45:1051(107)AR - - NTEU Chapter 174 and Treasury, Customs Service, Region IV - - 1992 FLRAdec AR - - v45 p1051



[ v45 p1051 ]
45:1051(107)AR
The decision of the Authority follows:


45 FLRA No. 107

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 174

(Union)

and

U.S. DEPARTMENT OF THE TREASURY

CUSTOMS SERVICE

REGION IV

(Agency)

0-AR-2227

DECISION

September 3, 1992

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 Stephen L. Hayford 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 Arbitrator found that the Agency's change in the assignment of overtime work performed at the Port of St. Petersburg violated the parties' collective bargaining agreement. The Arbitrator ordered, among other things, that aggrieved employees be awarded backpay.

For the following reasons, we find that the Agency has failed to establish that the award is deficient. Accordingly, we will deny the Agency's exceptions.

II. Background and Arbitrator's Award

The Union filed a grievance over the Agency's decision to change the manner in which it assigns inspectional work performed on an overtime basis at the Port of St. Petersburg when the Port Director is unavailable. The Port Director is the only full-time Agency employee assigned to St. Petersburg on a permanent basis. Approximately 20-30 percent of the Port Director's time is spent performing inspectional duties that ordinarily are performed by bargaining unit employees at larger ports.

Prior to the spring of 1990, bargaining unit employees from the Port of Tampa were routinely assigned to perform overtime inspectional work at St. Petersburg in the Port Director's absence. During the spring of 1990, the Agency began to assign overtime work to supervisory inspectors from Tampa, rather than to bargaining unit employees. The use of supervisory personnel to perform overtime work reduced the amount of overtime available to Tampa bargaining unit employees and decreased their earnings.

A grievance was filed over the change in the procedure for assigning overtime at St. Petersburg. The grievance was not resolved and was submitted to arbitration. The Arbitrator framed the issues as follows:

1. Is the instant Grievance a proper subject for arbitration under the National Agreement?

2. Does the Agency's present policy of not giving bargaining unit Customs Inspectors assigned to the Port of Tampa the first opportunity to perform the disputed overtime work at the Port of St. Petersburg result in a violation of any relevant provisions of the National Agreement, INS-II, or the Miami Region Supplemental Regional Agreement? If so, what is the proper remedy?

3. Did the Agency violate Section 7116(a)(1) and (a)(5) of the Federal Services [sic] Labor-Management Relations Statute when it failed to negotiate with the Union before altering the manner in which the disputed Port of St. Petersburg overtime work is assigned? If so, what is the proper remedy?

Award at 5 (underscoring in original).

Initially, the Arbitrator determined that the grievance was a proper subject for arbitration. The Arbitrator stated that the Agency's contention that the grievance was not arbitrable, because its actions were a legitimate exercise of its contractual and statutory management rights, more appropriately addressed the merits of the grievance. The Arbitrator explained that if the Union could not take issue with the Agency's decisions regarding the exercise of its management rights, the Agency could preclude the arbitration of a grievance merely by invoking the management rights provisions of the parties' national agreement or the Statute. In sum, the Arbitrator concluded that the Agency had failed to sustain its burden of proving that the grievance was not arbitrable.

Turning to the merits of the grievance, the Arbitrator examined relevant provisions of the national agreement, a regional supplemental agreement, and a directive entitled INS-II, which the Arbitrator determined had been negotiated by the parties.1/ Based on these agreements, the Arbitrator found that the Agency retained the right to determine the circumstances under which overtime would be required as well as the right to determine the numbers, types and grades of employees to be assigned overtime work. However, the Arbitrator also found that, in making its overtime assignment decisions, the Agency was required to exercise its management rights in accordance with the relevant substantive and procedural requirements of the cited authorities.

The Arbitrator found, more particularly, that provisions contained in the national agreement require that overtime earnings be equalized to the maximum extent possible and that overtime assignments be made and rotated on a fair and objective basis. To satisfy these requirements, the Arbitrator found that the regional supplemental agreement establishes a list of participating groups of employees, within which available overtime assignments must be equalized to the maximum extent possible. The Arbitrator determined that all the bargaining unit inspectors assigned to Tampa were included in participating group 1, which is defined as all permanent full time inspectors GS-5/7/9/11.

The Arbitrator then addressed whether bargaining unit employees who are assigned to Tampa have a right under the regional supplemental agreement to share equally in overtime work outside of Tampa, including St. Petersburg. The Arbitrator determined that there was a well-defined past practice, as well as a current practice, that entitled full-time Tampa bargaining unit inspectors and supervisory inspectors to share in the available overtime at St. Petersburg. Therefore, the Arbitrator concluded that the Tampa bargaining unit inspectors in participating group 1 had the right, under the regional supplemental agreement, to share equally in the available overtime at St. Petersburg.

The Arbitrator then looked to INS-II as "[t]he final component of the parties' bargain" in order to determine whether overtime would be assigned first to Tampa bargaining unit employees or supervisory personnel. Award at 16. The Arbitrator found, quoting the relevant portion of INS-II, that "'[i]nspector overtime assignments will normally be staffed by inspectors.'" Id., quoting INS-II. The Arbitrator determined that under a "call-out" order established in INS-II, if the disputed overtime work at St. Petersburg was inspectional work, Tampa bargaining unit inspectors were entitled to be offered the opportunity to perform the work before it was offered to Tampa supervisors. The Arbitrator explained that this provision of INS-II directly supported the Union's claim that the parties "have agreed to a strong preference for the assignment of inspectional overtime work to bargaining unit [i]nspectors." Id.

The remaining question addressed by the Arbitrator was whether the overtime work was "inspectional/inspector work, or . . . bona fide supervisory work." Id. at 17 (footnote omitted). The Arbitrator found that the inspectional duties were, in fact, bargaining unit work and that such work had been assigned to bargaining unit employees in the Port Director's absence until sometime in 1990.

In making his findings, the Arbitrator rejected the Agency's argument that because the Port Director, a supervisory employee, normally performs and has first claim to the disputed overtime work, it could properly be assigned to Tampa supervisory employees in the Port Director's absence. The Arbitrator stated that the Agency had overlooked the hybrid nature of the Port Director's position, noting that the Port Director performs inspectional work as well as supervisory tasks because he is the only full-time employee assigned to St. Petersburg. With respect to the Agency's argument that assigning a supervisory employee on an overtime basis satisfies the Agency's need to have a supervisor present at St. Petersburg when inspections are performed, the Arbitrator found no requirement that a supervisor be present when "one-man inspection is performed on an overtime basis at a small operation like the Port of St. Petersburg." Id. at 18 (footnote omitted).

In sum, the Arbitrator found that, prior to 1990, bargaining unit employees from Tampa were assigned to perform inspectional duties when the Port Director was unavailable. The Arbitrator concluded that when the Agency commenced assigning the overtime to Tampa supervisors without first offering it to Tampa bargaining unit employees, the Agency violated INS-II, the regional supplemental agreement and the national agreement.2/

To remedy the violation, the Arbitrator ordered that, to the extent the disputed overtime work involved only inspectional services and not "bona fide supervisory tasks" Tampa bargaining unit inspectors be given the first opportunity to work the overtime. Id. at 19. The Arbitrator also ordered backpay for Tampa bargaining unit employees "for each occasion during 1990, 1991 and 1992 fiscal years" in which they would have been offered the opportunity to perform overtime work but for the Agency's improper action in denying the employees overtime work. Id. The Arbitrator added that if any of the overtime assignments involved the performance of "true supervisory tasks (alone, or in combination with the performance of inspectional tasks)," there was no violation of the agreements and no basis for an award of backpay. Id. The Arbitrator retained jurisdiction of the case to resolve any disputes arising from his remedial order and to entertain a Union petition for attorney fees.

III. Positions of the Parties

A. The Agency's Exceptions

The Agency contends that the award is contrary to management's rights to assign work and to determine the personnel by which agency operations will be conducted under  section 7106(a)(2)(B) of the Statute. The Agency also contends that the award is contrary to its right to assign employees under section 7106(a)(2)(A) of the Statute.

The Agency contends that the award encroaches on its discretion to determine the personnel who will perform work at a particular location because it does not permit the Agency to assign all the disputed overtime work to Tampa supervisory inspectors when the St. Petersburg Port Director is unavailable. Instead, the Agency states that when the overtime assignment is inspectional in nature, the award requires it to first offer the work to Tampa bargaining unit inspectors. The Agency claims that the Arbitrator improperly substituted his judgment for that of the Agency and that the award, therefore, interferes with the right to assign work. The Agency also cites various Authority decisions for the proposition that restrictions on the assignment of work to nonbargaining unit employees interfere with management's rights under section 7106(a)(2)(B) of the Statute.

In addition, the Agency argues that the right to assign work under section 7106(a)(2)(B) includes the right to determine the qualifications necessary to perform the work assignment and the right to determine whether a particular employee meets those qualifications. The Agency maintains that it determined that supervisory status was a necessary qualification for performing the duties ordinarily performed by the St. Petersburg Port Director and that the Arbitrator improperly substituted his judgment for that of the Agency when he concluded that supervisory status was necessary only to perform "'bona fide supervisory tasks . . . .'" Exceptions at 9, quoting Award at 19. The Agency states that its decision to have a supervisor present at St. Petersburg is an elementary management right and is not subject to arbitral review.

The Agency also contends that the award is contrary to management's right to assign employees under section 7106(a)(2)(A) because the award requires the assignment of a bargaining unit employee in the Port Director's absence. The Agency claims that the Arbitrator's references to an earlier management decision to assign non-supervisory employees to perform some overtime work at St. Petersburg is not relevant to its current determination that supervisory status is a necessary qualification for overtime assignments at St. Petersburg. The Agency maintains that included within its management rights is the right to change its earlier position regarding the need for a supervisory employee at St. Petersburg.

Additionally, the Agency asserts that the abrogation test established in Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309 (1990) (Customs Service) is not applicable to this case because neither the parties' past practice nor INS-II, on which the Arbitrator relied, involve the enforcement of collective bargaining agreement provisions.

Alternatively, the Agency contends that if the Authority finds that Customs Service is applicable, INS-II does not constitute an arrangement for employees adversely affected by the exercise of management's rights. The Agency claims that bargaining unit employees cannot be adversely affected because the Agency has merely replaced one supervisory employee, the Port Director, with another, a Tampa supervisory inspector. The Agency further claims that the call-out provision in INS-II for determining the order in which employees are offered overtime cannot be considered an arrangement because it was not negotiated with the Union. Instead, the Agency states that it was unilaterally established before the Union became the exclusive representative of the Agency's employees.

However, should the Authority find that INS-II constitutes an arrangement, the Agency claims that the award abrogates its right to assign employees under section 7106(a)(2)(A) and its rights to assign work and determine the personnel by which Agency operations are conducted under section 7106(a)(2)(B) of the Statute. In support, the Agency cites Authority decisions in "negotiability cases and pre-abrogation test arbitration cases . . . ." Exceptions at 19. The Agency asserts that the award precludes it from determining when it can assign the overtime work of the St. Petersburg Port Director to a Tampa supervisory inspector insofar as the award mandates that such work always be assigned to Tampa bargaining unit inspectors except under very limited circumstances. The Agency also asserts that the award precludes it from determining that supervisory status is a necessary qualification for the assignment of both work and employees.

B. The Union's Opposition

The Union contends that the test set forth in Customs Service is applicable to the instant case because the Arbitrator's award rests on an interpretation and application of the parties' collective bargaining agreement. Specifically, the Union asserts that the provision of INS-II giving preference in overtime assignments to bargaining unit inspectors was the product of collective bargaining.

Additionally, the Union argues that the provisions of the national agreement, the regional supplemental agreement and INS-II constitute appropriate arrangements for employees adversely affected by the Agency's right to assign overtime and do not abrogate the exercise of this management right. As to the latter contention, the Union claims that the award does not preclude the Agency from deciding that overtime is needed or prevent the Agency from determining which supervisory duties are required at any port. Rather, the Union maintains that the Arbitrator merely interpreted various provisions of the parties' agreements regarding the procedures the Agency is required to follow in making overtime assignments.

IV. Analysis and Conclusions

Contrary to the Agency's assertion, we find that the analysis set forth in Customs Service is appropriate to resolve the Agency's exceptions. We further find that the Agency has not established that the award is deficient.

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 of the Statute. 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 exceptions that contest that the award is inconsistent with management's rights. 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.

The contractual provisions enforced by the Arbitrator relate to the assignment of overtime work and, specifically, to the equitable assignment of overtime among bargaining unit employees. Clearly, these provisions constitute an arrangement for employees adversely affected by the exercise of management's right to assign work on an overtime basis. The provisions, as interpreted and applied by the Arbitrator, demonstrate that bargaining unit employees rely on overtime work as an integral part of their livelihoods. In fact, the record establishes that "overtime accounts for as much as [30-40] percent of a Custom [sic] Inspector's annual earnings." Award at 2. In our view, the Arbitrator merely enforced an arrangement that permits bargaining unit employees to perform overtime work in order to preserve their level of compensation.

We reject the Agency's contention that INS-II does not constitute an arrangement because it is not a negotiated agreement. Although the call-out provision of INS-II originally appeared in an Agency directive that, according to the Agency, predates the collective bargaining relationship with the Union, the call-out provision on which the Arbitrator relied appears in a subsequent version of the directive. The Arbitrator found that the directive constituted a negotiated agreement and the Agency has presented no persuasive evidence that the Arbitrator's finding in this regard was incorrect.

We further find that the provisions of the parties' agreements enforced by the Arbitrator do not abrogate the Agency's right to assign work or employees or to determine the personnel by which Agency operations are conducted. In Customs Service, we 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 rights. First, we find that although the Agency's ability to assign any employee it chooses to perform work at St. Petersburg in the Port Director's absence is somewhat circumscribed, the Arbitrator's enforcement of the agreement provisions does not abrogate the exercise of the right to assign employees under section 7106(a)(2)(A). Rather, the award only requires the Agency to comply with the provisions of the agreements that provide for the assignment of inspectional overtime work to Tampa bargaining unit employees when the St. Petersburg Port Director is unavailable. Significantly, the award leaves unimpaired the Agency's right to assign a supervisor to replace the St. Petersburg Port Director when, as stated by the Arbitrator, "bona fide supervisory tasks" must be performed. Award at 19. In addition, it is undisputed that the Agency retains the right to determine whether bargaining unit employees are qualified to perform inspectional work.

Second, we find that the Arbitrator's enforcement of the agreement provisions does not abrogate the exercise of management's rights under section 7106(a)(2)(B) of the Statute. In this regard, the Agency retains the right to assign work on an overtime basis. In addition, and for the same reasons expressed above in connection with the right to assign employees, the Agency's ability to determine the personnel by which its operations are conducted is not precluded, even though the exercise of that right may be limited to some extent. Thus, the Agency retains the right to determine whether supervisory tasks must be performed on an overtime basis and, therefore, whether to assign a supervisor to perform overtime in the Port Director's absence. Moreover, the Agency retains the right to determine whether the personnel to which it has assigned overtime work are qualified to perform such work.

Finally, we find that the Agency's reliance on Authority decisions to support its view that the award is inconsistent with or abrogates the exercise of management's rights is misplaced. To the extent the Agency cites decisions addressing the negotiability of various proposals and provisions, we stated in Customs Service that the test employed for determining the negotiability of matters proposed to be bargained under section 7117 of the Statute is different from that used in determining whether the enforcement of a negotiated agreement abrogates the exercise of a management right. To the extent the Agency relies on Authority decisions in arbitration cases that predate Customs Service, we note that the test set forth therein was designed to apply to that case and to all future cases involving exceptions to awards that are claimed to conflict with the exercise of a management right.

As there is no other basis advanced by the Agency on which to find the award deficient, we conclude that the Agency has failed to set forth any ground on which to set aside the award. Accordingly, we will deny the exceptions.

V. Decision

The Agency's exceptions are denied.

APPENDIX

The relevant provisions of the national agreement are as follows:

Article 22, Part I, Section 3.A.

Subject to the needs and requirements of the Service for differing types, grades, skills and skill levels . . . overtime earnings will be equalized to the maximum extent possible.

Article 22, Part I, Section 3.B.

Overtime assignments shall be made and rotated on a fair and objective basis.

The relevant provision of the regional supplemental agreement is as follws:

Article V, Section 2

Overtime earnings will be equalized to the maximum extent practicable within each of the following participating groups of employees within each port or major activity:

1. All permanent full time inspectors

GS-5/7/9/11 . . .

2. Part time Inspectors GS-5/7/9/11

3. Seasonal Inspectors

4. Intermittent Inspectors

5. Inspectional Aides

6. Cashiers/Tellers/Customs Aides

7. All other employees who are qualified by

training or experience outside their regular

areas of responsibility.

The relevant provisions of INS-II are as follows:

II. OVERTIME ASSIGNMENT POLICY

. . . .

A. Overtime Compensation for Inspectional Activities

Defined

. . . .

2. The services considered "inspectional" are those involving the examination and

control of merchandise, persons and conveyances. These services are delineated in 19 USC 267 as those services required to be performed in connection with:

a) lading or unlading cargo;

b) lading of cargo or merchandise for

transportation in bond or for exportation with benefit of drawback;

c) receiving or delivering of cargo on or

from the wharf; and

d) unlading; receiving, or examination of

passengers' bagg