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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


Note After this case was won by the Union the Agency appealed this case to the Federal Labor Relations Authority. The Agency again lost this case on appeal to the FLRA. Losing this appeal makes this case precedent setting throughout the Bureau. Below is the Court's written opinion concerning this case to include the dissenting opinion. The Council is set to arbitrate a Bureau wide case on vacating posts in the near future.

Authority's Decision and Opinion of Chairman Cabaniss

[ v57 p406 ]

57 FLRA No. 72

UNITED STATES DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
UNITED STATES PENITENTIARY
ATLANTA, GEORGIA
(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL OF PRISON LOCALS
LOCAL 1145
(Union)

0-AR-3369

_____

DECISION

July 18, 2001

_____

Before the Authority: Dale Cabaniss, Chairman; Donald S. Wasserman and Carol Waller Pope, Members. [n1]

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Sue Olinger Shaw 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 filed an opposition to the Agency's exceptions.

The Arbitrator found that the Agency violated the parties' collective bargaining agreement by leaving certain work posts temporarily vacant. She ordered the Agency to vacate the posts only for good reason and not on a routine basis for administrative convenience.

For the reasons that follow, we find that the Agency has failed to show that the award is deficient under 7122(a) of the Statute. Therefore, we deny the Agency's exceptions. [n2]

II. Background and Arbitrator's Award

The Agency creates work rosters for its correctional officers in order to fill established posts at its prison facility. When the Agency's correctional officers [ v57 p407 ] fail to work a scheduled shift, the Agency either assigns unscheduled employees from a sick and annual relief list or, when that list is inadequate to fill the vacant posts, reassigns scheduled officers. Award at 2-3. If such unoccupied posts are filled through reassignment, then the posts vacated by reassigned employees sometimes remain vacant.

The Union filed a grievance alleging that, in leaving posts vacant, the Agency violated Article 27 of the parties' agreement. [n3] The Agency denied the grievance, and the matter was submitted to arbitration, where the parties stipulated to the following issue: Does the Agency violate Article 27 of the Master Agreement when it vacates correctional posts, and, if so, what shall the remedy be? Award at 2.

The Arbitrator found that Article 27 of the parties' agreement requires the Agency to reduce hazards to its employees to the lowest possible level without relinquishing its rights under 7106 of the Statute. In this regard, the Arbitrator determined that the Agency does not reduce hazards at its facility to the lowest possible level when it leaves posts vacant that contribute to the level of safety. Id. at 13. However, the Arbitrator found that the Agency may vacate posts that make "absolutely no contribution to the level of safety" or, pursuant to Article 18 of the parties' agreement, where there is "good reason. [n4] Id. at 13-14, 16. The Arbitrator further determined that while the good reason exception allows the Agency to reassign an employee to a more critical post when there is no other means of filling the more critical post, it does not allow posts to be left vacant simply for administrative convenience.

The Arbitrator concluded that many of the correctional officer posts vacated by the Agency are "inherently tied to safety," and that the Agency had not shown that they were vacated for good reason. Id. at 13. The Arbitrator also rejected the Agency's argument that sustaining the Union's grievance would be contrary to the Agency's rights under 7106 of the Statute to assign employees and determine its budget. Based on these findings, the Arbitrator sustained the Union's grievance and ordered the Agency to stop vacating correctional posts except for good reason or where the post has no contribution to the level of safety at the Agency's facility.

III. Positions of the Parties

A. Agency's Exceptions

The Agency argues that the award is contrary to its rights under 7106(a) of the Statute to assign work and to determine internal security practices. With regard to the right to assign work, the Agency contends that in order to comply with the award, the Agency may need to use overtime assignments, cancel leave and/or training, or even assign management personnel to vacant posts. Exceptions at 8. As a result, the Agency contends, the award prevents the Agency from determining when work assignments will occur and to whom or what positions the work will be assigned. Id. With regard to its right to determine internal security practices, the Agency argues that the award is implicitly intended to force the Agency to take specific actions to safeguard its personnel and operations by limit[ing] the Agency's judgment regarding the degree of staffing necessary to carry out its security function. Id. at 10. [ v57 p408 ]

The Agency contends that, as interpreted and applied by the Arbitrator, Article 27 does not constitute an arrangement for employees adversely affected by the exercise of a management right. In this regard, the Agency asserts that, as interpreted by the Arbitrator, Article 27 is not sufficiently tailored to constitute an arrangement because it would ameliorate adverse affects of vacancies created by employees who voluntarily choose not to work. The Agency also argues that the award abrogates the Agency's rights to assign work and determine internal security practices because it precludes the Agency from leaving posts vacant.

The Agency contends that the Arbitrator misapplied the Authority's decision in BOP, Marianna. In this regard, the Agency asserts that the Authority's decision in BOP, Marianna addressed the right to assign employees, but not the rights to assign work or determine internal security practices at issue in the present case.

Finally, the Agency argues that the award fails to draw its essence from the parties' agreement. In this regard, the Agency argues that the Arbitrator's remedy is contrary to the Agency's rights to assign work and determine its internal security practices, which are reiterated in the parties' agreement.

B. Union's Opposition

The Union contends that the Agency's exceptions should be dismissed because they were not timely filed under 5 C.F.R. 2425.1(b). The Union also claims that the Agency did not argue before the Arbitrator that the limitation on the Agency's authority to vacate posts sought by the Union was contrary to the Agency's right to determine internal security practices. As a result, the Union argues, the Authority should not consider that issue.

The Union contends that the Agency's rights under 7106 of the Statute are subject to the appropriate arrangements and provisions that were negotiated into the parties' [agreement]. Opposition at 3. In this regard, the Union argues that Article 27, Section a of the parties' agreement, as interpreted and applied by the Arbitrator, protects employees from the adverse effects of the Agency's exercise of its rights and does not require the Agency to hire additional staff or fill vacant positions, limit the Agency's ability to determine the skills or qualifications its employees will need to perform their duties, or outright prohibit the Agency from vacating any post. The Union also asserts that the Arbitrator's award draws its essence from the parties' agreement.

IV. Preliminary Issues

A. The Agency's Exceptions Were Timely Filed.

The time limit for filing exceptions to an arbitration award is 30 days beginning on the date the arbitrator serves the award on the filing party. 5 C.F.R. 2425.1(b). The date of service of the award is the date the award is deposited in the United States mail or is delivered in person to the filing party. 5 C.F.R. 2429.27(d). If the last day of the period so computed falls on a weekend or federal holiday, the due date for the exceptions is the end of the next day which is not a weekend day or federal holiday. 5 C.F.R. 2429.21(a). In addition, the time limit is extended five days if the arbitrator served the award on the filing party by mail, and is further extended if the time period then ends on a weekend or federal holiday. 5 C.F.R. 2429.22; 5 C.F.R. 2429.21(a). The Authority presumes, absent evidence to the contrary, that an award was served by mail on the date of the award. See, e.g., Int'l Org. of Masters, Mates and Pilots, 49 FLRA 1370, 1370-71 (1994); United States Dep't of Health & Human Serv., Soc. Sec. Admin., Balt., Md., 49 FLRA 1124, 1124-25 (1994).

The Arbitrator's award is dated October 6, 2000. Presuming, absent evidence to the contrary, that the award was served by mail on that date, the thirtieth day beginning on the date of service was Saturday, November 4. After counting five days from the ensuing Monday for service by mail, the next non weekend or federal holiday was November 13. Accordingly, the due date for exceptions was November 13, 2000, and as the Agency's exceptions were filed on November 8, 2000, the exceptions were timely.

B. Section 2429.5 of the Authority's Regulations Does Not Bar the Agency's Exception that the Award is Contrary to its Right to Determine its Internal Security Practices.

Under 2429.5 of the Authority's Regulations, the Authority will not consider issues that could have been, but were not, presented to the arbitrator. United States Dep't of Def., Educ. Activity, Arlington, Va., 56 FLRA 985, 987 (2000) (DODEA, Arlington) (citation omitted). The Agency states in its exceptions that it "clearly argued that the grievance involved management's right to assign work and its right to determine internal security." Exceptions at 16. In this regard, the Agency asserts that it argued before the Arbitrator that the remedy sought by the Union, and later awarded by the Arbitrator, is illegal because the Statute recognizes that "management is in the best position to determine [ v57 p409 ] the allocation of staff and use of available resources that will yield the lowest possible level of inherent hazards." Exceptions at 16 n.7 (citing Award at 9). See also Agency's Closing Statement at 3.

The right to determine internal security practices 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., Soc. Sec. Admin., Balt., Md., 55 FLRA 498, 502 (1999) (SSA, Balt.). In arguing that it has a statutory right to determine the allocation of staff and use of resources that will most effectively reduce hazards, the Agency appears to have argued before the Arbitrator that the remedy imposed by the Arbitrator is contrary to its right to determine policies and practices to secure and safeguard its personnel and physical property. Thus, absent evidence in the record to the contrary, the Agency has demonstrated that it argued before the Arbitrator that the remedy sought by the Union, and awarded by the Arbitrator, was contrary to its right to determine its internal security practices. Accordingly, the Authority will consider the Agency's exception.

V. Analysis and Conclusions

A. The Award is Not Contrary to the Agency's Rights to Assign Work or Determine its Internal Security Practices.

The Authority reviews questions of law raised by an arbitrator's award and an exception to it de novo. NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citation omitted). In applying a standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. United States Dep't of the Air Force, Warner Robins, 56 FLRA 541, 543 (2000) (citation omitted). In making such a determination, the Authority defers to the arbitrator's underlying factual findings. Id.

In resolving whether an arbitrator's award violates management's rights under 7106 of the Statute, the Authority applies the framework established in United States Dep't of the Treasury, Bureau of Engraving and Printing, Wash., D.C., 53 FLRA 146 (1997) (BEP). Upon finding that an award affects a management right under 7106(a), the Authority applies a two-prong test to determine if the award is deficient. Under Prong I, the Authority examines whether the award provides a remedy for a violation of either applicable law, within the meaning of 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to 7106(b) of the Statute. Under Prong II, the Authority considers whether the arbitrator's remedy reflects a reconstruction of what management would have done if it had not violated the law or contractual provision at issue.

1. The Award Affects the Agency's Rights to Assign Work and Determine its Internal Security Practices.

a Right to Assign Work

The right to assign work under 7106(a)(2)(B) of the Statute includes 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. United States Dep't of the Treasury, United States Customs Serv., El Paso, Tex., 55 FLRA 553, 558 (1999) (Customs Serv., El Paso) (citation omitted). The right to assign work encompasses the right to refrain from assigning work. United States Env't Prot. Agency, Wash., D.C., 38 FLRA 1328, 1330 (1991) (citation omitted).

The Authority has specifically held that a limitation on an agency's authority to leave correctional officer posts vacant affects the agency's right to assign work. BOP, Guaynabo, 57 FLRA No. 67, slip op. at 6. Thus, the Arbitrator's award, which allows the Agency to leave correctional officer posts vacant only for good reason and not on a routine basis for administrative convenience, affects the Agency's right to assign work.

b. Right to Determine Internal Security Practices

The right to determine internal security practices 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. SSA, Balt., 55 FLRA at 502. Where there is a link or reasonable connection between an agency's goal of safeguarding personnel or property, or of preventing disruption of agency operations, and the disputed practice, the practice constitutes the agency's exercise of its right to determine internal security practices. Id. The right to determine internal security practices specifically includes the right to determine the degree . . . of staffing . . . to maintain the security of a facility. Fraternal Order of Police, Lodge 1F (R.I.) Fed., 32 FLRA 944, 957-58 (1988).

In this case, correctional officers serve the security function of safeguarding the Agency's prison facility. When correctional officers do not appear for work, the Agency leaves some of their posts vacant. By restricting the Agency's authority to staff its facility with fewer correctional officers than it had scheduled, the award limits the Agency's authority to determine the degree of staffing necessary to maintain the security of its facility. As a result, the award affects the Agency's right to determine its internal security practices. See id. [ v57 p410 ]

2. The Award Satisfies Prong I of BEP.

Under Prong I, the Authority determines whether Article 27 was negotiated pursuant to 7106(b) of the Statute. United States Dep't of Def., Def. Logistics Agency, Red River Army Depot, Texarkana, Tex., 55 FLRA 523, 526 (1999). As the parties focus solely on whether Article 27 of their agreement constitutes an appropriate arrangement within the meaning of 7106(b)(3) of the Statute, we limit review under Prong I to that issue. See, e.g., Fed. Aviation Admin., Wash., D.C. 55 FLRA 1233, 1236-37 (2000) (FAA, Wash., D.C.). In order to determine whether a provision was negotiated under 7106(b)(3), the Authority assesses, pursuant to Dep't of the Treasury, United States Customs Serv., 37 FLRA 309 (1990) (Customs Service), whether the collective bargaining provision: (1) constitutes an arrangement under 7106(b)(3); and (2) abrogates the exercise of a management right. See, e.g., United States Dep't of the Air Force, Seymour Johnson Air Force Base, N.C., 55 FLRA 163, 167 (1999).

a. Article 27 Constitutes an Arrangement

A provision constitutes an arrangement under the first aspect of the Customs Service analysis if it ameliorates the adverse effects flowing from the exercise of a management right. FAA, Wash., D.C., 55 FLRA at 1236-37. The Agency claims that Article 27 does not constitute an arrangement because, in some instances, posts are initially vacated due to voluntary employee action, such as use of sick leave, and not because of the exercise of a management right. However, the Arbitrator did not find that the adverse effects result from the initial vacancy. Instead, the Arbitrator found that the adverse affects result from the Agency's decision to vacate correctional officer posts that contribute to the level of safety at the Agency's facility, which she specifically stated appl[ied] to all instances in which such posts are left vacant. Award at 11 & note (emphasis added). Thus, the Arbitrator found that adverse effects result from the Agency's decision not to fill such posts.

Because Article 27 addresses Agency actions in response to vacancies, and applies only to posts that contribute to the level of safety at the Agency's facility, it ameliorates the adverse effects flowing from the Agency's decision to vacate posts. BOP, Guaynabo, 57 FLRA No. 67, slip op. at 7. The Agency's determination of which posts to vacate constitutes an exercise of both the right to assign work and the right to determine internal security practices. As such, Article 27 ameliorates the adverse effects flowing from the Agency's exercise of its rights to assign work and determine internal security practices. See id.

The Agency argues that Article 27 is not sufficiently tailored to constitute an arrangement. However, the Authority does not apply a tailoring test in resolving exceptions to an arbitration award. [n5] Id.; United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Transfer Ctr., Okla. City, Okla., 57 FLRA No. 40, slip op. at 6 (May 18, 2001). The Agency also contends that the Arbitrator's award should be set aside as contrary to the Authority's decision in BOP, Marianna. However, as acknowledged by the Agency, the Authority did not address the Agency's rights to assign work or determine internal security practices in BOP, Marianna because the Agency did not except on those grounds. Thus, that decision does not support the Agency's argument that the Arbitrator's award is contrary to the Agency's rights to assign work and determine its internal security practices.

b. Article 27 Does Not Abrogate the Agency's Rights to Assign Work or Determine Internal Security Practices.

A provision abrogates a management right under the second aspect of the Customs Service analysis if it precludes an agency from exercising a management right. Customs Serv., El Paso, 55 FLRA at 559 (citation omitted). The Arbitrator's award limits the Agency's authority to leave vacant established, budgeted posts that the Agency previously determined are necessary. However, nothing in the award prevents the Agency from changing its determination as to which and how many posts are necessary. In addition, the award allows the Agency to leave posts vacant when they have good reason. [n6]

In BOP, Guaynabo, the Authority found that Article 27, as interpreted and applied by the arbitrator in that case, did not abrogate the Agency's right to assign work because it did not prevent the Agency from changing its determination of the number of posts needed at its facility and because it allowed the Agency to leave posts vacant in emergency situations. See BOP, Guaynabo, 57 FLRA No. 67, slip op. at 8. Consistent with the Authority's decision in BOP, Guaynabo, the Arbitrator's award in this case, which establishes a similar, even less restrictive, limitation on the Agency's authority to leave posts vacant than imposed in BOP, Guaynabo, does not abrogate the Agency's right to assign work. [ v57 p411 ]

Because the Agency may change the number of posts that it deems necessary and may leave posts vacant for good reason, Article 27 also does not preclude the Agency from determining the degree of staffing needed to maintain the security of its facility. In addition, as discussed above, the Agency is not precluded from leaving posts vacant that do not contribute to the safety of its facility, and thus may reassign employees from such posts in order to increase security. Further, the Arbitrator found that the good reason exception allows the Agency to reassign any employee to a more critical post when there is no other available means of filling the more critical post. Award at 13-14 (emphasis omitted). As a result, the Arbitrator's award does not abrogate the Agency's right to determine its internal security practices. See United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Ashland, Ky., 37 FLRA 1261, 1265 (1990) (award did not abrogate 7106 right where agency retained authority to exercise right for substantial reason).

3. The Award Satisfies Prong II of BEP.

The Arbitrator found that Article 27 required the Agency to refrain from leaving posts vacant. By enforcing that requirement, her award is a proper reconstruction of what the Agency would have done if it had not violated the parties' agreement. See BOP Guaynabo, slip op. at 8. Accordingly, the Arbitrator's award satisfies Prong II the BEP analysis.

B. The Award Does Not Fail to Draw its Essence From the Parties' Agreement.

The Authority will find an arbitrator's award deficient for failing to draw its essence from a collective bargaining agreement when the appealing party establishes that the award: is so unfounded in reason and fact and so unconnected with the wording and purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; does not represent a plausible interpretation of the agreement; or cannot in any rational way be derived from the agreement or evidences a manifest disregard of the agreement. United States Dep't of Labor (OSHA), 34 FLRA 573, 575-77 (1990).

The Agency has not demonstrated that the Arbitrator's interpretation of the parties' agreement is implausible or irrational. Accordingly, the Agency has not demonstrated that the award fails to draw its essence from the parties' agreement.

VI. Decision

The Agency's exceptions are denied.

Dissenting Opinion of Chairman Cabaniss:

For the reasons set forth in my dissenting opinion in United States Dep't of Justice, Fed. Bureau of Prisons, Metro. Det. Ctr., Guaynabo, P.R., 57 FLRA No. 67, slip op. at 10-14 (June 29, 2001), I respectfully dissent regarding the use of the "abrogates" test set out in United States Dep't of the Treasury, United States Customs Service, 37 FLRA 309 (1990), especially as it relates to the internal security practices of a federal correctional facility.

Additionally, I write separately to express my concern that the parties have been left without sufficient guidance to help them determine what future conduct will or will not comport with the award. In the present instance, the award found:

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.

Award at 16 (emphasis in original). In examining the award, I note little guidance as to what is meant by "administrative convenience" and "good reason," other than the one is not construed to include the other. Further, there were several reasons put forth as to why posts were vacated, yet the award sustains the grievance and proscribes future conduct without identifying which of those instances constituted "good reason" and which constituted "administrative convenience." As a result, the parties are no farther ahead in understanding the contract provision in question than when they began, and have only the prospect of future litigation to provide the substantive guidance they need.



Footnote # 1 for 57 FLRA No. 72 - Authority's Decision

All deliberations on this case were completed and the decision was reached and prepared for issuance prior to the end of Member Wasserman's term. In addition, Chairman Cabaniss' dissenting opinion is set forth at the end of this decision.

Footnote # 2 for 57 FLRA No. 72 - Authority's Decision

These exceptions are the third in a series of cases involving the same general issue and contract provision, but different local parties. See United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Marianna, Fla., 56 FLRA 467 (2000) (BOP, Marianna), and United States Dep't of Justice, Fed. Bureau of Prisons, Metro. Det. Ctr., Guaynabo, P.R., 57 FLRA No. 67 (June 29, 2001) (Chairman Cabaniss dissenting) (BOP, Guaynabo).

The analyses in the three cases has differed because the awards were alleged to be deficient by the agencies based on different management rights. Specifically, in BOP, Marianna, where the agency argued only that the award interfered with its right to assign employees, the Authority concluded that the award did not affect that right and denied the exception. In BOP, Guaynabo, on the other hand, the agency argued not only that the award interfered with its right to assign employees but also its right to assign work. Consistent with its prior opinion in BOP, Marianna, the Authority concluded, Chairman Cabaniss dissenting, that the award did not affect the Agency's right to assign employees. BOP, Guaynabo, 57 FLRA No. 67, slip op. at 4-6. The Authority also concluded that, although the award did affect the Agency's right to assign work, the award was not deficient because the award enforced a contract provision negotiated pursuant to section 7106(b)(3) of the Statute. Id. at 6-7 & 7 n.4. Therefore, the Authority denied the agency's exceptions. As discussed in more detail below, the Agency in the case now before us does not allege that the award interferes with its right to assign employees; the Agency argues that the award is deficient based on its right to assign work and determine its internal security practices.

Footnote # 3 for 57 FLRA No. 72 - Authority's Decision

As relevant here, Article 27 provides:

[T]he Employer agrees to lower those inherent hazards [of a correctional environment] to the lowest possible level, without relinquishing its rights under 5 USC 7106.

Award at 6.

Footnote # 4 for 57 FLRA No. 72 - Authority's Decision

As relevant here, Article 18 provides:

Section r. Normally, nonprobationary employees . . . will remain on the shift/assignment designated by the quarterly roster for the entire roster period . . .

Section u. . . . the words ordinarily or reasonable efforts as used in this article shall mean: the presumption is for the procedure stated and shallnot be implemented otherwise without good reason.

Award at 5.

Footnote # 5 for 57 FLRA No. 72 - Authority's Decision

For the reasons set forth in BOP, Oklahoma City, we adhere to the view that the analysis used by the Authority to determine whether a proposal is within the duty to bargain under 7106(b)(3) of the Statute is not appropriate for determining whether an agreed-upon proposal incorporated into a collective bargaining agreement is enforceable as negotiated pursuant to 7106(b)(3), and we reject our dissenting colleague's view to the contrary.

Footnote # 6 for 57 FLRA No. 72 - Authority's Decision

Our dissenting colleague asserts that the award does not adequately define administrative convenience or good reason, and that the award sustains the grievance and proscribes future conduct without providing adequate guidance as to when the Agency may vacate posts. Infra. at 14. However, the issue before the Arbitrator was not the distinction between administrative convenience and good reason, but whether the Agency had violated the agreement by vacating posts. In this regard, the Arbitrator concluded that the vacating of any post on the quarterly roster violates the parties' agreement unless the post can be demonstrated to have no functions that affect safety or there is no other available means of filling [a] more critical post. Award at 11 n. & 12. Thus, the Arbitrator resolved the issue before her, and provided the parties sufficient guidance as to what conduct the Agency must cease. In addition, neither party argues that the award is deficient on the ground that it is incomplete. See United States Dep't of Veterans Affairs, Gulf Coast Veterans Health Care System, Biloxi, Miss., 57 FLRA 77, 79 (2001) (award deficient that is so incomplete, ambiguous, or contradictory as to make implementation impossible).