46:0189(17)AR - - Agriculture, Federal Grain Inspection Service and AFGE, Local 3157 - - 1992 FLRAdec AR - - v46 p189



[ v46 p189 ]
46:0189(17)AR
The decision of the Authority follows:


46 FLRA No. 17

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF AGRICULTURE

FEDERAL GRAIN INSPECTION SERVICE

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3157

(Union)

0-AR-2266

DECISION

October 21, 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 Joseph S. Kiss 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 did not file an opposition to the Agency's exceptions.

The Union filed a grievance on behalf of four on-call employees who worked on a seasonal basis pursuant to employment contracts executed by each employee with the Agency. The Union claimed that, under the contracts, the Agency was required to convert the employees to permanent, full-time status after 2 1/2 years of on-call service. The Arbitrator sustained the grievance and ordered the Agency to convert the four employees, each of whom had completed 2 1/2 years of on-call service, to permanent full-time status.

The Agency contends that the award is deficient because, among other things, it interferes with management's rights under sections 7106(a)(2)(C) and 7106(b)(1) of the Statute. For the following reasons, we conclude that the award is not contrary to section 7106(a)(2)(C) of the Statute and does not interfere with management's right to select employees for positions. We will deny the Agency's exceptions in that respect. However, we find that the Arbitrator's award is contrary to section 7106(b)(1) of the Statute because the award interferes with management's right to determine the numbers, types, and grades of positions in the Agency's grain inspection function. Accordingly, we will modify the award to provide that the Agency will convert the grievants to permanent full-time employment status as grain inspector positions become available.

II. Background and Arbitrator's Award

In order to meet seasonal demands, the Agency hires some grain inspection employees on an on-call basis subject to individual employment contracts. The terms of the employment contracts include the following provision relating to conversion of on-call employees to full-time employment:

B. Purpose and Appropriate Use - As vacancies occur, an on-call employee moves into the [A]gency's year-round workforce in accordance with preestablished conditions of employment.

. . . .

    3. The [A]gency will determine:

    . . . .

c) If possible, the on-call employee will be converted to regular year-round employment within 2 1/2 years, following the initial on-call appointment; this conversion is not subject to competition.

Award at 3; Agency's Exhibit 4, "Terms of ON-CALL Employment," Paragraph B.3(c.).

The Union filed a grievance alleging that four on-call employees at the Agency's Destrehan, Louisiana Field Office who had served for more than 2 1/2 years were entitled to conversion to full-time status retroactively with backpay. The Agency contended that it could not take the action requested by the Union because there were no vacant full-time positions available. The grievance was submitted to arbitration on the following issue:

Whether or not the employer was/is in violation of the terms of the on-call employment contracts entered into with bargaining unit employees by failing to convert on-call employees to a full[-]time status after 2 1/2 years. If so, what shall the remedy be?

Award at 1.

The Union contended before the Arbitrator that the provision in the individual employment contracts concerning conversion from on-call to permanent full-time status was "a promise made to the affected employees prior to hire and . . . was a 'primary factor' in the employees' decisions in opting for on-call employment." Id. at 4. The Agency asserted to the Arbitrator that it had converted four on-call employees to full-time status in January 1989, but that no more full-time employees had been hired since that time. The Agency maintained that it was not able to convert other on-call employees to full-time status. The Agency contended that it has the right, under section 7106(b)(1) of the Statute, to determine the number of employees that it will assign to grain inspection duties and that it has chosen not to negotiate with the Union over that subject. The Arbitrator noted the Agency's claim that the employment contracts for on-call employees do not mandate that the Agency convert on-call employees to full-time status unconditionally because "the words 'if possible' were inserted to maintain management's protected right to make any and all appropriate determinations prior to making such conversions." Id. at 6.

The Arbitrator found that the wording of the on-call employees' individual employment contracts was unclear and subject to varying interpretations. He held that it was not possible to determine the Agency's obligation to convert on-call employees to full-time status based only on the wording of the contracts and stated that "the current language of Section 3 [of the contracts] needs modification." Id. at 8. The Arbitrator stated that he was "left with only the content of data from the hearing -- which is not insufficient to produce an equitable decision." Id.

The Arbitrator concluded that "[t]he preponderance of evidence weighs in favor of the on-call employees whose overwhelming testimonies support the claims to full[-]time status -- there being no mitigation per the on-call employment contract. To a being, they were assured of conversion upon 2 1/2 years of full service . . . ." Id. As his award, the Arbitrator ordered the Agency to "promptly convert to full[-]time employment" the four employees who had completed 2 1/2 years of service. Id. at 9.

III. Agency's Exceptions

The Agency contends that the award is deficient because it interferes with management's right under section 7106(b)(1) of the Statute to determine the numbers, types and grades of employees assigned to full-time grain inspection duties. The Agency also contends that the award is contrary to regulations governing employment of on-call employees set forth in 5 C.F.R. § 340.401(b) and Federal Personnel Manual (FPM) chapter 340, subchapter 3.(1) The Agency contends that the Arbitrator has effectively modified the on-call employment contracts to require the placing of on-call employees in permanent full-time positions even when there are no vacant positions available.

The Agency asserts that there are no vacant full-time grain inspector positions available and that compliance with the Arbitrator's award would require it to establish four new grain inspector positions. The Agency also asserts that the award interferes with its right to select when filling a position under section 7106(a)(2)(C) of the Statute and is contrary to FPM chapter 335, subchapter 1-4, requirement 4, because the award requires that on-call employees be selected to fill full-time grain inspector positions.

IV. Analysis and Conclusions

We do not agree with the Agency that the Arbitrator's award is deficient because it interferes with management's right to make selections under section 7106(a)(2)(C) of the Statute. We will deny the Agency's exception in that respect. However, we conclude that the Arbitrator's award interferes with management's right to determine the numbers of employees or positions assigned to an organizational subdivision under section 7106(b)(1) of the Statute and is deficient on that basis. The award will be modified to provide that the Agency will convert the grievants to permanent full-time employment status as grain inspector positions become available.

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

We conclude that the Agency fails to establish that the award is contrary to section 7106(a)(2)(C) of the Statute. The Arbitrator found that the Agency had entered into individual employment contracts with on-call employees agreeing, among other things, that it would convert those employees to permanent full-time status after 2 1/2 years, "if possible." See Award at 7. Although the Arbitrator stated that he was unable to interpret the employment contracts and to determine the effect of the term "if possible," he nevertheless found that the Agency's commitment to the on-call employees was enforceable. Id. Consequently, the Arbitrator ordered the Agency to convert four employees who had served in an on-call status for 2 1/2 years to permanent full-time status. For the following reasons, we find that the Agency has not shown that the award is deficient on the ground that it is contrary to management's right to select employees under section 7106(a)(2)(C) of the Statute.

The Arbitrator did not interfere with the Agency's right to select employees from any appropriate source. Rather, we find that the Arbitrator merely required the Agency to fill permanent full-time grain inspector positions with employees whom the Agency had already determined were qualified and had selected to fill on-call grain inspector positions subject to individual employment contracts, and to whom the Agency had promised possible permanent full-time employment. For the Arbitrator to require the Agency to honor its commitment to the on-call employees in this manner does not interfere with the Agency's rights under section 7106(a)(2)(C) of the Statute. See U.S. Department of the Treasury, Customs Service, Dallas, Texas and National Treasury Employees Union, Chapter 140, 37 FLRA 1022, 1028 (1990) (Customs Service, Dallas) (award was not contrary to management's right to assign work under section 7106(a)(2)(B) where agency had already determined that grievants were qualified to perform the duties to which they had been assigned and arbitrator made no finding as to the grievants' qualifications to perform the work but, rather, applied agency's previous determination that they were qualified).

In National Federation of Federal Employees, Local 1482 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center, Louisville Office, Louisville, Kentucky, 45 FLRA 52, 78 (1992) (Proposal 6) (Defense Mapping Agency), we found that a proposal requiring the selection of minimally qualified candidates for promotion by order of seniority interfered with section 7106(a)(2)(C) because the proposal did not permit the agency to establish qualifications in addition to minimum qualifications for the positions the agency desired to fill. We noted that management can be required to select the most senior candidate for a position where management has already determined the source from which the selection will be made and the qualifications needed for the position, but cannot be required to select the most senior candidate where it is not able either to determine the source or to determine the qualifications.

Applying the reasoning in Customs Service, Dallas and Defense Mapping Agency to the present case, we find that the Arbitrator's award ordering the grievants converted to permanent full-time status does not interfere with the Agency's right to select employees under section 7106(a)(2)(C) of the Statute because the Agency already exercised that right when it entered into on-call employment contracts with the grievants. The Agency does not contend that the grievants do not meet the qualifications standards for the grain inspector positions or that the Agency was precluded from establishing the requirements of the grain inspector positions. By hiring the grievants as on-call employees under employment contracts providing for conversion to permanent full-time positions after a specified period of service, the Agency exercised its right under section 7106(a)(2)(C) of the Statute to make selections to fill those positions from a specific source. Accordingly, we find that the Arbitrator's award is not contrary to section 7106(a)(2)(C) of the Statute. In so finding, we also find that the award is not contrary to FPM chapter 335, subchapter 1-4. See U.S. Department of Health and Human Services, Social Security Administration, Kansas City, Missouri and American Federation of Government Employees, Local 1336, 37 FLRA 816, 823 (1990) (SSA, Kansas City), reconsideration denied 38 FLRA 1480 (1991). The Agency's exception in those respects will be denied.(2)

B. The Award Is Contrary to Section 7106(b)(1) of the Statute

We conclude that the award directly interferes with management's right to determine the numbers of employees or positions assigned to an organizational subdivision and therefore is deficient as contrary to section 7106(b)(1) of the Statute.

The Authority has held that an arbitration award ordering a prospective promotion, without regard to whether an appropriate vacant position exists, is contrary to section 7106(b)(1) of the Statute and deficient. See SSA, Kansas City, 37 FLRA at 824-27. In this case, the Arbitrator ordered the Agency to convert the grievants to permanent full-time status. It is undisputed that there are no vacant grain inspector positions available and that the Agency could comply with the award only by establishing four permanent full-time positions in its grain inspection function. Consequently, because the Arbitrator's award would require the Agency to convert four on-call employees to full-time status by establishing and filling four permanent full-time grain inspector positions that do not currently exist, the award directly interferes with the Agency's right to determine the numbers of employees or positions assigned to an organizational subdivision and the award is contrary to section 7106(b)(1) of the Statute.

V. Remedy

In order to implement the Arbitrator's award so as to preserve management's right to determine the numbers of employees or positions assigned to an organizational subdivision, we will modify the remedy ordered by the Arbitrator to provide that the grievants shall be converted noncompetitively, in order of seniority, to full-time permanent grain inspector positions as such positions become available. See SSA, Kansas City, 37 FLRA at 825. This remedy is consistent with provisions in 5 C.F.R. § 340.401(b) and FPM chapter 340, subchapter 3, concerning the expectation that on-call employees will be converted to full-time status as vacancies occur.

VI. Decision

The Arbitrator's award is modified to provide that the Agency will noncompetitively assign the four grievants, in order of seniority, to the next four permanent full-time grain inspector positions that become available at the Agency's Destrehan, Louisiana Field Office.(3)

APPENDIX

5 C.F.R. § 340.401(b) provides:

(b) On-call employment means recurring periods of work on an as needed basis during periods of heavy workload with an expected cumulative service period of at least six months in pay status each year. On-call employees work regularly scheduled tours of duty while in pay status and are placed in nonduty/nonpay status and recalled to duty in accordance with preestablished conditions of employment. On-call employees move into the agency's year-round work force as vacancies occur.

Federal Personnel Manual chapter 340 provides, in part:

3-1. Definitions

        a. An on-call employee serves under a permanent appointment (tenure group 1 or 11) and works on an as needed basis during periods of heavy workload, with an expected cumulative service period of at least six months in pay status each year . . . As vacancies occur, an on-call employee moves into the agency's year-round work force in accordance with pre-established conditions of employment.

3-5. Terms and Conditions of Employment

        b. A special employment agreement must be executed between the agency and the on-call employee at the time of appointment. The agreement must be attached to the employee's copy of the SF 50, Notification of Personnel Action, and a reference to the agreement should be included in the SF 50 remarks.

        c. At a minimum the agreement must indicate:

--- That the employee is subject to periodic release and recall to duty under specified advance notice procedures;

--- the benefits to which the employee will be entitled while in non-pay status;

--- that it is expected that the employee will be provided with a minimum of 6 months of employment each year, but that the employee may work a full 12 months each year as workload requires;

--- the terms under which the employee will be converted to year-round employment in his/her occupation and grade. (Some agency agreements have included a statement that an effort would be made to convert on-call employees to regular year-round employment within a specific period, e.g., 2 years, following the initial on-call appointment. Although not required, this type of commitment may be a significant incentive for candidates to accept on-call employment.)

3-6. Release and Recall Procedures

        a. An on-call employee is released to nonpay status at the end of peak workload periods and recalled to duty as needed for the next peak period. Release and recall must be accomplished according to a specific plan and in an established order. Procedures must be both equitable and uniformly applied. Release and recall may be based on performance, seniority, veteran preference, other appropriate indices, or a combination of factors. Regardless of the factors used, an employee should be notified at least 3 days prior to release or recall.




FOOTNOTES:
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