Click the browser back button to return to the publication.
U.S. Dept. of Justice
Federal Bureau of Prisons
Federal Transfer Center
Oklahoma City, Oklahoma
American Federation of Government Employees
Council of Prison Locals No. 33 and 171
El Reno, Oklahoma
116 LA (BNA) 1271
FMCS Case No. 01/11682
January 31, 2002
Harold E. Moore, Arbitrator *
* Selected by parties through procedures of the Federal Mediation and Conciliation Service
Applicable Law and Master Agreement Provisions
Title 5 U.S. Code Section 7106. Management Rights:
“(a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency—...
(2) in accordance with applicable laws—
(A) to hire, assign, direct, layoff, and retain employees in the agency, or to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees;
(B) to assign work, to make determinations with respect to contracting out, and to determine the personnel by which agency operations shall be conducted;”
“...This Agreement and such supplementary agreements and memorandums of understanding by both parties as may be agreed upon hereunder from time to time, together constitute a collective agreement between the Agency and the Union.”
Article 3—Governing Regulations
Section a. “Both parties mutually agree that this Agreement takes precedence over any Bureau policy, procedure, and/or regulation which is not derived from higher government-wide laws, rules and regulations.
1. Local supplemental agreements will take precedence over any Agency issuance derived or generated at the local level.”
Section c. “The Union and Agency representatives when notified by the other party, will meet and negotiate on any and all policies, practices, and procedures, which impact conditions of employment, where required by 5 U.S.C. 7106, 7114, and 7117, and other applicable government-wide laws and regulations, prior to implementation of any policies, practices and/or procedures.”
Article 4—Relationship of this Agreement to Bureau Policies, Regulations, and Practices.
Section a. “In prescribing regulations relating to personnel policies and practices and to conditions of employment, the Employer and the Union shall have due regard for the obligation imposed by 5 U.S.C. 7106, 7114, and 7117. The Employer further recognizes its responsibility for informing the Union of changes in working conditions at the local level.”
The Union states the issues as follows: Did the Agency violate the Master Agreement and the May 27, 2001 Memorandum of Understanding when it unilaterally changed the duties of the building patrol post orders without prior notification to and/or negotiation with the Union of said change, and if so, what shall be the appropriate remedy?
The Agency (Employer) states the issue as follows: Did Management violate the Master Agreement by assigning the Building Patrol Officer on Day Watch to escort inmates to the Dental clinic? If so, what shall be the remedy?
Normally when the parties are unable to agree upon an issue or issues the arbitrator, after having heard the evidence, would frame the issues.  In this case, because the issues are similar, the arbitrator will answer both parties' issues.
The employees involved in this Grievance are Building Patrol Officers assigned to the Day Watch (8:00 A.M. to 4:00 P.M.) at the Federal Transfer Center located in Oklahoma City, Oklahoma. This is a seven-story facility where Federal prisoners are incarcerated waiting transfer to other facilities. The post in question is not an armed post.
As the result of a study conducted by an outside consultant, the Agency changed the method of escorting inmates to and from the Dental Clinic that is located within the facility. Prior to the filing of the Grievance, the Dental Clinic Staff escorted inmates to and from the Dental Clinic.
By memorandum dated March 27, 2001, Captain T. J. Pennington issued the following building Patrol Post Orders: (In applicable parts.)
“Upon completion of accounting for his/her equipment and assigning inmate orderlies for daily work task, the Building patrol will obtain a list of holdover inmates needing dental work. In most cases the Dental Officer will provide names of inmates from the morning sick call list. The Dental Staff will provide a list with the inmate's name, register number and housing assignment to the Lieutenant's Office. The Building Patrol will obtain this list and escort the inmates to the Dental Clinic. Once all the inmates have been seen by the Dental Staff the Building Patrol will escort the inmates back to their assigned units.”
“The Building Patrol will ensure none of the inmates assigned to the call-outs or sick call list have separation concern. If no separation concerns exist he/she will escort the inmates to the Dental Clinic. We will escort no more than four inmates at one time. Once the inmates are delivered to the Dental Clinic, the Dental Officer or his designee will be responsible for the supervision of the inmates until the Health Services Department notifies the Building Patrol that the inmates are ready to be returned to their housing units. When the inmates are delivered to the Dental Clinic the Building Patrol will resume his normal duties.” Separation concerns may be defined, as inmates who may have testified against each other or who had been in fights with each other or are not usually permitted to be with each other.
The March 27, 2001, memorandum was posted without prior notice to the Union, which is the basis, alleged by the Union, for this Grievance.
The Union argues that the Agency unilaterally implemented a new procedure which impacted the working conditions of the bargaining Union Employees. They point out that the new procedure added duties to the Building Patrol Post Orders. The Union relies upon Article 3, Section c of the Master Agreement (MA), which provides for the parties to meet and negotiate on any and all policies, practices and procedures which impact conditions of employment prior to implementation.
The Union also emphasizes that Article 4, Section a, prescribes that when the employer issues a regulation relating to personnel policies and practices that the Employer is responsible for informing the Union of changes in working conditions.
The Union further alleges that the Agency violated a mutual agreement dated May 27, 1999, that specified that “Copies of any future addendums/changes to post orders will be given to and reviewed by the Union to determine if working conditions will be changed as a result.”
Concluding their arguments, the Union points out that the work involved is not de minimis  as claimed by the Agency. They emphasize that this is an additional function and not only requires the escorting of inmates but on occasions the determination of which inmates must be separated. They further point out that the Master Agreement does not make reference to de minimis as an exception to the requirement of the Agency's obligation to bargain over working conditions.
The Union requests that the March 28, 2001 order be rescinded, the Agency post a notice for 90 days that the Agency will honor its obligation to negotiate agreements with the Union, that the Agency comply with its obligation to bargain with the Union, and any other remedy deemed appropriate.
The Agency argues that correction officers insure the security of the institution and the safety of the staff and the inmates by performing numerous duties. Most of which require direct inmate contact. The Building Patrol Officers on the Day Watch are required to go to numerous locations within the institution. On March 28, 2001, the Building Patrol Officers were notified that they would begin escorting inmates to and from the Dental Clinic. The Agency points out that adding this to the Building Patrol Officer's preexisting duties harmed no one.
The Agency maintains that this small change was within Management's Rights to assign work and had no significant impact upon the duties of the Building Patrol Officers. They point out that this was a de minimis change and therefore did not violate the terms of the Master Agreement. Therefore, the Agency maintains that the Grievance should be denied.
The evidence presented in this case is clear and concise. Prior to March 28, 2001, the Dental Clinic staff was responsible for the escorting of inmates to and from the Dental Clinic. This responsibility was shifted to the Building Patrol Officers working on the Day Watch. From the testimony presented at the hearing the amount of work involved could easily be classified as de minimis. It is not uncommon for arbitrators to deny Grievances when there is a slight departure from what is generally required by the Collective Bargaining Agreement or may be viewed as a permissible exception. This occurs in cases when a supervisor performs a few minutes of work or a temporary job assignment. However the application of the de minimis rule has been rejected where the amount has been small but the principle large. 
The Union's claim in this case is based upon the larger principle of its right to be recognized as the sole and exclusive representative for bargaining unit employees.  Article 3 of the Master Agreement specifies in Section a, that the parties mutually agree that the Agreement takes precedence over any Bureau policy, procedure and/or regulation which is not derived from higher government wide laws, rules, or regulations. Clearly the March 27, 2001, memo does not fit this category of exceptions.
Article 3, Section c, requires the parties, when requested, to meet and negotiate on any and all procedures which impact condition of employment prior to implementation of the procedure. Article 4 of the Master Agreement further enforces this by recognizing the employer's responsibility for informing the Union of changes in working conditions at the local level.
A change in the working conditions of the Building Patrol Officers duties occurred on March 28, 2001. This fact was recognized by Captain Pennington, the author of the Memorandum dated March 27, 2001, who testified that it was a “minimal change” in the working conditions. He also testified “If you expect officers to do something different or modify what they were doing it had to be memorialized in writing.” Joint Exhibit 3, which is a memo to the Union dated May 14, 2001, the Agency representative states: “Additionally, due to the fact the Building Patrol Officer is already tasked with other escort duties, this was viewed as a minimal accretion of duties.”(Emphasis added.) Using the dictionary definition, accretion means an increase by natural growth or by gradual external addition. 
In addition to the above, which is a memo from the Associate Warden to the Union, states in applicable parts, “... it is Management's position that the decision to assign the additional dental escort duties to the Building Patrol Officer was an exercise of management's right to assign work under 5 U.S.C. Sec. 7106.”(Emphasis Added.) This is another acknowledgement that Management recognized that the assignment of the Dental Clinic escort duties was an additional task. Therefore, it is a change in the working conditions of the employees who will be required to perform it. Article 3, Section c. of the MA requires that the Agency meet and negotiate on this change. Further, Management failed to inform the Union of the change in this working condition as required by Article 4. Section a, of the MA. The distribution of the Post Order on the day it becomes effective is not sufficient to fulfill this requirement.
Union Exhibit No. 5 is a document dated May 27, 1999, entitled Agreement between Federal Transfer Center, Oklahoma City, Oklahoma and AFGE Local 171. The Union classifies the document as a memorandum of understanding and therefore is covered by the Preamble of the MA. Therefore, it is part of the MA. The Agency disputes this conclusion stating that it is not a part of the MA because it is a Grievance settlement. Although the document is not entitled “memorandum of understanding” it fulfills the purpose of a memorandum of understanding. The first paragraph of the document states; Management and the Union agree to the following regarding changes to all post orders at the Federal Transfer Center:” (Emphasis added.) Paragraph 2 of the document reads: Copies of any future addendums/changes to post orders will be given to and reviewed by the Union to determine if working conditions will change as a result.” (Emphasis added) Individuals designated as the Union President and the Warden sign the document. Therefore, the Agreement must be considered as a memorandum of understanding, which commits the Agency to giving copies of changes to post orders to the Union so that the Union may determine if working conditions are being changed. The Agency should have done this in this case.
The Agency is correct in its assertion that Articles 3 and 4 of the MA include Title 5 U.S.C. 7106, which specifies Management Rights. The Agency rightfully points out that Management has the right to assign and direct the workforce as well as to assign work and to determine the personnel by which agency operations shall be conducted. The Union did not dispute the Agency's right to assign the work to the Building Patrol Officers. The decision set forth below is not to be construed or inferred that the Agency has exceeded its Management Right to assign the Dental Clinic escorting task to the Building Patrol Officers.
Having carefully considered all evidence submitted by the parties concerning this matter, reviewing and studying the oral arguments presented by the advocates, and for the reasons set forth above, the arbitrator concludes that the Agency violated the Master Agreement, specifically Article 3, Section c, Article 4, Section a., and the Agreement dated May 27, 1999 when it issued the Building Patrol Post Orders dated March 27, 2001, without first informing the Union. The Agency shall rescind the March 27, 2001, Post Order and meet and confer with the Union in accordance with the applicable provisions of the Master Agreement. Because it would exceed the Arbitrator's authority, the Union's request for an order regarding negotiations to be posted in a conspicuous location for ninety days at the facility is denied.
1. See How Arbitration Works, Elkouri & Elkouri, 5th Edition, BNA Books, Pg. 323.
3. De minis non curat Lex may be defined as: The law does not care for, or take notice of, very small or trifling matters. Black's Law Dictionary.
3. See How Arbitration Works, Elkouri & Elkouri, 5th Edition, Page 588.
4. See Joint Exhibit, Article 1. Recognition of the Master Agreement, Pg. 2.
5. Random House Webster's College Dictionary, 1997 Edition
Click the browser back button to return to the publication.