Federal Bureau of Prisons, Metropolitan Detention Center, Guaynabo, Puerto Rico and American Federation of Government Employees, Council of Prison Locals, Local 4052, 0-AR-3701, March 31, 2004, 59 FLRA No. 141.

In rejecting the agency's exceptions claiming a remedy placing restrictions on the supervisor's interaction with the grievant flunked prong II of BEP because it didn't constitute a reconstruction of what management would have done if it had not violated Title VII, FLRA said the following: "[W]e hold that when an arbitrator issues a remedy for a violation of an applicable law such as Title VII, which provides for a remedy that affects management's rights under § 7106(a)(2)(A) of the Statute, it is not appropriate to apply prong II of BEP to assess whether the remedy is legal. Rather, the appropriate inquiry is whether the remedy is provided for by the relevant applicable law. . . ."

The arbitrator sustained a grievance alleging the agency violated the contract and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq, by the actions of a supervisor who engaged in acts of sexual harassment against a female correctional officer. The arbitrator credited the grievant's testimony that when the supervisor, who weighed 235 lbs. and was 6'2" tall, was in close contact with the grievant (a petite female) in a hallway in the suicide area, she tried to move away from him but was so close to the wall she couldn't do so. His genital area was about four to six inches from her face, such that if she turned her head 'she was smelling his crotch area.'" The arbitrator also found that on many occasions when the supervisor talked to the grievant he would scratch his genital area. These and other incidents, which were demeaning to the grievant, constituted sex discrimination in general, and a hostile work environment in particular, in violation of Title VII.

As remedies the arbitrator ordered the agency to provide compensatory damages, require the supervisor take sensitivity training, and issue the grievant a body alarm. The arbitrator also placed restrictions on the supervisor's interaction with the employee, including a requirement that the supervisor couldn't supervise the employee under any circumstances and that he had to remain more than 10 feet from her at all times and not speak to her except with regard to work-related matters.

The Authority rejected the union's claim that the portion of the award barring the supervisor from supervising the grievant is moot because the agency had restricted the supervisor from supervising the grievant prior to the arbitration hearing.

Although the Agency may have restricted the supervisor from supervising the grievant at the time, there is no Agency guarantee that this restriction will remain in place and a possibility exists that in the future the supervisor could, as the Agency asserts, be called upon to supervise the grievant again. Therefore, the Union has not established that there is no reasonable expectation of the situation addressed by this portion of the award recurring and this issue is not moot.

The agency challenged only the restrictions placed on the supervisor's interaction with the employee, claiming that these restrictions were deficient under prong II of BEP because they didn't constitute a reconstruction of what management would have done if it had not violated Title VII.

In finding that it would be inappropriate to apply prong II of the BEP test to violations of applicable law, FLRA said the following:

[T]his case appears to be the first since the issuance of BEP in which an agency has specifically challenged, under prong II of BEP, a remedy provided for by an applicable law. For the following reasons, we hold that when an arbitrator issues a remedy for a violation of an applicable law such as Title VII, which provides for a remedy that affects management's rights under § 7106(a)(2)(A) of the Statute, it is not appropriate to apply prong II of BEP to assess whether the remedy is legal. Rather, the appropriate inquiry is whether the remedy is provided for by the relevant applicable law.

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BEP, and cases following it, such as SSA [57 FLRA No. 55], did not address applicable law, but rather only contract provisions and the need to ensure that management rights "are limited only to the extent bargained for." SSA, 57 FLRA at 270. . . .

In sum, insofar as SSA can be read as holding that prong II of BEP must be applied in all cases where an arbitrator's remedy affects a management right, we modify SSA. An arbitrator may lawfully award a remedy directing relief that is provided for by Title VII, irrespective of whether such a remedy affects a management right but fails to reflect reconstruction.

Citing EEOC Compliance Guidelines and case law (e.g., Intlekofer v. Turnage, 973 F.2d 773, 778 (9th Cir. 1992), FLRA went on to find that the remedial measures ordered by the arbitrator were not contrary to law, and accordingly denied the agency's exceptions.