Significant Cases

U.S. Department of Justice, Federal Bureau of Prisons, Federal Transfer Center, Oklahoma City, Oklahoma and American Federation of Government Employees, Local 171, 0-AR-3438, September 30, 2002, 58 FLRA No. 21.

In a split decision the Authority announced that the Customs Service (37 FLRA No. 20) abrogation framework will no longer be followed when reviewing awards in which arbitrators enforce contractual provisions negotiated pursuant to § 7106(b)(3). In determining whether an arbitrator’'s enforcement of a contractual "arrangement" is authorized, Chairman Cabaniss and Member Armendariz indicated that they will apply an "excessive interference" rather than an "abrogation" standard. Member Pope, on the other hand, indicated that she will determine whether the award "effectively abrogates" the exercise of management’s rights.

The arbitrator’s initial award--in which he found that the agency violated the agreement by vacating correctional officer posts and ordered it to cease and desist the practice of vacating posts to avoid the payment of overtime or for any other reason of administrative convenience--was found deficient by all three members, albeit for different reasons. Chairman Cabaniss and Member Armendariz found that the award excessively interfered with management’s rights to assign work and determine internal security practices. Member Pope found that the award "effectively" abrogated the exercise of such rights.

The arbitrator’s "remedy award," in which the arbitrator ordered the appointment of a union representative to serve on the manpower committee, also was found deficient because it didn't constitute a reconstruction of what the agency would have done had it not violated the agreement.

This case, similar to many others (see, e.g., 57 FLRA No. 72, reported in Significant Cases No. 142), involves a contractual provision (Article 27) requiring the employer "to lower [the] inherent hazards [of a correctional environment] to the lowest possible level[.]" The grievance involved the claim that this contractual requirement was violated by the employer when it left certain posts vacant in order to avoid overtime. In the case at bar, the arbitrator issued two awards. In his "initial award" the arbitrator ruled that:

[A]ny decision to vacate posts for administrative convenience, whether it is tied to overtime specifically, to financial considerations generally, to needs created by training requirements, medical escort trips, sick leave, and vacations . . . or to the more amorphous balancing of considerations such as "safety, security, budget and organizational objectives" violates the pledge of Article 27 to lower inherent hazards to the lowest possible level.

He ordered the agency to stop its practice of vacating posts to avoid the payment of overtime or for any other reason of administrative convenience and directed the parties to submit arguments concerning additional remedies. In a "remedy award" he ordered the agency to appoint a union-designated representative to serve on the agency's manpower committee, claiming it was a reasonable remedy for the aforementioned violation, as well as an "appropriate arrangement," and referred to an agreement provision pertaining to union membership on committees.

In its exceptions the agency argued, among other things, that the initial award violated its rights to assign work and determine its internal security practices and asserted that the abrogation standard is contrary to law and should be replaced by an excessive interference standard. It further argued that the remedy award didn't satisfy the reconstruction requirements of prong II of BEP.

Regarding the abrogation test, FLRA said the following:

We will continue to apply BEP to determine whether an award has enforced a contract provision negotiated pursuant to § 7106(b)(3). In doing so, we will also continue to examine whether the provision of the collective bargaining agreement, as interpreted and applied by the arbitrator, constitutes an arrangement within the meaning of § 7106(b)(3). However, in determining whether an arbitrator's enforcement of such a provision is authorized under the Statute, we will no longer apply the "abrogation" standard. Rather, consistent with the Authority's practice prior to Customs Service [37 FLRA No. 20], we will examine whether the contract provision, as interpreted and applied by the arbitrator, excessively interferes with the exercise of a management right.

Finding that Article 27, as interpreted and applied by the arbitrator, was an "arrangement," FLRA applied the excessive interference balancing test and concluded that "the benefits to employees are outweighed by the intrusion on the exercise of management's rights" and that the initial award was therefore contrary to § 7106 of the Statute.

[T]he Arbitrator interpreted and applied Article 27 to prohibit the Agency, without exception, from vacating posts for administrative convenience. While the Arbitrator did not explicitly define what he meant by the term "administrative convenience," he specifically ruled that it included any consideration by the Agency of finances, training, medical escort trips, sick leave, vacations, safety, security, budget, or organizational objectives. In view of this exhaustive list, and the fact that the award does not specify any situations in which the Agency could fail to assign an employee to a vacant post, we conclude that Article 27, as interpreted and enforced by the Arbitrator in his initial award, is so severely circumscribed that it leaves virtually no circumstance--whether related to work reasons, security reasons, or both--under which the Agency may leave posts vacant.

Since the remedy award affected management's right to assign work (the manpower committee to which the arbitrator directed the employer to appoint a union designee determines to whom work will be assigned), FLRA applied the BEP analysis and concluded the award was deficient because it failed prong II of BEP. Although the arbitrator referenced a contract provision dealing with union membership on committees, he never found that that provision was violated. He did find a violation of Article 27, dealing with the lowering of hazards, but FLRA concluded that the appointment of a union designee to the Manpower Committee "does not constitute a reconstruction of what the Agency would have done had it not violated the parties' agreement."

Chairman Cabaniss and Member Armendariz agreed to return to the "excessive interference" standard for different reasons. The Chairman because, as she has indicated in earlier decisions, she believes the abrogation test violates law. Member Armendariz because "in the 12 years that the abrogation standard has been in existence, the Authority has never applied the standard in such a way to find that an award was deficient. Such a uniformly one-sided application effectively renders the test meaningless and removes all of its utility."

Ironically, in this case Member Pope found that the abrogation test was violated! In her dissent she "clarified" the test.

[I]n my view, the abrogation test can and should be applied in a manner that recognizes the practical needs of agency management and preserves management's rights under the Statute. . . . That is, in order to find that an award abrogates the exercise of a management right, it is not necessary to conclude that the award eliminates all possible exercises of a right. . . . Instead, the facts and circumstances of each case must be examined to determine whether, viewed in context, an award effectively abrogates the exercise of a right.

It thus appears that the difference between the "excessive interference" test and the "effectively abrogates" test is one of degree.

In her separate concurring opinion, Chairman Cabaniss said that "adherence to Authority negotiability precedent is nondiscretionary on the part of arbitrators." She also said, with respect to the "tailoring" requirement, that "[s]ection 7106(b)(3) does not bring within the duty to bargain proposals that are so broad in their sweep that the 'balm' afforded would be applied to employees indiscriminately without regard to whether the group as a whole is likely to suffer adverse effects as a consequence of management action under section 7106."

The probable consequence of this very important decision is that arbitrators might, e.g., expect the parties to support their claims regarding whether a provision was intended to be an "arrangement" with some bargaining history evidence, as well as argument showing how the provision at issue is or isn't "tailored" to benefit only those employees who would be adversely affected by the exercise of a management right. And arbitrators will have to be a bit more cautious in fashioning remedies to increase the odds that they'll pass the excessive interference balancing test.

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