53:0165(22)AR - - Justice, Federal Bureau of Prisons, U. S. Penitentiary, Leavenworth, KS and AFGE Local 919 - - 1997 FLRAdec AR - - v53 p165



[ v53 p165 ]
53:0165(22)AR
The decision of the Authority follows:


53 FLRA No. 22

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF JUSTICE

FEDERAL BUREAU OF PRISONS

UNITED STATES PENITENTIARY

LEAVENWORTH, KANSAS

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 919

(Union)

0-AR-2753

_____

DECISION

June 30, 1997

_____

Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member.

I. Statement of the Case

This case is before the Authority on exceptions to an award of Arbitrator Charles B. Blackmar 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 Regulations. The Union filed an opposition.

The Arbitrator sustained a grievance alleging that the Agency violated the parties' master and local supplemental agreements by assigning bargaining-unit work to a supervisor, rather than to a unit employee, to avoid paying overtime.

For the following reasons, we set aside the award on the ground that it is contrary to section 7106(a)(2)(B) of the Statute.

II. Background and Arbitrator's Award

When a unit employee failed to show up for his regular shift during a 5-day span, the Agency assigned his work on a non-overtime basis to a supervisor from the same shift rather than to a unit employee from a different shift who would have earned overtime for the assignment. The Union filed a grievance alleging that "the Agency took a supervisor out of a management position and put him in a bargaining unit position to avoid paying overtime" and thereby violated the parties' master and local supplemental agreements.(1) Exceptions, Exhibit B. The grievance proceeded to arbitration, and the Arbitrator framed the issue as:

Did management violate the Master Agreement or the Local Supplemental Agreement by assigning a supervisor to perform work . . . customarily performed by members of the collective bargaining unit . . . ? If there is a violation, what is the remedy?

Award at 5. The Arbitrator sustained the grievance, concluding that "management deprived the bargaining unit of five days of work" and that the Union, therefore, was "entitled to recover 40 hours of overtime pay." Id. at 13.

In reaching his conclusion, the Arbitrator stated that the agreements' "language, on its face," was "sufficient to justify the [U]nion's position." Id. at 11. Specifically, the Arbitrator determined that the "manifest sense" of the agreements was that "bargaining unit work shall be done by bargaining unit employees" and that "management . . . may not assign ordinary work [to supervisors] when bargaining unit employees are available." Id. at 12. As his award, the Arbitrator stated: "Management will pay for 40 hours of work at rates then prevailing for the classification [held by the absent unit employee], with the award to be divided equally among all employees holding [that] classification on that date." Id. at 13.

III. Positions of the Parties

A. Agency

The Agency challenges the award on four grounds. First, the Agency contends that the award is based on a nonfact. According to the Agency, the award presupposes that the supervisor was on overtime, not his regular shift, when he performed the work of the absent unit employee. This nonfact, the Agency asserts, led the Arbitrator to conclude erroneously that the Agency assigned overtime work to a supervisor.

Second, the Agency contends that the award does not draw its essence from the parties' agreements. According to the Agency, the award is based on a "flagrant misreading of the two agreement provisions[.]" Exceptions at 10. In particular, the Agency asserts that the provisions cannot be construed to mean that when a unit employee is absent from a regular shift, the Agency must assign his work on an overtime basis to another unit employee. Such a construction, the Agency asserts, "cannot in any rational way be derived from" and "evidences a manifest disregard of" the agreements. Id. at 11.

Third, the Agency contends that the award is contrary to section 7106(a)(2)(B) of the Statute because it enforces provisions affecting management's right to assign work. According to the Agency, the provisions at issue are not arrangements under section 7106(b)(3) of the Statute because they were not intended "to ameliorate the adverse [e]ffect of the exercise of a management right on unit employees." Id. at 8.

Finally, the Agency contends that the award is contrary to the Back Pay Act, 5 U.S.C. § 5596. According to the Agency, "the Arbitrator's remedy fails to meet the [Act's] 'but for' test" because "there is no way of knowing whether any of the [employees specified in the award] would have chosen to take [the] assignment." Id. at 13. The Agency also asserts that the award is contrary to the Back Pay Act because it directs "that the monetary award be paid directly to the Union" rather than to the individual or individuals entitled to compensation. Id.

B. Union

The Union responds to each of the four challenges raised by the Agency. First, the Union contends that the award is not based on a nonfact. According to the Union, the alleged nonfact--that the Agency assigned overtime work to a supervisor rather than to a unit employee--is not the central fact underlying the award.

Second, the Union contends that the award does not fail to draw its essence from the parties' agreements. In particular, the Union argues that "the collective bargaining agreement provisions in question are subject to a number of plausible interpretations, one of which was adopted by the Arbitrator[.]" Opposition at 8.

Third, the Union contends that although the award affects management's right to assign work under section 7106(a)(2)(B) of the Statute, the provisions enforced by the Arbitrator are arrangements that do not preclude the Agency from exercising that right. Accordingly, the Union asserts, the award is not deficient because the provisions satisfy the test established in Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309, 313-14 (1990) (Customs Service). In particular, the Union claims that "this case is controlled by" National Treasury Employees Union, Chapter 174 and U.S. Department of the Treasury, Customs Service, Region IV, 45 FLRA 1051 (1992), which, the Union adds, applied Customs Service and sustained an award enforcing a provision similar to those at issue here. Opposition at 5.

Finally, the Union contends that the award is not contrary to the Back Pay Act. According to the Union, "[i]mplicit in the Arbitrator's award is that a subset of the bargaining unit would have been available and willing to work the overtime opportunities denied by the Agency." Id. at 12. Therefore, the Union asserts, the award does not fail to satisfy the Act's "but for" test. Id. at 11.

IV. Analysis and Conclusions

A. The Award Is Not Based on a Nonfact

To demonstrate that an award is based on a nonfact, the appealing party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached. U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993). However, we will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties disputed at the arbitration. Id. at 594 (citing Mailhandlers v. U.S. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)). Here, the alleged nonfact--that the Agency assigned bargaining-unit work to a supervisor on an overtime basis--appears nowhere in the record. Consequently, aside from the Agency's assertion, there is no support for finding that the alleged nonfact was a ground, central or otherwise, for the Arbitrator's award. For these reasons, we deny the exception.

B. The Award Does Not Fail to Draw Its Essence From the Master and Local Agreements

The provisions at issue address how management is to proceed when overtime opportunities for the bargaining unit arise. The provisions describe those who are to be considered for such opportunities as "qualified employees," "members of the unit," and "employees with seniority." Exceptions, Exhibit C at 2; Award at 6. Under these circumstances, the Arbitrator's determination that management should have attempted to assign the work at issue to qualified and available unit employees before offering it to supervisors was not implausible, irrational, or unconnected to the agreements' wording. Accordingly, we conclude that the award does not fail to draw its essence from the agreements, and we deny the exception. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-77 (1990).

C. The Award Is Contrary to Section 7106(a)(2)(B) of the Statute

As this exception involves the award's consistency with law, we review the questions of law raised by the exception and the Arbitrator's award de novo. See National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)).

The right of an agency to assign work under section 7106(a)(2)(B) of the Statute includes the authority to determine the particular duties to be assigned, when work assignments will occur, and to whom or what positions the duties will be assigned. American Federation of Government Employees, Local 3392 and U.S. Government Printing Office, Public Documents Distribution Center, Pueblo, Colorado, 52 FLRA 141, 143 (1996). In applying that standard, the Authority has stated that proposals to confine work assignments to the bargaining unit are contrary to section 7106(a)(2)(B). American Federation of Government Employees, AFL-CIO, Local 2317 and U.S. Marine Corps, Marine Corps Logistics Base, Nonappropriated Instrumentality, Albany, Georgia, 29 FLRA 1587, 1593 (1987), dismissed as to other matters, No. 88-8006 (11th Cir. Aug. 30, 1990).(2)

As interpreted by the Arbitrator, the provisions in this case mean that "bargaining unit work shall be done by bargaining unit employees" and that "[m]anagement . . . may not assign ordinary work [to supervisors] when bargaining unit employees are available." Award at 12. By restricting the assignment of work to the bargaining unit, the provisions affect to whom and when ordinary work will be assigned and depart from the principle that management may not be precluded from assigning ordinary work to positions outside the bargaining unit. Consequently, on the basis of the precedent cited above, we conclude that the provisions affect management's right to assign work under section 7106(a)(2)(B) of the Statute.

Although the provisions affect the exercise of a management right, the award enforcing them will not be found deficient under section 7106(a) of the Statute if the provisions: (1) constitute an arrangement under section 7106(b)(3) of the Statute, and (2) do not abrogate the exercise of a management right. Customs Service, 37 FLRA at 313-14.

In order to constitute an arrangement, a provision must seek to mitigate adverse effects "flowing from the exercise of a protected management right." U.S. Department of the Treasury, Office of the Chief Counsel, Internal Revenue Service v. FLRA, 960 F.2d 1068, 1073 (D.C. Cir. 1992) (IRS, Chief Counsel). In this case, it is neither argued nor apparent that management's assignment of work to supervisors, in and of itself, adversely affected unit employees. The sole adverse effect that the Union identifies to support its claim that the provisions constitute an arrangement is the "den[ial] [of] . . . the 'opportunity for overtime' provided for in the collective bargaining agreement." Opposition at 7. Under these circumstances, IRS, Chief Counsel and its progeny compel a conclusion that the provisions are not arrangements within the meaning of the Statute.(3) See, e.g., American Federation of Government Employees, Council of Prison Locals, Local 3974 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, McKean, Pennsylvania, 48 FLRA 225, 230-31 (1993) (holding that proposal to prevent management from filling job vacancies with nonunit candidates when qualified unit employees were available was not an arrangement). Accordingly, we conclude that the award is deficient and set it aside as contrary to section 7106(a) of the Statute.(4)

V. Decision

The award is set aside.

APPENDIX

Article 18, Section (n) of the master agreement provides in pertinent part:

Opportunities for overtime shall be distributed and rotated equitably among qualified employees. Specific procedures regarding overtime assignments may be negotiated locally. Nothing in this Section is meant to restrict the Employer's management of overtime costs. Overtime records including sign-up lists, offers made by the Employer for overtime, and overtime assignments, will be monitored by the Employer and the Union to . . . ensure equitable distribution of overtime assignments to members of the unit.

Exceptions, Exhibit C at 2.

Article 18, Section (j) of the local supplemental agreement provides in pertinent part:

A clear and legible signup sheet will be maintained by Department Heads, on which Employees may indicate the days and shifts for which they are available for overtime. . . . The first consideration for assigning overtime will be given to those employees with seniority.

Award at 6.




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

1. Specifically, the Union alleged that the Agency's action violated Article 18, Section (n) of the master agreement and Article 18, Section (j) of the local supplemental agreement. The pertinent text of these provisions is set forth in the Appendix.

2. The principle that management may not be precluded from assigning work normally performed by unit employees to supervisors is well-established in Authority case law. See, e.g., Southwestern Power Administration and International Brotherhood of Electrical Workers, Local 1002, 22 FLRA 475, 476-77 (1986); American Federation of Government Employees, AFL-CIO, International Council of U.S. Marshals Service Locals and Department of Justice, U.S. Marshals Service, 11 FLRA 672, 674-76 (1983) (Proposals 2 and 3); American Federation of Government Employees, AFL-CIO, National Joint Council of Food Inspection Locals and Department of Agriculture, Food Safety and Quality Service, Washington, D.C., 9 FLRA 663, 663-64 (1982) (Proposal 1). We note, however, that in National Association of Agriculture Employees, Local 39 and U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Elizabeth, New Jersey, 49 FLRA 319, 327-331 (1994) (Department of Agriculture) (Proposal 4), the Authority neither acknowledged that principle nor stated an intention to depart from it in holding that a proposal to place conditions on the assignment of unit work to supervisors was within the duty to bargain. The Union does not invoke Department of Agriculture, arguing instead that the provisions are an arrangement under section 7106(b)(3). As such, the Union effectively concedes that the provisions are contrary to section 7106(a). Under these circumstances, we do not follow Department of Agriculture to the extent that it is inconsistent with the prior precedent.

3. In reaching this conclusion, we note that the Union is not seeking reversal of Authority precedent based on IRS, Chief Counsel but, rather, is defending the award under a line of precedent that predated, and effectively was overruled by, the Authority's adoption of IRS, Chief Counsel.

4. In light of this conclusion, we find it unnecessary to address the Agency's exception based