49:1363(120)AR - - Navy, Philadelphia Naval Shipyard, Philadelphia, PA and Intl. Federation of Professional and Technical Engineers, Planners, Estimators, Progressmen and Schedulers Union, Local 2 - - 1994 FLRAdec AR - - v49 p1363



[ v49 p1363 ]
49:1363(120)AR
The decision of the Authority follows:


49 FLRA No. 120

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF THE NAVY

PHILADELPHIA NAVAL SHIPYARD

PHILADELPHIA, PENNSYLVANIA

(Agency)

and

INTERNATIONAL FEDERATION OF PROFESSIONAL AND

TECHNICAL ENGINEERS

PLANNERS, ESTIMATORS, PROGRESSMEN AND SCHEDULERS UNION

LOCAL 2

(Union)

0-AR-2549

_____

DECISION

June 10, 1994

_____

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 Howard M. Golob 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 assigned an employee to fill a supervisory position in violation of the parties' collective bargaining agreement. For the following reasons, we find that the award is deficient. Accordingly, we will set aside the award.

II. Background and Arbitrator's Award

Michael Simmons was serving as a temporary supervisor of employees in "Code 235" (electrical and fire control system) pursuant to a temporary promotion, which is not in dispute in the instant grievance. Award at 4. Subsequently, the supervisor of "Code 233" (electronics section) employees resigned. Id. Prior to his resignation, when the Code 233 supervisor was away for long periods of time, other Code 233 employees were given temporary promotions. After the resignation, the Agency assigned Simmons to supervise Code 233 employees in addition to Code 235 employees. The Union filed a grievance alleging that the Agency violated the parties' collective bargaining agreement by selecting Simmons to fill the Code 233 supervisory position. The grievance was not resolved and was submitted to arbitration.

Initially, the Arbitrator determined that the grievance was arbitrable because it concerned the procedure by which an employee was selected to fill a vacant position. With regard to the merits of the grievance, the Arbitrator examined various provisions of the agreement, including Article 13, Section 5, and found that the "reassignment . . . was a pretense to circumvent the competitive, contractual procedure to fill the vacancy . . . ."(*) Id. at 5. Accordingly, the Arbitrator found that the Agency had violated the parties' agreement. The Arbitrator sustained the grievance and voided Simmons' selection.

III. Positions of the Parties

A. Agency

The Agency contends that the award is deficient because it is contrary to management's rights to assign work under section 7106(a)(2)(B) and to select from any appropriate source under section 7106(a)(2)(C) of the Statute.

Initially, the Agency states that Simmons was appointed to the position of temporary supervisor over Code 235 employees through competitive procedures and that there is no dispute regarding that promotion. The Agency explains that when the previous Code 233 supervisor retired, the Agency decided not to fill that position because of an expected facility closure. Rather, the Agency assigned Simmons the additional supervisory duties over Code 233 employees. The Agency maintains that the grievance involves the assignment of supervisory duties to an existing supervisor, rather than a promotion of Simmons. The Agency claims that the Arbitrator's award prevents management from assigning additional supervisory duties to an employee who is already a supervisor and, therefore, that the award interferes with management's right to assign work. The Agency also asserts that the award would require the Agency to fill a position through the use of competitive selection procedures each time a vacancy occurs in a supervisory position, in violation of management's right to assign work.

The Agency further maintains that as Simmons was already occupying a supervisory position, the negotiated agreement is not applicable because the assignment of duties in dispute was made to a non-bargaining unit employee. In support, the Agency cites International Association of Machinists and Aerospace Workers, Lodge 2424 and Department of the Army, Aberdeen Proving Ground, Maryland, 25 FLRA 194 (1987).

The Agency also contends that the award interferes with management's right to select from any appropriate source under section 7106(a)(2)(C) of the Statute. The Agency claims that the Arbitrator appeared to base his award on a conclusion that Simmons was not certified to work in Code 233. According to the Agency, Simmons was indeed qualified to perform Code 233 duties and there is no contract provision that would have prevented Simmons from performing those duties.

In determining whether the award is deficient because it interferes with management's rights under section 7106(a) of the Statute, the Agency maintains that the Authority should not apply the abrogation test established in Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309 (1990) (Customs Service). According to the Agency, the abrogation test is not applicable to this case because the Arbitrator did not apply or cite any provision of the parties' agreement that was violated and, consequently, was not enforcing a provision of the negotiated agreement.

However, assuming that the Arbitrator's reference to Article 13, Section 5 of the parties' agreement was the basis for the award, the Agency asserts that this provision is not applicable to the grievance. According to the Agency, Article 13, Section 5 requires that when management is making a temporary promotion, competitive procedures must be used if, after completing the period of service under a temporary promotion, an employee will have spent more than 120 days in a higher-graded position during the preceding 12 months. The Agency maintains that when Simmons was temporarily promoted to Code 235 supervisor, competitive procedures were used and that no other employee was temporarily promoted to act as Code 233 supervisor in 1993. According to the Agency, this grievance involves an assignment of duties in March 1993 and, therefore, Article 13, Section 5 cannot be a basis for the award. Consequently, the Agency argues that the abrogation test is not applicable and the award should be set aside because it is inconsistent with management's rights to assign work and to select from any appropriate source.

Nonetheless, that Agency claims that even if Article 13, Section 5 could be considered as a basis for the award, the award is deficient because that provision does not constitute an arrangement for employees adversely affected by the exercise of management's rights. In this regard, the Agency asserts that the only adverse effect arising from management's decision to assign Code 233 supervisory duties to Simmons was the denial of the opportunity for bargaining unit members to compete for the assignment of those higher level duties. The Agency maintains that the Authority has held that a contract provision that addresses only the denial of a negotiated benefit does not constitute an arrangement under section 7106(b)(3) of the Statute. Therefore, the Agency asserts that under Customs Service, Article 13, Section 5 cannot provide a basis for an award that interferes with the exercise of management's rights.

The Agency also contends that the award is deficient because it is based on a nonfact. According to the Agency, the Arbitrator concluded that the Agency violated the parties' agreement when it assigned Simmons to Code 233 supervisory duties. The Agency claims that the Arbitrator did not cite a specific provision of the parties' agreement that was violated by the Agency's action. However, even if the Arbitrator determined that the Agency acted contrary to Article 13, Section 5, the Agency asserts that this provision does not require that the Agency fill vacancies through competitive procedures. The Agency maintains that no provision of the parties' agreement was violated and that but for the Arbitrator's erroneous finding of a contract violation, the award would have been different. Accordingly, the Agency contends that the award is deficient and must be set aside.

B. Union

The Union contends that the Agency has not established that the Arbitrator's award is deficient. The Union claims that the Arbitrator found that the Agency had violated competitive, contractual procedures and that he then voided the offending action. In addition, the Union claims that the Arbitrator relied on Agency regulations and past practice, as well as the parties' agreement, in rendering the award.

The Union further asserts that the award does not interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute because the Arbitrator did not direct the assignment of duties to any particular employee. The Union also claims that the award does not interfere with the Agency's right to select under section 7106(a)(2)(C) of the Statute because the Arbitrator did not order the Agency to select a particular individual to fill the Code 233 supervisory position and did not direct the Agency to follow a specific procedure for filling the vacancy. Rather, the Union contends that the award is based on the Arbitrator's finding that the Agency's decision to assign Simmons to Code 233 supervisory duties was a pretext for avoiding merit selection, past practice, and contractual procedures. The Union maintains that the award was within the Arbitrator's authority to interpret the parties' agreement, past practice, and Agency procedures and policies.

The Union further contends that the Agency's argument that the award is based on a nonfact is misplaced. The Union argues that the Arbitrator was within his authority to interpret the parties' agreement as he did in the award, and that the award was also based on Agency policies and procedures.

IV. Analysis and Conclusions

In resolving the Agency's exceptions, we will determine whether the award is contrary to law because it directly interferes with management's rights under section 7106(a) of the Statute. See U.S. Department of the Army, Headquarters, U.S. Army Garrison, Fort A.P. Hill, Bowling Green, Virginia and American Federation of Government Employees, Local 2902, 45 FLRA 906, 909 (1992) (U.S. Army Garrison, Fort A.P. Hill). In so doing, and in agreement with the Agency, we find that the abrogation test set forth in Customs Service does not apply. The Authority will apply that test only where an arbitrator has enforced a contractual arrangement for employees adversely affected by the exercise of management's rights. We find nothing in the award to indicate that the Arbitrator was enforcing an arrangement contained in the parties' agreement. Instead, the Arbitrator found that the agreement merely governed the manner in which the Agency fills certain positions and that the Agency failed to follow the governing provisions. See U.S. Department of Health and Human Services, Social Security Administration, San Juan, Puerto Rico and American Federation of Government Employees, Local 2608, 46 FLRA 1134, 1142 (1993) (Customs Service not applicable to contract provision that set forth process by which agency would extend priority consideration).

We conclude, for the reasons set forth below, that the award is deficient because it is contrary to the exercise of management's rights under the Statute.

It is well established that the Agency's right to assign work includes the right to determine the employees to whom or the positions to which work will be assigned. U.S. Department of the Air Force, Air Force Flight Test Center, Edwards Air Force Base, California and American Federation of Government Employees, Local 3854, 48 FLRA 74, 89 (1993). Awards that interfere with that right are deficient as contrary to law. See, for example, U.S. Army Garrison, Fort A.P. Hill, 45 FLRA at 909. In this case, the Agency assigned Code 233 supervisory duties to Simmons, who was serving as a temporary supervisor over Code 235. In finding that the Agency failed to follow the parties' agreement and by voiding Simmons' selection, the award has the effect of preventing the Agency from determining what duties will be assigned to a particular employee. In other words, the award precludes the Agency from exercising its discretion to assign additional supervisory duties to an employee who is already a supervisor, in violation of section 7106(a)(2)(B) of the Statute.

We also find that the award is inconsistent with management's right to select under section 7106(a)(2)(C) of the Statute. That section provides that management has the right in filling positions to select from a group of properly ranked and certified candidates for promotion or from any other appropriate source. American Federation of Government Employees, Local 31 and U.S. Department of Veterans Affairs, Medical Center, Wade Park Unit, Cleveland, Ohio, 49 FLRA 957, 961-62 (1994). That management right also encompasses the discretion to decide whether to fill positions. See American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland, 44 FLRA 1405, 1465-66 (1992). See also National Federation of Federal Employees, Local 2096 and U.S. Department of the Navy, Naval Facilities Engineering Command, Western Division, 36 FLRA 834, 850 (1990) ("the discretion to decide whether or not to fill vacancies, or whether or not to fill vacancies with bargaining unit employees, [is a] component[] of the right to . . . make selections for appointments from any appropriate source under section 7106(a)(2)(C)."). In our view, the Agency has established that the award conflicts with management's right to select. In this connection, the Agency decided not to fill the vacant Code 233 supervisor after the incumbent's resignation. Instead, the Agency decided to assign the duties of that position to a current supervisor. In finding that the Agency circumvented the contract, and in voiding Simmons' selection, the Arbitrator essentially required the Agency to fill the vacant Code 233 supervisory position and to do so with a bargaining unit employee. Thus, the effect of the award is to require the Agency to fill a position when it has exercised its right not to do so. Such a result is inconsistent with the Agency's right to select under section 7106(a)(2)(C) of the Statute.

In sum, we find that the award interferes with management's rights to assign work u