U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

Federal Bureau of Prisons, U. S. Penitentiary, Atlanta, Georgia and American Federation of Government Employees, Council of Prison Locals, Local 1145, 0-AR-3369, July 18, 2001, 57 FLRA No. 72.

In a split decision (Cabaniss dissenting), the Authority turned down agency exceptions to an award in which arbitrator, after finding that the agency violated the agreement by leaving certain work posts temporarily vacant, ordered the agency to vacate the posts "only for good reason and not on a routine basis for administrative convenience." Because the award affected management's rights to assign work and determine its internal security practices, FLRA applied the BEP test. It found that the award (1) enforced an arrangement that didn't "abrogate" management's rights and (2) was a "proper reconstruction" of what the agency would have done had it not violated the agreed-to arrangement. In addition to again dissenting to the use of the abrogation test, Chairman Cabaniss expressed 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."

When the agency's correctional officers fail to work a scheduled shift, the agency either assigns unscheduled employees from a "sick and annual leave relief" list or reassigns scheduled officers. If the latter, the posts vacated by the reassigned employees sometimes remain vacant. This prompted the union to grieve, alleging that the agency violates the following provision when it vacates correctional posts: "[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."

The matter was referred to arbitration and the arbitrator found that many of the correctional officer posts vacated by the agency are "inherently tied to safety" and that the agency hadn't shown that they were vacated for good reason. The grievance was sustained and, in FLRA's words, the "Arbitrator . . . 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."

When the agency filed exceptions to the award, claiming, among other things, that it violated its rights to assign work and determine the agency's internal security practices, the Authority applied the BEP test and the Customs Service (37 FLRA No. 20) analysis. The Authority (Chairman Cabniss dissenting) found that the enforced contractual provision was a section 7106(b)(3) "arrangement" because it ameliorated the adverse effects of the agency's decision to vacate correctional officer posts that contribute to the level of safety at the facility. It rejected the agency's claim that the provision, as interpreted and applied by the arbitrator, wasn't sufficiently "tailored," citing its decision in 57 FLRA No. 40, where it had said that in arbitration cases "the application of a provision to actual, aggrieved parties, satisfies the tailoring objective[.]" It also found that the award didn't "abrogate" management's rights to assign work or determine internal security practices. Although the directed remedy limited the agency's authority to leave posts vacant, "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.'" Consequently, the award satisfied Prong I of the BEP test. It also found that in directing the agency to refrain from leaving posts vacant the award was a proper reconstruction of what the agency would had done had it not violated the contract provision, and thus satisfied the second prong of the BEP test.

In her dissenting opinion, Chairman Cabaniss again took issue with the use of the Customs Service "abrogation" test. (See her dissent in 57 FLRA No. 67, which largely duplicated her dissent in 57 FLRA No. 40, which was reported in Significant Cases No. 141.)

She also expressed 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." She continued as follows:

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.