In re
United States Department of Justice,
Federal Bureau of Prisons,
Federal Correctional Institute,
El Reno, Oklahoma
and
American Federation of Government Employees,
Local 171
116 LA (BNA) 1718
FMCS Case No. 01/11034
April 16, 2002
Sidney S. Moreland, IV, Arbitrator*
Issues
Did
the Federal Bureau of Prisons violate the Collective Bargaining Agreement,
federal law, or any other applicable rule or regulation by failing to fill
vacated posts in the course of assigning personnel and work, and if so, what is
the appropriate remedy? Is the issue arbitral in
accordance with the Collective Bargaining Agreement, federal law, or any other
applicable rule or regulation?
Background
The Federal Bureau of Prisons
("Agency") operates a correctional institution in El Reno, Oklahoma
for the United States Government. The facility houses approximately 1330
inmates incarcerated pursuant to their adjudication under federal law. The
facility employs approximately 162 correctional service employees serving in
various "posts" for the operation of the facility.
The American Federation of
Government Employees, Local Union Number 171 ("Union") is recognized
as the sole and exclusive representative/bargaining agent for all bargaining
unit employees as defined in 5 U.S.C. Chapter 71, and under the provisions of
the Civil Service Reform Act and the Federal Service Labor Management Relations
Statute with respect to conditions of employment, pursuant to Article 1 of the
Collective Bargaining Agreement ("Contract").
The Contract was in effect at the
time of the occurring incident(s) giving rise to this dispute. The Contract was
entered into between the Agency and the Union on 02-06-98.
On 03-28-01, the Union filed a
formal grievance on behalf of "all bargaining unit staff." The grievance
alleges the Agency is violating Article 27, Section A of the Contract by
"intentionally and willfully vacating posts throughout the institution and
prison camp to avoid paying overtime or for other reasons of administrative
convenience." The grievance also stated that the Agency is "raising
rather than lowering the institution's inherent hazards to the lowest possible
level."
The grievance sought the following
remedial measures from the Agency: "1) to cease and desist in vacating
posts to avoid payment of overtime or for administrative convenience; 2) pay
each staff the overtime he/she would have earned but for the unwarranted
personnel action by the Agency when it violated the agreement and deprived
employees of overtime work by filling other posts with personnel from vacated
posts; 3) pay liquidated damages to each employee adversely effected by the
Agency's willful violation of the collective bargaining agreement; 4) establish
a manpower committee with union representation as an appropriate arrangement to
make specific recommendations to the appropriate authorities for manpower
utilization; 5) any other remedies deemed appropriate by the Arbitrator."
On 04-11-01, the Agency responded to
the grievance. The Agency's response letter states the grievance "lacks
specificity" and "without information regarding specific allegations
and how they affect particular bargaining unit members, it is not possible to
properly research your allegation."
On 04-24-01, the Union responded to
the Agency's specificity request in a 3-page letter which specifically alleges
that on the 23 listed dates in 1999, 2000, and 2001, the Agency failed to fill
posts. The Union also complains that the Agency "limited" the Union's
information access to only two departments. The Union accuses the Agency of
"slow playing” and characterizes the Agency's "attempt to delay the process”
and limiting Union officer's official time for working on the grievance as a
"self admission by this administration that you recognize your putting
staff and inmates lives at risk by vacating post yet you choose to do nothing
about it."
On 04-27-01, the Warden of the
Agency responded to the Union's allegations by stating "we are currently
researching these allegations to determine the appropriate management
response." The Agency also stated that they would be unable to complete
its research of the allegations and determine the appropriate management
response within the 30 days allowed by the Contract. The Warden stated that he
anticipated providing a response "no later than May 9, 2001." The
Agency provided no response by May 9, 2001.
On 05-14-01, the Agency formally
denied the grievance and responded in part to the 04-24-01 specific Union
allegations concerning the vacated posts on 03-26-01 and 03-27-01. The Agency
stated that a review for those two dates was conducted, and reflected the
vacated posts were due to absences of sick leave, training, annual leave, and
official time. The Agency went on to state, "While all correctional posts
are important for the efficient operation of the institution, not all are
critical in regards to their impact on safety and security. Had the vacated
posts in question fell into the later category, they would not have been
vacated. At no time has the security of the institution and safety of staff
been compromised due to the vacating of non-critical posts. Your grievance is
denied."
On the same date, the Union notified
the Agency that they were "invoking arbitration" of the matter.
Agency's Position
The grievance is procedurally defective
due to the Union's defective pleading. The Contract requires formal grievances
to be filed on the Bureau of Prisons' form. The Union failed to state
specifically how the Agency violated a particular directive, executive order,
or statute. In so doing, the Union did not provide adequate notice to the
Agency of the nature of their claim. The Union is barred from further expanding
or modifying the issue. The Arbitrator should find that the grievance is
procedurally defective and non-arbitral and accordingly, should deny the
grievance.
The
Contract and 5 USC 7106 explicitly vest sole responsibility of determining
internal security issues and the exclusive right to assign work and personnel
to the Agency. Federal law reserves the unilateral right of assigning work to
management, and that right includes the right to assign overtime, determine
when overtime will be performed, and to vacate strategically selected posts
when necessary.
The
Union's assertion that the Agency vacates posts in order to avoid payment of
overtime, or for other administrative convenience is both erroneous and ill
founded. The Agency spent approximately $1.5 million in overtime for Fiscal
Year 2001. The testimony revealed that the Agency often times has difficulty in
getting personnel to work overtime.
The Agency has never taken measures
that increase the inherent hazards of the institution, reflecting our
commitment to our personnel, our inmates, and our respect of federal law and
the collective bargaining agreement. Accordingly, the grievance is without
merit and should be denied.
Union's Position
The Agency acknowledged that the
Union submitted specific examples of alleged violations of the Contract, as
soon as the necessary information was made accessible to the Union. The
Agency's response to the formal grievance never alleged procedural defects nor
was the issue of arbitrability ever raised prior to the hearing.
The Agency now seeks to limit the
grievance to instances of violation that occurred only 40 days prior to the
filing of the formal grievance. However, the violations were of an ongoing and
repetitive nature. The violation complained of in the formal grievance is a
continuous unending violation of the Contract. There exists no provision of the
Contract that precludes, limits, or regulates violations that occur prior to
the filed grievance. The grievance is arbitral and contains neither substantive
nor procedural defects. The Arbitrator should proceed to deciding the merits of
the grievance issue.
The
Contract mandates that the Agency lower the inherent hazards of the institution
to the lowest extent possible at all times. The Agency has continuously
violated the provision by operating the institution short staffed. The Agency
has clearly demonstrated that their commitment to saving money outweighs their
concern for the safety of the employees. The Agency has repeatedly refused to
assign overtime work when confronted with a post vacancy. Instead, the Agency
has re-shuffled employees around from one post to another, resulting in the
employee's originally assigned post then becoming vacant. The end result is an
unsafe institution operating far below its intended level of manpower.
Accordingly, the grievance should be
sustained and the Agency shall cease and desist the practice of vacating posts
to avoid payment of overtime or for other reasons of administrative
convenience; the Grievant and all co-affected personnel should be compensated
the overtime retroactively that he/she would have earned but-for the
unwarranted personnel action; all co-affected personnel should also be paid
liquidated damages; and the Agency should establish a Manpower Committee with
Union representation to make specific recommendations for manpower utilization.
Arbitrability
The Agency asserts that the Union's grievance failed to
meet the requisites of the Contract's rules for formal grievance filing, more
particularly that the mandated grievance form demands greater specificity in
describing the acts constituting the violation. Particularly questions 5 and 6
on the Formal Grievance Form, which read as follows:
"5.
Federal Prison System Directive, Executive Order, or Statute violated:
6. In what
way were each of the above violated? Be specific."
The Union's answer clearly specifies
the violated rule, and sufficiently identified the manner in which the Agency
was violating that rule:
"5.
Master Agreement, Article 27, Sec. A
6. The
Agency is violating the aforementioned reference by intentionally and willfully
vacating posts throughout the institution and prison camp to avoid paying
overtime or for other reasons of administrative convenience. By vacating posts
for said reasons, the agency is raising rather than lowering the institution's
inherent hazards to the lowest possible level that it agreed to do."
The formal grievance in labor disputes forms the genesis
of the resolution process and it is not uncommon for contract language to
impose requisite levels of fact specificity. However, it is only necessary for
the formal grievance to contain language sufficient to:
a) give
fair notice to the adverse party of a formal complaint requiring a response;
b) limit
or narrow the issues for resolution;
c) notify
the adverse party of the facts upon which the claim(s) are based, enough to
fairly allow the adverse party to form a defense thereto;
It is not necessary for the
grievance to include the entirety of the Union's case, but only that it
suffices to notify the Agency of the allegations against them with enough
specificity to enable the Agency to provide a reasonably informed response.
The grievance is not to be resolved
by the mere filing of the formal grievance and the answer thereto. It merely
serves to formally initiate the process and place the parties on notice that a
problem exists warranting responsiveness, attention, investigation, and
ultimate resolution.
In the matter at hand, the Union's
grievance satisfied the requisites of specificity to the extent possible. The
grievance involves the Agency's ongoing personnel management acts over an
indefinite time period. Acts by the Agency's management that were ongoing and
repetitive, commonly known by both parties, and collectively form the practice
complained of.
However, the personnel records
documenting the individual acts constituting the "continuing
violation" complained of by the Union, were in the exclusive custody
of the Agency. Management of the Agency
maintains the exclusive custody and control of the records capable of
reflecting whether or not the grievance allegations are true. The Agency cannot
be allowed to demand more specificity in a formal grievance under these
conditions. The Agency cannot coyly demand more information from the Union,
when that information remains exclusively in the Agency's control and custody.
Accordingly, the grievance is not
procedurally nor substantively defective, and the issues it raises are
arbitral.
Article 27 and Federal Law
Ironically, both parties assert the
language of Article 27 of the Contract in advancing their arguments. Article
27, Section a. states:
"ARTICLE
27-HEALTH AND SAFETY
Section a
. There are essentially two (2) distinct areas of concern regarding the safety
and health of employees in the Federal Bureau of Prisons:
1. the
first, which affects the safety and well-being of employees, involves the
inherent hazards of a correctional environment; and
2. the
second, which affects the safety and health of employees, involves the inherent
hazards associated with the normal industrial operations found throughout the
Federal Bureau of Prisons.
With respect to the first, the Employer agrees to
lower those inherent hazards to the lowest possible level, without
relinquishing its rights under 5 USC 7106. The Union recognizes that by the
very nature of the duties associated with supervising and controlling inmates,
these hazards can never be completely eliminated.
With
respect to the second, the Employer agrees to furnish to employees places and
conditions of employment that are free from recognized hazards that are causing
or are likely to cause death or serious physical harm, in accordance with all
applicable federal laws, standards, codes, regulations, and executive
orders."
The
Union claims Article 27 is violated whenever the Agency vacates an established
and budgeted post to avoid paying overtime and/or for administrative
convenience. The Agency claims Article 27 stridently preserves their statutory
management rights found in 5 USC 7106, which
states in pertinent part:
"Section 7106.-Management rights
(a)
Subject to subsection (b) of this section, nothing in this chapter shall affect
the authority of any management official of any agency-
(1) to
determine the mission, budget, organization, number of employees, and internal
security practices of the agency; and
(2) in
accordance with applicable laws-
(A) to hire, assign, direct, layoff, and retain
employees in the agency, or to suspend, remove, reduce in grade or pay, or take
other disciplinary action against such employees;
(B) to assign work, to make determinations with
respect to contracting out, and to determine the personnel by which agency
operations shall be conducted;
(C) with
respect to filling positions, to make selections for appointments from-(i)
among properly ranked and certified candidates for promotion; or (ii) any other
appropriate source; and
(D) to
take whatever actions may be necessary to carry out the agency mission during
emergencies.
(b)
Nothing in this section shall preclude any agency and any labor organization
from negotiating-
(1) at the
election of the agency, on the numbers, types, and grades of employees or
positions assigned to any organizational subdivision, work project, or tour of
duty, or on the technology, methods, and means of performing work;
(2)
procedures which management officials of the agency will observe in exercising
any authority under this section; or
(3)
appropriate arrangements for employees adversely affected by the exercise of
any authority under this section by such management officials"
Article
27 has two distinctly different subjects-the first addresses safety of the
employees in the performance of their duties facing the inherent hazards of
interacting with inmates in the institution's correctional environment. The
second addresses the safety of the employees in the performance of their duties
facing the inherent hazards of the institution's physical plant and its'
structural integrity, safeness of its' equipment and fixtures, water and air
quality, health and safety standards, and the institution's level of property
maintenance. In the instant case, we are only concerned with the former.
The wording of Article 27 only
conditionally commits the Employer to lower those inherent hazards to the
lowest possible level without relinquishing its rights under the statute.
Therefore, the statute's language holds the key to whether or not the Contract
has been violated. The statute clearly allows management the exclusive
authority to assign work, determine the personnel by which agency operations
shall be conducted, to determine the number of the employees and the internal
security practices of the agency.
It is true, as the Union contends,
that the Agency may negotiate away any of the aforementioned management rights,
but the Contract itself offers the best evidence of what the parties have or
have not reached a negotiated conclusion on. Nothing in the Contract indicates an abdication or
relinquishment of management's statutory right to determine work assignments
and internal security practices on a day-to-day basis. The parties to the
Contract quite clearly and unambiguously stopped short of diminishing
management's legal right to directly control the assignment of work. The Agency
did agree to lower the inherent hazards to the lowest extent possible, but
without relinquishing these powerful management rights. Such contract language
places the Agency in the inconsistent posture of owing its employees the least
amount of hazardous exposure, but with the sole right to achieve that safety as
management exclusively sees fit. Regardless of the inconsistency in such a
management style-the federal statute flanked by the Contract language asserting
it, is fatal to the Union's case.
The Filling of the Vacant Posts
The Union points to numerous dates and incidents when the Agency left posts vacant, without proving exactly why the Agency did so in each instant. It is not simply presumable that posts were vacated to avoid paying overtime. The Union must prove by a preponderance of the evidence, that the Agency vacated posts for this reason alone, and the action directly resulted in greater danger to the personnel or population.
The Union offered three witnesses
(including the Warden) who testified of their first hand knowledge concerning
the actual filling of vacant posts in this institution. The testimony in this
area reveals that personnel already at work in other posts commonly fill the
vacant posts. This practice of reassignment is referred to as
"pulling" and a "pull post" is the less essential position
that is abandoned when the employee is reassigned to the more essential post.
The Agency stipulated that vacancies are commonly filled in this manner for a
variety of reasons. It
should be noted here that the initial vacancy is created by employee
absenteeism, which in most instances is non-foreseeable and beyond management's
control.
The
most insightful testimony in this regard came from Captain Elmer, who explained
that overtime expense had to be budgeted annually, and that management bears
the burden of living within the budget. He further explained how the daily
register ordinarily contained "extra staff available" that management
"could use almost like a hedge prior to having to pay overtime."
Lieutenant Damrill and Travis Sutterfield (formerly a lieutenant at this
institution) both testified that they were shown a list of posts from which to
pull from in the event a vacancy occurred in a more essential post. The Union
insists that such testimony provides the prima facie proof necessary to sustain
their grievance. A more accurate portrayal of the facts deduced from this
testimony is that the management act of staying within an annually budgeted
fiscal amount for overtime pay, and the management act of reassigning work as
needed, are two distinctly different management responsibilities. Both
responsibilities can be performed independently of the other without increasing
the hazards of the institution. Perhaps Captain Elmer summed it up best:
"prior to overtime being paid we exhausted available extra staff without
adversely affecting the security of the institution."
Ancillary Issues
The Agency seeks to have the
grievance complaint limited to events that occurred 40 days prior to the filing
of the formal grievance, pursuant to the Contract's grievance procedure, which
mandates that "grievances must be filed within forty calendar days of the
date of the alleged grievable occurrence."
The Union requests that a subsequent
hearing be held for the purposes of determining back pay eligibility and
calculation, and for the argument of other compensable remedies for the
affected employees.
Without a sustained grievance, these
issues become moot.
Manpower Committee
The
Union also seeks representation on a Manpower Committee that would be empowered
to make recommendations to management concerning manpower utilization. Article
10 of the Contract identifies five institutional committees whereby Union
representation is allowed. Clearly the allowance of Union representation upon
such committees has been a matter for collective bargaining between the
parties. While I would hope that the Agency might also consensually include the
Union on a manpower committee after negotiations, under the circumstances at
hand mandating the Agency to do so would be meddling with the collective
bargaining process.
AWARD/RULING
For
the reasons stated herein, the grievance is hereby denied.
The Arbitrator's costs shall be
borne equally by both parties, pursuant to Article 32, Section d, of the
Contract.
_________________________________
* Selected
by parties through procedures of the Federal Mediation and Conciliation Service