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Michael Rule-
NCRVP
20200 Mohawk
trail
Olympia Fields, Illinois
60461
Home
/ Fax 708-748-0607
Mobile 708- 205-9392
Email melur@sbcglobal.net
Brothers and Sisters:
The North Central Caucus was held April 18-22, 2011 in Lombard,
Illinois.
I want to thank all the locals that participated this year, your
continued commitment to be the strongest union advocates sets the example for others. The sacrifices and efforts you all make
to protect those who cannot protect themselves is something you should be very proud of.
The North Central Region would
like to "Thank" all the Council E- Board Officers and Instructors that assisted this region in another outstanding and successful
Caucus, your efforts to train the future leaders does not go unnoticed or unappreciated.
Special thank you’s go out
to: Correctional Peace Officers Foundation, Political Action Committee, AD Meyers, Benefit Architects, Colonial, Mike Kelly
District 9, Jane Nyggard District 8, Al Kaplan Distric 7, and Robert Baltzell from RLB Financial for their continued support
to us all.
Presidents, Delegates and Members:
This is just a follow-up notice to what was disseminate in the Secretary/Treasurers
most recent Quarterly Report as it relates to the submission of proposed Constitutional Amendments.
I have been designated once again as the Constitution Chair for
the up coming 2011 Convention. It is that time once again for us to address proposed Council of Prison Locals Constitutional
amendments proposals, pursuant to Article XVII, Amendments of the CPL-#33 Constitution/By-Laws.
Any Local, Delegate or Members wishing
to propose a Constitutional Amendment please mail or email it to Mcastelles@aol.com or Cpl33nst@aol.com. The Deadline to submit your proposed
amendment is July 19, 2011 all correspondence cannot be posted marked no later than this date , pursuant to Article XVII,
Section (2) of CPL-#33 National Constitution/By-Laws.
Presidents
please disseminate this information to your delegates pursuant to your Local’s Constitution/By-Laws and Election of
Delegates process. If any recipient of this correspondence has any question relating to the above please feel free to contact
Roger Payne, National Secretary/Treasurer, CPL-#33 or myself at your convenience.
In
Unity & Solidarity:
/s/
M.A. Castelle, Sr.
Constitutional Chair/CPL-#33
25008 Pinecroft Road
Petersburg,
Virginia 23803
Cell: 804-943-1633
Fax:804-732-2360
SOMETHING YOU SHOULD KNOW
Subject: Arbitrators have a right to be wrong
Key
Points: * Exceptions to arbitration award must be based on limited grounds in regs * To overturn award, nonfact challenge
must show award was based on mistake * FLRA will generally not second-guess arbitrators on handling of evidence Arbitrators
have a right to be wrong By James Carroll, cyber FEDSŪ Legal Editor ANALYSIS: Arbitrators are often called upon
to sort through a variety of factual assertions, conflicting witness testimony, and unclear agreement language to come up
with a wise decision. The law recognizes that arbitrators are not perfect, and the losing party may file exceptions with the
Federal Labor Relations Authority. However, arbitrators' findings and conclusions are given considerable deference. Consequently,
an exception must not constitute mere disagreement with the arbitrator's conclusions, but must be based on one or more of
the limited grounds outlined in FLRA regulations at Part 2425. Mistake alone isn't fatal Even when a party is
able to prove that an arbitrator did in fact make a mistake, the award will not automatically be overturned. For example,
a party may assert that an award is based on a nonfact. However, take careful note of the exact language of the exception
as it appears in FLRA regulations. To be overturned, an award must not merely "contain" a nonfact. Rather it must be "based
on" a nonfact. According to the FLRA, this means that a central fact that underlies the award must be in error, and that but
for that error, the arbitrator would have reached a different conclusion. See, for example, Puget Sound Naval Shipyard, 108
LRP< http://www.cyberfeds.com/CF3/servlet/GetCase?cite=108+LRP+29060> 29060< http://www.cyberfeds.com/CF3/servlet/GetCase?cite=108+LRP+29060> , 62 FLRA< http://www.cyberfeds.com/CF3/servlet/GetCase?cite=62+FLRA+391> 391 < http://www.cyberfeds.com/CF3/servlet/GetCase?cite=62+FLRA+391> (FLRA 2008). Also, if the existence or non-existence of the "fact" was disputed before the arbitrator, the arbitrator's
factual finding will not be reviewed by the FLRA, according to Women's Rights National Historical Park, 108 LRP< http://www.cyberfeds.com/CF3/servlet/GetCase?cite=108+LRP+19534> 19534< http://www.cyberfeds.com/CF3/servlet/GetCase?cite=108+LRP+19534> , 62 FLRA< http://www.cyberfeds.com/CF3/servlet/GetCase?cite=62+FLRA+378> 378 < http://www.cyberfeds.com/CF3/servlet/GetCase?cite=62+FLRA+378> (FLRA 2008). Partially incorrect may be OK An award will not be overturned simply because the arbitrator
got only part of it right. When an award is based on more than one conclusion and one of those conclusions is dead wrong,
the award will be upheld unless the excepting party can show that all of the arbitrator's conclusions were erroneous. See,
for example, Department of Energy, Office of Scientific and Technical Information, Oak Ridge, Tenn., 109 LRP< http://www.cyberfeds.com/CF3/servlet/GetCase?cite=109+LRP+22882> 22882< http://www.cyberfeds.com/CF3/servlet/GetCase?cite=109+LRP+22882> , 63 FLRA< http://www.cyberfeds.com/CF3/servlet/GetCase?cite=63+FLRA+219> 219 < http://www.cyberfeds.com/CF3/servlet/GetCase?cite=63+FLRA+219> (FLRA 2009). Other areas in which the FLRA generally will not second-guess the arbitrator include: * The admission
and non-admission of evidence. Government Printing Office, 108 LRP< http://www.cyberfeds.com/CF3/servlet/GetCase?cite=108+LRP+31842> 31842< http://www.cyberfeds.com/CF3/servlet/GetCase?cite=108+LRP+31842> , 62 FLRA< http://www.cyberfeds.com/CF3/servlet/GetCase?cite=62+FLRA+419> 419 < http://www.cyberfeds.com/CF3/servlet/GetCase?cite=62+FLRA+419> (FLRA 2008). * Weight given to witness testimony and other evidence. Bureau of Land Management, 107 LRP< http://www.cyberfeds.com/CF3/servlet/GetCase?cite=107+LRP+50514> 50514< http://www.cyberfeds.com/CF3/servlet/GetCase?cite=107+LRP+50514> , 62 FLRA< http://www.cyberfeds.com/CF3/servlet/GetCase?cite=62+FLRA+138> 138 < http://www.cyberfeds.com/CF3/servlet/GetCase?cite=62+FLRA+138> (FLRA 2007). * Credibility determinations. Norfolk District, Army Corps of Engineers, Norfolk, Va., 104 LRP< http://www.cyberfeds.com/CF3/servlet/GetCase?cite=104+LRP+21035> 21035< http://www.cyberfeds.com/CF3/servlet/GetCase?cite=104+LRP+21035> , 59 FLRA< http://www.cyberfeds.com/CF3/servlet/GetCase?cite=59+FLRA+906> 906 < http://www.cyberfeds.com/CF3/servlet/GetCase?cite=59+FLRA+906> (FLRA 2004). * Adverse inferences resulting in factual conclusions. SSA, Office of Disability Adjudication and Review,
San Antonio, 110 LRP< http://www.cyberfeds.com/CF3/servlet/GetCase?cite=110+LRP+57879> 57879< http://www.cyberfeds.com/CF3/servlet/GetCase?cite=110+LRP+57879> , 65 FLRA< http://www.cyberfeds.com/CF3/servlet/GetCase?cite=65+FLRA+121> 121 < http://www.cyberfeds.com/CF3/servlet/GetCase?cite=65+FLRA+121> (FLRA 2010). Yes, arbitration is difficult work. However, the pay is good and, as the U.S Court of Appeals, D.C.
Circuit put it in U.S. Postal Service v. American Postal Workers Union, 110 LRP< http://www.cyberfeds.com/CF3/servlet/GetCase?cite=110+LRP+48315> 48315< http://www.cyberfeds.com/CF3/servlet/GetCase?cite=110+LRP+48315> , 553 F.3d 686 (D.C. Cir. 2009), "the arbitrator has the right to be wrong." Also on cyber FEDSŪ : * < http://www.cyberfeds.com/CF3/index.jsp?contentId=5005&chunkid=186135> Quick Start Guide: Arbitration Exceptions -- Grounds for Review< http://www.cyberfeds.com/CF3/index.jsp?contentId=5005&chunkid=186135> * < http://www.cyberfeds.com/CF3/index.jsp?contentId=18710276> < http://www.cyberfeds.com/CF3/index.jsp?contentId=18436381> Legal definition of past practice may not bind arbitrators< http://www.cyberfeds.com/CF3/index.jsp?contentId=18436381> (01/19/11) * < http://www.cyberfeds.com/CF3/index.jsp?contentId=17703932> Battle continues at < http://www.cyberfeds.com/CF3/index.jsp?contentId=17703932> FLRA over deference given to arbitrators< http://www.cyberfeds.com/CF3/index.jsp?contentId=17703932>< http://www.cyberfeds.com/CF3/index.jsp?contentId=17703932> (08/30/10) Also see < http://www.shoplrp.com/product/p-4251.html> The ABCs of Federal Labor Relations Law< http://www.shoplrp.com/product/p-4251.html> , available in our < http://www.shoplrp.com/federal.html> online store< http://www.shoplrp.com/federal.html> .
AFGE Regional Training
Prison guards can get copy of questions, submit own affidavit
CASE FILE: Department of Justice, Federal Bureau of Prisons,
Federal Correctional Complex, Coleman, Fla. and AFGE, Local 506, 111 LRP 29894 (FLRA 04/22/11).
Ruling: The FLRA upheld an arbitration
award ruling that prison guards being investigated had the right to have a copy of interview
questions, and an affidavit in their own words, placed in their investigation file.
What it means: Techniques aimed at obtaining reliable information from
interviewees may constitute internal security practices, but an agency must
show a connection between those techniques and the agency's internal security objectives in order to demonstrate that an award
affects the internal security right. The agency didn't cite a security objective to which the investigative techniques were
connected, so it couldn't make the required demonstration.
Summary: The union represented guards
at a correctional facility. When a guard is alleged to have engaged in misconduct, an investigative agent interviews the guard
and writes a statement expressing the guard's answers in a narrative format. The agent then presents this agent-authored affidavit
to the guard to sign. Once the guard has had an opportunity to review the affidavit, the guard signs it and it is placed in
the guard's investigation file.
The union alleged that agent-authored
affidavits should be written in a question-and-answer, rather than narrative, format. The union claimed that guards had the
right to have a copy of an agent's questions placed in their investigation file, and to submit a guard-authored affidavit
to the agency.
The arbitrator rejected the claim that agent-authored affidavits were
required to be written in a question-and-answer format. However, the arbitrator agreed that requiring a copy of an agent's
questions to be placed in the guard's investigation file would assist the guards, would assist agency reviewers in ascertaining
why a guard answered a question in a particular way, and would assist everyone at a hearing in recalling information.
The arbitrator concluded that guards
had the right to have a copy of the questions placed in their investigation file. As to the claim that a guard has the right
to submit a guard-authored affidavit, the arbitrator noted that an agency regulation, Internal Affairs Program Statement 1210.24,
provides that the agency will "prepare or accept in total the affidavits." The arbitrator interpreted the phrase "accept in
total" as meaning that guards had the right to prepare an affidavit in their own words and have it placed in the investigation
file.
The agency argued that the award was contrary to its right to determine
its internal security practices. The FLRA observed that according to precedent, techniques aimed at obtaining reliable information
from interviewees may constitute internal security practices.
However, an agency must show a connection
between those techniques and the agency's internal security objectives in order to demonstrate that the award affects this
management right. The agency didn't cite a security objective to which the investigative techniques were connected, so it
couldn't make the required demonstration. The FLRA didn't consider other exceptions premised on the assumption that the award
affected a management right.
The FLRA dismissed the agency's argument that the award was contrary to its right to discipline because
it wasn't raised before the arbitrator.
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