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In the Matter of Arbitration
Between
Department of Justice
Federal Bureau of Prisons FMCS 99-16053-3
and Health and Safety--Staffing
American Federation of Government Employees
Local 1145
Atlanta, Georgia
Arbitrator
Sue Olinger Shaw
Appearances
For the Union
Dennis J. Biesik, Northeast Regional Vice President
Benjamin Jetter, Correctional Officer and Local Union President
David Bray, Senior Officer, Specialist, and Local Union Secretary-Treasurer
George John Kubitz, Senior Special Officer
Eddie Brown, Senior Officer
Lucious Dempsey Johnson, Lieutenant
Willie J. Scott, Warden
For the Agency
Paul D. Jessup, Labor Relations Specialist
Reginald Lewis Ammons, Associate Warden (Custody)
Steven Jenkins, Deputy Captain
THE ISSUE
The parties have stipulated to the issue as follows: "Does the Agency violate Article 27 of the Master Agreement when it vacates correctional posts, and, if so, what shall the remedy be?" The initial grievance, filed July 9, 1999, states "From June 1, 1999 to June 24, 1999 There was approximately 318 positions vacated from the Daily Correctional Services Roster. This creates an unsafe working condition for the staff here at USP Atlanta," (sic) and requests as remedy "l.) Adequately staff the Correctional Services Department, 2.) The practice of vacating post from the Correctional Services Daily roster to cease immediately, and 3.) Any other appropriate relief as may be needed and requested at hearing." The grievance was denied on August 6, 1999, and the Union moved to arbitration. A hearing in the matter was held in Atlanta, Georgia, on July 28, 2000.
FACTS
The Atlanta Federal Penitentiary is a maximum-security prison; it is a large institution, with a correspondingly large correctional staff. At present, the Correctional Department is authorized 388 positions, including supervisory positions. However, there is a relatively large turnover, due to promotions and transfers as well as the fact that the position of custodial officer is an entry-level position; the actual number of positions filled fluctuates substantially and the full authorized complement is rarely filled. Captain Grady Turner testified that, on the day of the hearing, there were actually 364 employees in the Department.
The Department prepares, in accord with Article 18, Section d, of the Master Agreement, a quarterly roster of positions in Correctional Services. That roster allows for a number of employees to be assigned to the sick and annual relief shift, used to cover for correctional officers away from their posts because of annual leave, illness, maternity leave, military reserve leave and the like, including those who are temporarily assigned to other departments for training. The sick and annual relief roster is often inadequate to fill all the posts it is intended to cover so that some shifts may be left under-staffed, with not enough correctional officers to fill all the posts on the roster. In such cases, it has been the practice for Management officials to move some correctional officers from their regularly assigned positions, thereby vacating those positions, to the unanticipated vacancies that could not be covered from the sick and annual relief roster whenever they deemed that such reassignment would result in a more desirable utilization of available personnel.
In the period June 1 to June 24, 1999, there were, according to the Union's tabulation, some 318 instances in which Management vacated posts that had been posted on the quarterly roster; Management does not contest the number, though it suggests that some of the vacated posts might have been filled for part of the shifts. No presentation was made at the arbitration hearing to establish whether all the posts were vacated by deliberate re-assignment of the incumbent to another post or whether some posts were simply allowed to be vacated because the Agency did not take any steps to fill them when their incumbents did not report for work, but uncontested testimony of Union witnesses established that there have been numerous instances of deliberate vacating of posts through reassignment of their incumbents. The Union contends that the practice of vacating posts continues, despite its protests, and is particularly concerned with the vacating of posts it considers critical to maintaining safety and minimizing risks to which the employees, as well as the inmates and the general public, are exposed.
The Union filed the instant grievance protesting Management's practice of vacating correctional officer positions on July 9, 1999. The grievance was denied by Warden Scott on August 6, 1999, and the Union moved to arbitration.
RELEVANT LANGUAGE OF THE MASTER AGREEMENT
Article 5-Rights of the Employer
Section a. Subject to Section b. of this article, nothing in this section shall affect the authority of any Management official of the Agency, in accordance with 5 USC, Section 7106:
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 ... ;
b. to assign work, ...and to determine-nine the personnel by which Agency operations shall be conducted;
c. with respect to filling positions, to make selections for appointment from:
(1) among properly ranked and certified candidates for promotion; or
(2) any other appropriate source; and
d. to take whatever actions may be necessary to carry out the Agency mission during emergencies.
Section 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 sub-division, work project, or tour of duty, or the technology, methods, and means of performing work;
2.procedures which Management officials of the Agency will observe in
exercising any authority under this Agreement; or
3. appropriate arrangements for employees adversely affected by the
exercise of any authority under this section by such Management officials.
Article 6-Rights of the Employee
Section a. Each employee shall have the right to form, join, or assist a labor organization ... and each employee shall be protected in the exercise of such right. Except as otherwise provided by 5 USC, such right includes the right:
6. to have all provisions of the Collective Bargaining Agreement adhered to.
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.
Section r. Normally, nonprobationary employees, other than those assigned to sick and annual relief, will remain on the shift/assignment designated by the quarterly roster for the entire roster period....
Section u. Except as defined in Section d. of this article, the words ordinarily or reasonable efforts as used in this article shall mean: the presumption is for the procedure stated and shall not be implemented otherwise without good reason.
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.
POSITIONS OF THE PARTIES
The Union
The Union argues that the contested vacating of correctional posts violates Article 27 of the Agreement between the parties because the practice conflicts with the Agency's Article 27, Section a, obligation to lower the inherent hazards of the correctional environment to the lowest possible level. It contends that vacating correctional posts increases the risk to staff safety because it results in having fewer officers to look for contraband, to observe and keep track of inmates, to respond to emergencies and to perform other safety-related duties. The Union contends that insufficient staff creates a clearly recognized hazard, in violation of the Article 27 obligation of Management to provide a work place that is "free from recognized hazards that are causing or are likely to cause death or serious physical harm."
The Union acknowledges that Article 27 specifically provides that Management can not be required to relinquish its rights under 5 USC 7106, reiterated in Article 5 of the Agreement, in order to lower inherent hazards, but it contends that limitation of Management's right to vacate correctional posts does not interfere to an excessive degree with Management's Article 5 rights; that, on the contrary, Management's obligation to follow procedures for filling correctional posts set out in Article 18 of the Agreement, and therefore not to vacate the correctional posts in violation of Article 18 procedures, was negotiated in accordance with Section b.2 of Article 5. The Union points out that Article 18, Section r, provides that "normally, nonprobationary employees, other than those assigned to sick and annual relief, will remain on the shift/assignment designated by the quarterly roster for the entire roster period," and argues that contested regular moving of staff from assigned positions in order to cover vacancies elsewhere violates that provision. The Union also points out that Article 6 of the Master Agreement provides that employees have to (sic) right "to have all provisions of the Collective Bargaining Agreement adhered to," and argues that therefore Warden Scott's position that the roster is merely a guideline is invalid. The Union concedes that the negotiated procedures are subject to change when there is good reason, but maintains that they are to be changed only for good reason. It argues that Management is obligated to fill posts in accordance with Article 18, Section d, and to leave correctional officers on the same shift and assignment for the entire roster period, in accordance with Article 18, section r, except for good cause, and that administrative purposes do not constitute good cause for vacating, on a routine basis, correctional posts that are listed on the quarterly roster.
The Union concludes that the vacating of correctional officer posts that have been properly established on the quarterly roster causes a reduction in the staff-to-inmate ratio that increases the inherent hazards of the correctional environment, thereby violating Article 27 of the Agreement, and asks that the Agency "be ordered to stop vacating correctional posts except for good cause and not,on a routine basis for administrative purposes."
The Union submitted two recent arbitral awards and FLRA Decision O-AR-3240 in support of its position.
The Agency
The Agency contends that it did not violate Article 27 when it vacated correctional posts, both because the vacating of the posts has in fact been undertaken in order to make the best use of available resources in order to reduce inherent hazards to the lowest possible level, as required by Article 27, that is consistent with its limited resources and because its right to vacate posts is protected by the provisions of 5 USC 7106(a) and Article 5 of the Master Agreement. The Agency points out that Article 27 clearly recognizes the precedence of 5 USC 7106.
With respect to the impact on safety caused by the vacating of posts, the Agency representatives have taken the position that the vacating of correctional posts has not created a safety issue. While the specific posts that are vacated vary, depending on where absences occur and what posts Management chooses to man, Captain Grady Turner, Chief Correctional Supervisor, who arrived at Atlanta approximately 2 months before the July 28, 2000, hearing, testified that he will not allow certain critical positions to be vacated. Associate Warden Reginald Ammons, who has been at the Atlanta facility since June 5, 2000, acknowledged that correctional posts are sometimes vacated, but indicated that he would not authorize the vacating
- FMCS 99-16053-3
of positions that he believed to be critical. He testified that he has sometimes authorized overtime to fill such positions in order to avoid pulling correctional officers from their regular assignments and acknowledged that his budget would allow him always to resort to overtime to fill vacancies, although he said to do so could cause him budget problems. Deputy Captain Steven Jenkins testified that a lieutenant generally has authority to vacate a post in the process of reassignment, but that currently some posts can not be vacated without his or the Captain's approval; he said that positions are vacated for the purpose of covering what would otherwise be a vacancy in a position more critical than that from which an officer was reassigned. Warden Willie Scott testified that he has sometimes made reassignments of correctional officers; he stated that he considers the roster to be only a guideline, and that sometimes persons on the roster can be better utilized in another position. He acknowledged that he should move an officer only with good reason, but stated that he decides what constitutes good reason. The Agency argues that management is in the best position to determine the allocation of staff and use of available resources that will yield the lowest possible level of inherent hazards, as it contends is recognized by the statute.
With respect to the preservation of the Agency's statutory rights, the Agency asserts that the grievance "concerns the Union's objections to the agency's determinations with respect to numbers of staff available for accomplishment of the work and choice of posts to which available staff should be assigned." The Agency argues that "any proposal or grievance by the union calling on the employer to establish specific numbers of budgeted positions or to require the employer to undertake specific practices with respect to what work is to be accomplished is beyond the duty to bargain and illegal," as would be any third-party order instructing the Agency as to specific assignments of staff or budgeting for specific numbers of positions, because it would impermissibly interfere with the Agency's exclusive rights, under 5 USC 7106, to determine budget and number of positions available in the budget. The Agency points out that Article 27 of the Master Agreement specifically recognizes that the Agency's obligation to lower safety hazards does not extend to any action that would cause it to relinquish its statutory rights, and argues that limitation of its right to vacate positions would violate its statutory right to assign employees and make budgetary decisions.
The Agency concludes that does it not violate Article 27 when it vacates correctional posts, and requests that the grievance be denied and Management's rights under 5 USC 7106 and Master Agreement Articles 5 and 27, Section a, be specifically recognized.
The Agency submitted one recent arbitral award in support of its position.
DISCUSSION
The Agency's argument that limitation on its right to vacate correctional positions would have an impermissible effect on its 5 USC 7106 rights is not persuasive. The Agency's assertion that "any proposal or grievance by the union calling on the employer to establish specific numbers of budgeted positions or to require the employer to undertake specific practices with respect to what work is to be accomplished is beyond the duty to bargain and illegal, in violation of 5 USC 7106(a)" is supported by the language of the statute, but it is not to the point in the instant case because the Union has not requested the allegedly illegal remedies. The contested vacating of correctional posts involves positions that are already budgeted. The Union does not ask that new positions be created or that vacant positions be filled or specific practices be followed with respect to what work will be accomplished; it does not seek to interfere with the Agency's right to assign employees; it asks that the Agency be directed not to vacate existing correctional posts, to which employees have already been assigned on the quarterly roster and which have been established through appropriately negotiated procedures, without good reason, which is not to include vacating posts "on a routine basis for administrative purposes."
Previous arbitral awards submitted by the Union and the Agency were perused by the arbitrator and found to be supportive of their respective positions to varying degrees; however, such previous awards are not binding on the arbitrator in the instant case. The FLRA Decision submitted by the Union, which does bind arbitrators in subsequent arbitration cases, supports the Union's position that 5 USC 7106 does not give Management the unqualified right to vacate positions. In that decision the Authority denied the Agency's exception to an award in which the arbitrator found that the Agency had violated Article 27 of the Master Agreement by allowing correctional posts to be vacated without good cause with the consequence that safety hazards were increased; the Authority found that the award did not concern the exercise of Management's right to assign employees under section 7106(a)(2)(A).' The remedy requested by the Union in the instant case, that the Agency be ordered to stop vacating posts except for good reason, can not therefore be held to interfere impermissibly with Management's right to assign employees, nor can it be held to be otherwise illegal under the statute unless it can be demonstrated to be in conflict with other Management rights preserved in the statute. The Union does not in fact request the remedies that the Agency has declared would be illegal because of interference with the Agency's right to assign employees or to make budgetary decisions; that is, it does not request a remedy that would "establish specific numbers of budgeted positions or to require the
' The contested award underlying the cited FLRA decision dealt with the vacating of posts that occurs when the Agency simply decides not to fill posts when the incumbents fail to report to work. While the arguments of both Union and Agency in the instant case focused on vacatings caused by reassignments that occur when one correctional officer is reassigned to fill the post of an incumbent who did not report to work, leaving the re-assigned officer's regular post vacated, the discussion and conclusions apply to all instances in which a post included on the quarterly roster is left vacant.
employer to undertake specific practices with respect to what work is to be accomplished," and the Agency does not address specifically how the remedy that is requested would otherwise violate the statute.
The Union is persuasive in its argument that the Agency has limited itself, though not to an excessive degree,, to the procedures negotiated according to Section b.2 of the statute and that it must therefore adhere to the provisions, properly negotiated, of Article 18 of the Master Agreement. Further, Article 6 does reinforce the obligation of the Agency to adhere to all provisions of the Collective Bargaining Agreement so long as they do not conflict with its statutory rights.
The question remaining is whether the vacating of correctional posts violates Article 27 because it increases the inherent hazards of the correctional environment. It must be assumed that the Agency would not agree to the inclusion of any redundant or unnecessary posts on the quarterly roster prepared in accord with Article 18 of the Master Agreement. Therefore, unless a given post can be demonstrated to have no functions that affect safety matters, the vacating of any post must, however marginally, reduce overall safety. The testimony of Union witnesses, and the reluctant concessions of some Agency witnesses, served to corroborate the conclusion that reduction in the number of correctional posts must in most cases increase the level of inherent hazards in the correctional environment, although it must be noted that Warden Scott defended his position that the vacating of some 318 posts in a 24-day period did not jeopardize staff because, he said, some of the posts involved are administrative. Uncontroverted testimony of Union witnesses established, however, that certainly many of the posts that have been vacated
It is possible that the reassignment of a correctional officer from an administrative post to another post might be found not to have the effect of reducing safety below what could be attained if both the administrative post and the post to which its incumbent is transferred were filled according to Section 18, if the administrative post could be in fact demonstrated to have no safety-related functions. In such a case, although the Agency might be in violation of
SHAW- FMCS 99-16053-3
at the Atlanta facility in the past have been posts inherently tied to safety, and the practice of vacating such posts can not be consistent with reduction of inherent hazards of the correctional environment to the lowest possible level attainable without causing the Agency to relinquish its 5 USC 7106 rights.
Management might very well minimize the total negative impact vacating a post has on safety by shifting some correctional officers from less to more critical areas, as testimony for the Agency indicated was frequently done in the Atlanta facility. Even if a post is vacated in order to reassign its incumbent to another position, deemed more critical, that would otherwise be vacant because of the failure of the more critical post's incumbent to report to work, the deliberate vacating of the post would reduce the level of safety below what would be attainable if the Agency took some other measure to fill the absentee's post. That is, the Agency might, by moving an officer from a less to a more critical post, increase the total level of safety above what would be attainable if it neither shifted the officer nor took some other measure to fill the absentee's post. However, unless the Agency has no other means of filling the absentee's post, the vacating of a less critical post listed on the roster in order to fill the absentee's post must be held to increase the level of hazard beyond the minimum attainable, given available resources, without causing the Agency to relinquish its 5 USC 7106 rights and thus to violate Article 27.
If there is no other available means of filling the more critical post, the vacating of the less critical post would be permissible under the Master Agreement Article 18 language that allows for changes in the negotiated procedures for maintaining the published roster when there is good reason, the good reason being in such a case the attainment of a higher safety level than would be attainable if the less critical post were not vacated; the unavailability of any other
Section 18, there would be no violation of Section 27, which is herein at issue.
SHAW- FMCS 99-16053-3
means of filling the more critical post is requisite for such finding. This is not to imply that such a situation is the only possible source of good cause for vacating a post. There does not appear to be in the Master Agreement a definition of good cause nor specification of who shall determine when good cause exists and the presumption must therefore be that Management must be able to explain and defend its determination that it has good cause whenever it vacates a correctional post. FLRA Decision O-AR-3240 makes it clear, however, that administrative convenience can not be good cause for vacating correctional officer posts.
Because Article 18 allows changes in the roster only when there is good reason, a reduction in the overall level of safety caused by vacating a post contrary to the normal or ordinary procedure established in Article 18 is also permissible only when there is good reason to vacate the post. Thus Article 27 obligates the Agency, in order to lower hazards to the lowest possible level, not to vacate correctional posts without good reason or unless manning the post in question makes absolutely no contribution to the level of safety. The Agency is therefore precluded by Article 27 from the routine vacating of posts for administrative convenience or from any other vacating of posts except for good reason.
The Agency has not offered argument, other than the assertion that Management is best qualified to determine how to utilize staff most effectively, that the more than 300 instances in which correctional posts were vacated in the time period from June 1 to June 24, 1999, according to the Union's tabulation, were implemented for good cause or that they were not implemented on a routine basis for purposes of administrative convenience. Agency witnesses did indicate that current practice limits the vacating of posts, for the most part, to situations in which a less critical post is vacated in order to staff a more critical post that would otherwise be vacant because of failure of the more critical post's incumbent to report to work, and that responsible
SHAW- FMCS 99-16053-3
officials will not give approval for vacating posts considered critical to the maintenance of safety and security. Whether or not the current practice could pass a good-cause test, adherence to the current practice is at the discretion of Management officials and there is no assurance for the Union that the current practice will continue in the future nor that the routine vacating of posts for administrative purposes will not occur in the future. Insofar as the Agency continues currently, or might continue or resume in the future, the practice of vacating posts without good reason, the remedy for violation of Article 27 requested by the Union--that the Agency be ordered to stop vacating correctional posts except for good cause and not on a routine basis for administrative purposes--is warranted in order to protect the Union from further violation of Article 27 of the Master Agreement.
The Union's reference to the Agency's obligation to provide a workplace that is "free from recognized hazards that are causing or are likely to cause death or serious physical harm" is not applicable to the question of the impact of vacating correctional posts, because the cited language specifically refers to the second area of concern in Article 27, which is associated with normal industrial operations, not the inherent hazards of a correctional environment, in the Federal Bureau of Prisons.
CONCLUSION
It is clear that the vacating of correctional posts without good reason abrogates
procedures, properly negotiated by the parties and set out in Article 18 of the Master Agreement, for establishing and manning the quarterly roster of correctional posts. The fact that the Agency agreed to the establishment of all correctional posts on the roster warrants the assumption that none of the posts is redundant and the conclusion that the vacating of any of the posts must
SHAW- FMCS 99-16053-3
therefore increase inherent hazards of the correctional environment unless the post can be demonstrated to have absolutely no safety-related functions. Both the assumption and the conclusion were corroborated, to varying degrees, by the testimony of several witnesses in the hearing in this case. Consequently, the vacating of correctional posts without good cause must be found to violate Article 27 of the Master Agreement, which obligates the Agency to lower the inherent hazards to the lowest possible level without relinquishing its rights under 5 USC 7106, unless it is determined that Management's rights to vacate correctional posts is included in the rights established by the statute.
The FLRA has ruled that the right to vacate positions is not implied by the right to assign employees, and Management has not demonstrated that limitation of its right to vacate positions would abrogate any other rights established by the statute. Therefore the Agency must be held to be in violation of Article 27 of the Master Agreement when it vacates correctional posts unless it has good cause to do so. The Agency does not violate Article 27 when it vacates correctional posts with good reason, which can not be construed to include administrative convenience, even if the vacating of the posts causes an increase in the inherent hazards of the correctional environment.
SHAW- FMCS 99-16053-3
AWARD
The grievance is sustained.
The Agency does violate Article 27 of the Master Agreement when it vacates correctional posts without good reason but merely for administrative convenience.
The Agency is instructed to stop vacating correctional posts except for good cause, which is not to be construed to include administrative convenience.
******Original Signed******
Sue Olinger-Shaw
Arbitrator
Floyd, Virginia
October 6, 2000
SHAW- FMCS 99-16053-3