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In re
Federal Bureau of Prisons,
Department of Justice,
Federal Correctional Institution,
Waseca, Minnesota
– and –
American Federation of Government Employees,
Council of Prison Locals,
Local 801
FMCS Case No. 01/05628
116 LA (BNA) 324
October 15, 2001
Charlotte
Neigh, selected by parties through procedures of the Federal Mediation and
Conciliation Service, Arbitrator.
Did management violate the Master
Agreement, Local Supplemental Agreement or other agreements by assigning a
supervisor to perform work customarily performed by members of the collective
bargaining unit?
If there is a violation, what is the remedy?
5 U.S.C. Sec. 7106 — Management Rights and Master
Agreement Article 5—Rights of the Employer
(a) Subject to subsection (b) of this section
(article), nothing in this chapter (section) shall affect the authority of any management
official of any (the) agency ...
2. In
accordance with applicable laws. . . .
(B) to assign work, to make determinations with
respect to contracting out, and to determine the personnel by which agency
operations shall be conducted
(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 ...
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
18—Hours Of Work
Section
p. Specific procedures regarding overtime assignments may be negotiated
locally.
1. when Management determines that it is necessary to pay
overtime for positions/assignments normally filled by bargaining unit
employees, qualified employees in the bargaining unit will receive first
consideration for these overtime assignments, which will be distributed and
rotated equitably among bargaining unit employees; ...
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 ... involves the inherent hazards of a
correctional environment ...
... (T)he Employer
agrees to lower those inherent hazards to the lowest possible level, without
relinquishing its rights under 5 U.S.C. 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.
Article
31—Grievance Procedure
Section
d. . . .
1. if a matter is informally resolved, and either party repeats the same violation within twelve (12) months after the informal resolution, the party engaging in the alleged violation will have five (5) days to correct the problem. If not corrected, a formal grievance may be filed at that time.
The Recreational Supervisor
(Supervisor) permitted one of the Recreation Specialists to change her schedule
and not work her assigned 7:30 a.m. to 4:00 p.m. shift on 12/21/00. No
organized recreation programs were scheduled for that morning; the Supervisor
worked alone in the Recreation Department, monitoring the inmates who were
present either as orderlies or on leisure time. The Union filed a grievance,
stating that “ . . a bargaining unit position in recreation was filled by non
bargaining unit staff', and citing this as a violation of the Master Agreement,
5 U.S.C., past practice, and a signed agreement between Management and the
Union.
The agreement referenced in the grievance
related to the 11/17/00 settlement of another grievance that arose when a
supervisor performed tasks that were outside the scope of his regularly
assigned duties rather than calling in a bargaining-unit member to work
overtime. The Union's settlement proposal, which was countersigned by the
Warden, read:
Subject:
Food Service Overtime Grievance
On
November 6th 2000 you offered to pay ...overtime to settle the five dates in
question ... Payment is requested for each food service foreman who had
indicated a willingness to work overtime, were available to work the shift in
question ... and were not offered the shifts in question. . . .
...
By signing this document, a formal agreement is being made between management
and local #801. Consequently, the overtime issue being grieved will be deemed
settled and no further action will be taken by local #801, any representative
of local #801, or any food service foreman individually.
Management's response to the present
grievance distinguished the circumstances in the two grievances on the basis
that the Supervisor was not performing tasks outside the scope of his regularly
assigned duties. The parties were unable to resolve the matter and it proceeded
to arbitration.
The
employer argues that:
Management's right to assign work is
protected by 5 U.S.C. Sec. 7106 and Article 5 of the Master Agreement.
There is no language in statute or any agreement that
provides for exclusivity of work/duties to bargaining unit employees.
The determination of whether it is
necessary to pay overtime for positions/assignments normally filled by
bargaining unit employees is up to Management.
These provisions and the Employer's position have been upheld in other
cases by the Federal Labor Relations Authority (FLRA) and its interpretation is
binding on the Arbitrator.
On 12/21/00 the Supervisor and/or the
Warden did not determine that overtime was needed for a Recreation Specialist
during the morning shift.
The Supervisor worked his regular schedule and did not
receive any overtime or compensatory time.
The Supervisor performed only his duties
as a supervisor and as a correctional worker, as found in his position
description.
The Supervisor's position description and
the Specialists' position description both define the incumbents as
“correctional workers” and list responsibility for safety and security as a
“major duty”.
Even if the Supervisor had performed the
work of a Specialist on 12/21/00, no agreements or statutes would have been
violated.
The Union's attempt to inject Article 27
regarding health and safety into this arbitration was untimely and therefore
violated Article 32, which allows modification of the written grievance only by
mutual agreement, and the Employer does not so agree.
Even if Article 27 were to be considered,
the inherent hazards were not increased when the Supervisor covered the
Recreation Department by himself, as it was not uncommon for only one
Specialist to be present at times.
The 11/17/00 settlement of the grievance
in the Food Service did not apply to other departments, as clearly evidenced by
the subject stated on its face, and the Warden denies having orally agreed to
apply it to other departments.
The Agency did not violate any Agreement, statute or past
practice and the grievance should be denied.
The
union argues that:
The Agency exercised its right to assign
when it staffed all the posts on the quarterly assignment roster in Recreation
and determined that bargaining-unit staff would normally be assigned to the
posts.
The Agency used a Supervisor as a bargaining unit
employee on 12/21/00 to avoid paying overtime.
Management violated the 11/17/00
agreement when it decided, without offering the shift to bargaining-unit staff,
to fill the post with a Supervisor.
The 11/17/00 agreement was an informal
resolution of a grievance concerning assignment of non-bargaining-unit
supervisory staff to bargaining-unit positions without first offering the shifts
to bargaining-unit staff.
At the time of signing the 11/17/00 agreement the Warden
agree never again to use non-bargaining-unit Supervisors in bargaining-unit
positions to avoid paying overtime.
This agreement does not provide exclusivity of work nor
does it preclude the Agency from determining the qualifications and skills
necessary to perform the work.
This agreement establishes the order in
which the Agency would assign work from a pool of eligible employees and the
Warden conceded that this established an “appropriate arrangement” under 5
U.S.C. Sec. 7106(b).
This issue has already been ruled
negotiable by the FLRA and does not violate any law.
This agreement was not limited in time
and should be considered valid as long as it does not violate law or the Master
Agreement.
This violation adversely affected staff
by reducing the number of staff available to respond to an emergency,
constituting a violation of Article 27 in the Master Agreement.
Management's attempt to distinguish the facts of the Food Service grievance from this one is an attempt to cloud the issue.
The Supervisor's testimony that he worked
the position on 12/21/00 as a Correctional Worker rather than a Recreation Specialist
is an attempt to confuse the Arbitrator regarding the differences in the two
jobs.
The Supervisor walked around while the
recreation yard, the gym, the pool room and the instrument rooms were open; no
changes were made to the scheduled events.
One Specialist testified that he had
never known the Supervisor to perform the
of
opening doors, issuing cleaning supplies, supervising the pool or yard, or to
be considered as a “correctional worker”, which term applies only during an
emergency.
The Supervisor's position description
states that he supervises the Specialists and does not say that he supervises
the operations of the recreation and leisure time program, which is part of the
Specialist's position description.
The grievance should be sustained and the
Agency should be required to compensate all qualified bargaining-unit employees
for hours worked by the Supervisor as a bargaining-unit employee.
The Federal Labor Relations Authority has established
that the private-sector presumption that bargaining-unit work belongs
exclusively to members of the bargaining unit does not apply in the federal
sector. The agreed statement of the issue is whether Management violated the
Master Agreement, Local Supplemental Agreement, or any other agreement between
the parties by assigning a Supervisor to perform work customarily performed by
members of the collective bargaining unit. Although the parties disagree regarding
whether the Supervisor actually did perform work customarily performed by
members of the collective bargaining unit, it is not necessary to resolve this
disagreement if such conduct would not violate any of the agreements between
the parties.
The Union does not dispute that there is no language in
statute or in any agreement that provides that the duties normally performed by
bargaining-unit employees are exclusively theirs. The Union relies on the
11/17/00 settlement of the grievance in the Food Service Department as having
required the Employer to offer the 7:30 a.m. to 4:00 p.m. shift on 12/21/00 to
a member of the bargaining unit on an overtime-pay basis.
The parties disagree regarding the
applicability of the 11/17/00 settlement to the current grievance. The Union
claims that at the time of signing the agreement the Warden orally agreed never
again to use non-bargaining-unit Supervisors in bargaining-unit positions to
avoid paying overtime. The Warden denies having agreed to extend that
settlement beyond the Food Service Department. The agreement on its face states that its “subject” is
“Food Service Overtime Grievance”. Its terms detail how much overtime pay is to
be paid to which employees in exchange for dropping the grievance(s) that arose
because of specific conduct by a Food Service supervisor during specific
shifts. There is nothing in writing to support the Union's contention that this
settlement was intended to have broader and/or lasting applicability to other
situations arising in other departments in the future. The testimony of the
Steward to that effect cannot overcome the contrary testimony of the Warden so
as to transform the written settlement into more than an informal resolution of
those particular grievances in that particular department.
The Union's claim that this settlement
agreement should be considered valid indefinitely is not supported by the
contractual provision on which the Union relies, i.e. , Section d. 1 of Article
32 of the Master Agreement. That section provides that if the event giving rise
to such an informally resolved grievance is repeated within 12 months, a formal
grievance may be filed. It does not provide that such an informal resolution
establishes a binding precedent for all future dealings between the parties.
1. The grievance must be denied
on the basis that the handling of the Recreation Department schedule on
12/21/00 did not violate any agreement between the parties, including the
11/17/00 settlement agreement.
2. Because the grievance is
denied on this basis, it is not necessary to address whether:
The Supervisor performed work customarily
performed by members of the collective bargaining unit, and not customarily
performed by the Supervisor and other correctional workers.
Management was motivated by a desire to avoid paying
overtime or whether that would be an improper motivation.
The facts of this grievance are
significantly different from the facts of the Food Service grievance.
3.
The issue of whether the staffing on 12/21/00 violated Article 27 of the Master
Agreement is not a part of this arbitration because it was not raised in the
grievance and no modification of the issue was agreed by the parties.
The grievance is denied.
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