42:0222(18)AR - - Justice, INS and AFGE, National INS Council - - 1991 FLRAdec AR - - v42 p222



[ v42 p222 ]
42:0222(18)AR
The decision of the Authority follows:


42 FLRA No. 18

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF JUSTICE

IMMIGRATION AND NATURALIZATION SERVICE

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

NATIONAL IMMIGRATION AND NATURALIZATION SERVICE COUNCIL

(Union)

0-AR-2051

DECISION

September 20, 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 Leroy R. Smith 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 to protest the Agency's change in shifts and assignment of overtime on Sundays. The Arbitrator found that the Agency's action violated the parties' collective bargaining agreement. The Arbitrator ordered that the two employees affected be given backpay for lost overtime.

The Agency filed exceptions alleging that the award violates its right to assign work under section 7106(a)(2)(B) of the Statute and is contrary to 5 C.F.R. § 610.121(a) and (b). The Agency also claims that the award is contrary to the Back Pay Act, 5 U.S.C. § 5596. For the following reasons, we will deny the Agency's exceptions.

II. Background and Arbitrator's Award

The Union filed a grievance over changes made by the Agency on November 26, 1989, in the assignment of overtime for Sunday work at the Lynden, Washington port of entry. Prior to that date, all Sunday overtime work had been assigned to the two full-time permanent immigration inspectors at Lynden, with each inspector working two consecutive 8-hour shifts totaling 16 hours of duty. For that work, each inspector had received pay at the double time rate, which amounted to 4 days' pay for each double shift worked on Sunday.

On November 26, 1989, the Agency changed the Sunday schedule by establishing three shifts and assigning one full-time inspector to work from 10:00 a.m. to 4:00 p.m. and the other full-time inspector to work from 4:00 p.m. until midnight. A third, overlapping shift was established to cover the period from 10:00 a.m. to 6:00 p.m., the busiest part of the day. The Agency assigned a part-time permanent or part-time temporary inspector to the third shift. Because of the change, the two full-time inspectors were deprived of 8 hours of overtime each at the double-time rate, which was equivalent to 16 hours of pay.

The Agency stated that it changed the scheduling of Sunday overtime because a random audit had disclosed that the two full-time inspectors were being paid overtime in such amounts that they were approaching the maximum legal limit of $25,000 in overtime payments per year. The Union filed a grievance alleging that the Agency's actions violated the collective bargaining agreement provision requiring that permanent inspectors be given the first opportunity to work overtime before overtime was offered to part-time and seasonal employees. The grievance was not resolved and was submitted to arbitration. The parties were unable to agree on an issue and the Arbitrator framed the issue as follows:

Did the Agency violate the Agreement when it changed the assignment of Sunday work for Immigration Inspectors?

If so, what is the appropriate remedy?

Award at 2.

The Union argued before the Arbitrator that the Agency's action violated Article 27 of the parties' collective bargaining agreement, which provides that "[o]vertime assignments will be distributed and rotated fairly and equitably among eligible employees." Id. at 4. The Union also contended that the Agency violated Section 2978, paragraph 6 of the Agency's Administrative Manual, which provides as follows:

6. Assignment of Duties Compensable Under the Act.

a. Full-Time immigration officers. Any full-time immigration officer in grade GS-12 or below . . . may be assigned to inspectional work for which overtime or Sunday or holiday extra compensation is payable.

. . . .

Regional commissioners or district directors shall so arrange the basic workweeks of immigration officers as to avoid inspectional overtime assignments insofar as is possible consistent with due enforcement of the immigration laws and the convenience of travellers. Duties for which extra compensations are due shall be rotated in a fair manner among full-time immigration officers . . . . The "when actually employed" immigration officers on a prescheduled basic 40-hour workweek and the part-time immigration officers engaged in inspection of arriving passengers and crews or in other duties, may be assigned duties for which extra compensations are due only when those full-time immigration officers previously cited in this paragraph, are not available.

. . . .

b. Part-Time Immigration Officers. Part-time immigration officers engaged in inspection of arriving passengers and crews or in other duties, whose hours or days of work are less than the prescribed hours or days of work for full-time employees . . . may be assigned duties for which extra compensations are due when full-time and "when actually employed" officers on a pre-scheduled basic 40-hour workweek are not available. . . .

Id. at 5.

The Union contended that any changes in overtime schedules should have been negotiated before being implemented. The Agency denied that it had violated the agreement and asserted to the Arbitrator that it was properly exercising its right to assign work to employees. The Agency contended that it had acted in accordance with a past practice under which it routinely made scheduling changes without notifying the Union.

The Arbitrator found that the Agency acted within its authority when it changed the number of shifts for Sunday work from four to three and changed the number of inspectors from two at all times to two during the busiest hours of the day and only one in the early morning and late evening. He found that no past practice had been established under which there would always be two inspectors on duty at all times.

However, the Arbitrator found that the Agency's right to assign overtime work to part-time and seasonal (when actually employed (WAE)) inspectors was limited by Section 2978, paragraph 6 of the Administrative Manual, which the Arbitrator found to be incorporated "by reference" into the parties' agreement. Id. at 8. He ruled that the language of the Manual was "clear and unambiguous[,]" and that the language "limits the assignment of extra compensation work to WAE and part-time employees to times when full-time [immigration inspectors] are not available." Id. at 7-8, emphasis in original. He also found that there was a practice at the Lynden port of entry to assign overtime work to full-time employees rather than part-time and WAE employees and that "this practice must be continued until changed by the parties in bargaining." Id. at 8.

The Arbitrator concluded that although the Agency had the right to determine the number of employees needed to perform work and to make work assignments, its right to make Sunday overtime work assignments to other than full-time employees when full-time employees are available was restricted by the Administrative Manual and by the agreement. The Arbitrator made the following award:

The [Agency] violated the Agreement when it changed the work assignment for Sunday work at the Lynden port of entry in November, 1989.

The [Agency] is ordered to pay each of the inspectors for earning [sic] lost due to the change in overtime assignment for Sunday work. Such backpay is not to exceed the statutory overtime cap.

As requested at the hearing the [A]rbitrator will retain jurisdiction over the case for the limited purpose of assisting the parties in the implementation of this award should it be necessary.

Id. at 9.

III. Positions of the Parties

A. The Agency

The Agency contends that the award is contrary to 5 C.F.R. § 610.121(a) and (b), a Government-wide regulation.(*) The Agency contends that management was required under that regulation to make the changes that it made in the scheduling of Sunday overtime, once it had determined the need for those changes, in order to carry out its functions and to avoid increased costs. The Agency maintains that it is required by the regulation to make the most efficient use of its workforce and that if it had continued to use the two full-time inspectors for all Sunday work, they would exceed the legal limit on overtime payments and become unavailable for overtime work for the remainder of the year. The Agency also asserts that assignment of all Sunday overtime to the two full-time inspectors "raised serious questions regarding their safety and alertness and increased costs to the [A]gency in a situation where the [Agency] had determined that lower graded (and therefore lower paid) part-time Inspectors could perform the required work as well as a full-time Inspector." Exceptions at 13.

The Agency also contends that the award is contrary to management's rights to direct employees and to assign work under section 7106(a)(2) of the Statute. The Agency maintains that if the two full-time inspectors continued to receive all Sunday overtime assignments, they would exceed the legal limit of $25,000 before the end of the fiscal year and would not be available for any other overtime work after that and, consequently, the award would deprive management of the right to assign overtime work to full-time inspectors in the future. The Agency asserts that this case is controlled by 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), in which the Authority held that a provision that directly interfered with the exercise of management rights under section 7106(a)(2) of the Statute could not constitute a procedure under section 7106(b)(2) and, further, that the provision in that case excessively interfered with management's rights and could not constitute an appropriate arrangement under section 7106(b)(3).

The Agency denies that the Arbitrator's award constitutes the enforcement of an appropriate arrangement for employees adversely affected by the exercise of management's rights under the Authority's decision in Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309 (1990) (Customs Service). Citing International Association of Machinists and Aerospace Workers, Local 726 and Naval Air Rework Facility, North Island, San Diego, California, 31 FLRA 158, 169 (1988), the Agency claims that the provision in this case is not an arrangement. The Agency asserts that the Arbitrator's award interferes with and abrogates the right to assign work.

Finally, the Agency contends that the award is contrary to the Back Pay Act because it fails to provide a finding that the two full-time inspectors would have been assigned and worked a specific, determinable number of hours if the Agency had not changed the Sunday schedule and overtime assignments.

B. The Union

The Union maintains that the grievance concerns the matter of overtime distribution and not the assignment of work. The Union points out that the Arbitrator recognized the Agency's right to create new shifts and contends that the award properly focuses on the Agency's obligation to abide by Agency regulations and the parties' agreement when assigning overtime. The Union maintains that the Arbitrator's award "merely requires the [Agency] to adhere to its own regulations in assigning officers to overtime shifts, and restores the old practice regarding assignment of full-time officers pending a negotiated change in the regulations permitting the use of part-timers on the same basis as full-time permanent officers." Opposition at 12. The Union maintains that the issue should be decided in accordance with the Authority's decision in Customs Service because it concerns the application of a collective bargaining provision agreed to by the Agency.

The Union denies that the Arbitrator based his award of backpay on conjecture as to how much overtime the two full-time inspectors would have worked and asserts that the Arbitrator's award of backpay is not deficient under the Back Pay Act.

IV. Analysis and Conclusions

A. The Award Is Not Contrary to 5 C.F.R. § 610.121

We conclude that the award is not contrary to 5 C.F.R. § 610.121. The Agency asserts that the award is deficient on that basis because it deprives the Agency of the right to make changes in the scheduling of Sunday shifts which it believes is necessary in order to avoid having the two full-time inspectors reach the legal maximum limit for overtime. We disagree with the Agency's assertion.

The issue decided by the Arbitrator concerned the assignment of overtime, not the establishment of shifts. The Arbitrator applied the Agency Administrative Manual provision that had been incorporated by reference into the parties' collective bargaining agreement and found that the change in Sunday shift assignments violated the requirement that overtime work must be assigned to full-time inspectors when they were available. The Arbitrator did not rule that the Agency could not establish a third shift, as the Agency contends. To the contrary, the Arbitrator plainly stated that the Agency "has the right to determine the number of shifts to be worked on Sundays and the scheduling of these shifts." Award at 7. The Arbitrator held, however, that the Agency's rights in that area were restricted by the Administrative Manual and the parties' agreement.

The Agency's reliance on 5 C.F.R. § 610.121(a)(1) is misplaced. That provision implements 5 U.S.C. § 6101(a)(3)(A), which requires that an agency must schedule employees' tours of duty not less than 7 days in advance, except when the head of an agency determines that the Agency would be seriously handicapped in carrying out its functions or that costs would be substantially increased. See National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, 37 FLRA 392, 399-400 (1990). The regulation requires that management provide employees with at least 7 days' advance notice of any change in work schedules unless adherence to that requirement would seriously handicap the agency in performing its functions or would substantially increase costs. The Agency has not demonstrated that the Arbitrator's award enforcing the negotiated overtime assignment provisions conflicts with 5 C.F.R. § 610.121(a)(1).

The Agency claims that a change in the Sunday shifts was mandated by 5 C.F.R. § 610.121(b). Section 610.121(b)(1) requires that agencies: (1) schedule employees' work so as to accomplish the agency's mission, and (2) schedule administrative workweeks to correspond with actual work requirements. The Authority has held that 5 C.F.R. § 610.121(b) is qualified by 5 C.F.R. § 610.121(a), which directs agency heads to establish conventional workweek schedules except upon a determination that the agency would be seriously handicapped in carrying out its functions or that costs would be substantially increased. See U.S. Department of the Navy, Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 39 FLRA 590, 604 (1991). We find nothing in 5 C.F.R. § 610.121(b) that requires the Agency to make a change in shifts in this case and find nothing in the Arbitrator's enforcement of the parties' agreement that conflicts with that regulation. We find that the Agency's exceptions constitute nothing more than disagreement with the Arbitrator's reasoning and conclusions and his interpretation and application of the parties' agreement. Such contentions provide no basis for finding an award deficient. See U.S. Army Transportation Center, Fort Eustis, Virginia 23604-5353 and Local R4-6, National Association of Government Employees, 32 FLRA 1250 (1988).

We conclude, therefore, that the Agency's exceptions fail to show that the award is contrary to 5 C.F.R. § 610.121 and provide no basis for finding the award deficient under section 7122(a) of the Statute.

B. The Award Is Not Contrary to Section 7106(a)(2)(A) and (B) of the Statute

In 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.

In this case, the Agency has not established that the Arbitrator's award is contrary to section 7106(a)(2)(A) and (B) of the Statute. Instead, the Arbitrator has enforced a provision of the parties' collective bargaining agreement that constitutes an arrangement for employees adversely affected by the exercise of management's right to assign overtime work to be performed on Sundays.

The Arbitrator found that the Administrative Manual provisions incorporated by reference into the parties' agreement provided the basis for the assignment of employees to overtime work on Sunday. He found that the Agency violated the requirement contained in Section 2978 of the Administrative Manual that overtime be given to full-time inspectors, if they were available. We conclude that the Arbitrator merely enforced that provision of the Administrative Manual and the parties' agreement and that that provision constituted an arrangement for full-time inspectors who were available to work Sunday overtime by giving them the first opportunity to work such overtime. By directing the Agency to assign Sunday overtime work to available full-time inspectors unless and until the parties negotiated a different arrangement regarding the assignment of overtime, the Arbitrator enforced an arrangement for full-time employees who are adversely affected by the exercise of the Agency's right to assign work. The arrangement provided the benefit of extra compensation to those full-time inspectors who were available to work the extra shifts on Sunday.

Further, we find that the Administrative Manual provision enforced by the Arbitrator does not abrogate the Agency's right to assign work to employees on Sundays. In Customs Service, the Authority held that an award "abrogates" a management right when the award "precludes an agency from exercising" that right. Customs Service, 37 FLRA at 314. The Arbitrator's award in this case does not preclude the Agency from exercising its right to assign overtime work on Sundays. Rather, the award only requires the Agency to comply with Section 2978 of the Administrative Manual, incorporated in the parties' agreement, which provides for the assignment of overtime work to full-time inspectors when they are available.

We find no merit in the Agency's argument that it will be deprived of the right to assign full-time inspectors as a result of the award because the full-time inspectors will reach the legal limit on overtime pay before the end of the fiscal year. The legal limit imposed on the payment of overtime is a matter that is separate and apart from the provision in the parties' agreement governing the assignment of overtime that was applied by the Arbitrator. If, at some point during the fiscal year, the full-time inspectors reach the legal limit on payment of overtime and cannot be assigned further overtime, that is the result of the law limiting overtime payments, not the result of the Arbitrator's award.

The Agency's reliance on Department of the Treasury is misplaced. In that case, the Authority applied the test set forth in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) and found that an agreement provision did not constitute an appropriate arrangement because it excessively interfered with management's rights under section 7106(a)(2) of the Statute. See Department of the Treasury, 25 FLRA at 120. We have since held that, in light of Customs Service, the decision in Department of the Treasury is not controlling in cases such as the present case. See U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and Washington Plate Printers Union, Local No. 2, International Plate Printers, Die Stampers and Engravers, 41 FLRA 860, 874 (1991).

Accordingly, we conclude that the Agency has failed to show that the award is contrary to section 7106(a)(2)(A) and (B) of the Statute.

C. The Award Is Not Contrary to the Back Pay Act

We conclude that the Agency has failed to establish that the award is contrary to the Back Pay Act, 5 U.S.C. § 5596.

Under the Back Pay Act, an award of backpay is authorized only when the grievant has been affected by an unjustified or unwarranted agency personnel action that has resulted in the withdrawal or reduction of all or part of the grievant's pay, allowances, or differentials. Accordingly, the Authority has advised that, in order to award backpay, an arbitrator must find that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; (2) the personnel action directly resulted in the withdrawal or reduction of the grievant's pay, allowances, or differentials; and (3) but for such action, the grievant otherwise would not have suffered the withdrawal or reduction. See American Federation of Government Employees, Local 31 and U.S. Department of Veterans Affairs, Medical Center, Cleveland, Ohio, 41 FLRA 514, 517 (1991) (VA Cleveland).

In this case, the Arbitrator made the required findings for an award of backpay. The Arbitrator specifically found that the Agency violated the Administrative Manual provision, incorporated in the parties' agreement, governing the assignment of overtime. Violation of a collective bargaining agreement constitutes an unjustified or unwarranted personnel action under the Back Pay Act. Where it is established that employees entitled to overtime under a collective bargaining agreement do not receive that overtime because of a violation of the collective bargaining agreement by an agency, those employees can be found to be entitled to compensation for the lost overtime. See Federal Employees Metal Trades Council and U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 39 FLRA 3 (1991).

Further, the Arbitrator found that the two full-time employees lost overtime pay when the Agency assigned a part-time employee to the newly-established third shift on Sundays and reduced the overtime assignments of the full-time employees from 16 hours to 8 hours. The Arbitrator effectively found that, because of the Agency's unwarranted and unjustified personnel action, the grievants were deprived of overtime compensation that they would have received if the Agency had not failed to comply with the overtime provisions of the agreement. Although the Arbitrator did not state specifically that the loss of overtime compensation would not have occurred "but for" the violation of the agreement, he made the required finding of a causal connection by stating that "the full-time permanent inspectors are entitled to back pay for the earnings they lost when they were denied the Sunday work." Award at 9; see also, VA Cleveland, 41 FLRA at 514 (the requirement of a "but for" finding under the Back Pay Act does not require the specific recitation of certain words and phrases, such as "but for," but rather a finding of a direct causal relationship between an agency's improper actions and an adverse affect on an employee).

We find no merit in the Agency's contentions that the award is contrary to the Back Pay Act because the Arbitrator could not determine the amount of overtime the two full-time employees would have worked if the Agency had not changed their overtime assignments in violation of the Administrative Manual and agreement. The Arbitrator did not find that the grievants had merely an expectation of overtime work. Rather, he found that the Agency's practice of assigning Sunday overtime work to full-time inspectors when they are available "must be continued until changed by the parties in bargaining." Award at 8. He stated that because the two full-time inspectors were available for Sunday work, "they should have been given the work assignment." Id. That finding constitutes an explicit determination that the two full-time inspectors would have received the Sunday overtime work assignments if the Agency had not violated the parties' agreement. Compare U.S. Department of the Navy, Long Beach Naval Shipyard, Long Beach, California and Federal Employees Metal Trades Council, 34 FLRA 311, 313 (1990) (a finding of a violation of a collective bargaining agreement coupled with only an "expectation" by a grievant of the receipt of pay, allowances, and differentials is not a sufficient basis for an award of backpay). We note that the award recognizes that the two employees will not be entitled to overtime once they reach the maximum legal limit of $25,000 in overtime pay.

V. Decision

The Agency's exceptions are denied.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

*/ Relevant provisions of 5 C.F.R. § 610.121, "Establishment of work schedules," provide:

(a) Except when the head of an agency determines that the agency would be seriously handicapped in carrying out its functions or that costs would be substantially increased, he or she shall provide tha