34:0171(38)AR - NTEU,LOCAL CHAPTER 48 and U.S. DEPARTMENT OF TREASURY INTERNAL REVENUE SERVICE RICHMOND, VIRGINIA -- 1990 FLRAdec AR



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34:0171(38)AR
The decision of the Authority follows:


  34 FLRA NO. 38
 


               NATIONAL TREASURY EMPLOYEES UNION
                       LOCAL CHAPTER 48

                             and

                  U.S. DEPARTMENT OF TREASURY
                   INTERNAL REVENUE SERVICE
                      RICHMOND, VIRGINIA

                           0-AR-1630

			   DECISION

     			January 9, 1990

     Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

     This case is before the Authority on an exception to the
award of Arbitrator Peter R. Blum filed by the Internal Revenue
Service (the Agency) on behalf of the Internal Revenue Service,
Richmond District (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 National Treasury Employees Union (the Union) filed an
opposition to the exception.

     The Arbitrator found that the Activity violated the parties'
national collective bargaining agreement and a local memorandum
of understanding by placing GS-3 and GS-4 seasonal employees on
the same recall roster and by utilizing test scores to recall
these employees.

     For the reasons discussed below, we find that the Agency has
failed to establish that the award is contrary to management's
right to assign employees under section 7106(a)(2)(A) of the
Statute. Accordingly, we will deny the exception.

II. Background

     The parties' national collective bargaining agreement (NORD
II) provides for the release and recall of seasonal 
employees. NORD II provides that the release and recall of
seasonal employees will be accomplished on the basis of "overall
performance of those employees within the same post of duty (POD)
possessing the skills needed." Arbitrator's Award at 24. NORD II
requires that skill lists be prepared to be used for the release
and recall of employees.

     Because NORD II does not define the term "skill," the
Activity, after discussion with the local Union, prepared a local
memorandum of understanding (MOU) in July 1985, which provides as
follows:

     It is management's position that all GS-4 TSR's (taxpayer
service representatives) will have approximately the same skills,
that all GS-5 TSR's will have approximately the same skills, and
the same for GS-6 TSR's. Therefore, we propose that skills lists
be established based on the grade level of the employee at the
time the lists are established each year (April 16 - See Article
12, Section 14 B-1).

     Id. (emphasis in original).

     In October 1985, the Activity hired seasonal employees as
taxpayer service representatives from grade level registers
prepared by the Office of Personnel Management. Because of a lack
of GS-4 employees on the register, the Activity also selected
GS-3 employees. None of these employees had prior experience with
the Agency.

     All the newly hired GS-3 and GS-4 employees received the
same training and upon completion of the training were ranked
according to test scores. In December 1985, the GS-3 and GS-4
employees were placed on the same recall roster. On the basis of
the test scores, some GS-3 employees were ranked higher than some
GS-4 employees. As a result, some GS-3 employees from the roster
were recalled to employment before lower-ranked GS-4 employees.

     The Union filed a grievance which claimed that GS-3 and GS-4
employees were improperly placed on the same recall roster and
that some GS-3 employees were improperly recalled by the Activity
before all the GS-4 employees were recalled. The grievance was
denied and the matter was submitted to arbitration.

III. Arbitrator's Award

     Before the Arbitrator, the Union argued that under NORD II,
recall rosters are maintained on the basis of the skill
level of employees. The Union further argued that under the MOU,
the skill level of employees for placement on recall rosters is
an employee's grade level. Therefore, the Union contended that
the Activity should have placed all GS-4 employees on one roster
and all GS-3 employees on a separate roster. The Activity argued
that under NORD II, the GS-3 and GS-4 employees who were hired in
October 1985 were properly placed on the same roster according to
their training scores and were properly recalled under Article 14
of NORD II.

     The Arbitrator considered two issues: (1) whether the
Activity violated the parties' agreements by placing GS-3 and
GS-4 employees on the same roster; and (2) whether "the recall
itself" violated the parties' agreements. Arbitrator's Award at
29-31.

     The Arbitrator first considered whether the Activity
violated the parties' agreements by placing GS-3 and GS-4
employees on the same roster. The Arbitrator noted that before
October 1985, the Activity had never hired GS-3 employees as
seasonal taxpayer service representatives. He also noted that the
MOU "may not have contemplated" the hiring of GS-3 employees. Id.
at 29. However, the Arbitrator concluded that the MOU established
skill lists based solely on the grade level of the employees at
the time the lists are established each year. The Arbitrator
found that the MOU did not permit the placement of GS-3 and GS-4
employees on the same list because employees at those grade
levels have different skills, responsibilities, and pay. The
Arbitrator also found that using separate rosters for separate
grade levels was consistent with NORD II. Accordingly, the
Arbitrator determined that the Activity was required to prepare
separate recall rosters for GS-3 and GS-4 employees. Therefore,
he ruled that the Activity violated the MOU by placing GS-3
employees and GS-4 employees on the same recall roster.

     The Arbitrator also considered whether "the recall itself"
violated the parties' agreements. Id. at 30.  The Arbitrator
found that the parties' practice under NORD II and the MOU was
that higher-graded personnel were recalled before lower-graded
personnel to fill "positions for work usually performed by that
grade." Id. at 31. He stated that there was "no question that the
work at issue is that performed by GS-4 personnel as the IRS
originally tried to fill the vacancies with only GS-4 personnel."
Id. The Arbitrator determined that because of the parties'
practice, the Activity was required to recall all the GS-4
employees before recalling any GS-3 employees.
Therefore, the Arbitrator ruled that the Activity's recall of
some GS-3 employees before all GS-4 employees were recalled
violated the MOU and NORD II.

     The Arbitrator determined that employees hired as seasonal
taxpayer service representatives in October 1985 at grade levels
3 and 4 were improperly placed on the same recall roster and were
improperly recalled. The Arbitrator directed that the GS-4
employees who were not recalled before the GS-3 employees shall
be given backpay for those days that they would have been
available for work.

IV. Positions of the Parties

     A. The Agency

     The Agency contends that the award is deficient because it
violates management's right to assign employees under section
7106(a)(2)(A) of the Statute.

     The Agency argues that the Arbitrator improperly interpreted
the definition of "skill" in the MOU and, thereby, "usurped"
management's right to assign employees. Agency's Exception at 2.
The Agency claims that the Arbitrator misinterpreted the MOU
because the MOU defines "skill in terms of grade level following
performance rather than grade level when hired(.)" Id. at 3
(emphasis in original). Because the newly hired employees had not
performed work and been evaluated, the Agency claims that the
GS-3 and GS-4 employees were properly placed on the same roster
based on test scores.

     The Agency also argues that the Arbitrator erred when he
concluded on the basis of the different position descriptions of
the GS-3 and GS-4 employees that there was a clear difference in
skills between the GS-3 and GS-4 positions. The Agency maintains
that there is no clear difference between the GS-3 and GS-4
positions. The Agency asserts that the assignment to a GS-3 or a
GS-4 position description did not accurately reflect the actual
skills of the newly hired employees because they received the
same basic training and, when called to work, performed the same
duties.

     The Agency contends that by equating the skill of the newly
hired employees solely with their grade level, the Arbitrator
violated management's right to assign employees under section
7106(a)(2)(A). 

     B. The Union

     The Union contends that the Agency's exception constitutes
nothing more than disagreement with the Arbitrator's
interpretation of the local MOU and NORD II. The Union also
contends that the award is not contrary to management's right to
assign employees under section 7106(a)(2)(A). The Union maintains
that the award does not compel the Activity to assign particular
employees to specific tasks or direct the Activity to assign
newly hired employees to positions for which they are not
qualified.

     In the Union's view, the MOU, as interpreted by the
Arbitrator, establishes a procedure for selecting employees for
jobs. The Union claims that the MOU does not conflict with
management's right to assign work because management had already
found that the newly hired GS-3 and GS-4 employees were equally
qualified. The Union also notes that the Arbitrator interpreted
the MOU as requiring recall based on an employee's grade level
and that management had already established the grade level prior
to determining the appropriate rosters for these employees.

V. Analysis

     Management's right to assign employees under section
7106(a)(2)(A) of the Statute encompasses the rights to: (1)
establish the qualifications, skills, and abilities necessary to
perform the duties generally assigned to a position; and (2)
determine whether an employee meets the established requirements.
See, for example, Department of Defense Dependents Schools --
Pacific Region and Overseas Education Association, 31 FLRA  305
(1988); National Treasury Employees Union and U.S. Customs
Service, 18 FLRA  780 (1985).

     When two or more employees are equally qualified and capable
of performing the duties of the position being filled, the
parties to a collective bargaining agreement may establish a
procedure for the assignment of these qualified employees to the
position. See, for example, 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) (National Marine Fisheries Service). A procedure providing
for the assignment of employees previously judged by management
to be equally qualified is negotiable under section 7106(b)(2)
of the Statute and, when negotiated by the parties, is
enforceable by an arbitrator. Id.

     In this case, the Arbitrator resolved the parties' dispute
over which procedure of NORD II and the local MOU applied to the
recall of the GS-3 and GS-4 employees hired in October 1985. The
Activity maintained that the applicable procedure was to prepare
a single roster of all the newly hired GS-3 and GS-4 employees
based on training scores. The Union maintained that the
applicable procedure was to prepare a roster of GS-4 employees
and a roster of GS-3 employees and recall all the employees on
the GS-4 roster before any employees on the GS-3 roster. The
Arbitrator agreed with the Union. He determined that under NORD
II and the MOU, the recall procedure was to prepare separate
rosters by grade level and to recall all the employees on the
GS-4 roster before any employees on the GS-3 roster.

     The Agency does not contend that the GS-3 and GS-4 employees
were not equally qualified. In fact, the Activity had already
determined that all of the newly hired GS-3 and GS-4 employees
were equally qualified to perform the duties of the taxpayer
service representative trainee positions. See Agency's Exception
at 4 (citing testimony before the Arbitrator). As discussed
above, procedures governing the assignment of employees are
negotiable and enforceable provided that the procedures apply to
employees who are previously judged by management to be equally
qualified. Because it is uncontroverted that the GS-3 and GS-4
employees were equally qualified, we find that the Arbitrator's
enforcement of NORD II and the MOU does not conflict with
management's right to assign employees under section
7106(a)(2)(A). See National Marine Fisheries Service (the agency
failed to establish that the award was contrary to section
7106(a) because the arbitrator simply enforced the procedure of
the parties' collective bargaining agreement for the assignment
of work to employees management had determined were qualified to
perform the work).

     We reject the Agency's contention that the Arbitrator's
interpretation of NORD II and the MOU conflicts with management's
right to determine the qualifications and skills necessary for
the assignment of employees. The Arbitrator did not: (1) reject a
determination by the Activity that particular qualifications and
skills were necessary to be recalled; (2) independently assess
what skills and qualifications are necessary to be recalled; or
(3) order the Activity to recall any employees whom management
had determined did not possess the qualifications and
skills necessary for a