Department of the Air Force, McGuire Air Force Base and American Federation of Government Employees, Local No. 1778



[ v02 p165 ]
02:0165(17)AR
The decision of the Authority follows:


 2 FLRA No. 17
 
 MS. MARY LYNN WALKER
 ACTING DIRECTOR
 CONTRACT AND APPEALS DIVISION
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 1325 MASSACHUSETTS AVENUE, NW.
 WASHINGTON, D.C.  20005
 
         RE:  DEPARTMENT OF THE AIR FORCE, MCGUIRE AIR FORCE BASE
              AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
              NO. 1778 (DASH, ARBITRATOR), FLRC NO. 78A-173
 
 DEAR MS. WALKER:
 
    THE AUTHORITY HAS CAREFULLY CONSIDERED THE UNION'S PETITION FOR
 REVIEW OF THE ARBITRATOR'S AWARD FILED IN THE ABOVE-ENTITLED CASE.  /1/
 
    ACCORDING TO THE ARBITRATOR'S AWARD, THE DISPUTE IN THIS MATTER AROSE
 AS THE RESULT OF THE INITIATION IN LATE 1977 OF A TEMPORARY PROGRAM
 TESTING A NEW ORGANIZATIONAL STRUCTURE AT MCGUIRE AIR FORCE BASE (THE
 ACTIVITY).  THIS PROGRAM MADE IT NECESSARY FOR THE ACTIVITY TO CHANGE
 THE SHIFTS AND TOURS OF DUTY OF SOME OF THE EMPLOYEES IN THE AERO REPAIR
 SHOP.  AFTER DISCUSSING SHIFT AND TOUR OF DUTY PREFERENCES WITH THESE
 EMPLOYEES, THE ACTIVITY POSTED A NOTICE OF RESCHEDULED WORK SHIFTS AND
 TOURS OF DUTY.  AS A RESULT OF THIS RESCHEDULING, SOME EMPLOYEES WERE
 CHANGED FROM ONE TOUR OF DUTY TO ANOTHER, AND SOME EMPLOYEES CHANGED
 SHIFTS.  /2/ WHEN THE TEMPORARY PROGRAM ENDED IN 1978, ALL BUT TWO OF
 THE EMPLOYEES WERE OFFERED THEIR PREVIOUS SHIFT AND TOUR OF DUTY
 ASSIGNMENTS.  THE OTHER TWO EMPLOYEES WERE OFFERED THEIR SAME SHIFT BUT
 WITH A DIFFERENT TOUR OF DUTY.
 
    THE UNION FILED A GRIEVANCE THAT WAS ULTIMATELY SUBMITTED TO
 ARBITRATION.  IN ITS GRIEVANCE THE UNION CLAIMED THAT MANAGEMENT'S
 ACTIONS IN UNILATERALLY CHANGING THE SHIFTS AND TOURS OF DUTY OF SOME OF
 THE EMPLOYEES IN THE REPAIR SHOP DURING THE PERIOD OF THE PROGRAM
 VIOLATED AGREEMENTS OF THE PARTIES AND EXECUTIVE ORDER NO. 11491.  AS A
 REMEDY THE UNION REQUESTED THAT THE AFFECTED EMPLOYEES BE RETROACTIVELY
 PLACED ON THE SHIFT OR TOUR OF DUTY THEY WERE ON PRIOR TO THE PROGRAM;
 THAT ANYONE WHO LOST DIFFERENTIAL PAY BE COMPENSATED FOR THE LOSS;  THAT
 ANYONE WHO GAINED DIFFERENTIAL PAY BE ALLOWED TO RETAIN SUCH PAY;  AND
 THAT ANYONE WHO WORKED OUTSIDE OF ONE'S PREVIOUSLY SCHEDULED DAYS OFF BE
 PAID OVERTIME FOR SUCH DAYS.
 
    IN THE OPINION ACCOMPANYING HIS AWARD, THE ARBITRATOR FIRST OUTLINED
 THE ACTIVITY'S SCHEDULE OF SHIFTS AND TOURS OF DUTY.  HE OBSERVED THAT
 THE ACTIVITY REQUIRED STAFFING IN THE REPAIR SHOP ON THREE SHIFTS, SEVEN
 DAYS A WEEK.  PREVIOUSLY, THE ACTIVITY HAD ONLY ONE TOUR OF DUTY.  AT
 THE UNION'S REQUEST, A SPECIAL AGREEMENT WAS NEGOTIATED BY THE PARTIES
 IN DECEMBER 1976 AND RATIFIED BY THE UNION IN JANUARY 1977 THAT
 ESTABLISHED THREE NEW TOURS OF DUTY IN ADDITION TO THE PREVIOUS TOUR OF
 DUTY.  THE PARTIES CONCOMITANTLY AGREED AS TO WHICH EMPLOYEES, BY NAME,
 WOULD BE ASSIGNED TO EACH SHIFT AND TOUR OF DUTY.  IN ADDITION TO THESE
 AGREEMENTS, THE ACTIVITY AND THE UNION ARE PARTIES TO A "MEMORANDUM OF
 AGREEMENT - 1977" COVERING THE REPAIR SHOP EMPLOYEES.
 
    IN RESOLVING THE GRIEVANCE, THE ARBITRATOR NOTED THAT PURSUANT TO
 SECTION 11(B) OF EXECUTIVE ORDER 11491, /3/ MANAGEMENT WAS NOT REQUIRED
 TO NEGOTIATE WITH THE UNION REGARDING THE NUMBER, TYPES, AND GRADES OF
 EMPLOYEES ASSIGNED TO AN ORGANIZATIONAL UNIT, WORK PROJECT, OR TOUR OF
 DUTY.  THE ARBITRATOR REVIEWED ALL THE PARTIES' AGREEMENTS AND, IN
 INTERPRETING THOSE AGREEMENTS, DETERMINED THAT ACTIVITY MANAGEMENT WAS
 FREE TO UNILATERALLY ESTABLISH STAFFING PATTERNS TO MEET THE WORK
 REQUIREMENTS OF THE REPAIR SHOP.  THE ARBITRATOR STATED THAT THE FACT
 THAT IN DECEMBER 1976 THE PARTIES AGREED TO ENLARGE THE TOURS OF DUTY IN
 THE REPAIR SHOP AND AGREED BY NAME AS TO WHICH PARTICULAR EMPLOYEES
 WOULD BE ASSIGNED TO EACH SHIFT AND TOUR OF DUTY DID NOT REQUIRE
 MANAGEMENT TO CONTINUE THOSE SPECIFIED SHIFT AND TOUR OF DUTY
 ASSIGNMENTS OF REPAIR SHOP EMPLOYEES.  RATHER, THE ARBITRATOR WAS OF THE
 OPINION THAT MANAGEMENT WAS COMPLETELY FREE TO SHUFFLE THE NUMBERS,
 TYPES, AND GRADES OF REPAIR SHOP EMPLOYEES SO LONG AS IT COMPLIED WITH,
 AS THE PARTIES AGREED THAT IN THIS CASE MANAGEMENT DID, THE SENIORITY
 PROVISION OF THE "MEMORANDUM OF AGREEMENT - 1977" IN ITS CHOICE OF
 EMPLOYEES FOR MOVEMENT AMONG SHIFTS AND TOURS OF DUTY.  THE ARBITRATOR
 FOUND THAT IN SUCH SITUATIONS THE PLACEMENT BY MANAGEMENT OF AVAILABLE
 EMPLOYEES BY NUMBERS, TYPES, AND GRADES IN THE THREE ESTABLISHED SHIFTS
 AND THE FOUR ESTABLISHED TOURS OF DUTY WAS A STAFFING PATTERN DECISION
 THAT UNDER THE PARTIES "MEMORANDUM OF AGREEMENT - 1977" AND UNDER THE
 ORDER WAS TO BE UNILATERALLY DETERMINED BY MANAGEMENT.  THEREFORE, THE
 ARBITRATOR FOUND THAT NONE OF THE PARTIES' AGREEMENTS NOR THE ORDER WERE
 VIOLATED BY THE REALIGNMENT OF EMPLOYEES.
 
    AS HIS AWARD, THE ARBITRATOR DECIDED THAT THE ACTIVITY WAS NOT
 OBLIGATED TO NEGOTIATE WITH THE UNION OVER THE CHANGING OF THE REPAIR
 SHOP EMPLOYEES AMONG THE ESTABLISHED SHIFTS AND TOURS OF DUTY.
 ACCORDINGLY, HE DENIED THE UNION'S CLAIM THAT SUCH CHANGES VIOLATED ANY
 APPLICABLE AGREEMENTS OR EXECUTIVE ORDER 11491.  /4/
 
    THE UNION REQUESTS THAT THE AUTHORITY ACCEPT ITS PETITION FOR REVIEW
 OF THE ARBITRATOR'S AWARD ON THE BASIS OF ITS ONE EXCEPTION WHICH IS
 DISCUSSED BELOW.
 
    IN ITS EXCEPTION TO THE AWARD, THE UNION CONTENDS THAT THE
 ARBITRATOR'S AWARD VIOLATES SECTION 11(B) OF THE ORDER.  IN SUPPORT OF
 THIS EXCEPTION, THE UNION ARGUES THAT MANAGEMENT WAS ESTOPPED BY THE
 AGREEMENT IT CONSUMMATED OVER STAFFING PATTERNS FROM ACTING UNILATERALLY
 TO CHANGE EMPLOYEES' SHIFTS AND TOURS OF DUTY.  THE UNION CLAIMS THAT
 THE ARBITRATOR'S AWARD ALLOWING MANAGEMENT TO TERMINATE THAT AGREEMENT
 WAS INCORRECT AND CONSEQUENTLY THE AWARD VIOLATES THE ORDER.
 
    IN ACCORDANCE WITH SECTION 2400.5 OF THE TRANSITION RULES AND
 REGULATIONS OF THE AUTHORITY (44 FED.REG. 44741) AND SECTION 7135(B) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215),
 THE RULES OF PROCEDURE OF THE FEDERAL LABOR RELATIONS COUNCIL, 5 C.F.R.
 PART 2411(1978), REMAIN OPERATIVE WITH RESPECT TO THE PRESENT CASE
 EXCEPT THAT THE WORD "AUTHORITY" IS SUBSTITUTED, AS APPROPRIATE,
 WHEREVER THE WORD "COUNCIL" APPEARS IN SUCH RULES.  ACCORDINGLY,
 PURSUANT TO SECTION 2411.32 OF THE RULES AS SO AMENDED, THE AUTHORITY
 WILL GRANT A PETITION FOR REVIEW OF AN ARBITRATION AWARD WHERE IT
 APPEARS, BASED ON THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION,
 THAT AN EXCEPTION TO THE AWARD PRESENTS THE GROUND THAT THE AWARD
 VIOLATES THE ORDER.
 
    IN THIS CASE, HOWEVER, THE UNION'S PETITION FAILS TO DESCRIBE THE
 NECESSARY FACTS AND CIRCUMSTANCES TO SUPPORT ITS EXCEPTION THAT THE
 ARBITRATOR'S AWARD VIOLATES SECTION 11(B) OF THE ORDER.  IN THIS RESPECT
 THE AUTHORITY NOTES THAT THE GRIEVANCE SUBMITTED TO THE ARBITRATOR
 QUESTIONED WHETHER MANAGEMENT'S ACTIONS IN REALIGNING EMPLOYEES AMONG
 THE ESTABLISHED SHIFTS AND TOURS OF DUTY VIOLATED ANY AGREEMENTS OF THE
 PARTIES OR THE ORDER.  IN RESOLVING THIS GRIEVANCE, THE ARBITRATOR
 SPECIFICALLY DETERMINED THAT, IN REALIGNING THE EMPLOYEES, "MANAGEMENT
 WAS MAKING A '"STAFFING PATTERN"' DECISION, A "'RIGHT'" LIMITED TO ITS
 UNILATERAL DETERMINATION (UNDER EXECUTIVE ORDER 11491 AND THE
 "'MEMORANDUM OF AGREEMENT - 1977'"), AND ONE THAT WAS NOT TO BE
 PARTICIPATED IN BY THE UNION."
 
    THUS, AFTER REVIEWING SECTION 11(B) OF THE ORDER AND THE AGREEMENTS
 OF THE PARTIES, THE ARBITRATOR HELD THAT MANAGEMENT "DID NOT VIOLATE THE
 "'MEMORANDUM OF AGREEMENT," THE SPECIAL AGREEMENT OF JANUARY 6, 1977,
 EXECUTIVE ORDER 11491, OR ANY SPECIAL AGREEMENT IN ITS ACTION OF
 CHANGING STAFFING PATTERNS AS HERE PROTESTED BY THE UNION." THE UNION
 HAS FAILED TO DEMONSTRATE IN WHAT MANNER THIS AWARD OF THE ARBITRATOR
 VIOLATES SECTION 11(B) OF THE ORDER WHICH PRIMARILY ENUMERATES MATTERS
 WHICH AN AGENCY MAY BUT IS NOT OBLIGATED TO NEGOTIATE.  THE ESSENCE OF
 THE UNION'S ARGUMENT APPEARS TO BE THAT THE ARBITRATOR MISINTERPRETED
 THE PARTIES' AGREEMENTS WHEN HE FAILED TO FIND THAT THE ACTIVITY HAD
 AGREED, AS PERMITTED BY SECTION 11(B), TO CERTAIN MATTERS REGARDING THE
 STAFFING PATTERNS OF ITS OPERATIONS.  HOWEVER, AS IS WELL ESTABLISHED
 UNDER THE ORDER, ASSERTIONS THAT CHALLENGE THE ARBITRATOR'S
 INTERPRETATION OF A NEGOTIATED AGREEMENT FAIL TO STATE A GROUND UPON
 WHICH A PETITION FOR REVIEW OF AN ARBITRATOR'S AWARD MAY BE GRANTED
 UNDER SECTION 2411.32 OF THE RULES.  /5/
 
    MOREOVER, IN TERMS OF THIS CASE, AS IS ALSO WELL ESTABLISHED UNDER
 THE ORDER, NO NEGOTIATED OBLIGATION CONCERNING ANY MATTER ENUMERATED IN
 SECTION 11(B) OF THE ORDER MAY BE INFERRED OR REQUIRED UNLESS AN AGENCY
 CLEARLY HAS CHOSEN TO NEGOTIATE ON SUCH A MATTER.  /6/ IN THIS CASE THE
 ARBITRATOR CONSIDERED ALL THE AGREEMENTS OF THE PARTIES AND SPECIFICALLY
 FOUND THAT "(M)ANAGEMENT WAS NOT OBLIGATED BY ANY PROVISION OF THE
 "'MEMORANDUM OF AGREEMENT - 1977,'" EXECUTIVE ORDER 11491, . . . THE
 JANUARY 6, 1977 SPECIAL AGREEMENT, . . . OR ANY OTHER SPECIAL AGREEMENT,
 TO NEGOTIATE WITH THE UNION OVER THE CHANGING OF CERTAIN . . .
 EMPLOYEES, BETWEEN ESTABLISHED TOURS OF DUTY AND SHIFTS . . . ." THUS,
 THERE IS NO CLEAR INDICATION IN THE ARBITRATOR'S OPINION AND AWARD THAT
 THE ACTIVITY HAD CHOSEN TO NEGOTIATE ABOUT A MATTER FALLING WITHIN
 SECTION 11(B) WHICH COULD THEN BE ENFORCED THROUGH ARBITRATION AND THE
 UNION FAILS TO PRESENT FACTS AND CIRCUMSTANCES TO DEMONSTRATE THAT THE
 ARBITRATOR'S AWARD IN THIS CASE VIOLATES SECTION 11(B) OF THE ORDER.
 ACCORDINGLY, THERE IS NO BASIS FOR ACCEPTANCE OF THE UNION'S PETITION
 FOR REVIEW UNDER SECTION 2411.32 OF THE RULES OF PROCEDURE