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

Department of Justice, Federal Bureau of Prisons, Federal Transfer Center, Oklahoma City, OK and American Federation of Government Employees, Local 171, Council of Prison Locals C33, 0-AR-3300, May 18, 2001, 57 FLRA No. 40.

The Authority, Chairman Cabaniss dissenting, turned down agency exceptions to an award in which the arbitrator interpreted and applied the agreement in such a manner as to effectively limit the duration of work assignments to three-month periods.

The majority rejected the agency's claim that the enforced provision wasn't sufficiently "tailored" to constitute an "arrangement" within the meaning of § 7106(b)(3). It said that, "in arbitration cases, balms are inherently administered only to hurts arising from the exercise of a management right." It also rejected the agency's claim that the award "completely negates" and excessively interferes with the agency's right to determine internal security practices.

In her dissent, Chairman Cabaniss took the position that the tailoring requirement and the excessive interference balancing test that FLRA applies to proposals and to provisions disapproved by agency heads to determine their negotiability should also be applied to contract provisions that, as interpreted and applied by an arbitrator, affect management's rights.

The contract had a provision dealing with procedures for preparing quarterly rosters of work assignments and the submission by employees of their preference requests for the upcoming quarter. The roster committee, in turn, was to consider those requests in order of seniority and to make reasonable efforts to grant such requests. Another contract provision stated that the agreement takes precedence over agency policies that aren't derived from governing laws and regulations. When management designated certain work assignments for a duration of 6 or 9 months, rather than for 3 months, the union grieved and the matter was referred to arbitration.

In sustaining the union grievance, the arbitrator determined that the agreement terminated the practice of work assignments for 6 or 9 months, that the agreement expressly provided for quarterly rosters and had no references to assignments of 6 or 9 months. As a remedy he ordered the agency to open all assignments "to bid on a quarterly duration basis." The agency filed exceptions.

In ordering the agency to open all work assignments to bid on a quarterly basis, FLRA agreed that the arbitrator's award effectively limited the duration of work assignments to 3 months and thus affected management's right to assign work (which includes the right to determine the duration of work assignments). But in applying the BEP test, FLRA found that the provision enforced by the arbitrator is a section 7106(b)(3) "arrangement" that does not "abrogate" the right to assign work.

In rejecting the agency's contention that the provisions weren't sufficiently "tailored" to be within the duty to bargain, FLRA said the following:

In determining whether a proposal is within the scope of bargaining in a negotiability proceeding, it is necessary to review the proposal in all of its possible applications.

In contrast, in an arbitration proceeding, what is reviewed is the provision of the agreement, as specifically interpreted and applied by the arbitrator to particular aggrieved employees. See Customs Service, 37 FLRA at 314. Thus, in arbitration cases, balms are inherently administered only to hurts arising from the exercise of a management right. Contrary to our dissenting colleague, we conclude that the application of a provision to actual, aggrieved parties, satisfies the tailoring objective, i.e., that the arrangement redress employees adversely affected by the exercise of a management right. [Emphasis added.]

In addition to rejecting the agency's claim that the award didn't satisfy Prong I of the BEP test with respect to the right to assign work, it also rejected the agency's claim that the award didn't satisfy Prong I (no allegations regarding Prong II were made) with respect to the right to determine internal security. FLRA held that inasmuch as the award didn't preclude the agency from adopting other measures (i.e., other than changing the duration of work assignments) to address the control of potentially dangerous and manipulative inmates, it didn't "abrogate" management's internal security rights.

In her dissent, Chairman Cabaniss took issue with the Customs Service framework (where FLRA replaced the "excessive interference" test with an "abrogation" test when it came to provisions, as interpreted and applied by arbitrators, as opposed to proposals, that affected management's rights). She said: "I view the Authority's Customs Service decision as providing no basis for the result urged here, and would overturn it as being in violation of §§ 7106 and 7114, and hence § 7122(a) of our Statute. . . . I would find the award to excessively interfere with the Agency's right to determine its internal security practices."

She earlier noted that FLRA applies an excessive interference test regarding provisions disapproved by agency heads under § 7114. "I fail to see any basis for not finding that the standard of review under § 7114(c)(3) is the same as the standard of review under § 7114(c)(2), i.e., the use of an 'excessive interference' test to determine whether a matter violates § 7106(b)(3)."

In response to her dissent, the majority said that "it appears appropriate to reexamine at the first opportunity the application of the excessive interference standard in cases where a provision has been disapproved under § 7114(c)."

As we indicated in our comments on 57 FLRA No. 48, reported above, it appears likely that the abrogation test as applied to arbitration awards will be revisited. It should be pointed out that although the excessive interference negotiability test has been reviewed by the courts (see, e.g., POPA v. FLRA, No. 93-1676 (D.C. Cir. Feb. 28, 1995)), the abrogation test in connection with arbitration awards has not because it has arisen and been applied in connection with FLRA review of arbitration awards. See, in this connection, 5 U.S.C. § 7123(a)(1).