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FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between


AFGE LOCAL NO. 3981,
Union,
FMCS No. 14-00888
Union Grievance

and
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:

For the Employer:

Jodi Thomason, President


Randall Sumner, Treasurer
AFGE Local 3981
119 Rugglestone Drive
Jesup, GA 31546

Cynthia Blanks
Labor Relations Management Specialist
Federal Bureau of Prisons
HRMD, Labor Relations Office
320 First Street NW, Rm 236C
Washington, DC 20534

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 days 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,
2

6.

7.
8.

7 and 36. LMR National Minutes Dated August 25-26 2010 in Sec. [4].
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 150200, 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.
Date(s) of violations 9/23/2013 and ongoing
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/ors) 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

(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 arbitrators 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

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 Agencys
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 Unions 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 agencys 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

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 labormanagement 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

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. EMs 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 counselors 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 absentees
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 183186. 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 officers 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 weekwe 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 Prisons 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 Agencys 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 partys 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
Unions 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) @ 5-295-30:
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.
Websters 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 Blacks 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 models
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 counselors
office is outside the scope of the arbitrators authority. AFGE Local 3627 and Social
Security Administration, Raleigh, NC, 13-2 ARB 5963, 2013 WL 5533150, 113 LRP
33796. Similarly, determining the counselors workload is managements function, not
the arbitrators. 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

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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 Unions 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 @ 20-1620-24.
XII. Award
For the foregoing reasons, the grievance is DENIED.

Dated September 5, 2014

________________________________
E. Frank Cornelius, PhD, JD, Arbitrator

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