38:0016(3)AR - - Panama Canal Commission and Intl. Organization of Masters, Mates and Pilots, Marine Division - - 1990 FLRAdec AR - - v38 p16



[ v38 p16 ]
38:0016(3)AR
The decision of the Authority follows:


38 FLRA No. 3

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

PANAMA CANAL COMMISSION

(Agency)

and

INTERNATIONAL ORGANIZATION OF MASTERS, MATES

AND PILOTS, MARINE DIVISION

(Union)

0-AR-1623

DECISION

November 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 Wayne G. Anderson 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 Union filed an opposition to the Agency's exceptions.

The grievances concerned the Agency's denial of annual leave to vessel pilots who failed to report to duty on time because they had overslept. The Arbitrator ruled that the Agency violated the parties' agreement when it: (1) placed the pilots in an absent-without-leave (AWOL) status; and (2) denied the pilots pay for leave already earned.

For the reasons discussed below, we find that the Arbitrator's award is not contrary to law, rule or regulation. Accordingly, we deny the Agency's exceptions.

II. Background and Arbitrator's Award

The grievants are vessel pilots "whose principal duty is to board vessels transiting the [Panama] Canal, take operational control of those vessels and pilot them from one ocean to the other." Exceptions at 2. Several pilots overslept and failed to report for duty on time and missed ships to which they were assigned. The Chief Pilot recorded each pilot as being absent without leave (AWOL).

The grievants contended that placing them in an AWOL status violated Article 17, Section 7(g) of the collective bargaining agreement. Article 17, Section 7(g) was directed to be included in the parties' agreement by a member of the Federal Service Impasses Panel (FSIP or Panel) acting as an interest arbitrator to resolve a contract negotiations impasse that had occurred between the parties. See Panama Canal Commission and International Organization of Masters, Mates and Pilots, Marine Division, ILA, AFL-CIO, 84 FSIP 73 (1985). Article 17, Section 7(g) states:

Section 7(g) A pilot who has not completed forty (40) hours in a workweek and who requests leave due to illness or who fails to commence an assignment will be placed on leave, or if he has no leave, will be charged leave without pay.

The grievances were submitted to arbitration on the following issues:

1. Was the Commission correct in its interpretation of Article 17, Section 7(g) in timing the Grievants AWOL when they failed to appear for duty as assigned? If not, what is the appropriate remedy?

2. Whether the issuance of a letter of reprimand to [one of the grievants] was for just cause as defined by Article 11, Section 2(a) of the Contract? If not, what is the appropriate remedy.

Award at 5.

The Arbitrator interpreted Article 17, Section 7(g) as precluding the Agency from denying leave or leave without pay to vessel pilots who were late in arriving at, or absent from, their duty assignments. Id. at 15. The Arbitrator pointed out that the pilots were on notice from the Agency that they were responsible for getting to work on time and that they would be "timed as AWOL" if they were late or missed an assignment. Id. at 12-13. The Arbitrator also noted that the Agency has the right to discipline a pilot for unexcused tardiness or absence from work due to oversleeping. Id. at 13. The Arbitrator determined, however, that "[t]he [Agency] in agreeing to Section 7(g) gave up the right to place a pilot in AWOL status." Id. at 15.

The Arbitrator found that placing a pilot who oversleeps in AWOL status is not a disciplinary action, but rather is an administrative measure not permitted under Article 17, Section 7(g). Id. The Arbitrator rejected the Agency's contention that "to interpret Section 7(g) as preventing the timing of an absent pilot in AWOL status is legally prohibited [under] 5 U.S.C. 7106." Id. The Arbitrator stated that "Section 7(g) must be interpreted to mean what it says[:] 'a pilot who has not completed forty hours in a work week --- who fails to commence an assignment will be placed on leave, or if he has no leave, will be charged leave without pay.'" Id. at 16.

The Arbitrator concluded that the language of Article 17, Section 7(g) was clear and that he was "unable to find any ambiguity or violation of" section 7106 of the Statute. Id. The Arbitrator noted that "[i]f the Commission should appeal this award and is found correct in contending that preventing the timing of an absent pilot in AWOL status is legally prohibited then Section 7(g) is rendered unenforceable." Id.

The Arbitrator made the following award:

1. The Commission improperly timed as AWOL under Article 17, Section 7(g) these Grievants who failed to commence assigned duty because of tardiness or absence due to oversleeping; and

2. The Commission has a right to discipline pilots under Chapter 751 Appendix A Schedule of Disciplinary Offenses and Penalties for conduct described in the cases of the Grievants.

Id. at 17.

III. Positions of the Parties

A. Agency's Exceptions

The Agency argues that the award should be set aside because the Arbitrator interpreted Article 17, Section 7(g) of the contract in a manner that is contrary to management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency contends that the Arbitrator's interpretation of Article 17, Section 7(g) impermissibly deprives management of its discretion to deny leave to employees because the award obligates the Agency to grant leave whenever the pilots had not completed 40 hours in a workweek and had failed to start an assignment. Exceptions at 10.

The Agency notes that Article 17, Section 7(g) resulted from impasse proceedings conducted by a member of the FSIP, and states that it "is well aware of the Authority's decision concerning the forum for challenging a nonnegotiable order by a Panel member acting as an interest arbitrator." Id. at 5 n.3 (emphasis in original). The Agency referenced Department of Defense Dependents Schools (Alexandria, Virginia), 27 FLRA 586 (1987), which was later reversed and remanded in Department of Defense Dependents Schools v. FLRA, 852 F.2d 779 (4th Cir. 1988) (DODDS). The Agency states further that its exceptions in this case to the grievance arbitrator's award are "predicated solely on the arbitrator's interpretation of a provision in the collective bargaining agreement." Exceptions at 5 n.3 (emphasis in original).

B. Union's Opposition

The Union contends that the Agency's exceptions should be dismissed because: (1) Article 17, Section 7(g) is a procedure which does not infringe on management's right to assign work; (2) the grievances involved questions of pay rather than the right to assign work; and (3) the Arbitrator's interpretation of the contract does not infringe on the right to assign work. Opposition at 3-6. The Union asserts that "to the extent that the right to grant or deny leave may be an inherent part of the right to assign work, the Agency exercised that right in agreeing to the procedure of Section 7(g) of Article 17." Id. at 4.

IV. Analysis and Conclusions

The Arbitrator interpreted Article 17, Section 7(g) as: (1) requiring the Agency to grant leave or leave without pay to pilots who are late or absent from their work assignments; and (2) precluding the Agency from timing the affected pilots as AWOL.

The question is whether the Arbitrator's award enforcing Article 17, Section 7(g) of the collective bargaining agreement is deficient because it is contrary to law. Article 17, Section 7(g) of the collective bargaining agreement requires the Agency to grant leave or leave without pay to a pilot if that pilot has not worked 40 hours in a workweek and fails to begin a scheduled duty assignment on time. The Agency claims that the award is deficient because the Arbitrator's interpretation of Article 17, Section 7(g) to preclude denial of leave or the timing of employees as AWOL violates management's right to assign work under section 7106(a)(2)(B) of the Statute.

In Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309 (1990) (U.S. Customs Service), the Authority defined the approach that is to be used when an agency contends that an arbitrator's award enforcing an agreement provision is contrary to section 7106(a) of the Statute. The Authority held as follows:

[W]e will examine the provision enforced by the arbitrator to determine (1) if it constitutes an arrangement for employees adversely affected by the exercise of management's rights, and (2) if, as interpreted by the arbitrator, it abrogates the exercise of a management right.

. . . .

If it is evident that the provision constitutes an arrangement and, as interpreted by the arbitrator, does not abrogate management's rights, the provision is within the range of matters that can be bargained under the Statute. Consequently, we will not find that the award is contrary to law, and we will deny the exception. If the arbitrator's interpretation does result in an abrogation of management's rights under section 7106(a), the award will be found deficient as contrary to law under section 7122(a) of the Statute; the contractual provision, susceptible to a different and sustainable interpretation by a different arbitrator will not be affected.

Id. at 314.

Applying that approach in this case, we find that the Agency fails to establish that the award is contrary to law. Rather, the Arbitrator has interpreted and enforced a provision of the parties' collective bargaining agreement which constitutes an arrangement for employees adversely affected by the exercise of management's right to assign work. The Arbitrator determined that the affected pilots were not excused from discipline for their conduct and noted that "[o]versleeping is a consequence of irregular hours of work and change from wakeup calls." Award at 13. The Arbitrator determined that the Agency violated the parties' agreement by timing as AWOL pilots who had overslept, and who were consequently late for their duty assignments. The Arbitrator found that Article 17, Section 7(g) "meant what it said" and, therefore, the Agency was required to grant the affected pilots leave or leave without pay. We find that in directing the Agency to grant leave or leave without pay to the grievants, the Arbitrator merely interpreted and enforced a provision of the parties' collective bargaining agreement that constitutes an arrangement for employees adversely affected by their irregular work hours.

Further, we find that Article 17, Section 7(g), as interpreted and applied by the Arbitrator, does not abrogate the Agency's right to assign work under section 7106(a). In U.S. Customs Service, the Authority held that an award "abrogates" a management right when the award "precludes an agency from exercising" that right. U.S. Customs Service, 37 FLRA at 314. The Arbitrator's award enforcing Article 17, Section 7(g) only precludes the Agency from denying leave to the affected pilots in the circumstances of this case. Preventing the Agency from denying leave or leave without pay to the affected pilots would not prevent the Agency from denying leave to employees, including the pilots in this case, in other circumstances.

The Arbitrator's award enforcing Article 17, Section 7(g), therefore, does not preclude the Agency from exercising its right to assign work under section 7106(a)(2)(B) of the Statute. Rather, the award only requires the Agency to comply with Article 17, Section 7(g) of the collective bargaining agreement, in which the Agency agreed to grant leave or leave without pay to a pilot if that pilot had not worked 40 hou