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  • American Federation of Government Employees, Local 405 (Union) and United States Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Butner, North Carolina (Agency)

American Federation of Government Employees, Local 405 (Union) and United States Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Butner, North Carolina (Agency)

[ v63 p149 ]

63 FLRA No. 59

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 405
(Union)

and

UNITED STATES
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
BUTNER, NORTH CAROLINA
(Agency)

0-AR-4185

_____

DECISION

March 23, 2009

_____

Before the Authority:
Carol Waller Pope, Acting Chairman and
Thomas Beck, Member

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Merry C. Hudson, filed by AFGE, Local 405 under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to AFGE, Local 405's exceptions. [n1] 

      A grievance was filed alleging that the Agency violated the Statute and the parties' collective bargaining agreement (CBA) by failing to negotiate the ground rules for negotiation and the impact and implementation (I&I) of changes to the employees' Food Service Roster prior to implementation. [n2]  The Arbitrator denied the grievance. For the reasons set forth below, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      On June 7, 2002, the Agency presented the Union with a proposal to consolidate the food service departments of three of its facilities into a single operation under the Warden of one of the facilities -- the Low Security Correctional Institution (Institution). Award at 2. The consolidation primarily concerned the assignment of food staff and cook supervisors. The Union requested to bargain with the Agency over the consolidation, however the Agency determined that the Union's proposals interfered with its right to assign work, and subsequently proceeded with the consolidation. Approximately three years later, on August 18, 2005, the Agency notified the Union that a new "unified food services schedule" would take effect after October 1, 2005, in which cook supervisors would use quarterly assignment rosters to select shifts and days off. Id. at 3. The Agency acknowledged that the new schedule constituted a change in working conditions and invited the Union to submit I&I proposals no later than August 31, 2005. The Union informed the Agency that it had 30 days to invoke bargaining and that ground rules for negotiation needed to be established. The Agency responded that the only proposed change was the "particular way" in which the Agency assigned work and that all previously negotiated procedures relating to rosters would be followed. Id. at 4.

      The Union submitted a Request to Bargain to the Warden on August 25, asking that no changes take place until bargaining was completed through impasse. The Union also submitted a request for an informal resolution of the matter. The Warden responded that management was willing to discuss "negotiation arrangements," but that the Union had not submitted any proposals, and thus, management proceeded with the implementation of the proposed plan. Id. at 5.

      Subsequently, the Union filed a grievance alleging that the Agency failed to negotiate with the Union over the ground rules for negotiation and the changes to the Food Service Roster prior to implementation. Specifically, the grievance alleged that the Agency failed to negotiate with the Union in violation of Articles 3 and 18 of the CBA and §§ 7114 and 7116 of the Statute (as incorporated by the CBA).

      The issues before the Arbitrator were as follows:

1.     [W]hether the grievance was arbitrable.
2.     Whether the Agency implemented the Consolidated Food Service Roster in violation of the [CBA] and applicable statutory provisions.
[ v63 p150 ] 3.     [W]hether the Agency should be directed to cease and desist operating the Consolidated Food Service Roster, return to [s]tatus [q]uo ante and negotiate [I&I] proposals.

Id. at 2.

      Before the Arbitrator, the Union argued that the Agency implemented changes in employment conditions without providing it with an opportunity to bargain over the changes concerning the proposed Consolidated Food Service Roster. The Union claimed that the proposed changes violated the CBA and the Statute. According to the Union, it had 30 days within which to invoke bargaining under Article 3, section d of the CBA. The Union also contended that, in creating the new Consolidated Food Service Roster, the Agency purposefully used the term "consolidation" to avoid bargaining requirements that would be present in cases of "share[d] services," which, it claims, require the negotiation of a supplemental agreement. Id. at 7. The Agency argued that it did not violate the Statute or the CBA because the Union did not submit any proposals.

      On the merits, [n3]  the Arbitrator determined the issue as: whether the Agency violated the [CBA] provisions when it implemented the proposed Consolidated Food Service Roster. [n4]  Id. at 11. In this regard, the Arbitrator concluded that the Agency did not implement the Consolidated Food Service Roster in violation of the Statute or Article 3 of the CBA. The Arbitrator determined that Article 3, section d provides the Union with 30 days notice in cases involving the negotiation of "policy issuances[,]" and "contains no provisions relating to such matters as roster assignments of employees." Id. at 12. The Arbitrator further found that, although the Union may have believed that additional time was needed to submit proposals, no such request was made and no testimony was proffered to rebut the Agency's contention that the time frame to submit proposals was reasonable. Id. at 12-13. The Arbitrator determined that the Union was provided with adequate notice of the proposed changes and an opportunity to respond but that the Union never submitted any proposals to the Agency concerning either the ground rules for negotiation or the substantive I&I issues regarding the change in condition of employment. Id. at 13. The Arbitrator concluded that if the Union wished to negotiate with the Agency, then it was obligated to present proposals. As such, the Arbitrator found that the Agency could not be faulted for "failure to negotiate" when the Union never submitted any proposals. Id. Consequently, the Arbitrator concluded that the Agency did not violate the CBA or applicable statutory provisions when it implemented the Consolidated Food Service Roster, and denied the grievance. Id. at 12.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union argues that the award fails to draw its essence from the CBA. In this regard, the Union claims that, by proposing to implement the Consolidated Food Service Roster, the Agency was intending to effect changes covered by previously negotiated employee preference procedures encompassed in Article 18, sections d(2)(a) and (d), and f of the CBA, and the Employee Preference Request Form set forth in Appendix B of the CBA. Exceptions at 12, 14. According to the Union, "[b]ecause the parties had . . . negotiated the procedures in accordance with [s]ection f[,] these procedures cannot be changed unilaterally by the Agency." Id. at 12. By unilaterally changing such procedures at the local level, the Union claims that the Agency violated Article 9, section c(3) of the CBA in that it failed to consult with the parties at the national level before implementing the Consolidated Food Service Roster. Id. at 14.

      The Union further claims that, under Article 3, section c of the CBA, once it invoked its right to bargain, the Agency was required to "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." [n5]  Id. at 13 (citing Article 3, section c). In addition, the Union argues that it had 30 days "to invoke negotiations" and that, as such, the Agency violated its rights by not "adjust[ing] its dates for implementation[.]" Id. at 13, 14. The Union also claims that the Agency had an obligation to negotiate the ground rules for bargaining under [ v63 p151 ] Article 9, section b(4) and that the Arbitrator never addressed this claim at arbitration. Id. at 13.

      The Union further argues that the award conflicts with public policy because the negotiation of ground rules "is an integral part of the collective bargaining process[,]" and the Agency had a duty to negotiate with the Union over such rules. Id. at 15-16. The Union contends that the Agency was required to negotiate the ground rules before the Union was required to submit substantive proposals or adopt the standard ground rules encompassed in Appendix A of the parties' CBA. Id. at 16.

      In addition, the Union asserts that the award is based on a nonfact and that the Arbitrator was biased or failed to conduct a fair proceeding. Id. at 2.

      The Union requests that the Authority set aside the award, issue a "cease and desist order," and order a status quo ante remedy.

B.      Agency's Opposition

      With respect to the Union's claim that the award does not draw its essence from the CBA, the Agency argues that the Arbitrator considered all issues relating to I&I of the proposed changes. Specifically, the Agency argues that the Arbitrator addressed the Union's request to negotiate the ground rules, finding that Article 3, section d of the parties' CBA "requires 30 days notice in cases involving the negotiation of policy issuances," and that the Union never submitted any proposals to the Agency. Opposition at 7 (quoting Award at 12). The Agency also contends that the Arbitrator addressed the Union's concerns with regard to the Agency's alleged attempt to change the Employee Preference Request Form, and that the Union merely disagrees with the Arbitrator's conclusions in this respect. Id. at 6. With regard to the Union's claim that the award is based on a nonfact, the Agency claims that the Union does not show that the Arbitrator erroneously relied on a fact that affected the outcome of the hearing. Id. at 5. Additionally, the Agency claims that the Union's allegations that the Arbitrator exceeded her authority, was biased and/or did not conduct a fair hearing, as well as the Union's claim that the award conflicts with public policy, are unsupported and do not provide any basis for finding the award deficient. Id. at 8 and 10.

IV.     Analysis and Conclusions

A.     The award does not fail to draw its essence from the CBA

      In reviewing an arbitrator's interpretation of a CBA, the Authority applies the deferential standard of review that federal courts use in reviewing arbitration awards in the private sector. See 5 U.S.C. § 7122(a)(2); AFGE, Council 220, 54 FLRA 156, 159 (1998). Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the CBA when the appealing party establishes that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990). The Authority and the courts defer to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. at 576.

      The Union argues that the award fails to draw its essence from the CBA. Specifically, the Union claims that the Agency violated Article 18 of the CBA by unilaterally implementing the Consolidated Food Service Roster without negotiating with the Union over the changes as required by Article 3 of the CBA. [n6]  Exceptions at 12-13. The Union also claims that the Agency violated Article 3, section d of the CBA by not providing it with 30 days in which to submit proposals. Additionally, the Union contends that the Arbitrator did not address its claim that Article 9, section b(4) requires the Agency to bargain over the ground rules for negotiation.

      The Arbitrator found that the Agency was obligated to bargain over the substantive I&I matters concerning the Consolidated Food Service Roster. However, the Arbitrator concluded that Article 3 of the CBA did not provide the Union with 30 days within which to invoke bargaining. Award at 12. In this respect, the Arbitrator found that Article 3, section d was inapplicable to this case, as it addresses "policy issuances," not "provisions relating to such matters as [ v63 p152 ] roster assignments of employees." [n7]  Id. The Arbitrator's factual findings show that the proposed Consolidated Food Service Roster was intended for implementation at the Institution at the local level. As such, the Union has not shown that the Arbitrator's interpretation of Article 3, section d renders the award deficient.

      In addition, the Arbitrator found that the Agency's bargaining obligation under the CBA was predicated on the Union's submission of negotiable proposals. Id. at 13. The Union argues that the Arbitrator did not address its claim that the Agency was required to negotiate the ground rules for negotiation under Article 9 of the CBA. [n8]  However, the Arbitrator found that the Union never submitted any proposals concerning either the "ground rules" for negotiation or the substantive I&I issues regarding the change in condition of employment. Id. Specifically, the Arbitrator concluded that "[a]gency officials . . . contended that they were willing to negotiate ground rules and the proposed changes but that they could not do so without proposals." Id. As such, the Arbitrator found that the Agency did not wrongfully implement the change to the Food Service Roster because "the Agency [cannot] be faulted for failure to negotiate when it had no proposals to consider." Id. See Pension Benefit Guaranty Corp., 59 FLRA 48, 50 (2003) (an agency's obligation to bargain is predicated on the union's submission of negotiable proposals).

      As the Arbitrator's interpretation of the CBA is consistent with the pertinent provisions of the CBA, the Union has not established that the arbitration award is deficient as failing to draw its essence from the CBA because it has not established that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See OSHA, 34 FLRA at 575. As the Union has not demonstrated that the award failed to draw its essence from the agreement, we deny the exception.

B.     The award does not conflict with public policy

      Under § 7122(a)(2) of the Statute, an award will be found deficient on grounds similar to those applied by federal courts in private sector labor relations cases. In the private sector, courts will find an arbitration award deficient when the award is contrary to public policy. However, the Authority has held that this ground is extremely narrow. United States Dep't of the Navy, Long Beach Naval Shipyard, Long Beach, Cal., 48 FLRA 612, 618 (1993). In particular, for an award to be found deficient on this basis, the public policy asserted must be "explicit[,]" "well-defined[,]" and "dominant," W.R. Grace & Co. v. Local Union 759, Int'l Union of the United Rubber, Cork, Linoleum & Plastic Workers of Am., 461 U.S. 757, 766 (1983), and a violation of the policy "must be clearly shown[.]" United Paperworkers Int'l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 43 (1987).

      The Union asserts that the award "conflicts with public policy" because the negotiation of ground rules "is an integral part of the collective bargaining process[,]" and the Agency had a duty to negotiate with the Union over such rules. Exceptions at 15-16. Assuming without deciding that there is a public policy favoring the negotiation of ground rules, this duty to negotiate is predicated on the union's submission of negotiable proposals. PBGC, 59 FLRA at 50. As explained above, and as found by the Arbitrator, the Agency officials contended that they were willing to negotiate ground rules but that they could not do so without proposals from the Union. Consequently, the Arbitrator concluded that "the Agency cannot be faulted for failure to negotiate when it had no proposals to consider." Award at 13. As the Union has failed to show that the Agency failed to negotiate with the Union over the ground rules, the Union has not demonstrated that the award violates its asserted "public policy." Consequently, we deny the exception.

V.     Decision

      The Union's exceptions are denied. [n9] 

Footnote # 1 for 63 FLRA No. 59 - Authority's Decision

   At the time of the filing of the grievance, three unions, including AFGE, Local 405, represented employees in the food service departments subject to the consolidation at the Low Security Correctional Institution (Institution). AFGE, Local 405, which represents employees at the Institution, filed the grievance and the instant exceptions. As only AFGE, Local 405 is involved in this case, it will be referred to hereafter as the "Union."

Footnote # 2 for 63 FLRA No. 59 - Authority's Decision

   The Food Service Roster is used to record food service employees' schedules and work assignments.

Footnote # 3 for 63 FLRA No. 59 - Authority's Decision

   The Agency raised several procedural issues at arbitration that were resolved by the Arbitrator in his award. Award at 8-9. No exceptions were raised concerning the Arbitrator's findings with regard to these issues, and as such, we will not address them further.

Footnote # 4 for 63 FLRA No. 59 - Authority's Decision

   The Arbitrator specifically provided that she would not make a determination on "[a]ny questions as to whether the Agency properly implemented the original consolidated food service plan of 2002 . . . ." Award at 11 n. 1.

Footnote # 5 for 63 FLRA No. 59 - Authority's Decision

   We note that, to the extent that the Union claimed in its grievance that the Agency failed to negotiate with the Union in violation of unfair labor practice provisions set forth in the Statute as incorporated by the parties' CBA, see Award at 9-10, the Union does not raise such an unfair labor practice claim before the Authority.

Footnote # 6 for 63 FLRA No. 59 - Authority's Decision

   Article 3, section c requires that the parties meet and negotiate "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." See Union Ex. 3, CBA, Article 3, section c at 4.

Footnote # 7 for 63 FLRA No. 59 - Authority's Decision

   Article 3, section d of the CBA provides that, if proposed national policy issuances change or affect conditions of employment, then prior to issuance and implementation, the Union has 30 days to invoke negotiations with regard to such policy issuances. See Union Ex. 3, CBA, Article 3, section d(2) at 4.

Footnote # 8 for 63 FLRA No. 59 - Authority's Decision

   Article 9, which concerns "Negotiations at the Local Level," addresses the process for establishing the ground rules for the negotiation of supplemental agreements and applies where "either party serves notice of intent to negotiate within sixty (60) days of receipt of the [CBA]." CBA, Article 9, sections b(1) and (4).

Footnote # 9 for 63 FLRA No. 59 - Authority's Decision

   As the Union does not provide supporting evidence for its claims that the award is based on a nonfact and/or that the Arbitrator exceeded her authority, was biased or failed to conduct a fair hearing, we reject these arguments as bare assertions. See Soc. Sec. Admin., Balt. Md., 57 FLRA 690, 694 n.9 (2002) (agency's unsupported claim constitutes a bare assertion and is therefore, denied).