30:0165(20)AR - Michigan Air NG, Adjutant General of Michigan, Department of Military Affairs and Michigan State Council of the ACT -- 1987 FLRAdec AR
[ v30 p165 ]
The decision of the Authority follows:
30 FLRA NO. 20 30 FLRA 165 23 NOV 1987 MICHIGAN AIR NATIONAL GUARD ADJUTANT GENERAL OF MICHIGAN DEPARTMENT OF MILITARY AFFAIRS Agency and MICHIGAN STATE COUNCIL OF THE ASSOCIATION OF CIVILIAN TECHNICIANS Union Case No. 0-AR-1393 DECISION I. Statement of the Case This matter is before the Authority on exceptions filed by the Agency to the award of Arbitrator Elliot I. Beitner under section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition. For the reasons that follow, the Agency's exceptions are denied. II. Background and Arbitrator's Award The grievant applied for assignment to the alert function in response to an announcement requesting volunteers for the assignment. 1 The alert function consists of 12-hour shifts by technician mechanics, who work 7 days on and 7 days off duty for 84 hours per pay period. The mechanics are responsible for maintaining aircraft in a state of readiness to fly at all times. The parties negotiated the following provision in Article XIV of their agreement, Workweek and Hours of Work: Section 10. Consideration for assignment of employees to the alert function will be made by the employer from employees that indicate a preference to work in that function. Selection will be based on seniority, merit, ability and other selective placement factors. An alert tour will normally be a minimum of one (1) year. Consideration will be given to the reassignment of an employee after one (1) year consistent with mission requirements. When the grievant was not selected for the assignment, he filed a grievance which was submitted to arbitration. In the absence of a stipulation, the Arbitrator accepted the following issue proposed by the Agency: Did the Agency violate Article XIV, Section 10, of the collective bargaining agreement when it denied the request of (the grievant) for assignment to the Alert Function? The Arbitrator heard testimony as to the bargaining history of the agreement provision and particularly as to the relative weight to be assigned to seniority as compared with merit, ability, and other selective placement factors. The Union asserted that seniority should be the basis for making assignments to the alert function and that the other factors operate only when an employee is removed from the function. The Agency maintained that all factors must be given equal weight and that it was justified in not selecting the grievant because of his "attitude, interpersonal relations, and conducting (private) business on government time." Award at 14. The Arbitrator agreed with the Agency that under Article XIV, Section 10, seniority is only one of the factors that govern selection for assignment to the alert function. He also determined, however, that if the Agency relies on criteria other than seniority, "adequate proof (concerning the other criteria) must be offered." Award at 20. The Arbitrator found that the Agency failed to prove by direct testimony or evidence that the grievant had performed private work on Government time, or that he had a bad attitude and poor interpersonal relations with the air crew. The Arbitrator concluded that without proof of those allegations, the Agency did not have sufficient basis to deny the assignment to the grievant, an otherwise qualified applicant] who had the required seniority and ability. He granted the grievance and ordered that the grievant be assigned to the alert function with any backpay that might have been lost. III. First Exception A. Contentions The Agency contends that the Arbitrator substituted his judgment for that of management when he ruled that the grievant should have been selected over other available qualified candidates for assignment to the alert function. The Agency maintains that the criteria for selection contained in the agreement are intended to be guidelines without any specific weight assigned and that management had the right to select the candidate it chose for the assignment under section 7106(a)(2)(B) of the Statute, using the agreement criteria as a guide. The Agency contends that it was justified in not selecting the grievant because it questioned his reliability, exercise of independent judgment, and ability to get along with other members of his team. The Union contends that the award constituted a finding that management did not substantiate its stated reasons for not selecting the grievant, who was otherwise qualified and possessed the necessary seniority for assignment to the alert function. The Union denies that the award interferes with management's right to make assignments to the alert function and asserts that the Agency is simply disagreeing with the Arbitrator's finding that the Agency failed to follow the negotiated procedure for making those assignments. B. Discussion We find that the first exception fails to establish that the award violates management's right to assign work under section 7106(a)(2)(B) or that the Arbitrator improperly substituted his judgment for that of management as to which employee should be assigned to the alert function. Proposals which establish procedures to be used by management when selecting from among employees previously determined by management to be qualified to perform the work required by a reassignment are negotiable. Local Lodge 830, International Association of Machinists and Aerospace Workers, AFL - CIO and U.S. Naval Ordnance Station, Louisville, Kentucky, 20 FLRA 848, 850 (1985), enforced sub nom. U.S. Naval Ordnance Station v. FLRA, 818 F.2d 545 (6th Cir. 1987). Similarly, proposals concerning the criteria under which assignments to shifts are made are not outside the duty to bargain when management retains the discretion to limit the selection to "qualified employees." National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 14 FLRA 243 (1984) (Provision 6). See also Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 21 FLRA 735 (1986), aff'd sub nom. American Federation of Government Employees, Local 1336 v. FLRA, No. 86-1851 (8th Cir. Sept. 28, 1987). In this case, the agreement provision in dispute concerns the assignment to the alert function tour of duty of employees already determined by management to be qualified to perform the duties of that tour of duty. In fact, the assignment to the alert function of technician mechanics concerns the performance of duties already assigned to those employees on a different shift or tour of duty. The assignment of employees to the alert function tour of duty does not constitute an assignment to a different position with different duties. Thus, the provision constitutes a negotiable procedure. See International Plate Printers, Die Stampers and Engravers Union of North America, AFL - CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA 113 (1987) (Provision 16), finding that a provision which would establish seniority as the criterion for selecting on which shift or in which section employees will perform duties already assigned to their positions does not violate management's right to assign employees or to assign work and is within the duty to bargain. Compare Veterans Administration Medical Center, Pittsburgh, Pennsylvania and American Federation of Government Employees, Local 2028, AFL - CIO, 25 FLRA 520 (1987) (arbitrator's award which effectively rescinded assignment of grievants to a different position and duties was found deficient as contrary to section 7106(a)(2)(A) of the Statute). The Arbitrator found that the Agency failed to establish by sufficient evidence its reasons for denying the grievant an assignment to the alert function for which he was qualified and for which he had sufficient seniority. Contrary to the Agency's contention, the Arbitrator in no way substituted his judgment for that of management; he only enforced the negotiated procedure. Therefore, we conclude that the Agency's first exception simply constitutes disagreement with the Arbitrator's interpretation and application of the collective bargaining agreement, evaluation of the evidence, findings of fact, and reasoning and conclusions, none of which provides a basis for finding the award deficient. See, for example, Department of the Navy, Philadelphia Naval Shipyard, Philadelphia, Pennsylvania and Philadelphia Metal Trades Council, Philadelphia, Pennsylvania, 28 FLRA 574 (1987); U.S. Department of Labor and Local 12, American Federation of Government Employees, 24 FLRA 435 (1986). IV. Second Exception A. Contentions In its second exception, the Agency alleges that the award is contrary to the Back Pay Act, 5 U.S.C. 5596, because the Arbitrator failed to make the required "but for" finding to support an award of backpay to the grievant. The Union contends that the grievant would have been selected for the assignment based on his seniority if the Agency had not improperly used the other selective factors as a reason for not selecting him. The Union contends that the Arbitrator's award that the grievant be given the assignment supports the award of backpay. B. Discussion We disagree with the Agency that the Arbitrator's award is contrary to the Back Pay Act, 5 U.S.C. 5596. The requirements for an award of backpay under the Act are: (1) the arbitrator must determine that the grievant was affected by an unjustified or unwarranted personnel action; (2) the personnel action must directly result in the withdrawal or reduction of the grievant's pay, allowances or differentials; and (3) but for the unjustified personnel action, the grievant would not have suffered the withdrawal or reduction. U.S. Department of Labor, OIPA and American Federation of Government Employees, AFL - CIO, Local 12, 26 FLRA 368 (1987). In this case, no basis is provided for finding the award contrary to the Back Pay Act. The issue submitted to and decided by the Arbitrator was whether the Agency violated the collective bargaining agreement when it did not select the grievant for the alert function tour of duty. The Arbitrator expressly found that the Agency failed to show that the grievant was unreliable or that he had conducted or would conduct private business while on duty. He concluded that, in the absence of that proof, the Agency did not have sufficient basis on grounds of ability and seniority to deny the assignment to the grievant. Award at 22. Thus, the Agency's failure to comply with the agreement constituted an unjustified or unwarranted personnel action within the meaning of the Back Pay Act. The Arbitrator's direction that the grievant should receive backpay lost because of not being granted the assignment constitutes the required finding that but for the Agency's failure to comply with the agreement, the grievant would not have suffered a withdrawal of his pay, allowances, or differentials. See American Federation of Government Employees, Local 1760 and Social Security Administration, Northeastern Program Service Center, 22 FLRA 195 (1986). Consequently, the Agency's second exception fails to show that the award is contrary to the Back Pay Act. V. Decision The Agency's exceptions are denied. Issued, Washington, D.C., November 23, 1987. Jerry L. Calhoun, Chairman Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY FOOTNOTES Footnote 1 Other related grievances were also submitted to arbitration but exceptions were filed only to the award as it concerned this grievant.