doing so excessively interferes with management's rights to assign work under § 7106(a)(2)(B) and to determine its internal security practices under § 7106(a)(1). See, e.g., United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Lompoc, Cal., 58 FLRA 301 (2003).
As the award impermissibly affects management's rights to assign work and to determine its internal security practices, the Arbitrator's enforcement of Article 18, Section r is contrary to § 7106. [n4]
E. The award of pay is contrary to the Back Pay Act.
An award of pay is authorized under the Back Pay Act only when: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; and (2) the personnel action resulted in a loss of pay, allowances, or differentials by the employee. See, e.g., United States Dep't of Agriculture, Fed. Grain and Inspection Serv., Grain Inspection, Packers and Stockyards Admin., 58 FLRA 98, 99 (2002). In determining whether an award of pay is deficient, we examine whether there has been an unjustified or unwarranted personnel action and whether there is a causal connection between the unwarranted personnel action and a loss of pay, allowances, or differentials. See id.
With respect to an unjustified or unwarranted personnel action, the Authority has held that a violation of a [ v59 p280 ] collective bargaining agreement constitutes an unjustified or unwarranted personnel action under the Act. See, e.g., AFGE Local 916, 57 FLRA 715, 717 (2002). The Arbitrator specifically found that the Agency violated the compressed work schedule agreement and Article 18, Section s of the master agreement. We have denied the Agency's exception to the Arbitrator's enforcement of the compressed work schedule agreement, and the Agency has not disputed the violation of Article 18, Section s. Accordingly, we reject the Agency's assertion that it did not commit an unjustified or unwarranted personnel action.
With respect to the requirement of a causal connection, we examine whether the arbitrator has found that but for the unwarranted action, the loss of pay, allowances, or differentials would not have occurred. See United States Dep't of Health and Human Services, 54 FLRA 1210, 1218-19 (1998) (an examination of whether a pay loss would have occurred but for the unwarranted action "amplifies" the causal connection requirement of the Act). We conclude that there is no causal connection between the Agency's unwarranted actions and an award of 20 hours of wages.
The Arbitrator did not find and the record does not establish that the Agency's violation of the compressed work schedule agreement and Article 18, Section s of the master agreement resulted in the grievant's loss of 20 hours of wages. Under the award, if the Agency had acted in accordance with these provisions, the Agency would not have temporarily reassigned the grievant. As noted by the Agency, if it had acted in accordance with the Arbitrator's interpretation of the agreements, during the week in question, the grievant would have worked four 10-hour days as an inmate systems officer with Friday, Saturday, and Sunday off. In addition, under Article 18, Section s, it would have provided confirmation of the reassignment in writing rather than by e-mail. Accordingly, nothing in the Arbitrator's findings or the record supports a causal connection between the unwarranted actions of the Agency and a compensatory payment to the grievant of 20 hours of wages.
As a result of the Agency's unwarranted actions, the grievant worked a 40-hour week and, in absence of the unwarranted actions, the grievant would have worked a 40-hour week. Consequently, the award is deficient by ordering a compensatory payment of 20 hours of wages.
V. Decision
The Agency's exceptions, which contend that the award does not draw its essence from the agreement and that the Arbitrator's enforcement of the compressed work schedule agreement is contrary to § 7106, are denied. The Arbitrator's enforcement of Article 18, Section r of the master agreement and the award of a compensatory payment of 20 hours of wages are set aside. [n5]
File 1: Authority's Decision in 59 FLRA No.
43
File 2: Opinion of Member Pope
Footnote # 1 for 59 FLRA No. 43 - Authority's Decision
The separate opinion of Member Pope, dissenting in part, is set forth at the end of this decision.
Footnote # 2 for 59 FLRA No. 43 - Authority's Decision
Article 18, Sections r and s provide in pertinent part as follows:
Section r. Normally, nonprobationary employees . . . will remain on the shift/assignment designated by the quarterly roster for the entire roster period. When circumstances require a temporary (less than five (5) working days) change of shift or assignment, the Employer will make reasonable efforts to assure that the affected employee's days off remain as designated by the roster.
Section s. Notification of shift or assignment changes . . . will be confirmed in writing and signed by the Employer, with a copy to the employee.
Footnote # 3 for 59 FLRA No. 43 - Authority's Decision
The compressed work schedule agreement provides in pertinent part: "Management would retain the authority to change duty hours and/or posts when necessary to meet the demands of the department." Award at 21.
Footnote # 4 for 59 FLRA No. 43 - Authority's Decision
In view of this decision, we do not address management's right to assign employees under § 7106(a)(2)(A) of the Statute.
Footnote # 5 for 59 FLRA No. 43 - Authority's Decision
In United States Dep't of Veterans Affairs, Cleveland Reg'l Office, Cleveland, Ohio, 59 FLRA No. 38 (Sep. 29, 2003) (Member Pope dissenting), we expressed the view that when the Authority finds an arbitrator's remedy deficient, it is generally appropriate to leave any further action concerning such an award in the hands of the parties. We ruled that the "necessary" action, which § 7122(a) of the Statute directs the Authority to take upon finding an award deficient, is an individualized judgment to be determined on the facts and circumstances of each case. We advised that in determining the necessary and appropriate action, we would be guided by whether an action, under the facts and circumstances presented, would promote the purposes and policies of the Statute.
In the instant case, we find no facts or circumstances warranting a remand. Accordingly, we do not remand for further proceedings.