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Dept. of Justice
Federal Bureau of Prisons
Federal Correctional Institute
American Federation of Government Employees
117 LA (BNA) 1723
FMCS Case No. 02/06738
November 29, 2002
Lawrence M. Oberdank, Arbitrator.*
The Federal Bureau of Prisons, herein the “Agency”, operates a correctional institution in Manchester, Kentucky. Correction Officers, as well as others working at the facility, are represented by the American Federation of Government Employees, Local 4051, herein the “Union” for purposes of collective bargaining about wages, hours and other terms and conditions of employment.
The agency negotiates a Master Agreement with the Council of Prison Locals of the American Federation of Government Employees. This contract governs labor relations at the Manchester prison but is supplemented by an understanding between the union and local Agreement which, in pertinent part, provides:
The Employer and the Union agree that this Agreement will constitute the Master Collective Bargaining Agreement between the parties and will be applicable to all Bureau of Prisons managed facilities and employees included in the bargaining unit as defined in Article I—Recognition. This Master Agreement may be supplemented in local agreements in accordance with this article. In no case may local supplemental agreements conflict with, be inconsistent with, amend, modify, alter, paraphrase, detract from, or duplicate this Master Agreement except as expressly authorized herein.
Section a, paragraph 2 of the understanding repeats the directive that nothing in the local supplement conflict with the provisions of the Master Agreement or with changes in any policies, regulations or laws.
The impact of both contracts upon agency policy is explained in Article 3 of the Master Agreement which, in pertinent part, provides:
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 b. In the administration of all matters covered by this Agreement, Agency officials, Union officials, and employees are governed by existing and/or future laws, rules, and government-wide regulations in existence at the time this Agreement goes into effect.1
The assignment of overtime is governed, in part, by Article 18, Section p of the Master Agreement which provides:
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: and
2. overtime records, including sign-up lists, offers made by the Employer for overtime, and overtime assignments, will be monitored by the Employer and the Union to determine the effectiveness of the overtime assignment system and ensure equitable distribution of overtime assignments to members of the unit. Records will be retained by the Employer for two (2) years from the date of said record.2
Article 18, Section p is supplemented by the local collective bargaining agreement which provides:
For all overtime a sign-up sheet covering each pay period will be maintained in the Lieutenant's Office. When a staff member wishes to commit to overtime he or she will complete the overtime sign-up sheet in the presence of the Operations Lieutenant. Staff selected to work overtime will be notified by the lieutenant as soon as possible. If the employee refuses or declines the overtime, they will automatically be placed at the bottom of the overtime list. Overtime will be selected based on the order in which the employee signed up. Upon request, the Union may review overtime sign up sheets. Upon request, employees working an unscheduled eight hour overtime within the facility, who are working beyond their regular shift, will be allowed thirty minutes in non-pay status, to conduct personal business before the beginning of the overtime shift.
During the evening watch on November 6, 2001, Lieutenant Terry L. Baker began trying to fill overtime openings he knew would be available the following day. In keeping with the procedure requiring him to rotate through the overtime roster and contact employees in the order in which they signed up, Baker began his search by calling Keith Gray who agreed to work the day watch on November 7th. Gray was the first to be contacted because the last available overtime had been assigned to Brian Feltner on November 5th.3 Baker continued through the list until he contacted S. Waterson, who refused the overtime. He made no other calls during the evening watch which ended at 12:00 PM.
Lynn Sears agreed to work day watch on November 7th and was assigned to cover an inmate who had been admitted to Manchester Memorial Hospital. Joseph Adkins, Mack Armes, Rick Bostic, Frank Catron, Dave Davis and Brian Feltner grieved upon learning of the assignment because they believed they should have been offered the overtime before Sears. The agency originally thought an error had been committed and offered to settle the dispute by allowing each grievant to work an overtime shift of his choice between December 12 and 24, 2001. This compromise was rejected when the officers insisted upon being paid for lost overtime.
The agency, upon further investigation, came to the conclusion, however, that the grievants had not been ignored. Lieutenant Baker had ended his search after calling officer Waterson but the Lieutenant who relieved him continued calling people to fill overtime shifts on the day watch. Adkins, Armes, Catron, Davis and Feltner were all contacted at approximately 6:00 AM on November 7, 2001 and offered the opportunity to work overtime on day watch. They all refused. Bostic accepted the overtime and worked the day watch on November 7th. No other offers of settlement were pursued because the agency believed the labor agreement had not been violated.
The agency raised a procedural issue which must be decided before the merits of the dispute are considered. It points out that Article 32, Section f of the Master Agreement requires the union and agency to exchange initial witness lists no later than seven days prior to the arbitration hearing. Revised witness lists may be exchanged up to the day before the arbitration. The union failed to comply with this mandate even though the agency submitted its list in timely fashion and requested the union to do the same by letter of September 24, 2002. Nevertheless, the union failed to provide the agency with its witness list until the day before the hearing. In doing so, it not only ignored the time limits prescribed by Article 32, Section f but seriously prejudiced the agency's ability to defend against union accusations. The agency was deprived of adequate time to become acquainted with the evidence supporting the union's case and, indeed, was still unsure of the factual basis for the union's claim at the time of hearing. The time limits in the Master Agreement were intended to prevent just such a trial by ambush and, in fairness, the testimony of union witnesses should not be considered.
The union admits it did not provide the agency with a written witness list until October 2, 2002 and apologizes for the delay but argues that Article 32, Section f does not expressly, or by implication, require the list to be in written form. Union officials discussed the witnesses they intended to call with agency representatives long before the seven day deadline expired and schedule adjustments were made to assure their availability more than fourteen days prior to the hearing. The union even requested that one potential witness be removed from the list approximately thirteen days before the hearing. There is, therefore, no violation of Article 32, Section f because management was well aware of the identity of union witnesses and certainly was not seriously prejudiced because a written list was not provided sooner. The Master Agreement, moreover, specifically allows either party to present an amended witness list up to the day before the hearing. The union satisfied this contractual directive and the list it provided is no different from the amended list contemplated by Article 32, Section f. Consequently, the Arbitrator should consider the testimony of union witnesses.
While Article 32, Section f of the Master Agreement does not, in so many words, say the initial list must be in writing, the language adopted by the parties does imply that it must, in my opinion. A “list” is commonly understood to be a series of names or other items set forth in order and usually in writing. If the parties did not intend such a requirement, they could have said so and, in that event, Article 32, Section f would be quite different. It might only require management and labor to “identify” their witnesses no later than seven days prior to the arbitration hearing or “inform” or “advise” each other of the same. But, the negotiators chose not to use such broad terminology and opted instead for limited wording that would demonstrate their intent to make certain the list was in documentary form. The discussion of potential witnesses or the changing of work schedules to make them available may, indeed, provide some inkling of a party's position and reduce the element of surprise at trial but it does not satisfy the obligation imposed by the collective bargaining agreement.
Article 32, Section f of the Master Agreement is, moreover, clear and unequivocal and gives neither party discretion with regard to the exchange of initial witness lists. The language is mandatory, not permissive, and places an affirmative duty upon both labor and management to exchange initial witness lists no later than seven days prior to the arbitration hearing. The language demonstrates the parties intent to level the playing field and prevent any prejudice that might result from surprise by allowing both sides to learn the identity of adverse witnesses in time to defend against their testimony. The language, being clear, must be enforced as written.
Nor can the failure to comply with the obligations imposed by Article 32, Section f be excused because the provision also allows revised lists to be exchanged up to the day before trial. A revised list is not the same as or a substitute for the initial witness list. To hold otherwise would render a significant portion of the article meaningless. But, Arbitrators are reluctant to declare language superfluous if an interpretation can be found which gives it meaning and upholds the intent of the parties. The language in Article 32, Section f contemplates that primary witness lists have been exchanged and allows both parties to add or delete names from them after learning the identity of their adversary's witnesses.4 The provision does not extend the seven day limitation set forth earlier or toll its running but merely enables the parties to make last minute changes to their lists before trial.
The union, in this case, failed to provide the agency with a written witness list within the seven day limitation imposed by Article 32, Section f of the Master Agreement but the contract is silent as to what the penalty should be for such a breach. Negotiators may well have intended to deprive the errant party of its right to call witnesses as the agency argues or they may have only intended the language to serve as justification for either party seeking a postponement of the hearing until compliance was had. The contract doesn't say and the omission was not explained by bargaining history or custom and past practice. I certainly would amend Article 32, Section f by adding a penalty the parties may not have contemplated if I adopt the agency's position. Yet, I have no right to modify the agreement pursuant to Article 32, Section h and would certainly exceed the authority of my office if I did so.
also deprive the union of due process if I prevented it from presenting
witnesses or ignored their testimony. Neither party should be denied the
fundamental fairness inherent in due process unless the labor agreement clearly
demands it, in my opinion. Absent contractual language or custom and practice
which expressly precludes a party from presenting testimony unless it has
provided the other with its initial witness list in timely fashion, the
arbitrator should not take it upon himself to impose such a restriction. If
management and labor wish to regulate each others right to present testimony or
evidence in arbitration, they are perfectly capable of negotiating those
restrictions at the bargaining table. It is not for the Arbitrator to assume
they already exist and I will not do so in this case.
Turning now to the merits of the dispute, the union asserts that Lieutenant Terry Baker skipped Joseph Adkins, Mack Armes, Ricky Bostic, Frank Catron, Dave Davis and Brian Feltner while attempting to fill overtime scheduled for the day watch on November 7, 2001 and violated Article 18, Section P, Paragraph 1 of the Master Agreement in doing so. This provision requires management to give bargaining unit personnel first consideration for overtime and to rotate it equitably among employees. Management, recognizing its mistake, initially offered to settle the dispute by allowing each grievant to work an overtime shift of his choice. The proposal was not accepted but that is of no consequence. The admission that grievants were improperly denied overtime is implicit in management's proposition and is not undermined by the union's rejection. The grievance should be sustained and all grievants should be paid eight hours overtime.
The agency does not deny that it offered to settle the grievance upon first learning of the dispute but argues that its proposal was made in the mistaken belief that Article 18, Section P, Paragraph 1 the Master Agreement had been violated. Subsequent investigation revealed, however, that agency rotation procedures were followed when assigning the overtime in dispute and that each of the grievants was offered the opportunity to work the day shift on November 7, 2001. One grievant, Ricky Bostic, actually worked the overtime. All the others refused it. No violation of the collective bargaining agreement has been proven and the grievance should be denied.
The union, having asserted the contract was breached, has the burden of establishing the violation by a preponderance of credible evidence. This does not mean it must come forward with proof that convinces the Arbitrator beyond a reasonable doubt or to a positive certainty but merely that its evidence persuade the Arbitrator the union's version of events is more probable than that being espoused by management. The standard requires the union to produce facts establishing some duty imposed upon the agency by contract, custom or practice; a breach of that duty by management and some deprivation or infringement of the contractual rights guaranteed employees.
The responsibility imposed upon the agency with regard to assignment and rotation of overtime is clearly described in the labor agreement and is established without the need for testimony. Article 18, Section P, Paragraph 1 preserves management's right to decide if and when overtime is necessary but once the determination is made, qualified employees in the bargaining unit must be given first consideration when filling the assignments and the overtime must be distributed and rotated equitably among them. Local agency officials and union representatives have supplemented this understanding by adopting a sign-up procedure. Employees interested in working overtime must submit a shift request on the second Thursday of each pay period and this information is then transferred to overtime rosters by the Day Watch Operations Lieutenant. Employees are placed on the roster in alphabetical order according to their last names and a separate roster is developed for each of the three shifts. The Lieutenant filling overtime positions rotates through the appropriate roster beginning with the first name on the list and, after all positions are filled, marks the place where he stopped. The next employee on the roster is the first person called when overtime again becomes available.
The union insists the Master Agreement was breached during the evening watch of November 6, 2001 when Lieutenant Terry L. Baker ignored the rotation procedure and assigned Lyn Sears overtime on the November 7th day watch instead of the grievants but, in my opinion, it has failed to prove this accusation. Grievants, it is true, swore they should have been offered the overtime instead of Sears and thought they had been passed over improperly but their testimony consisted of nothing more than conclusory declarations or opinions and, indeed, was refuted on cross examination.
I have no doubt that each of the grievants sincerely believes he was improperly denied overtime but conclusions and opinions are not substitutes for proof. At the very least, some facts must be introduced to support these suppositions if they are to be given weight. The fact that a union steward discussed the violation with Baker shortly after grievants learned of the assignment does not remedy this defect. Such testimony proves the conversation took place and demonstrates what it was about but it does not provide evidence of the truth of grievants' claim.
Nor is the union's position made stronger because the agency offered to resolve the dispute by allowing grievants to work an extra overtime shift. The proposal was rejected and no settlement entitled to conclusive weight was realized. Offers of settlement may be made for any number of reasons. Management, for example, may wish to compromise because it is cheaper than arbitrating or it may want to avoid a binding decision on contractual language it intends to modify or eliminate at the bargaining table. It might also believe settlement will improve the bargaining relationship, especially if the issue is one that does not have an adverse impact on its business and is unlikely to occur again. An offer of settlement, therefore, is not an admission of wrong doing and no breach of the collective bargaining agreement may be inferred from it. What is more, the union's position is conclusively refuted by the overtime rosters themselves.
The day watch roster for the pay period demonstrates that all grievants, who had expressed an interest in working, were contacted on November 5, 2001 and offered overtime on the November 6th day watch. One of them, Brian Feltner, was the last person contacted. All available overtime had been assigned at that point and, in accordance with the rotation procedure, grievants were not entitled to another call until the roster had been exhausted. Keith Gray was entitled to the next call when overtime became available again and was the first person Lieutenant Baker contacted on the evening of November 6, 2001 concerning overtime on the November 7th day watch. Gray accepted the assignment and Baker continued contacting the people whose names appeared after his on the roster. Sears was one of those employees and he also accepted an overtime assignment on the day watch. But his claim to the overtime was superior to grievants and no violation of the labor agreement occurred because Lieutenant Baker offered it to him first.
S. Waterson was the last employee contacted by Lieutenant Baker before his shift ended but all the overtime available on the November 7th day watch had not been filled at that time. His relief continued the search and called one of the grievants, Joe Adkins, at approximately 6:00 AM on November 7th to offer him overtime on the day watch. Adkins was first on the roster and was contacted because all interested employees having a superior claim to the overtime had been offered the opportunity to work. Adkins refused the assignment and the Lieutenant continued down the list in alphabetical order. All other grievants were contacted and asked to work the day watch. Ricky Bostic accepted the overtime but all other grievants refused. The grievants, in my opinion, were called in proper order pursuant to the rotation procedure and were not improperly denied overtime on November 7, 2001.5
The grievance is denied.
* Selected by parties through procedures of the Federal Mediation and Conciliation Service
1. The agency and union must have due regard for the obligations imposed by 5 U.S.C. 7106, 7114 and 7117 when prescribing regulations relating to personnel policies, practices and conditions of employment pursuant to Article 4 of the Master Agreement.
2. The employer retains the right to order a qualified employee to work overtime after making a reasonable effort to obtain a volunteer pursuant to Article 18, Section q of the Master Agreement. This section is, however, supplemented by the local understanding which prohibits management from choosing the same person for more than one mandatory overtime during a pay period. If additional mandatory overtime becomes necessary during the pay period, the next person with the least amount of seniority is required to work it.
3. Employees willing to work overtime are placed on the sign-up sheet in alphabetical order. The supervisor filling overtime shifts starts his search by contacting the person immediately beneath the last employee offered overtime. The first person on the list is not called again until everyone else has been offered the opportunity to work.
4. The parties are always free to bargain during an agreement's term and, in the event either is unable to meet contractual time limits in a given case, it can certainly ask the other to negotiate a waiver or extension of the same.
5. Having determined the grievants were not improperly denied overtime, no opinion is expressed regarding provisions of the United States Code and Code of Federal Regulations concerning the agency's liability for back pay or whether back pay would be an appropriate remedy in this case.
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