31:1172(99)AR - SSA, Office of Hearings and Appeals and NTEU Chapter 224 -- 1988 FLRAdec AR
[ v31 p1172 ]
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.