FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between

AFGE LOCAL NO. 3981,

Union,

FMCS No. 14-00888

and Union Grievance

FEDERAL BUREAU OF PRISONS,

Employer.

________________________________/

OPINION OF THE ARBITRATOR

September 5, 2014

After a Hearing Held at the Federal Correctional Institution

2600 Highway 301 South, Jesup, Georgia, July 9-10, 2014

For the Union:

Jodi Thomason, President

Randall Sumner, Treasurer

AFGE Local 3981

119 Rugglestone Drive

Jesup, GA 31546

For the Employer:

Cynthia Blanks

Labor Relations Management Specialist

Federal Bureau of Prisons

HRMD, Labor Relations Office

320 First Street NW, Rm 236C

Washington, DC 20534

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I. The Parties

This is a case between Local No. 3981 of the American Federation of

Government Employees (“Union”) and the Federal Bureau of Prisons (“Employer” or

“Agency”). It arose at the Federal Correctional Institution in Jesup, Georgia (“FCI

Jesup” or “Prison”). Relations between the parties are governed by the Master

Agreement between the Federal Bureau of Prisons and Council of Prison Locals,

American Federation of Government Employees, which initially covered the period of

March 9, 1998 - March 8, 2001, and which since has been extended (JX 8 or “CBA”).

II. The Transcript

A hearing was held on July 9 and 10, 2014, at FCI Jesup. A separate transcript

was made of each day’s hearing. References to the transcript will by volume and page

number, as the page numbers begin with 1 in both volumes. Witnesses are identified

by initials, only. The arbitrator took notes at the hearing and read the entire transcript

and reviewed all exhibits.

III. Background

The Union employees involved are counselors to inmates at FCI Jesup. The

dispute arose when a counselor was moved from the low security unit of the Prison

(“FSL”) to the medium security section. Tv1, p 27. On October 30, 2013, the Union

filed a grievance (JX 1) that stated in pertinent part:

5. Federal Prison System Directive, Executive Order, or Statute violated: 5

USC 71 Program Statement 3000.03; Master Agreement Preamble, 3, 6,

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7 and 36. LMR National Minutes Dated August 25-26 2010 in Sec. [4].

6. In what way were each of the above violated? ( Be specific): The CEO at

FSL Jesup have not complied with the National LMR minutes that were

done in August 25-26, 2010. Specifically the Unit Management issue:

The Resolution of the issue was “The Unit management staff to inmate

[ratios] are as follows: Unit Manager: 1 to 500 – Case Manager: 1 to 150-

200, Counselor: 1 to 150-200, Unit secretary: established locally” this

was agreed by both the Agency and Union at the National Level. This

issue of Counselors having caseloads exceeding the number of 200 is

ongoing and has not been addressed by management. This is a breach of

contract “bad faith [bargaining]” on behalf of management.

7. Date(s) of violations 9/23/2013 and ongoing

8. Requested remedy (i.e., what you want done) 1) Hire one additional

Correctional Counselor immediately at the FSL 2) Adhere to the locals

3981 request when addressing written policy in reference to staff Safety

and Security. 3) Any employee (and/or’s) affected by the additional work

over the maximum number 200 caseload to be made whole by any means

deemed appropriate by the Arbitrator and/or law.

Underlining in original; typos corrected in brackets by arbitrator.

IV. Pertinent Provisions of the CBA

In the grievance, the Union referenced the following provisions of the CBA:

Preamble; Article 3 – Governing Regulations; Article 6 – Rights of the Employee;

Article 7 – Rights of the Union; and Article 36 – Human Resource Management.

These provisions are too extensive to be set forth in their entirety, but reference will be

made to specific portions as needed.

The Agency claims that the grievance was not timely. Tv1, p 29. CBA, Article

31 – Grievance Procedure, provides:

Section d. Grievances must be filed within forty (40) calendar days of the date

of the alleged grievable occurrence. If needed, both parties will devote up to ten

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(10) days of the forty (40) to the informal resolution process. If a party becomes

aware of an alleged grievable event more than forty (40) calendar days after its

occurrence, the grievance must be filed within forty (40) calendar days from the

date the party filing the grievance can reasonably be expected to have become

aware of the occurrence. …

Section e. If a grievance is filed after the applicable deadline, the arbitrator will

decide timeliness if raised as a threshold issue.

V. Joint Exhibits

At the arbitrator’s suggestion made before opening statements, the parties

conferred and agreed upon 10 joint exhibits. Tv1, p 4, 8-11.

VI. Excerpts from Opening Statements

Excerpts from the parties’ respective opening statements shed light on the

issues. Inasmuch as the dispute is not over discipline, the Union bears the burden of

proof and so went first. Tv1, p 17.

The union clearly acknowledges the agency's right in Article 5 to

determine the mission budget, organization and number of employees and

internal security practices. Tv1, p 21.

The agency, finally, on July 3, 2014, filled the vacant … counselor

position in hopes that this case would be withdrawn at the midnight hour. We

wish it were that simple. It is not. We must now ask the arbitrator to decide did

the agency willfully violate its own implemented ratio and was there a de

minimus effect on bargain unit staff. If so, what shall the remedy be?

The union asks that if our evidence is found credible and allegations

sustained that the arbitrator issue an award stating the agency violations in

electronic message from the JES/warden to all BOP staff apologizing for the

violation, and that the three counselors, [JG, EM and DD], who suffered the

negative impact, be awarded compensation in the amount of one-third of the

yearly salary of a GS-9 Step 1 counselor for the excess of the counselor case

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loads which they were forced to consume over the rated inmate-to-counselor

ratio. …

The agency will have you entertain the idea that the ratio we speak of was

not binding but only a model or guidance. … We … ask that you please note

that the numbers in the ratio presented by the agency were presented as hard

numbers, very specific, and not estimated or approximate … . Tv1, p 23-24.

The Agency, in its opening statement, viewed events from a different

perspective:

The … agency issue is a little bit different, and the question is: Has the

agency violated the 2010 national labor management meeting when the model,

an aspirational guideline, of unit management staffing levels was not met?

As background for the federal correctional institute in Jesup, I would like

to give a little background. It was activated July 2, 1990. The federal

correctional institution, Jesup has a medium, a satellite low and a satellite camp

security facilities housing low and medium male offenders. The mission of a

federal correction institution is to provide a safe, secure and humane

environment for inmates and staff in compliance with the Bureau of Prisons'

missions and goals and their collective bargaining agreement and the policies

and directives.

The FCI inmate housing consists of four general housing units. The

inmate management team provides a structural environment which will allow

inmates the opportunity to learn appropriate behaviors and is designed to

increase their ability to function in an acceptable manner, both in an institutional

setting and the community upon their release. I would like to reiterate, you have

a medium secure facility and you have a satellite low security and then there is a

camp. The security concerns for those three all differ.

The inmate populations for the Bureau of Prisons fluctuates consistently.

The staffing levels that were given as a guideline are to take into consideration

all of those things that I just mentioned, especially the influx. Each institution

varies because of influx or deflux (sic) of inmate population. Tv1, p 25-26.

[I]n May of 2013 staffing levels were the same, the grievance was not

filed until October of 2013, [therefore] the question is: What did the union not

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know that prevented them from filing 40 days after they were reasonably aware

of the so-called allegeable violation? That is why I am throwing in a timeliness.

They knew at that point, in May of 2013, that the counselor was removed. The

inmate population is fluctuating pretty much on a weekly basis. What didn't the

union know in May of 2013 that prevented them from filing the grievance until

October? Tv1, p 29.

A model is to be used in ideal times. A model is not absolute. There is no

way in the nature of the business of Bureau of Prisons that this model should be

considered as concrete. … Tv1, p 30.

VII. The Issues Presented

The CBA, Article 32 – Arbitration, Section a, provides in pertinent part:

If the parties fail to agree on joint submission of the issue for arbitration, each

party shall submit a separate submission and the arbitrator shall determine the

issue or issues to be heard.

As the Union conceded in opening statement, the grievance issue of filling the vacancy

for a counselor is moot, as the position has been filled. However, that leaves other

issues to be determined.

Because the parties failed to agree upon the issues presented (Tv1, p 7), the

arbitrator poses them as follows:

(1) Was the grievance timely?

(2) What is the meaning of “model” as used in in part 4, Unit Management, of

the minutes of the Labor Management Relations Quarterly Meeting of August

25-26, 2010 (UX 1)?

(3) Must the Agency precisely follow the caseload ratios in UX 1, part 4, or

may it deviate from them?

(4) Which subsection of Section b of the CBA, Article 5, governs the Agency’s

duty to bargain over replacement of a counselor?

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Subsidiary issues will be addressed as required.

VIII. The Testimony of Union Witnesses

The Union’s initial witness list named 31 people, but only 13 were called at the

hearing.

Union witness #1, JB, human resources manager, Tv1, p 30-77:

When she was responding to the grievance, she was told by Mr. CW that the

ratios are a model. She was shown UX 1, which states in pertinent part:

4. Unit Management

Years ago, Unit Team workers’ caseloads were increased by BOP Central

Office in a reorganization. Previously, the agency’s Unit Management Manual

considered a model Unit Team to consist of, for every 250 inmates, there will be

one (1) Unit Manager, two (2) Correctional Treatment Specialists (Case

Managers), two (2) Correctional Counselors, and one (1) Secretary. What does

the model consist of today?

Who: [JM]/LMR

Resolution: The unit management staff to inmate ratios are as follows:

Unit Manager: 1-500

Case Manager: 1 to 150-200

Counselor: 1 to 150-200

Unit Secretary: established locally

She had not seen this document until the grievance was filed. The Prison warden

determined not to follow the model. When the counselor was transferred from the low

to the medium security unit, his caseload was distributed among the remaining 3

counselors. Inmates pose some danger to Prison staff. Cost savings factor into

administrative decisions. The vacant counselor position was filled on July 3, 2014. The

Union “made every attempt to resolve this matter with the current administration prior

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to arbitration.” Tv1, p 53.

On cross-examination, the witness was shown JX 9, Staffing Considerations for

Federal Correctional Institutions (May 2012 Executive Staff Meeting), the Foreword to

which states:

These Staffing Considerations are recommended guidelines for use by

Executive Staff when determining the number of staff within each discipline in

a federal correctional institution. It includes recommendations from subject

matter experts over the disciplines, application of Management Re-engineering

Techniques, as well as subsequent reorganizations. These considerations are

literally “considerations”, since local discipline staffing requirements vary,

depending upon such factors as institution security level, mission, age,

architecture, available technology, inmate population characteristics, etc.

Application of these guidelines, in most cases, will ensure consistency among

like institutions and proper fiscal managements of resources. /s/ Director

Federal Bureau of Prisons

Union witness #2, RS, correctional counselor, Tv1, p 78-104:

He is the Union treasurer and a member of the executive board. In September of

2013, he learned from census rosters of inmates that the ratio of counselors to inmates

was outside the range of the nationally recognized ratio. The Union attempted an

informal resolution of the situation, which failed. The Union then filed a grievance.

The local administration offered “salary savings” as the reason for not filling the

counselor vacancy. The number of inmates fluctuates, and the number of inmates per

counselor may have exceeded 200 in May of 2013. New inmates arrive every other

Friday. The Union does not receive Daily Logs of inmate counts, such as AX 2, or

Inmate Population and Capacity Reports, such as AX 3. The Union filed the grievance

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within 40 days of becoming aware that the ratio was outside the model range.

Union witness #3, MC, accounting technician, Tv1, p 105-113:

She is the Union secretary. Her notes of a meeting with management, held

January 11, 2013, reflect discussion of counselor ratios, which did not exceed 200 at

that time.

Union witness #4, RS, correctional supervisor, Tv1, p 119-145:

He is the southeast regional vice president of the Council of Prison Locals 33.

He also is a member of the national executive board. Agreements reached at labor-

management relations meetings are binding. Staff to inmate ratios should not fall

outside the model. In his opinion, 205 inmates to a counselor is outside the model.

Q. And in your experience, were there ways that the agency could have reduced the

effect that it had with the increase of case loads for a vacated position?

A. The thing is, and even looking at our CBA, we can only negotiate appropriate

arrangements and procedures. It was never our intention to tell management they must

hire more positions or fill positions. Whenever I went to management on the issue it

was always we need to fix it and you determine how it is done. If you don't want to

hire anybody, that's fine. … Tv1, p 127-128.

On cross-examination, the witness was questioned about CBA, Article 5 –

Rights of the Employer, which provides in pertinent part:

Section a. Subject to Section b. of this article, nothing in this section shall affect

the authority of any Management official of the Agency, in accordance with 5

USC, Section 7106:

1. to determine the mission, budget, organization, number of employees, and

internal security practices of the Agency; and

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2. in accordance with applicable laws:

a. to hire, assign, direct, layoff, and retain employees in the Agency, or to

suspend, remove, reduce in grade or pay, or take other disciplinary action

against such employees;

b. to assign work, to make determinations with respect to contracting out,

and to determine the personnel by which Agency operations shall be

conducted;

c. with respect to filling positions, to make selections for appointment

from:

(1) among properly ranked and certified candidates for promotion;

or

(2) any other appropriate source; …

Section b. Nothing in this section shall preclude any agency and any labor

organization from negotiating:

1. at the election of the Agency, on the numbers, types, and grades of employees

or positions assigned to any organizational sub-division, work project, or tour of

duty, or the technology, methods, and means of performing work;

2. procedures which Management officials of the Agency will observe in

exercising any authority under this Agreement; or

3. appropriate arrangements for employees adversely affected by the exercise of

any authority under this section by such Management officials.

Q. So at the election of the agency that is kind of clear. Back to No. (a), nothing shall

affect the authority of management's right, but (b) says at the election of the agency

they can negotiate on the numbers, positions and size. So when they decided, for

whatever reason, to reassign a counselor from the FSL here to the FCI, that was within

their right by this statement, wouldn't you think?

A. Most definitely.

Q. Okay. I just wanted to clarify that because you missed over that.

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A. Well, can I add, too, since you brought that? Yes, I did. In my opinion, what we did

here had nothing to do with that. Even if it did, the agency elected, by bringing up an

agenda and speaking on it, to do it. We wasn't even talking about the positions, the

numbers or any of that. We were talking about actually the appropriate arrangements

and dealing with this, because when they move, we have no problem with them

assigning the counselor. Like I said in the beginning, how they keep … that model is

not our concern. They have a right to assign, to hire, to fire … but they were supposed

to keep that model. If they want to move somebody and they had a way to keep within

that model, we had no issue with it. Tv1, p 131-132.

Q. … My question was: Is it possible for inmate populations to be concrete?

A. Inmate populations, you're absolutely right, they fluctuate all of the time. Tv1, p

134.

Q. [T]he question is "what is a model?" I think that is our question for this whole thing

here. At some point -- it is not denied that the per-counselor ratio went over 200, but it

can also be proven that it went below 200 within a significant time and that it was not a

consistent thing.

My question is: Were working conditions changed when you moved one

counselor to do the same job to another, from a low to a medium?

A. If it had an impact -- and when you look at the model, below 200 is not an issue

because it gives a range of 150 to 200. Anytime management exercises their right, the

union has to sit back and determine whether or not there was a change in working

conditions. … And me, just sitting here on the surface hearing you ask me was it a

change, I can't say. Tv1, p 135-136.

The witness was shown UXs 7-10, which show some counselor ratios over 200 during

the period February-April, 2014, but all were under 200 by July 8, 2014.

Union witness #5, EM, correctional counselor, Tv1, p 146-159:

Although he is officially assigned as counselor to 199 inmates, he actually deals

with about 319. He is the only counselor who “does room changes, job changes,

getting supplies, sanitation supplies, toilet paper, paper towels.” Because of his office

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location, many inmates find it convenient to come to him instead of their assigned

counselor. He also schedules building maintenance. His duties “changed 110 percent”

when the counselor moved from low to medium security.

Q. Do you ever assume the duties of a correctional officer at the low?

A. Yes.

Q. Have you ever assumed the duties of the unit manager at the low?

A. Yes.

Q. Have you assumed the duties of an operations lieutenant at the low?

A. Yes.

Q. And all of these things are in excess of your job, correct?

A. Yes.

Q. Do you ever transport inmates to the FCI?

A. In fact, I have transported three to segregation and brought one back from

segregation to the low.

Q. Now, is that part of your job description in your position description?

A. No. Tv1, p 154.

Union witness #6, CC, case manager, Tv1, p 161-166:

She opined that counselor EM had a full plate with just his case load even

before the low counselor was moved. EM’s workload now is “[m]ore than full.

Definitely a lot more.” Inmates other than those assigned to EM go to him because his

office is in their unit and their assigned counselor’s office is in another unit. EM is very

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approachable.

Union witness #7, JG, correctional counselor, Tv1, p 166-176:

Inmates assigned to her sometimes go to counselor EM because she is not

available at all times. Sometimes there are fights in the low security unit. She believes

that removing a position from the low raises the inherent risk to the other staff

members there. When a counselor is absent, other counselors take over the absentee’s

caseload. Her caseload has exceeded 200 since the counselor moved to medium.

Union witness #8, DD, correctional counselor, Tv1, p 177-182:

She is in charge of a drug rehabilitation program. Removing the counselor

increased the inherent risk of safety and security at the low.

Union witness #9, TJ, unit secretary, Tv1, p 182-196:

The Agency representative objected to the witness because she had been present

at the hearing the entire time. The representative claimed to have asked at the

beginning of the hearing whether there were any witnesses in the room. Tv1, p 183-

186. The arbitrator did not recall such a question and can find no record of one in the

transcript.

The witness is on the local Union executive board. She is the EEO fair practice

coordinator for Local 3981. She has requested staffing reports and organizational

reports from the Agency but has not received them. The Unit Admission & Orientation

(A & O) Procedures, UX 11, reflect the same Unit Manager-to-inmate ratio as UX 1.

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Tv1, p 190.

Union witness #10, FS, unit manager, Tv2, p 5-21:

He does not think counselor EM is overworked. Removal of a position from a

department “[m]ost definitely” increases safety risk. He has access to logs like AX 2

because he is a duty officer and copies of logs are kept in the duty officer’s mailbox.

Q. What happened to the case load when the counselor left the low and went to the

FCI?

A. We had a meeting with the other unit managers, the CMC, Ms. [EC], the executive

assistant, who is also the low administrator, on how we were going to break up the

case load … among the three other counselors and what method we would use to make

sure it is fair and equitably distributed.

Q. Okay. And at that point did the case load ratio get close to 200 or exceed?

A. It got close to 200. Currently right now they have around 190 per case load per

counselor. … So the numbers were basically almost the same back then.

It is normal for counselors to assist inmates that are not on their rosters.

Q. How often does your inmate population fluctuate?

A. Every week, every day.

Q. Would it be feasible for you to hire a new counselor every time your inmate

population gets to 200? Ratio. Not population. …

A. No. Since I have been the unit manager at the low our numbers have never been

where a counselor got over 200 inmates, even with the shortage of the one counselor.

Q. Close to it though?

A. Uh-huh. Currently right now it is 190.

Union witness #11, EC, case management coordinator (CMC), Tv2, p 22-37:

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She is subject matter expert for unit management and supervises the correctional

systems department. The low unit has 641 beds with 6 offline because of a roof leak.

Anybody in correctional programs can run census rosters like UXs 7-10; staffing

reports like AXs 1, 1A, 1B and 1C can be run by only employee services. Some

inmates request protective custody when they feel threatened.

Q. In your opinion, from the case manager's prospective, by removing that …

counselor position … did it overburden the remaining counselors at the low?

A. … In my opinion, it is manageable. Although, there is more work, it is manageable.

Tv2, p 27-28.

She generates quarterly Inmate Population and Capacity Reports, like AX 3. In June of

2013, there were about 194 inmates per counselor. She generated AX 4, Inmate

Population and Capacity Report, July 2013 – September 2013, FCI JESUP,

GEORGIA, which reflects about a 212 ratio.

Q. ... Have the numbers decreased or stayed about the same, as far as you are aware

of?

A. … The most that we – we had gotten between 15 and 20 inmates over the 641

population. We did hit that point probably in October -- between October and

November, and since that November of 2013 we have gone down. … Tv2, p 30-31.

Union witness #12, SN, executive assistant satellite operations administrator,

Tv2, p 38-69:

The Union made every effort to resolve the ratio issue prior to arbitration. UX

13, LMR Agenda-February 2014, dated 2/5/2014, ¶3 states:

The Union is once again stressing the issue of the need to fill the vacant

counselor position at the LOW. Although we have requested an arbitration

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panel and are selecting an arbitrator this week…we would love to resolve this

issue! (Ellipsis in original.)

Q. Okay. During the local LMR process, Mr. K[], did you ever give a reason as to why

the … counselor position was going to be held vacant?

A. I did.

Q. What was that reason?

A. It was the warden's decision to move a counselor inside the FCI [medium] to

increase security there, along with a secretary. She thought it was in the best interest of

the institution to increase security at that facility, as well as she felt that the case loads

at the low could be managed with those three counselors. Tv2, p 45.

He does not believe that reducing the number of counselors in low “increased any

inherent danger at the facility.” There was a freeze on outside hiring from 2011 until

January of 2014. The hiring freeze was lifted per AX 8 dated February 12, 2014.

Prison management has no control over the number of inmates sent to the facility. It “is

absolutely a common practice of inmates” to seek guidance from a counselor other

than their assigned one.

Union witness #13, SH, warden FCI Jesup, Tv2, p 69-110:

AX 7, dated January 11, 2013 states, "Management / union agree that the

numbers for the Secretaries and Counselors should be equitable."

Q. … What would a counselor do differently at FSL [low] than FCI [medium]?

A. ... We have different security levels in the Bureau of Prisons. The higher security

level inmates, with my experience working in all of the security levels, are what I

consider to be more high maintenance, their needs are greater, they have gotten in

more trouble. I guess what I am trying to say is with the type of inmates that we have

had at the FCI, we have had more instances of homemade weapons that have been

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discovered, we have had a big spike in positive drug tests for the inmates, we have

more incident reports that the unit team has to process, the incident reports. To me

there is more challenges with the higher security level institutions. Tv2, p 77-78.

She has to make staffing decisions based upon the Prison’s funding level.

Q. Okay. Did you make your decision to not fill the … counselor position based on the

guidance you were given from central office?

A. I made my decision based on the needs of the institution and what was going on

financially with the bureau and everything that we were facing at that time, and the fact

that I was just trying to rotate vacancies so I don't keep vacancies all in one

department. I think that it is fair that we rotated them. Tv2, p 85.

Cost savings initiatives never take precedence over safety considerations.

Q. Warden H[], why did you fill the … counselor position on Thursday, July 3, 2014?

A. Because in February the hiring limitation/freeze from the Department of Justice got

lifted. The regional director did an assessment of all the salary money in her region. …

When more salary money came [available] and they weren't worried about us

exceeding the funding level, … I jumped on it. Tv2, p 93.

She could have filled the vacant counselor position during the hiring freeze, provided

that pre-freeze staffing levels were not exceeded.

IX. Telephonic Testimony

The Agency initially indicated that some of its witnesses would need to give

telephonic testimony. The Union objected. In the Opinion of the Arbitrator on

Electronic Testimony, dated July 7, 2014, the arbitrator shared his thoughts about the

issue and provided the parties with a copy of the Final Decision of the Arbitrator on

Video Conferencing and Witness as Representative issued in AFGE Local 3509 and

Social Security Administration, 2012 WL 11047337, 114 LRP 30124. At the hearing

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in the instant case, the arbitrator expressed a willingness to hear telephonic testimony,

but cautioned that it could be given limited weight. Tv1, p 116-118. The issue was

resolved when the Agency made arrangements for its two witnesses to testify via video

conference. Tv2, p 110-111.

X. The Testimony of Agency Witnesses

Agency witness #1, CW, chief, labor relations office, Tv2, p 112-134:

He oversees labor relations in the Federal Bureau of Prisons. He was at the

LMR meeting on August 25-25, 2010, and is familiar with the minutes of that meeting,

UX 1.

Q. The topic was uni[t] management. Can you tell us how that agenda -- how that issue

item came to the agenda?

A. The LMR quarterly meetings happen as a result of what we have agreed to in the

Master Agreement. The Master Agreement references that each quarter … we will

schedule a national LMR meeting and that we can both, both parties, meaning

management and the council of prison locals, bring agenda items. This is one of the

agenda items … that they wanted to discuss. The agenda items range from all types of

topics, all types of discussions, so this was just one of them. Tv2, p 114-115.

Q. ... Are these numbers [ratios] absolute to be used throughout the institution?

A. Well, the numbers are absolute, as far as guidelines are concerned, but these

numbers do not represent what must be. These are guidelines. In fact, if you look at the

call of the question, they ask for a model of the unit team. So this is a model of the unit

team. This is not absolute in terms of what must be at an institution. …

In fact, you know, what is interesting is that in a correctional environment we

could never have absolute numbers because we are contending with competing things.

One of the things is that because we work for the federal government, all of our funds

are appropriated, and so we get so much money from Congress.

In addition to that, the correctional environment is a dynamic environment, in

that we may get a number of inmates today. I am not able to necessarily just hire and

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layoff and hire and layoff based on the number of inmates that I get, so I could never

agree to an actual number. Just to be sure, that is really a non-negotiable issue in terms

of hiring staff. Management has the right under Title 5 of the United States Code 7106

to hire. That issue is not negotiable. That matter is not negotiable. Tv2, p 116-117.

Q. What is a "model"?

A. A "model" is something that is aspirational, ideal. A "model" is something that you

have aspirational parameters. It is not something that is absolute. Tv2, p 125.

Q. … [CBA] Section (b)(1) says, "at the election of the agency" -- it says, "Nothing in

this section shall preclude any agency and any labor organization from negotiating:

At the election of the agency, on the numbers, types and grades of employees." So at

the agency's election those numbers could be negotiated, is that correct?

A. Well, that is correct, but you are misunderstanding what that means. The agency, in

this instance, is the national agency. It is the Bureau of Prisons, not a CEO. If you refer

to the beginning section of this -- you can look at page 1 in the preamble, and it

actually identifies who the agency is. "The agency" is the Bureau of Prisons, the

exclusive representative in this instance, and that is who we are talking about, is the

Council of Prison Local 33. Not Jesup. Not any other institution. So (b)(1) could only

have been implemented at the national level, not at a local level. Tv2, p 128.

Agency witness #2, MB, assistant administrator of the correctional programs

branch, Tv2, p 134-141:

He is responsible for case unit management policy and training.

Q. Okay. Is it possible for these [staffing] levels to be consistent at all institutions?

A. No. I mean, it would be impossible. You lose on a daily basis. [Y]ou can lose a bus

of inmates, you can gain a bus of inmates. I don't know how it would be possible to …

add staff or reduce staff based on populations that fluctuate. Tv2, p 137.

XI. Analysis

XI.A. The Agency’s Brief

The Agency included a number of attachments with its Brief that were not

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offered at the hearing. Evidence submitted after conclusion of the hearing is

inadmissible absent the other party’s consent. AFGE Local No. 1770 and Department

of the Army, XVIII Airborne Corps and Fort Bragg, 2002 WL 34716503, 103 FLRR-2

33, 102 LRP 34100; 103 FLRR-2 81, 103 LRP 812; citing IBEW Local 2356 and

Okonite Company, 01-2 ARB ¶ 3830, 28 LAIS 3805.

XI.B. Timeliness

The Agency first raised the issue of timeliness in arbitration, as noted in the

Union’s Brief @ 4. In its response to the grievance, JX 2, the Agency “procedurally

rejected” the grievance as lacking specificity but did assert management rights as a

defense. However, the Agency failed to raise untimeliness in its response. The

applicable considerations are found in Elkouri & Elkouri, How Arbitration Works

(ABA/Bloomberg BNA, 7th ed 2012) @ 5-29−5-30:

If the parties allow a grievance to move from step to step in the grievance

procedure without making objections of untimeliness, the right to object may be

deemed to have been waived.131

…

[T]he practical effect of late filing in many instances is that the merits of the

dispute are never decided. But where there [is] uncertainty as to whether time

limits have been met, all doubts should be resolved against forfeiture of the right

to process the grievance.136

… (Footnote 135 omitted.)

____________

131 Crestline Exempted Village Sch., 111 LA 114 … (stating “arbitration

principle” that timeliness issues must be raised early in the grievance process,

otherwise the argument is considered to be waived); Liquid Transporters, 99 LA

217 … (arbitration is not the place to raise timeliness issue for first time …);

Autoquip Corp., 98 LA 538 … (… issue of timeliness was raised for first time

at arbitration).

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136 … In Miami Industries, 50 LA 978, 981 …, the arbitrator stated that in

raising time issues a party raises an affirmative defense that he or she has the

burden of proving by the preponderance of the evidence. In Fort Frye School

District, 91 LA 1140, 1144 …, the arbitrator noted that timeliness is an

affirmative defense that can be waived by an employer either intentionally or by

failure to assert the defense at the appropriate time.

This arbitrator has been quoted as saying:

If at all possible, disputes should be resolved on the merits and procedural

violations should be addressed separately, in order to maintain public

confidence and protect the integrity of the dispute resolution process. Employee

Benefits Law (ABA/BNA, 2nd

ed 2000) @ 1248, quoting Oolite Industries, Inc

and Central States, Southeast and Southwest Areas Pension Fund, 8 EBC 2009,

2026-2027 (Arb 1987).

That is the approach the arbitrator takes in the instant case. The Agency did not raise

untimeliness until arbitration; the evidence on the issue is unclear; and questions over

the effect of the August LRM minutes would remain unless addressed now. Tv2, p 82.

XI.C. The Meaning of “Model”

Pivotal to the decision in this case is the definition of the word “model”, with

the Union contending that a model has firm parameters, whereas the Agency considers

it to be advisory. The definition most applicable to this case can be found in the

following dictionaries:

A standard or example for imitation or comparison. Random House Dictionary

of the English Language (2nd

ed unabridged 1983)

A person or thing considered as a standard of excellence to be imitated.

Webster’s New World Dictionary of the American Language (2nd

college ed

1970)

A person, or a word, that is proposed or adopted for imitation; an exemplar. The

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Oxford English Dictionary, vol IX (2nd

ed 1989)

The word “model” by itself is not defined in Black’s Law Dictionary (9th ed 2009).

Each reference to a dictionary may require reference to other words used in a

definition, such as “imitate” and “exemplar”. However, the arbitrator does not deem it

fruitful to become mired in semantics but rather looks to the context in which “model”

is used in this case. The testimony is clear that the Prison is subject to budgetary

constraints at both the national and regional levels with respect to hiring. More

importantly, the Prison has no control over its inmate population, which varies

monthly and even daily. There simply is no practical way that hiring can be rigidly

linked to inmate population.

A simple example illustrates that a rigid link most probably would prove

unpalatable to the Union. The low security unit of the Prison now has its full

complement of 4 counselors. If the inmate-to-counselor ratios were to become 150,

150, 150, and 149, it seems highly unlikely that the Union would agree that the

counselor assigned only 149 inmates must be terminated and those 149 inmates

allocated among the remaining 3 counselors just to keep the ratios within the model’s

range of 150-200. If the upper limit is rigid, then so is the lower limit, and rigidity

would lead to undesirable results. From these considerations, the arbitrator is unable to

interpret “model” as being inflexible.

XI.D. The Workload of Counselor EM

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The Union complains that counselor EM is overworked because his office is

centrally located and he has many other duties besides counseling inmates. Union Brief

@ 8-9. Doing anything about the layout of the Prison or the location of the counselor’s

office is outside the scope of the arbitrator’s authority. AFGE Local 3627 and Social

Security Administration, Raleigh, NC, 13-2 ARB ¶ 5963, 2013 WL 5533150, 113 LRP

33796. Similarly, determining the counselor’s workload is management’s function, not

the arbitrator’s. In fact, a Union witness opined that EM is not overworked. In any

event, EM might consider resorting to self-help by informing inmates not assigned to

him that he has a full plate and suggesting that they consult their assigned counselor.

The Union also complains that EM was unfairly penalized when he was held

responsible for inmates not expressly assigned to him. Union Brief @ 9. The warden

testified that if the incident had been brought to her attention, she would have looked

into it. The arbitrator previously encountered a similar situation in AFGE Local 3509

and Social Security Administration, 06-2 ARB ¶ 3576, 106 LRP 31150, @ part V.C.

There, as here, no grievance was filed, and there was nothing the arbitrator could do to

remedy the injustice. However, the Union might consider appealing to the warden,

who may have the discretion to countermand the earlier action.

XI.E. 5 USC § 7106

Article 5 of the CBA, Rights of the Employer, essentially recites the provisions

of 5 USC § 7106:

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(a) Subject to subsection (b) of this section, nothing in this chapter shall affect

the authority of any management official of any agency—

(1) to determine the mission, budget, organization, number of employees, and

internal security practices of the agency; and

(2) in accordance with applicable laws—

(A) to hire, assign, direct, layoff, and retain employees in the agency, or to

suspend, remove, reduce in grade or pay, or take other disciplinary action

against such employees;

(B) to assign work, to make determinations with respect to contracting out, and

to determine the personnel by which agency operations shall be conducted;

(C) with respect to filling positions, to make selections for appointments from—

(i) among properly ranked and certified candidates for promotion; or

(ii) any other appropriate source; and

(D) to take whatever actions may be necessary to carry out the agency mission

during emergencies.

(b) Nothing in this section shall preclude any agency and any labor organization

from negotiating—

(1) at the election of the agency, on the numbers, types, and grades of

employees or positions assigned to any organizational subdivision, work

project, or tour of duty, or on the technology, methods, and means of

performing work;

(2) procedures which management officials of the agency will observe in

exercising any authority under this section; or

(3) appropriate arrangements for employees adversely affected by the exercise

of any authority under this section by such management officials.

The Union in its Brief does not attempt to analyze this statute or cite any

supporting case law. Instead it says only:

The Union has presented a case in which the Agency failed to adhere to

implemented staffing guidelines specifically the ratio of Counselor to inmate. In

addition, the Agency refused to bargain over the impact to the affected staff due

to the Agency failing to adhere to said implemented staffing ratio. Union Brief

@ 3.

Because the Agency is not required to follow the guidelines strictly, it did not breach

25

any agreement with the Union. Under 5 USC § 7106(a), the Agency has the right to

determine the number of counselors in the low and, under 5 USC § 7106(b)(1), it was

not required to bargain over that number. The Union’s claim that the grievance was

limited to “impact and implementation” is belied by its principal demand of the

appointment of another counselor (JX 1, ¶8 ), which was mooted prior to the hearing

when a counselor was hired. Union Brief @ 14-15, Proposed Remedies. See generally,

Elkouri & Elkouri, How Arbitration Works @ 20-16−20-24.

XII. Award

For the foregoing reasons, the grievance is DENIED.

Dated September 5, 2014 ________________________________

E. Frank Cornelius, PhD, JD, Arbitrator