32:0531(78)AR - - Bureau of Engraving and Printing, Washington, DC and International Association of Machinists, Franklin Lodge 2135, Washington, DC - - 1988 FLRAdec AR - - v32 p531
[ v32 p531 ]
The decision of the Authority follows:
32 FLRA No. 78
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
BUREAU OF ENGRAVING AND PRINTING
INTERNATIONAL ASSOCIATION OF
MACHINISTS, FRANKLIN LODGE 2135
Case No. 0-AR-1471
I. Statement of the Case
This case is before the Authority on exceptions to the award of Arbitrator Sol M. Yarowsky filed by the Bureau of Engraving and Printing (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 Union filed an opposition which was untimely and has not been considered.
The Arbitrator found that the Agency violated the parties' negotiated procedures for assigning overtime to qualified employees. The Agency excepted to the Arbitrator's award on the grounds that: (1) the Arbitrator misinterpreted the agreement; (2) the award is inconsistent with section 7106(a)(2)(A) and (B); and (3) the award is contrary to the Back Pay Act.
For the reasons discussed below, we find that the Arbitrator improperly negated the exercise of management's rights to establish qualifications and to determine whether particular employees meet those qualifications. Therefore, the award is deficient because it is inconsistent with management's right to assign work under section 7106(a)(2)(B) of the Statute.
The grievants are machinists who are in the Construction and Maintenance Division of the Agency. They are responsible for maintaining the printing presses in operating condition. The grievance concerns several overtime assignments to machinists for the weekend of April 12-13, 1986. The Union charged that the overtime assignments were made without regard to the established policy for assigning overtime work.
The pertinent portion of the parties' agreement provides:
SECTION l. . . Overtime assignments shall be distributed among the employees on as equitable a basis as possible consistent with the operational needs of the Employer and in such a manner as to assure a balanced work force of qualified personnel. When it is necessary to maintain rosters of overtime worked to assure such equal distribution, such rosters will be available for review by the Union upon request, and overtime distribution will continue to be assigned in accordance with shop practices and this Article[.]
The Agency has established an overtime rotation roster which lists the names of employees who have volunteered for overtime and the total number of overtime hours worked by each employee. The roster is updated weekly to alert supervisors to the ranking of employees in order of priority entitlement to overtime assignments. The "shop practice" is for the employee with the fewest number of overtime hours to have first priority for overtime assignments. The Agency's supervisors also maintain "qualification lists," which list machinists who have achieved special levels of skill and experience. These lists can be examined by supervisors when special qualifications (including personal qualifications) are needed for assignments to special tasks.
This dispute arose over the overtime assignments of four employees to assist in the installation of certain machinery parts and to work in the Agency's bookroom. The Agency did not assign the four grievants who had priority entitlement to the overtime assignments according to the rotation roster.
III. Arbitrator's Award
The Arbitrator stated the issue to be "whether management's selection process of machinists whose names appeared on the overtime rotation roster was consistent with Article 6, Section 1 of the parties' collective bargaining agreement and with shop practices for overtime worked on the weekend of April 12, 13, 1986." Arbitrator's Award at 2.
The Agency argued that the assignments were appropriate because of: (1) the Agency's operational needs; and (2) the recognized personal expertise and skill of the employees assigned to perform the specific jobs to management's satisfaction. The Agency argued that the employees who were "assigned--even though out-of-turn--were the logical choices" because they (1) possessed the special skills needed to perform the assignment, and (2) had all worked on the particular projects prior to or during the weekdays preceding the weekend of the overtime assignments. Arbitrator's Award at 5-6.
The Union argued that the four grievants were fully qualified to perform the work and were available for assignment. Therefore, the Union maintained that the grievants should have been afforded priority assignments for the weekend work in accordance with the rotation roster, shop practice and the parties' agreement.
The Arbitrator determined that Article 6, Section 1 of the parties' agreement constitutes an enforceable procedure because it "primarily implicates the overtime rotation roster that management agreed to use when making overtime assignments to employees who perform practically the same kind of work they perform on a regular day-to-day schedule." Arbitrator's Award at 8 (footnote omitted). According to the Arbitrator, the rotation roster was designed to facilitate the distribution of overtime hours among employees on as equitable a basis as possible, consistent with the operational needs of the employer and in a manner which assures a balanced work force of qualified personnel.
The Arbitrator found that the parties' negotiated procedure for the equitable distribution of overtime assignments required that where two employees are fully qualified to perform an overtime assignment, the Agency will select the employee with the least number of credited overtime hours. The Agency's rotation roster indicated that the grievants had priority entitlement to the assignments.
The Arbitrator also found that although the Agency considered the qualifications of the employees assigned to perform overtime work, it failed to refer to the qualifications list to determine whether the grievants, who ranked higher on the rotation roster, were qualified. Arbitrator's Award at 10. By assigning employees who ranked lower than the grievants on the roster, the Arbitrator concluded that the Agency violated Article 6, Section 1 of the parties' agreement.
The Arbitrator held that the Agency had agreed to assign overtime in accordance with the rotation roster but failed to follow the roster in making the overtime assignments of April 12-13. The Arbitrator stated that the testimony and evidence at the hearing "removed any doubt that the work in question was anything but regular machinists' work," and that since the grievants and the employees assigned to work overtime both possessed the same level of skills, knowledge and abilities, deviation from the rotation roster in this case was not justified. Arbitrator's Award at 13.
The Arbitrator concluded that the Agency had failed to properly assign weekend overtime to the grievants. He sustained the grievance and ordered that the grievants be "made whole for their lost benefits." Arbitrator's Award at 13.
IV. First Exception
The Agency contends that the Arbitrator misinterpreted Article 6, Section 1 of the bargaining agreement. The Agency asserts that the Arbitrator interpreted that provision so as to prevent management from departing from the order of the overtime roster unless the machinist assigned possesses special skill or sole knowledge of the work process. The Agency maintains that this standard is clearly higher than the standard set forth in the bargaining agreement.
The Agency's first exception challenges the Arbitrator's interpretation of Article 6, Section 1 of the parties' agreement. Disagreement with an arbitrator's interpretation and application of the parties' collective bargaining agreement does not provide a basis for finding an arbitrator's award deficient on any of the grounds set forth in section 7122(a) of the Statute. See, for example, Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, AFL-CIO, Local 3615, 30 FLRA 562, 566 (1987); 351st Combat Support Group, Whiteman Air Force Base and Local 2361, American Federation of Government Employees, 30 FLRA 505 (1987). Therefore, the Agency's disagreement with the standard found by the Arbitrator to be applicable in this case provides no basis for finding the award deficient. See Department of Defense Dependents Schools, Pacific Region and Overseas Education Association, Pacific Region, 30 FLRA 1206, 1213 (1988).
V. Second Exception
The Agency contends that the Arbitrator's award violates management's rights to assign employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. The Agency states that management's rights encompass the discretion to establish the particular qualifications and skills needed to perform the work assigned and to exercise judgment in determining whether a particular employee meets those qualifications. The Agency asserts that management exercised its rights by determining that the "machinists assigned out of roster order were those who could best perform the work that management wanted done that weekend." Memorandum Supporting Agency's Exceptions at 10.
We find that the award is deficient because it is inconsistent with management's right to assign work.
The Agency correctly states that section 7106(a)(2)(B) reserves to management the authority to assign work and the discretion to establish the particular qualifications needed to perform a work assignment. Management also has the right to determine whether a particular employee meets those qualifications. See United States Marine Corps, Marine Corps Logistics Base, Albany, Georgia and American Federation of Government Employees, Local 2317, 23 FLRA 369 (1986).
When two or more employees are equally qualified and capable of performing the work involved, the parties to a collective bargaining agreement may establish a procedure for the assignment of any one of those employees to perform the work. National Marine Fisheries Service, Northeast Region, National Oceanic and Atmospheric Administration, United States Department of Commerce, Gloucester, Massachusetts and International Organization of Masters, Mates and Pilots, AFL-CIO, Boston, Massachusetts, 22 FLRA 443, 445 (1986). Such a procedure is consistent with management's exercise of its discretion under section 7106(a) and enforceable by an arbitrator. Id.
If management has made determinations concerning the qualifications needed for an assignment or the qualifications of employees to be assigned, an arbitrator cannot reject those determinations and apply his or her independent determinations concerning qualifications. See Social Security Administration, Office of Hearings and Appeals and National Treasury Employees Union, Chapter 224, 31 FLRA 1172 (1988). In Office of Hearings and Appeals, we set aside an arbitrator's award finding that the agency violated the parties' agreement by denying the grievants the opportunity to work overtime. Under the agreement, management retained the discretion to determine qualifications for overtime assignments. Management determined that in addition to meeting the maximum standards contained in their position descriptions, the speed with which employees were able to perform their work was a necessary qualification for overtime assignments.
The arbitrator in Office of Hearings and Appeals, determined that the grievants were qualified to perform the regular duties of their classifications and concluded that the establishment of a different standard (speed) for overtime eligibility constituted a violation of the agreement. We set aside the award because it was inconsistent with management's right to assign work. See also United States Marine Corps, Marine Corps Logistics Base, Albany, Georgia and American Federation of Government Employees, Local 2317, 23 FLRA 369 (1986) (arbitrator violated the Statute when he independently assessed what skills were necessary for an assignment and determined that the grievant possessed those skills).
In the instant case, management determined the qualifications needed for the overtime assignments and identified the employees most qualified to perform the assignments. The Agency stated that the employees to whom the overtime work was assigned were more suited for the projects because they had been assigned to the work during the week preceding the overtime assignments. The Arbitrator reviewed those determinations in light of the parties' collective bargaining agreement and determined that the Agency had violated the parties' agreement by failing to assign fully qualified employees who had priority entitlement to the assignments under the overtime roster.
The Arbitrator improperly interfered with the exercise of management's rights to establish qualifications and to determine whether particular employees meet those qualifications by: (1) rejecting the Agency's determination that the degree of familiarity with the work project was a necessary qualification for the overtime assignments on April 12-13; and (2) determining that the grievants were qualified for and entitled to have been offered the assignments instead. See Marine Corps Logistics Command, Albany, Georgia, 23 FLRA 369, 370-71 (1986). While the Arbitrator relied on the Agency's qualifications lists to determine the qualifications of the grievants and the employees assigned to work the overtime, he rejected the Agency's determination that the employees assigned the overtime possessed particular qualifications and skills which were not equal to those of the grievants and which were necessary for the assignments. See Office of Hearings and Appeals, 31 FLRA 1172, 1176-77 (1988).
As interpreted by the Arbitrator, Article 6, Section 1 of the parties' agreement directly interferes with management's right to assign work. Therefore, the award, does not constitute enforcement of a procedure for the equitable distribution of overtime assignments among equally qualified employees.
We note our recent negotiability ruling in Portsmouth Federal Employees Metal Trades Council, AFL-CIO and Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 31 FLRA 1006 (1988). In that case, we held that a proposal which required employees to be considered for scheduled overtime assignments, even if the overtime assignments result in 16-hour shifts, did not interfere with management's right to assign work. The agency argued that the proposal interfered with management's right to determine the personal characteristics of employees needed to perform the agency's work. We found that the agency's practice was to assign unscheduled overtime on a "hold over" basis--resulting in 16-hour shifts--with little or no notice and that the agency had also permitted employees to be scheduled to work 16-hour shifts. Since the scheduling of overtime, whether in advance or on a "hold over" (unscheduled) basis, did not involve differences in the employees' qualifications, we concluded that the proposal did not conflict with the agency's right to determine qualifications under section 7106(a)(2)(B).
This case is distinguishable from Portsmouth Naval Shipyard. Here, the Agency determined that prior experience on the particular projects distinguished the grievants from the employees selected for overtime and was a necessary qualification for the assignment. The Arbitrator rejected the Agency's determination. Therefore, we find that the award violates management's right to assign work under section 7106(a)(2)(B) of the Statute. Thus, the award must be set aside.
In view of our finding that the award violates the Statute, it is unnecessary to address the Agency's exception that the award violates the Back Pay Act. Since the award is set aside, there is no entitlement to backpay. Office of Hearings and Appeals, 31 FLRA at 1177.
For the reasons set forth above, the Arbitrator's award is set aside.
Issued, Washington, D.C.,
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
(If blank, the decision does not have footnotes.