31:1172(99)AR - SSA, Office of Hearings and Appeals and NTEU Chapter 224 -- 1988 FLRAdec AR



[ v31 p1172 ]
31:1172(99)AR
The decision of the Authority follows:


 31 FLRA NO. 99
  31 FLRA 1172 (1988)

          20 APR 1988

SOCIAL SECURITY ADMINISTRATION
OFFICE OF HEARINGS AND APPEALS

                   Agency

         and

NATIONAL TREASURY EMPLOYEES UNION
CHAPTER 224

                   Union

Case No. 0-AR-1455

DECISION

     I. Statement of the Case

     This matter is before the Authority on exceptions to the
award of Arbitrator Alan Walt. The award sustained a grievance
concerning the assignment of overtime to five employees. The
exceptions were filed by the Agency 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 exceptions allege that the award is contrary to section
7106(a)(2)(B) of the Statute and the Back Pay Act, 5 U.S.C. 5596.
The Union filed an opposition to the Agency's exceptions.

     For the reasons discussed below, we find that the award is
inconsistent with management's right to assign work under section
7106(a)(2)(B) of the Statute. Therefore, the award in its
entirety will be set aside.

     II. Background and Arbitrator's Award

     The National Treasury Employees Union (NTEU) represents a
unit of employees in a number of the Agency's regional and
hearing offices. Article 23 of the collective bargaining
agreement between NTEU and the Agency concerns overtime. Sections
1 and 2 of Article 23 provide as follows: 

      Section 1

      The time spent by employees performing official
      duties of the employer in excess of eight (8)
      hours a day or forty (40) hours per week shall be
      considered overtime. It is understood that
      employees may not work overtime without advance
      written approval of the employer.

      Section 2

      A.  When overtime is required, the supervisor will
          first seek qualified volunteers from within
          his/her organizational unit.

      B.  If the method described in Subsection A of
          this Section does not provide sufficient
          volunteers, the supervisor has the right
          to assign overtime w
ork directly to an          employee(s).

      C.  Overtime will be distributed as equitably as
          possible to employees who volunteer for overtime.
          Where the nature of a particular task does not
          lend itself to equitable distribution of overtime
          among qualified employees, the employer will
          attempt to accomplish equitable distribution
          over an expanded period of time.

The Arbitrator noted that since at least 1982, employees were
deemed eligible for overtime if they met "the maximum standards
for Level 2 set forth in the Job Standards referring to their
position description." Award at 6. The Arbitrator also noted that
performance levels are set nationally and apply to all of the
offices covered under the collective bargaining agreement. On
September 24, 1986, an official at the Agency's Oak Park,
Michigan office issued a memorandum in which he advised employees
that effective November 1, 1986, overtime would be granted only
to employees who attained the performance level of 3 or above in
terms of the quantity of decisions written the preceding month.
As noted by the Arbitrator, management at the Oak Park office
changed the eligibility for overtime because of an increasing
backlog of work and the limited amount of overtime available.
Therefore, management decided to allocate overtime to the more
productive employees of the Oak Park office. Award at 6-7.

     Subsequent to November 1, 1986, five employees, who
submitted the grievance involved in this case, notified
various officials of the Oak Park office of their desire to work
overtime. They also requested that overtime be equitably
distributed as required by Article 23 of the agreement. In
response, the employees were informed that the term "qualified
volunteers" was not defined in Article 23 and that management had
determined that "qualified" for overtime purposesmeant the
attainment of performance level 3 or above with respect to the
quantity of decisions written for the preceding month.
Subsequently, two of the five grievants who performed at Level 3
were offered overtime assignments in the month or months
following the attainment of that level. However, when they failed
to perform at Level 3 they, along with the three other employees
who were performing at Level 2, were not offered overtime
assignments even though they were generally available to work
overtime.

     The Arbitrator found that three issues were presented in the
grievance: 1) whether the grievance is substantively arbitrable;
2) if so, whether the Agency violated Article 23, Section 2 of
the collective bargaining agreement; and 3) if so, what is the
appropriate penalty.

     The Arbitrator determined first that the grievance was
arbitrable. The Agency argued before the Arbitrator that the
substance of the grievance concerned management's right to assign
work under section 7106 of the Statute and, therefore, was not
substantively arbitrable. The Arbitrator found that the grievance
did not concern management's right to assign work but, rather,
concerned the Agency's right to establish a qualification level
for overtime eligibility different from that which is addressed
in the parties' agreement. Award at 11.

     As to the second issue, the Arbitrator concluded that the
Agency violated Article 23, Section 2 of the agreement by
precluding the grievants, who were qualified volunteers, from
receiving overtime. In so finding, the Arbitrator noted that
while the term "qualified" was not defined, qualifications do
exist for employees in the performance of the regular duties of
their classifications. Moreover, these qualifications are
nationally established and have the same meaning throughout the
bargaining unit. The Arbitrator found that at Level 2, the
production of employees is fully satisfactory. The Agency made no
claim that the grievants were not qualified to perform the
regular duties of their classifications. Award at 11. The
Arbitrator then found that no basis existed to conclude that
different qualifications were intended to apply to overtime and
assignments during the regular workweek. Award at 12. Therefore,
the Arbitrator concluded that the establishment of a different
standard for overtime eligibility in the Oak Park office
constituted a violation of Article 23, Section 2 of the
agreement. Award at 13.

     Having determined that the Agency violated the agreement by
denying the grievants the opportunity to work overtime, the
Arbitrator then turned to the third issue before him--the
appropriate penalty. The record before the Arbitrator indicated
that with certain exceptions, the grievants were ready, willing
and able to accept overtime and would have worked had the
overtime been offered to them. The Arbitrator concluded that an
award of backpay was therefore appropriate. The Arbitrator
reasoned that the Agency's determination in its September 24,
1986, memorandum that employees performing at Level 2 would not
be offered overtime constituted a personnel action within the
meaning of the Back Pay Act, 5 U.S.C. 5596. Since the record did
not indicate the amount of overtime available to employees in the
Oak Park office following issuance of the September 24, 1986,
memorandum, the Arbitrator remanded the grievance to the parties
for the purpose of computing and paying to the grievants the
amount of overtime compensation owed. The grievance was also
remanded to the parties for their consideration of the Union's
claim for attorney fees. Finally, the Arbitrator retained
jurisdiction over any disputes regarding the amount of overtime
pay to which the grievants were entitled and the issue of
attorney fees.

     III. Exceptions

     A. Agency's Contention

     The Agency excepts to the Arbitrator's finding of a contract
violation. The Agency claims that Article 23, Section 2 of the
agreement reserves to management the right to determine the
employees qualified to perform overtime assignments. The Agency
also argues that section 7106(a)(2)(B) of the Statute vests
management with the right to establish the qualifications and
skills necessary to perform work, along with various job-related
individual characteristics, and to determine whether employees
meet those qualifications. One such individual characteristic,
according to the Agency, is speed of work. Thus, the Agency
determined that speed of work was necessary in order to render an
employee qualified to perform overtime work. By determining that
a lower level of productivity was sufficient to render an
employee qualified for an overtime assignment, the Agency argues
that Arbitrator substituted his judgment for that of management
and directly interfered with management's right to assign work.


     B. Union's Opposition

     The Union argues that the Agency's exception is merely an
attempt to relitigate the Arbitrator's finding of a contract
violation. The Union also argues that the Arbitrator did not
substitute his judgment for that of management in determining who
was qualified to perform overtime work. Instead, the Arbitrator
found that the Agency had established a nationwide policy in
which the qualifications necessary for the performance of
overtime work were the same as the qualifications necessary for
the performance of work during regular hours.

     IV. Analysis and Conclusion

     We agree with the Agency that the award is inconsistent with
management's right to assign work under section 7106(a)(2)(B) of
the Statute. We have held that the right to assign work to
employees under that section includes the right to determine the
particular qualifications and skills needed to perform the work
and to make judgments in determining whether a particular
employee meets these qualifications. Fort Knox Teachers
Association and Fort Knox Dependent Schools, 25 FLRA  1119, 1121
(1987), petition for review filed sub nom. Fort Knox Dependent
Schools v. FLRA,  Nos. 87-3395/3524 (6th Cir. Apr. 27, 1987).

     Here, management at the Oak Park office determined that the
speed with which employees were able to perform their work was a
necessary qualification for overtime assignments. As the
Arbitrator noted, this determination was based on the backlog of
cases and the limited amount of overtime that was available. We
find that since the parties' agreement did not specifically
outline the qualifications needed for overtime eligibility, but
merely used the term "qualified volunteers," management had the
right to determine the qualifications for overtime assignments.

     The existence of a practice, as noted by the Arbitrator,
whereby employees performing at Level 2 were deemed eligible for
overtime assignments does not alter our conclusion that
management was free to change the qualifications for overtime. As
we stated in Department of Defense Dependents Schools--Pacific
Region and Overseas Education Association, 31 FLRA  305, 313
(1988), an arbitration award may not deny an agency the authority
to exercise its rights under section 7106(a) of the Statute.
Additionally, the Authority has clearly indicated that no past
practice may be established concerning a section 7106(a) right
that would bind management to the particular manner in 
which it had exercised such a right in the past so as to preclude
management from acting otherwise in the exercise of its rights.
National Association of Government Employees, Local R1-25 and
Brockton/West Roxbury V.A. Medical Center, 21 FLRA  83, 84
(1986). Where, as here, management has the right to determine the
qualifications needed to perform work, the fact that employees
performing at Level 2 were offered overtime in the past does not
bind management to adhere to that practice or prevent it from
exercising its statutory right to change the qualification to
performance at Level 3.

     Based on the above analysis, we find that the award violates
management's right to assign work under section 7106(a)(2)(B) of
the Statute. Therefore, the award, including the issues remanded
by the Arbitrator to the parties, must be set aside. In view of
our finding that the award violates the Statute, it is
unnecessary to address the Agency's additional exception that the
award violates the Back Pay Act. Of course, since the award is
set aside, there is no entitlement to backpay and no outstanding
issue as to its computation. Likewise, there is no outstanding
issue as to the Union's claim for attorney