35:0990(106)AR - - Navy, Philadelphia Naval Shipyard and Philadelphia MTC - - 1990 FLRAdec AR - - v35 p990
[ v35 p990 ]
The decision of the Authority follows:
35 FLRA No. 106
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE NAVY
PHILADELPHIA NAVAL SHIPYARD
PHILADELPHIA METAL TRADES COUNCIL
May 2, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Gladys Gershenfeld filed by the Department of the Navy (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 to the Agency's exceptions.
The Arbitrator ruled that the Activity violated the collective bargaining agreement when it failed to assign WG-10 riggers to weekend overtime work and allowed shipfitters to move heavy metal plates, work normally performed by riggers. As a remedy, the Arbitrator awarded 16 hours of overtime at the rate received by WG-10 riggers and directed the Union to determine the distribution of the money.
For the reasons discussed below, we conclude that the award violates management's right to assign work under section 7106(a)(2)(A) of the Statute. Accordingly, we will set aside the award.
II. Background and Arbitrator's Award
The events leading to the grievance occurred at the Activity during the overhaul of an aircraft carrier. The grievants are riggers assigned to Shop 072. Their work consists of moving large and heavy objects such as metal plates into position for installation by shipfitters and welders.
The riggers protested the assignment of overtime to shipfitters in Shop 011 on the third shift on January 18, 19, and 26, 1986. The overtime work, which the riggers claimed they should have performed, involved the removal of deteriorated sections of metal and replacement of those sections with patches of metal plate.
The grievance was submitted to arbitration on the following issue:
Did management violate the collective bargaining agreement, including Article X, by failing to assign overtime work to Shop 072 Riggers for the dates January 18, 19, and 26, on the third shift?
If so, what is the appropriate remedy?
Award at 3. The Arbitrator found that because the Union presented no evidence to substantiate its claim for overtime on January 18 and 26, the award would address only the events of January 19, 1986.
Article X and Article XIX of the agreement state:
Article X, Overtime
Section 1. Overtime assignments shall be distributed fairly among qualified employees. It is agreed that the following shall apply in the assignment of overtime work to employees in the Unit:
a. When it becomes necessary to continue work on a particular job on an overtime basis, the employee assigned to such overtime work will be the one who has been working on the same job during his regular shift hours.
b. In making all overtime assignments, supervisors will take into consideration such factors as the availability of employees, the organizational assignment of employees, knowledge of the particular type of work involved, and health/fatigue indications.
. . . . . . .
Section 13. Nothing in this Agreement shall be construed as imposing an obligation on the Employer to assign overtime.
Article XIX, Trade Jurisdiction
. . . . . . .
Section 4. The Employer agrees to avoid the assignment of work contrary to established trade lines if by so doing an employee's safety will be endangered.
Award at 4.
The Activity contended that there was no need for overtime for riggers on the third shift on January 19 because the metal plates to be installed during that shift had already been moved into place by the riggers on the previous day. The Union contended that the riggers were needed on the third shift because a heavy plate was moved a considerable distance by the shipfitters. The Arbitrator found that two shipfitters moved the plate and that moving the plate was work normally performed by riggers. Award at 8.
The Arbitrator also found that the metal plates to be installed normally were put into position before the overtime work was to be performed. However, the Arbitrator ruled that in this instance there was an unanticipated "need to move large, heavy material a substantial distance." Award at 11. The Arbitrator noted that although the move did not create an accident, injury or reportable safety violation, "the particular plate movement was of the type normally performed by Riggers and could have endangered other employees in the area, contrary to the provision of Article XIX (4)." Id.
The Arbitrator found that "[w]here Riggers were available for overtime assignment on the third shift and where their absence caused the Shipfitters to perform the work at issue here, . . . overtime pay is an appropriate remedy." Award at 12. She concluded that "if they had been available, two Riggers would have appropriately been asked to handle the move carried out by the two Shipfitters. Under these circumstances, the remedy is limited to compensation that would have been paid to two WG10 Riggers working eight hours on the third shift on January 19, 1986." Id. at 12-13.
The Arbitrator made the following award:
1. Management violated the collective bargaining Agreement, including Article X, by failing to assign Shop 072 Riggers to work performed by Shop 011 Shipfitters on January 19, 1986 on the third shift.
2. Therefore, the remedy shall be eight hours of pay each that would have been earned by two WG10 Riggers if they had been assigned to the third shift on January 19, 1986.
3. In the absence of specific information on which grievants would have been assigned to work on the weekend of January 19, 1986, the Union shall determine the appropriate distribution of the above compensation.
Award at 13.
III. Positions of the Parties
A. Agency's Exceptions
The Agency contends that the award conflicts with management's right to assign work. The Agency contends that this is a case involving a dispute over "work ownership," and "the Authority has consistently held 'work ownership' restrictions to conflict with management's statutory right to assign work." Exceptions at 4. The Agency maintains that under section 7106(a)(2)(B) of the Statute, the right to assign work includes the right to determine which employees will receive particular work assignments, without regard to particular trade designations. The Agency contends that the overtime work involved in this case consisted of the full range of duties involved in the installation of metal plates and was not limited to the one task of moving a plate and that management determined that there would be no need for riggers on the third shift because the metal plates to be installed would already be in position and would require only minor movement which could be accomplished safely by the shipfitters.
In support of its position, the Agency cites American Federation of Government Employees, AFL-CIO, Local 1858 and U.S. Army Missile Command, The U.S. Army Test, Measurement and Diagnostic Equipment Support Group, The U.S. Army Information Systems Command-Redstone Arsenal Commissary, 27 FLRA 69 (1987) (Provision 11) (U.S. Army Missile Command). In U.S. Army Missile Command, the Authority held that a provision which stated that only qualified maintenance personnel could perform repair work on machinery while in operation was nonnegotiable because it interfered with the right to assign work. The Agency contends that the award in the instant case violates the right to assign work by requiring the Activity to assign riggers to move metal plates on the third shift even though management had decided that there would be no need for riggers to perform work on that shift. The Agency also states that this is not a case "where the Arbitrator has enforced a negotiable 'appropriate arrangement'" under section 7106(b)(3) of the Statute. Exceptions at 8.
The Agency contends that the award is contrary to the Back Pay Act, 5 U.S.C. § 5596, because the Arbitrator did not make the required findings that a specific grievant was: (1) entitled to the overtime assignment; (2) qualified to perform the assignment; and (3) available and willing to work the overtime assignment. Further, the Agency maintains that there is no basis for awarding two riggers 16 hours of overtime rather than pay for the actual time required to move the plate. Finally, the Agency argues that there is no provision in the Back Pay Act for creation of a pool of backpay to be distributed by the Union.
B. Union's Opposition
The Union denies that the Arbitrator's award violates management's right to assign work. The Union states that section 7106(b) of the Statute authorizes the Agency "to negotiate 'on the numbers, types, and grades of employees or positions assigned to any . . . work project, or tour of duty . . . and means of performing work.'" Opposition at 1. The Union contends that the Activity has chosen to negotiate the contract provision under which work will not be assigned across established trade jurisdictions if there is a danger to employees and argues that the Activity is bound by its agreement. The Union asserts that because the Activity has chosen to negotiate that agreement provision, the Agency cannot rely on negotiability cases such as U.S. Army Missile Command as a basis for finding the award deficient.
The Union contends that management did not evaluate the qualifications of employees required for the third shift and that management erred when it decided that riggers would not be required. The Union argues that the circumstances show that riggers were required and that there was danger present when shipfitters rather than riggers moved the heavy metal plate. Therefore, the Union argues, there was a violation of the agreement and the Activity cannot "ignore safety provisions of its own contract." Opposition at 5.
The Union denies that the award is contrary to the Back Pay Act. The Union contends that the Arbitrator gave the Union the responsibility for distribution of the backpay because the Activity failed to maintain records which would enable the Arbitrator to identify the riggers who should have been assigned the overtime.
We conclude that the Arbitrator's award is deficient under section 7122(a) of the Statute because it is inconsistent with management's right to assign work under section 7106(a)(2)(B). An arbitration award may not interpret or enforce a collective bargaining agreement so as to improperly deny an agency the authority to exercise its rights under section 7106(a) of the Statute. See, for example, American Federation of Government Employees, Local 2924 and Davis-Monthan Air Force Base, 32 FLRA 160, 163 (1988). We find that by interpreting and enforcing the parties' collective bargaining agreement to require the assignment of plate-moving duties to riggers, the Arbitrator's award improperly denied management its right under section 7106(a)(2)(B) to assign that work to welders and/or shipfitters.
Management's right under section 7106(a)(2)(B) to assign work includes the right to determine the employees who, or positions which, will be assigned a particular type of duty. See National Federation of Federal Employees, Local 1442 and Department of the Army, Letterkenny Army Depot, 30 FLRA 373, 374 (1987). Arbitration awards which limit the assignment of work to particular employees and preclude the performance of that work by other personnel are deficient because they conflict with management's right to assign work. See Southwestern Power Administration and International Brotherhood of Electrical Workers, Local 1002, 22 FLRA 475 (1986).
As indicated above, the Arbitrator interpreted Article XIX as requiring the Agency to assign plate-movement duties to riggers so that the safety of other employees would not be endangered. This interpretation, however, precludes the assignment of those duties to other employees. Therefore, the Arbitrator's award improperly restricts the Agency's right to assign plate-movement duties to employees other than riggers and directly interferes with management's right to assign work.
We do not agree with the Union that the award enforces a provision which concerns the numbers, types and grades of employees assigned to a tour of duty or a work project within the meaning of section 7106(b)(1). Neither Article X (Overtime) nor Article XIX (Trade Jurisdiction) concerns the Agency's decision whether to assign riggers to a tour of duty or a work project. Rather, those provisions concern the assignment of work on an overtime basis and the "assignment of work contrary to established trade lines[.]" Article XIX, Section 4.
We do not consider whether the Arbitrator's award in this case constitutes the enforcement of an appropriate arrangement under section 7106(b)(3) of the Statute. There is no indication in the Arbitrator's award that the Union claimed before the Arbitrator, or presented evidence which would support such a claim, that Article XIX, section 4 is enforceable as an appropriate arrangement under section 7106(b)(3) of the Statute. Moreover, although the Agency argued in its exceptions that Article XIX, section 4, did not constitute an appropriate arrangement, the Union did not address the Agency's argument in its opposition and did not argue to the Authority that the article constitutes an appropriate arrangement under section 7106(b)(3). In short, there is nothing in the record which demonstrates that the Union raised, or attempted to raise, the issue of the enforceability of Article XIX, section 4 as an appropriate arrangement under section 7106(b)(3). See Veterans Administration, Veterans Administration Medical Center, Leavenworth, Kansas and American Federation of Government Employees, Local 85, 34 FLRA 528 (1990) (the Authority did not address the issue of whether an agreement provision was intended to be an appropriate arrangement under section 7106(b)(3) because the union made no claim that the provision was enforceable as an appropriate arrangement). Compare The Washington Plate Printers Union, Local No. 2, I.P.D.E.U. and U.S. Department of the Treasury, Bureau of Engraving and Printing, 31 FLRA 1250, 1256 (1988) (the union argued, and the Authority agreed, that an agreement provision constituted an enforceable appropriate arrangement under section 7106(b)(3)).
Even if we were to assume, for the sake of argument, that the Union raised the applicability of section 7106(b)(3), the Union has provided no evidence in that regard which would enable us to assess the effect of Article XIX, section 4 on management's rights or the benefits to employees which might result from that provision. Any conclusions we might reach in this connection would be purely conjectural. See American Federation of Government Employees, AFL-CIO, Department of Education Council of AFGE Locals and Department of Education, 34 FLRA 1078, 1085-86 (1990) (union failed to create a record on which the Authority could determine whether a proposal constituted an appropriate arrange