41:0860(74)AR - - Treasury, Bureau of Engraving and Printing, Washington, DC and Washington Plate Printers Union, Local No. 2, Intl. Plate Printers, Die Stampers and Engravers - - 1991 FLRAdec AR - - v41 p860



[ v41 p860 ]
41:0860(74)AR
The decision of the Authority follows:


41 FLRA No. 74

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE TREASURY

BUREAU OF ENGRAVING AND PRINTING

WASHINGTON, D.C.

(Agency)

and

WASHINGTON PLATE PRINTERS UNION

LOCAL NO. 2, INTERNATIONAL PLATE

PRINTERS, DIE STAMPERS AND ENGRAVERS

(Union)

0-AR-1962

DECISION

July 29, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Ira F. Jaffe 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 Union filed a grievance alleging that the Agency violated the parties' collective bargaining agreement by unilaterally changing the method of staffing twelve "I-8" Currency Plate Presses (I-8 Presses) during unit employees' paid break periods. The Arbitrator found that the Agency violated the agreement with respect to the: (1) agreed-upon "two person manning" of the I-8 Presses; and (2) assignment of certain press operating duties to supervisory plate printers (foremen). Award at 46. Accordingly, the Arbitrator ordered the Agency to cease and desist from continuing to breach the agreement by such actions.

For the reasons discussed below, we conclude that the Agency has not established that the Arbitrator's award is deficient under section 7122(a) of the Statute. Therefore, we deny the Agency's exceptions.

II. Background

Prior to October 2, 1989, during breaks the I-8 Presses were either stopped or left on idle. After October 2, plate printers were released singly from each press, with the press being operated throughout the breaks and the second plate printer often being the plate printer foreman. Foremen, who are supervisors and are excluded from the bargaining unit, are all journeymen plate printers. Other than during the break periods, foremen "do not perform Plate Printer work." Id. at 2. Also, prior to October 2, foremen "had not performed production work for as long as anyone could remember and all operation of the presses [was] performed exclusively by bargaining unit Plate Printers." Id. The Union has been the exclusive representative of the employees for "over 100 years." Id.

The parties disputed the degree to which foremen actually performed "hands on" production work when serving as the second crew member on the I-8 Presses during break periods. Id. The Union argued that foremen performed no production work and, therefore, the Agency's action in staffing the presses violated the past practice regarding the "two Plate Printer manning of [these] presses." Id. The Agency disagreed. The Union filed a grievance which was denied and arbitration was invoked.

III. Arbitrator's Award

The Arbitrator noted that "[b]oth parties recognize[d] that press manning on the I-8 Presses is protected against unilateral change by Article VI of the agreement."(1) Id. at 35. The Arbitrator also noted the Authority's decision in Bureau of Engraving and Printing, Department of the Treasury and Washington Plate Printers Union, Local No. 2, International Plate Printers, Die Stampers and Engravers, 29 FLRA 467 (1987) (Bureau of Engraving and Printing), where the Authority denied the Agency's exceptions to an arbitrator's award concerning the staffing of a press referred to as a gravure press. In that case, the Arbitrator, who is also the Arbitrator in this case, found that the past practices encompassed in Article VI of the agreement required the Agency to operate its presses in accordance with the mutually agreed-upon and understood staffing schedule for the particular press. The Authority concluded that the Arbitrator's award merely enforced Article VI of the parties' agreement--the same provision involved in this case--which represents the Agency's election to bargain, under section 7106(b)(1) of the Statute, over the number of employees to operate a press.

The Arbitrator, after considering Bureau of Engraving and Printing, stated that the Authority's decision left "no doubt that press manning at the [Agency] is encompassed in those past practices protected by Article VI against mid-term change." Award at 35. The Arbitrator also noted that there was "no dispute" that the I-8 Presses have always been manned by two journeymen plate printers. Id.

After noting the above, the Arbitrator stated that the "central dispute" concerned "whether the [Agency's] approach of having Plate Printer Foremen serve as the second member of the crew operating presses during the rest break periods violated the past practice relative to press manning." Id. at 36. The Arbitrator noted that this issue encompassed the following sub-issues:

1) whether, given the amount and types of work actually performed by the Plate Printer Foremen during the break periods, the [Agency's] actions were consistent with the agreement to man the I-8 Presses with two Journeymen Plate Printers;

2) whether there was a past practice or other contractual prohibition against assigning hands[-]on press operating work to supervisory Plate Printers; and

3) if a contractual prohibition on such work assignments has been shown, whether that past practice is violative of law, and specifically section 7106 of the Statute, and thus is unenforceable.

Id.

After reviewing the record, the Arbitrator determined that plate printer foremen were absent from the presses for large portions of the break periods and, even when present, performed primarily supervisory duties rather than duties of a second plate relief printer. The Arbitrator concluded, therefore, that the Agency violated the two plate printer staffing requirement of the parties' agreement.

The Arbitrator next considered the "question of whether . . . the Agreement, and particularly the restrictions contained in Article VI, limit[ed] the [Agency's] ability to assign press operating work to Plate Printer Foremen." Id. at 41-42. The Arbitrator noted that, despite his finding that the Agency violated the agreement with respect to the staffing requirement, this question had to be addressed because on "some days" the plate printer foremen "did 'relieve' the absent Plate Printer--at least to the extent that he was physically present at the press for the entire period . . . and he handled or otherwise covered needed work at the end . . . without the need to further burden the regularly assigned Plate Printer who remained at work." Id. at 41. The Arbitrator stated that "[i]nasmuch as the question as to whether the [Agency] violated the Agreement in those situations [was] presented," he found it "necessary to focus on the above question." Id.

The Arbitrator stated that "a number of factors" led him to conclude that the Agency's failure to assign previous plate printer work to supervisors was a "past practice grounded in mutuality and protected by Article VI against unilateral abrogation by the [Agency]." Id. at 42. The Arbitrator found "most significant[]" the fact that the Agency "agreed specifically in Article XVIII, Section 4, not to assign Foremen to operate presses except 'when necessary incident to repair.'" Id. The Arbitrator noted that "[i]f the Agency enjoyed the right to assign Foremen to perform press operations work, as contended by the [Agency] such language would have been unnecessary." Id.

The Arbitrator also found that the "limitation contained in Article XVIII, Section 5, upon assignment of press work to Acting Foremen who lack sufficient seniority to perform that work as a Plate Printer . . . further reinforce[d] the [p]arties' mutually agreed upon limitations upon . . . management['s] right . . . to assign supervisory personnel to perform traditional press operation work." Id. at 42-43. The Arbitrator additionally found that the Agency's "inability to cite even a single example of such prior assignments" further showed that the Agency "recognized that it too lacked the right under the Agreement to assign the work of operating the presses to supervisory personnel." Id. at 42.

Having concluded that there was a contractual restriction upon the assignment of press work to supervisory personnel, the Arbitrator next considered whether such restriction violated section 7106(a)(2) of the Statute. The Arbitrator considered Southwestern Power Administration and International Brotherhood of Electrical Workers, Local 1002, 22 FLRA 475 (1986) (Southwestern Power Administration), and other Authority cases holding that contractual provisions which limited management's rights under the Statute were contrary to management's rights under section 7106(a) of the Statute. The Arbitrator also considered Authority decisions, including International Plate Printers, Die Stampers and Engravers Union of North America, AFL-CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA 113 (1987) (Provision 15) (Department of the Treasury), holding that: (1) provisions which directly interfere with the exercise of section 7106(a) management rights could not constitute procedures under section 7106(b)(2); and (2) provisions that excessively interfere with management's exercise of its section 7106(a) rights could not constitute appropriate arrangements under section 7106(b)(3) of the Statute.

The Arbitrator concluded that the "contractual restrictions . . . upon the [Agency's] right to assign press work to supervisory personnel [were] enforceable" under section 7106(b)(1) of the Statute. Award at 46. In so concluding, the Arbitrator relied on Bureau of Engraving and Printing. Noting this decision, the Arbitrator stated that he was "unable to discern a legal distinction between the validity of agreements resulting from [s]ection 7106(b)(1) negotiations regarding the number of employees assigned to a particular work project (i.e., manning) and the 'types and grades of employees or positions' to be assigned to a particular work project (i.e., assignment of work to Unit Plate Printers and not to assign work to Plate Printer Foremen)." Award at 45. Accordingly, he concluded that the contractual restrictions were enforceable pursuant to section 7106(b)(1) of the Statute.

The Arbitrator also found that the record fell "far short of establishing the [Agency's] claim of 'emergency' under either the Agreement or under [section 7106(a)(2)(D) of] the Statute." Id. at 46. The Arbitrator further found that the record did not support an award of backpay and, therefore, rejected the Union's claim for such relief and for attorney fees.

Having concluded that the Agency violated the parties' agreement "by its actions in operating I-8 Presses with a single Plate Printer and a Plate Printer Foreman," the Arbitrator ordered the Agency to cease and desist from continuing to violate the agreement by such actions. Id. at 48.

IV. First Exception

A. Positions of the Parties

The Agency takes the position that the 1975 collective bargaining agreement under which the award was issued has expired. The Agency states that when the Arbitrator's award "was issued the relationship between the [parties] was governed by [the 1975 agreement]." Agency letter of July 16, 1990 at 1. The Agency states, however, that following the issuance of the award, it "cancelled the extension of this 1975 contract, in accordance with a Memorandum of Understanding executed by the parties at the time they first began negotiations on a successor agreement." Id. The Agency also states that even though its position is that the 1975 agreement has expired, it filed the exceptions as a "protective measure, should the Authority . . . rule that the 1975 contract is still in effect." Id.

The Union states that it filed a timely grievance challenging the contractual and legal validity of the Agency's actions in cancelling the extension of the 1975 contract. The Union asserts that as the matter concerning the Agency's cancellation of the 1975 extension was not before the Arbitrator and as the Agency's cancellation of the extension forms the subject matter of a later and independent dispute between the parties, such matter may not be raised in the exceptions.

B. Analysis and Conclusions

We interpret the Agency's contention that it cancelled the 1975 agreement as a claim that the award is deficient because it is moot. We reject the Agency's contention.

First, we note that the record shows that the matter concerning the Agency's cancellation of the 1975 agreement was not presented to the Arbitrator. Arbitration awards are not subject to review on the basis of either evidence offered by a party, or any issue presented to the Authority, which was not presented to the arbitrator. See, for example, National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, 38 FLRA 369, 383 (1990). See also section 2429.5 of the Authority's Rules and Regulations.

Further, as noted above, the Agency concedes that the 1975 agreement governed the parties' relationship at the time the award was issued. Thus, based on the Agency's own statement, the matter in dispute arose and was arbitrated under the 1975 agreement. In view of the Agency's admission and the record evidence, we find that the 1975 agreement was valid at all times relevant to this arbitration. Consequently, we conclude that the Agency's claim that the 1975 agreement has been cancelled provides no basis for finding the award deficient. See, for example, Army & Air Force Exchange Service and Local 1920, American Federation of Government Employees, 32 FLRA 124, 126 (1988) (where the Authority rejected a union's contention that an award was deficient because a 1981 agreement under which the grievance arose had expired before the award was issued).

In view of the above, we conclude that this exception provides no basis for finding the award deficient.

V. Second Exception

A. Positions of the Parties

1. Agency

The Agency states that the Arbitrator determined that the assignment of a foremen to work with a plate printer did not constitute a full two-printer complement as traditionally used to operate an I-8 Press. The Agency states that in reaching this determination the Arbitrator found that the press duties involved in operating the I-8 Press "must be apportioned in a specific way between the two printers." Memorandum Supporting Exceptions (Exceptions) at 6. The Agency asserts that "it was improper for the [A]rbitrator to substitute his judgment for that of management in deciding how work assigned is to be allocated between two printers on a press." Id. The Agency contends that under section 7106 of the Statute, management has the right "to determine the quantity of work to be done, and the level of effort to be expected of employees." Id.

The Agency states that it understood the Authority's decision in Bureau of Engraving and Printing as being "applicable to its staffing of the I-8 [C]urrency [P]resses." Exceptions at 8. The Agency contends, therefore, that when it decided to operate such presses through the break periods, it ensured that there would be two qualified plate printers to staff each press. The Agency "acknowledges" that if it is found that the Agency negotiated on a matter under section 7106(b)(1) of the Statute, then the Agency would be bound to comply with such matter for the life of the agreement. Id. The Agency, however, "rejects the proposition that negotiation in one permissive area--numbers of employees--requires it to bargain in other permissively negotiable areas." Id. The Agency states that management's past practice as to the number of employees assigned to a press "cannot be expanded by the Union or by an arbitrator so as to cover every work practice which might . . . pertain[] to the types and grades of employees or positions assigned, or the technology, methods and means of performing work." Id. (emphasis in original).

The Arbitrator, in the Agency's view, exceeded his authority when he substituted his judgment for that of management concerning how work that is assigned should be allocated among employees. The Agency asserts that the Arbitrator's determination that the tasks of press operations must be shared equally between two plate printers on a press abridges management's right under the Statute to allocate work as it sees fit. The Agency contends that "how the work of operating a press is allocated between two plate printers is properly a management determination, as it involves the assignment of work, and the assignment and direction of employees who are to perform the work." Id. (emphasis in original). The Agency asserts that there are "no enforceable clauses in the governing 1975 contract" that would suggest that management agreed to bargain over how work is allocated between or among printers. Id. at 10. The Agency further states that the Arbitrator interpreted Bureau of Engraving and Printing "too broadly" when he expanded the past practice found therein to include the types of employees, the methods and means of performing the work, and the manner of allocating it to employees. Id. at 9.

The Agency also contends that the Arbitrator's determination that the agreement restricts management's assignment of press operation tasks to plate printer foremen violates management's rights to assign and direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute. According to the Agency, the Arbitrator based his decision on, among other things, Article XVIII, Section 4 of the 1975 agreement, which the Arbitrator "characterize[d] as management's agreement 'not to assign Foremen to operate presses' except when certain circumstances are present." Id. at 11. The Agency states that a virtually identical provision appeared in a 1988 agreement which was intended to succeed the 1975 agreement and that such provision was declared nonnegotiable by the Agency head and not appealed by the Union. The Agency asserts that the provision that appears in the 1975 agreement, like that provision, is nonnegotiable and cannot be properly enforced.

The Agency states that the Arbitrator also relied on Article XVIII, Section 5 in determining that the agreement restricts management's assignment of press operation tasks to plate printer foremen. According to the Agency, this provision limits management's right to assign acting foremen to work presses in the sections where they perform supervisory duties. The Agency contends that in Department of the Treasury, 29 FLRA at 122-24, the Authority found language similar to the language in Article XVIII, Section 5 to be nonnegotiable.

The Agency further takes issue with the Arbitrator's finding that the Agency's action in not assigning plate printer foremen press operation duties performed by unit employees established a past practice. The Agency contends that such practice cannot make enforceable a contractual provision that prevents management from assigning work. Exceptions at 12. Noting Southwestern Power Administration, among other cases, the Agency contends that the Arbitrator "refuse[d] to characterize the practice . . . as an encroachment on management's right under Section 7106(a) to assign work," but instead upholds the practice as an outgrowth of negotiations in a "permissive" area--that is, types and grades of employees or positions--under section 7106(b)(1) of the Statute. Id. at 12-13. The Agency asserts that the "assignment of supervisors to operate currency presses does not concern the 'types and grades' of employees." Id. at 13.

2. Union

The Union asserts that the Arbitrator properly ruled that the utilization of foremen to staff the I-8 Presses during break periods abrogated staffing and related work practices made binding by Article VI and other pertinent provisions of the parties' agreement. The Union argues that the Agency raises the "very same factual assertions that the Arbitrator found to be unpersuasive based on the record evidence and his independent observation of the work processes and practices in dispute." Opposition at 13. The Union contends that the Agency seeks to relitigate matters presented to the Arbitrator.

The Union states that the Arbitrator interpreted and applied the parties' contract as well as Authority precedent, in particular Bureau of Engraving and Printing, 29 FLRA 467, in determining that the "longstanding practice" of staffing the I-8 Presses exclusively with two fully functioning journeymen plate printers constitutes an enforceable past practice under Article VI of the parties' agreement. Id. at 13. The Union asserts that after reaching this determination, the Arbitrator correctly found, based on the record evidence, that the Agency violated the parties' agreement by not staffing the I-8 Press with "two fully functioning plate printers." Id. at 17.

The Union also asserts that the Arbitrator correctly ruled that Article VI and other provisions of the agreement, including Article XVIII, Section 4, preclude the Agency from assigning press duties to supervisory personnel or foremen. The Union contends that the Arbitrator's finding is "based squarely on the pertinent contractual provisions and firmly grounded in the hearing record; hence relitigation of the issue is now foreclosed." Id. at 19.

The Union further contends that the lawfulness of the practice of not assigning press duties to foremen is based on section 7106(b)(1) of the Statute. Citing Bureau of Engraving and Printing, the Union asserts that "the exclusive use of a complement of two journeymen plate printers to perform production duties is based on a prior agreement regarding the 'numbers and types' of employees and 'positions' to be assigned to the 'work project' of printing currency on I-8 press equipment." Id. at 21. The Union also states that the "underlying allocation of work duties, which precludes foremen from performing production work, likewise forms an integral part of the established 'method' and 'means of performing' currency printing at [the Agency]." Id. The Union additionally contends that this practice is "based on an agreement regarding the 'types' and 'grades of employees or positions' assigned to the 'work project' in question." Id.

The Union asserts that the Agency's reliance on Southwestern Power Administration is misplaced. The Union contends that the award does not preclude the Agency from exercising its rights to assign employees and to assign work. Rather, according to the Union, the award merely requires the Agency to use "a full [complement]" of plate printers once it elects to run and staff these presses during breaks, while continuing to afford management discretion to select and assign personnel through any "lawful" means "which will not violate the agreed upon . . . [press] staffing . . . or some other provision of the agreement." Opposition at 24 (quoting Award at 45-46). The Union states that management's reliance on its rights under section 7106(a)(2)(A) and (B) of the Statute "must necessarily fail" because the Arbitrator "specifically enforced the parties' well-established agreement pursuant to [section 7106(b)(1) of the Statute]" defining the numbers, types and grades of employees or positions assigned to a work project. Id. at 25-26.

The Union contends, in the alternative, that the work practices upheld by the Arbitrator constitute appropriate arrangements within the meaning of section 7106(b)(3) of the Statute. Id. at 25 n.9. The Union states that such practices "do not substantially infringe on the exercise of management rights and obviate serious safety hazards and other adverse effects that otherwise follow from the exercise of management['s] rights." Id.

B. Analysis and Conclusions

1. Two-person Staffing Requirement

The Arbitrator determined that management's staffing of I-8 Presses with a plate printer and a plate printer foreman did not constitute a full two-printer complement as required by Article VI of the parties' agreement. The Agency contends that this determination is contrary to section 7106 of the Statute. The Agency states that how the work of operating a press is allocated between two plate printers is properly a management determination because it involves the assignment of work and the assignment and direction of employees who are to perform the work. We find that the Agency's assertion provides no basis for finding the award deficient.

Section 7106(b)(1) of the Statute provides that nothing in section 7106 shall preclude an agency and a labor organization from negotiating "at the election of the agency," on, among other things, the "numbers, types and grades of employees or positions assigned to any . . . work project, . . . or on the . . . methods and means of performing work[.]" Consistent with this section, an agency may elect to bargain on these matters. Once a provision which concerns matters which are covered by section 7106(b)(1) is included in an agreement, the provision is enforceable through grievance arbitration. United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 577 (1990) (United States Department of Labor).

In this case, the parties negotiated Article VI, a provision which pertains to past practices. The Arbitrator stated one issue to be decided with respect to the staffing requirement was whether, given the amount and types of work actually performed by the foremen during the break periods, the Agency's actions in assigning the foremen as relief printers were consistent with the agreement to staff the I-8 Presses with two journeymen plate printers.

After considering Bureau of Engraving and Printing, the Arbitrator determined that press staffing is encompassed in the past practices protected by Article VI of the parties' agreement. He also noted that there was no dispute that the I-8 Presses have always been staffed by two journeymen plate printers. The Arbitrator then determined, based on the record evidence, that plate printer foremen were absent from the presses for large portions of the break periods and, even when present, performed primarily supervisory duties rather than duties of a second plate relief printer. The Arbitrator concluded, therefore, that by failing to comply with the agreed-upon two-person staffing of the I-8 Presses, the Agency violated Article VI of the parties' agreement.

As noted above, in Bureau of Engraving and Printing, the Authority found that the award simply enforced Article VI of the parties' agreement, which represented the Agency's election to bargain over the number of employees to operate the printing presses involved in that case. In light of this decision and the record evidence, the Arbitrator found that the Agency violated Article VI by failing to staff the I-8 Presses with two persons in accordance with this article. We find nothing in the award that conflicts with management's rights to assign employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. Rather, the award merely enforces the parties' agreement concerning the number of employees to operate the I-8 Presses consistent with the Authority's decision in Bureau of Engraving and Printing. In particular, the Arbitrator interpreted and applied Article VI and found that the Agency violated the parties' agreement by failing to staff the I-8 Presses with two persons in accordance with this provision. We find, therefore, that the Agency's contention that the award violates management's rights to assign employees and to assign work provides no basis for finding the award deficient.

We also note the Agency's contention that the Arbitrator interpreted Bureau of Engraving too broadly to encompass the methods and means of performing work. It is unnecessary for us to determine whether Article VI of the parties' agreement concerns the methods and means of performing the Agency's work under section 7106(b)(1) of the Statute. Even if this article determined the methods and means of performing the Agency's work, the provision was negotiable at the Agency's election. As the provision was negotiable and was included in the parties' agreement, it is enforceable. See United States Department of Labor, 34 FLRA at 578.

Accordingly, we conclude that the Agency's exception, as it relates to the two-person staffing requirement, provides no basis for finding the award deficient but instead constitutes nothing more than disagreement with the Arbitrator's interpretation and application of the parties' collective bargaining agreement. See Bureau of Engraving and Printing.

2. Restriction of Assignment of Press Operation Work to Supervisory Personnel

We conclude that the Agency has failed to establish that that part of the award which restricts the assignment of I-8 Press operation work to supervisory personnel is contrary to section 7106(a)(2)(A) and (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), we reexamined our approach to cases in which an agency contends that an arbitrator's award, enforcing a provision of the parties' collective bargaining agreement, is contrary to management's rights under section 7106(a). We held that when an agency makes such a contention we will examine, as appropriate, 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. We explained that 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. Accordingly, we held that we will not find that such an award is contrary to law and we will deny the exception. We also held that 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, but the contractual provision, susceptible to a different and sustainable interpretation by a different arbitrator, will not be affected.

We also noted in U.S. Customs Service that an arbitrator's award is deficient if it fails to draw its essence from the parties' agreement. We encouraged the parties to set forth plainly and precisely the arrangements to which they have agreed for employees adversely affected by the exercise of management's rights. We held that when a party establishes that the arbitrator's enforcement of the agreement does not represent a plausible interpretation of the agreement, or evidences a manifest disregard of the agreement, we will find the award deficient. In such a circumstance, however, the award will be found deficient because it fails to draw its essence from the agreement, not because it conflicts with management's rights. Id. at 316-17.

Applying that approach in this case, we find that the Agency fails to establish that the award is contrary to management's rights to assign and direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute. See Department of the Treasury, 25 FLRA at 119-120, 123. Instead, the Arbitrator has enforced a provision of the parties' collective bargaining agreement which constitutes an arrangement for employees adversely affected by the exercise of management's rights to assign and direct employees and to assign work.

In our view, Articles VI and XVIII, Sections 4 and 5 of the agreement taken together constitute an arrangement for employees adversely affected by management's right to assign and direct employees and assign them work related to the operation of presses. The Arbitrator noted that "[b]oth Plate Printers are needed to work together as a team to accomplish" necessary tasks for the operation of the I-Press." Award at 12. The Arbitrator also noted the impact of press understaffing on the affected employees. We find, therefore, that the provisions enforced by the Arbitrator constitute an arrangement for employees adversely affected by management's staffing of its presses. In our view, the Arbitrator enforced an arrangement for employees that ensures that the presses will be operated properly and safely. Consequently, we find that the Arbitrator merely enforced an arrangement negotiated by the parties when he directed the Agency to cease and desist from continuing to assign press operation duties to supervisors, except as provided by the parties' agreement.

Further, we find that Articles VI and XVIII, Sections 4 and 5, as interpreted and applied by the Arbitrator, do not abrogate the Agency's rights to direct and assign employees and assign work to employees concerning the I-8 Presses. 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 does not preclude the Agency from exercising the rights mentioned. Rather, the award only requires the Agency to comply with the terms of Articles VI and XVIII, Section 4 and 5 of the parties' agreement, which address the staffing of the printing presses.

In this regard, the Arbitrator noted that during the plate printer's break the Agency also used either a "relief plate printer" or "a plate printer who was not on break and whose own press was 'down' in circumstances which left him without other pressing duties," to operate the I-8 Presses. Award at 13. Also, supervisors may operate the presses under the circumstances provided by these provisions. Thus, as interpreted by the Arbitrator, Articles VI and XVIII, Sections 4 and 5 would not prevent the Agency from assigning press duties to other employees during the printers' breaks or from assigning press work to supervisory personnel under the appropriate circumstances. Accordingly, we conclude that Articles VI and XVIII, Section 4 and 5, as interpreted and applied by the Arbitrator, do not abrogate the exercise of management's rights to assign and direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute.

Additionally, the Agency's contention that management rights under section 7106(a) of the Statute cannot be waived or relinquished through collective bargaining provides no basis for finding the award deficient. When presented with exceptions to an arbitrator's award under section 7122(a) where an arrangement for employees adversely affected by the exercise of a management right has been negotiated by the parties and, as interpreted and applied by an arbitrator, the provision does not abrogate management's rights, that provision and its enforcement do not constitute a waiver of management's rights. U.S. Customs Service, 37 FLRA at 315.

We further note the Agency's contention that a provision identical to Article XVIII, Section 5 was found nonnegotiable in Department of the Treasury. The Authority found that the provision, Provision 15, did not constitute an appropriate arrangement because it excessively interfered with management's rights under section 7106(a)(2)(a) and (B) of the Statute. We conclude that in light of U.S. Customs Service, the decision in Department of the Treasury is not controlling in this case.

Consistent with U.S. Customs Service, when an agency maintains that an award enforcing a provision of the parties' agreement is contrary to section 7106(a), we will not apply the test established in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986), "to determine whether the provision excessively interferes with the exercise of a management right." U.S. Customs Service, 37 FLRA at 314. See also U.S. Department of the Air Force, MacDill Air Force Base, Florida and National Federation of Federal Employees, Local 153, 38 FLRA 74, 78 (1990). That test "is a matter for the negotiation process under the Statute." U.S. Customs Service, 37 FLRA at 314. In arbitration cases as here, as noted above, "we will determine whether a negotiated arrangement as enforced by an arbitrator abrogates management's rights." Id.

Based on the above, we find no merit in the Agency's contention that the award is deficient because it directly interferes with management's rights to assign and direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute. Also, in view of this determination, we find it unnecessary to address the Agency's contention that the Arbitrator erred in finding that the Agency's assignment of supervisors to operate currency presses constituted an election by the Agency to negotiate the types and grades of employees under section 7106(b)(1) of the Statute.

VI. Third Exception

A. Positions of the Parties

The Agency contends that the Arbitrator improperly rejected the Agency's determination, under section 7106(a)(2)(D) of the Statute, that it faced an emergency in currency printing.

The Union contends that the Arbitrator properly rejected management's claim that it was compelled to act because of emergency conditions. The Union asserts that there is "ample" evidence in the record to support the Arbitrator's factual determination that the Agency had not established that an emergency existed within the meaning of section 7106(a)(2)(D) of the Statute. The Union requests the Authority to take "official notice" of a document which it contends further shows that no emergency existed to warrant the change in the staffing of the I-8 Press. Id. at 20 n.7 and 27.

B. Analysis and Conclusions

We conclude that the Agency fails to establish that the award is contrary to section 7106(a)(2)(D) of the Statute.

Section 7106(a)(2)(D) provides that an agency may "take whatever actions may be necessary to carry out the agency mission during emergencies." The Agency argued before the Arbitrator that emergency conditions existed which required it to implement the staffing changes in its press operations. The Arbitrator found that the record evidence fell "far short of establishing the [Agency's] claim of 'emergency' under either the Agreement or under the Statute." Award at 46.

In our view, the Agency's exception constitutes mere disagreement with the Arbitrator's finding that the record evidence did not establish the Agency's claim that an emergency existed warranting the change in the staffing of its presses. Disagreement with the Arbitrator's evaluation of the evidence and conclusions based thereon provides no basis for finding the award deficient. See U.S. Department of Justice, Federal Bureau of Prisons, Terre Haute, Indiana and American Federation of Government Employees, Council of Prison Locals, Local 720, 38 FLRA 1438, 1442 (1991). Compare U.S. Customs Service, 29 FLRA 307, 324-325 (1987) (where the Authority in an unfair labor practice case adopted the Judge's findings that the evidence demonstrated, among other things, that an emergency existed pursuant to section 7106(a)(2)(D) of the Statute which warranted the agency's actions). Consequently, we find that this exception provides no basis for finding the award deficient.(2)

VII. Decision

The Agency's exceptions are denied.

APPENDIX

The pertinent text of Articles VI and XVIII is set forth below:

ARTICLE VI

PAST PRACTICES

SECTION 1. It is agreed and understood that any prior work benefits and practices and understandings such as but not limited to existing smoking rules, provisions on employee use of telephones, interpretations of language in this Agreement which existed in the previous Agreement, etc. which are not specifically covered by this Agreement, shall remain in force and in effect during the term of this Agreement unless otherwise mutually agreed to by the parties.

SECTION 2. Notwithstanding Section 1., the Employer, after discussion with the Union, may change a prior work benefit, practice or understanding which is:

(a)--inconsistent with the designed use of equipment, technology or work processes, or

(b)--reasonably provided [sic] to be a hazard to the health and safety of employees.

ARTICLE XVIII