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