31:0315(29)AR - Philadelphia MTC and Philadelphia Naval Shipyard -- 1988 FLRAdec AR



[ v31 p315 ]
31:0315(29)AR
The decision of the Authority follows:


 31 FLRA NO. 29

PHILADELPHIA METAL TRADES COUNCIL

                   Union

      and

PHILADELPHIA NAVAL SHIPYARD

                    Activity

Case No. 0-AR-1412

DECISION

     I. Statement of the Case

     This matter is before the Authority on exceptions to the
award of Arbitrator James W. McMullen, filed by the Activity
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 to the
Activity's exceptions.

     The Union grieved the Activity's placement of certain
employees on furlough during the Activity's curtailment of
operations during the Christmas - New Year's holiday. The
grievance alleged that the furlough violated the parties'
collective bargaining agreement. The Arbitrator determined that
the parties' agreement obligated the Activity to retain employees
who did not have sufficient annual leave to cover the period of
the curtailment in a duty status and not to furlough them. In its
exceptions, the Activity argues that the Arbitrator's award is
contrary to management's rights under section 7106(a) of the
Statute to layoff employees and to assign work.

     We find that the Activity has not established that the
Arbitrator's award is deficient. Therefore, we deny the
exceptions.

     II. Background

     The dispute arose when the Activity notified the Union of
its plan to curtail operations for 4 workdays during December 26,
1986 through January 4, 1987. The plan required that employees
with sufficient annual leave use that leave. Employees without
sufficient annual leave were to be furloughed, or placed in a
non-duty, non-pay status.

     The Union objected to the plan. It argued that
implementation of the furlough for employees who did not have
sufficient annual leave would violate Article XXXII, Section 1 of
the parties' agreement. The Activity responded that its plan
complied with all provisions of the agreement, and announced its
intention to proceed with the furlough. The Union then filed a
grievance. The Activity implemented the plan. The grievance
proceeded to arbitration.

     III. Arbitrator's Award

     The Arbitrator determined that sections 1 and 2 of Article
XXXII of the parties' agreement, which concern curtailments and
shutdowns of the Activity's operations, were in conflict. Award
at 7. The Union argued before the Arbitrator that the furlough
had violated the language of section 1 which provides that
"(e)mployees . . . who do not have sufficient annual leave, are
in a duty status, during holiday curtailments. Award at 7. The
Activity argued before the Arbitrator that its actions satisfied
the requirement in section 2 that it make "every reasonable
effort . . . to provide work" for employees who wanted to work
during the curtailment. Award at 7.

     The Arbitrator resolved the conflict by applying section 1
of Article XXXII. Award at 7. He reasoned that under the rules of
contract interpretation, specific provisions control over general
provisions. Award at 9. Therefore, because section 1 explicitly
applies to "holiday curtailments," it is more specific and should
control over section 2 which applies to "any period of shutdown
or reduced operations." Award at 9. He noted that the Activity's
position would render meaningless the requirements of section 1
that affected employees are to be retained "in a duty status
during the curtailment., Award at 8. He concluded that the
parties intended section 2 to apply to all curtailments except
those occurring during the Christmas - New Year's holiday. Award
at 9.

     The Arbitrator noted that this interpretation was supported
by two considerations. First, when the parties negotiated their
agreement, they were aware that employees had been retained in a
duty status during the Christmas - New Year's holiday period for
at least 18 years. Award at 9-10. Second, on several occasions
during the 18-year period, the Activity had placed
employees without sufficient annual leave on leave without pay
(LWOP), but later provided backpay after the Union had filed
grievances. Award at 10. The Arbitrator acknowledged that these
earlier situations differed from the one before him because
employees were not furloughed but were placed on LWOP. He
nevertheless determined that by providing backpay to the affected
employees, the Activity had "conceded its obligation under
section 1 to retain such employees in a duty status during the
holiday curtailment period." Award at 10.

     The Arbitrator concluded that the Activity had agreed to
retain the affected employees in a duty status and not to
furlough them during the curtailment. As his award, the
Arbitrator found that under the terms of Article XXXII, section
1, the Activity did not have a right to furlough employees who
had insufficient annual leave to cover the period of the 1986-87
holiday curtailment. As a remedy, the Arbitrator directed the
Activity to pay backpay to all employees who were improperly
furloughed during the curtailment. Award at Attachment 1. The
Arbitrator's award did not affect employees who had used annual
leave during the holiday curtailment period because they were not
furloughed.

     IV. Positions of the Parties

     A. Exceptions

     The Activity contends that the Arbitrator's award is
contrary to section 7106(a) of the the Statute on two grounds.
First, the Activity contends that the award violates management's
right to layoff employees under section 7106(a)(2)(A) of the
Statute. The Activity argues that management's right to layoff
employees includes the right to furlough them for 30  days or
less under 5 U.S.C. 7513 because such an action is a "layoff in
accordance with applicable law." Exceptions at 10. Therefore, the
Activity asserts that the Arbitrator's award which interprets the
parties' collective bargaining agreement to prohibit management
from exercising its right to layoff employees during the holiday
period is contrary to section 7106(a)(2)(A). Exceptions at 10.

     Second, the Activity contends that the award violates
management's right to assign employees under section
7106(a)(2)(B). The Activity argues that it exercised its right to
make work assignments by determining not to assign work during
the holiday curtailment period. Therefore, the Activity asserts
that by requiring the Activity to find work for affected
employees during the holiday curtailment period, the Arbitrator's
award interferes with its decision to have virtually no
operations during that period, and with its right to exercise the
judgment necessary to reach that decision. The Activity further
argues that in finding that it had agreed to retain employees "in
a duty status" during the holiday curtailment period, the
Arbitrator required management to assign work to employees in
violation of section 7106(a)(2)(B). Exceptions at 13-15.

     The Activity also argues that a past practice may not limit
the manner in which management exercises its rights under the
Statute. It further asserts that the award does not enforce an
appropriate arrangement for employees adversely affected by
management's exercise of its reserved rights because the award
would require management to assign work to employees, thereby
totally abrogating its management rights to layoff and assign
employees. Award at 16-17.

     B. Opposition

     The Union contends that that the award does not violate
section 7106(a) of the Statute based on the Authority's decision
in Lexington - Blue Grass Army Depot, Lexington, Kentucky and
American Federation of Government Employees, AFL - CIO, Local
894, 24 FLRA  50 (1986). The Union argues that the Activity's
decision to curtail its operations was not based upon a lack of
funds or work, but was a unilateral decision which was neither
mandated nor justified. The Union argues based on unrebutted
testimony at the hearing that this holiday curtailment is
indistinguishable from previous holiday curtailments in which
employees without sufficient annual leave were asked to perform
and did perform productive work during the curtailment.

     V. Analysis and Conclusions

     We find that the Arbitrator's award is not contrary to
management's rights under section 7106(a) of the Statute to
layoff employees or to assign work.

     A. Award Does Not Interfere With Management's Right to
Layoff Employees

     In National Association of Government Employees, Local
R1-144 and Department of the Navy, Naval Underwater Systems
Center, 29 FLRA  471, 474-477 (1987), petition for review filed
sub nom. Department of the Navy, Naval Underwater Systems Center
v. FLRA,  No. 87-2024 (1st Cir. Nov. 27, 1987), the Authority
addressed management's right to layoff  employees during
periods of short-term curtailment or shutdown. In that case the
proposal provided that employees would be furloughed only as a
last resort when budgetary constraints precluded administrative
leave. The Authority rejected the agency's argument that the
proposal would interfere with its right to layoff employees under
section 7106(a)(2)(A) and found the proposal to be within the
duty to bargain. The Authority reasoned that nothing in the right
"to layoff" required that laid off employees must be in a non-pay
status. Therefore, the proposal's requirement to place employees
on administrative leave, a paid status, during the period of the
agency's curtailed operations was consistent with the right to
layoff employees. See also, Internal Revenue service, Cincinnati
District Office and National Treasury Employees Union, Chapter 9,
24 FLRA  288, 290-91 (1986) (the Authority upheld an arbitrator's
award of backpay to employees who were not furloughed in
accordance with the parties' agreement); Lexington - Blue Grass
Army Depot at 52-54 (the Authority found that an arbitrator's
award of backpay and restoration of annual leave when the agency
closed temporarily did not conflict with an agency regulation for
which there was a compelling need). These decisions demonstrate
that: (1) agencies have the discretion to retain employees in a
paid status by granting them administrative leave during holiday
curtailments and shutdowns; (2) an agency may exercise this
discretion through the collective bargaining process; and (3) an
arbitrator may properly enforce an agreement to pay employees
during a curtailment or shutdown.

     In this case, the Arbitrator's award simply interprets and
enforces the provisions of the parties' collective bargaining
agreement. The Arbitrator interpreted the parties' collective
bargaining agreement as providing that employees with
insufficient annual leave to cover the curtailment period during
the Christmas - New Year's holiday would be retained in a paid
status. Having agreed in the collective bargaining agreement to
retain these employees in a paid status during the holiday
curtailment period, the Activity cannot now assert that the
agreement cannot be enforced by the Arbitrator.

     We note that the thrust of the Activity's exception is that
the Arbitrator erroneously interpreted the provisions of the
parties' agreement. Thus the Activity is attempting to have its
own interpretation of the agreement substituted for that of the
Arbitrator. Asserted errors in the interpretation and
application of the collective bargaining agreement do not provide
a basis for finding an award deficient. For example, Norfolk
Naval Shipyard, Portsmouth, Virginia and Tidewater Virginia
Federal Employees Metal Trades Council, 26 FLRA  799 (1987);
Federal Aviation science and Technological Administration,
Albuquerque Airway Facilities Sector, Southwest Region, 2 FLRA 
679, 681-682 (1980).

     We conclude that the award does not violate management's
right to layoff employees under section 7106(a)(2)(A) of the
Statute.

     B. Award Does Not Violate Management's Right to Assign
Employees

     The Activity argues that the Arbitrator's award "require(s)
management to continue finding work for such employees, and . . .
to treat them as though they had worked during the 1986-1987
curtailment . . . ." Exceptions at 13. Contrary to the Activity's
assertion, the Arbitrator did not direct the Activity to assign
work to the affected employees during the curtailment. The
Arbitrator merely interpreted the agreement and found that in
section 1 of Article XXXII of the parties' agreement, the
Activity agreed not to place employees with insufficient annual
leave in a non-duty, non-pay status. His award simply directs the
Activity to comply with its contractual obligations. Under the
Arbitrator's award, the Activity retains the discretion to assign
work or not assign work to the affected employees. The Activity
is only required to retain those employees who are not assigned
work in a paid status, which it may do by placing them on
administrative leave. Accordingly, the award does not violate
management's right to assign work under section 7106 (a)(2)(B) of
the Statute.

     In holding the the Arbitrator's award does not violate
section 7106 (a)(2) (A) or (B) of the Statute, we note that the
Activity does not claim and the record does not show that the
curtailment resulted from lack of funds to pay employees. The
Arbitrator's award would not prevent the Activity from deciding
to shut down its facilities or to curtail its operations.

     Again, as we noted with respect to the Activity's arguments
in support of its contention that the award violates management's
right to layoff, the thrust of the Activity's arguments in
support of its contention that the award violates management's
right to assign employees constitutes nothing mo