File 2: Opinion of Chair Segal

[ v55 p143 ]


Phyllis N. Segal, Chair, dissenting in part:

      For the following reasons, I dissent from the majority's decision that the contract provision -- Article 15, Section 1 -- as interpreted and applied by the Arbitrator in this case, is an enforceable procedure under section 7106(b)(2) of the Statute.

      Because the Agency's exceptions challenge the award as violating management's rights under section 7106(a) of the Statute, I agree with the majority that the appropriate analysis to follow is set forth in BEP, 53 FLRA at 151. I also agree with the majority's finding -- satisfying the threshold question under this analysis -- that the award affects a management right and, therefore, that it is necessary to apply BEP's two-prong test to determine if the award is deficient. However, without acknowledging or justifying its departure from precedent, the majority modifies this test. Moreover, the majority bases its conclusion on inherently inconsistent findings. In addition to disagreeing with this conclusion, I believe that the majority's analysis muddles the law and will add confusion in its application --doing an unfortunate disservice not only to the parties in this case, but to all who rely on Authority precedent.

      Under the first prong of BEP, the Authority determines whether the award enforces either an applicable law, within the meaning of section 7106(a)(2), or a contract provision negotiated under section 7106(b). BEP, 53 FLRA at 153 ("Prong I"). If it does, then the award is not deficient -- despite its effect on management's rights -- because management's rights are themselves constrained by such statutory and contractual requirements. Id. at 152. With respect to a contract provision, the Authority examines the provision "as interpreted and applied by the Arbitrator[.]" Id., 53 FLRA at 154 (emphasis added). [n1]  That is, the key to what the contract provision means is not how the Authority might interpret its words or how similar words were interpreted in other cases, but the arbitrator's interpretation, to which the Authority defers. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-77 (1990) (Labor).

      The Arbitrator here interpreted Article 15, Section 1 of the parties' agreement as requiring two things. First, he interpreted it to require the assignment of work on an overtime basis to unit employees, and only after that to supervisors if the Agency had no alternative. See Award at 16. Second, the Arbitrator interpreted the provision as requiring that, in assigning overtime work to unit employees, it must be assigned first to employees who have placed their name on the callback roster. See id. [ v55 p144 ]

      The majority concludes that BEP Prong I is satisfied because it finds Article 15, Section 1 similar to other contract provisions that the Authority has previously held to be procedures. [n2]  Majority at 7-8. I am unable to agree with this conclusion because it disregards the Arbitrator's interpretation of the contract provision and is not supported by Authority precedent. In addition, it cannot be squared with other conclusions reached by the majority.

      There is ample Authority precedent, including that cited by the majority, holding that provisions establishing an order in which equally qualified unit employees are assigned work, including overtime, are procedures under section 7106(b)(2). See id. But in relying on this precedent to find Article 15, section 1 to be a section 7106(b)(2) procedure, the majority ignores the Arbitrator's interpretation of the provision as precluding the assignment of work to supervisors if the work can be carried out by bargaining unit employees. See Award at 16. There is no precedent of which I am aware -- and none cited by the majority -- holding that a provision requiring the assignment of work to unit employees constitutes a procedure within the meaning of section 7106(b)(2). Indeed, long-standing Authority precedent holds, to the contrary, that such a provision is nonnegotiable. See, e.g., American Federation of Government Employees, Local 1409, AFL-CIO and U.S. Army Adjutant General, Publications Center, Baltimore, Maryland, 16 FLRA 352, 353 (1984) (provision having "net effect of limiting the assignment of overtime to bargaining unit employees" held outside the duty to bargain).

      In reaching its conclusion without regard to the Arbitrator's interpretation of the Article 15, Section 1, the majority implicitly rejects two established principles: that the Authority defers to the arbitrator's interpretation of contract provisions, and that we examine, under BEP Prong I, the provision as interpreted and applied by the arbitrator. Because there is no basis for finding that Article 15, Section 1, as interpreted and applied by the Arbitrator to require assigning overtime work to unit employees, is an enforceable procedure under section 7106(b)(2), I dissent from the majority's holding that it is.

      The majority's analysis under BEP Prong II confirms the infirmity of its finding that the contract provision applied by the Arbitrator constitutes a 7106(b)(2) procedure, and here again departs from the BEP analysis. The Authority's task under Prong II is to examine whether the award "reflect[s] a reconstruction" of what management would have done had it complied with the contract provision. BEP, 53 FLRA at 154. The majority, purporting to apply Prong II after finding that Article 15, Section 1 is an enforceable procedure, finds a portion of the Arbitrator's enforcement of this procedure invalid because it denies the Agency its management right to assign some or all of the work to supervisors. See Majority at 8, 10. In so doing, the majority finds that the Arbitrator could not require the Agency to do the very thing that he interpreted the provision to require. This misapplies BEP Prong II. In particular, it is unrelated to any inquiry about reconstructing what management would have done had it complied with that provision. Moreover, it is fundamentally inconsistent with the majority's initial finding that the provision is an enforceable procedure. The conclusion reached in effect rejects as unenforceable, based on management's rights, the same contract provision already found enforceable as an exception to management's rights under section 7106(b)(2).

      The majority's decision that it need not address the Agency's exception that the award fails to draw its [ v55 p145 ] essence from the parties' agreement, see Majority at 10 n.7, also, in my view, misapplies BEP. As explained above, we are required under BEP to examine the enforced contract provision "as interpreted and applied by the Arbitrator[.]" BEP, 53 FLRA at 154 (emphasis added). As such, the Agency's assertion that the Arbitrator's interpretation is deficient must be resolved at the outset, and cannot be avoided. Put simply, without resolving the essence exception, it is not possible to apply BEP[n3] 

      The internal inconsistency in the majority's decision, and its departure without explanation from Authority precedent, renders it inherently infirm. Either Article 15, Section 1, as interpreted and applied by the Arbitrator is enforceable, or it is not.

      Because I disagree with the majority that Article 15, Section 1, is an enforceable procedure, the award is deficient unless there is a basis to find that the contract provision was negotiated, as argued by the Union, under section 7106(b)(3). [n4]  The sole case relied on by the Union, National Treasury Employees Union, Chapter 174 and U.S. Department of the Treasury, Customs Service, Region IV, 45 FLRA 1051, 1053 (1992), does not support its claim. In that case, unlike this one, 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." As interpreted and applied by the Arbitrator, Article 15, Section 1, is more akin to the provision that was interpreted by the arbitrator in U.S. Department of Justice, Federal Bureau of Prisons, United States Penitentiary, Leavenworth, Kansas and American Federation of Government Employees, Local 919, 53 FLRA 165, 166 (1997) (Prisons). In that case, contract provisions requiring equitable distribution of overtime through use of sign-up lists were interpreted by the arbitrator to require "`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 166 (citing award). The Authority concluded that, as interpreted and applied by the arbitrator, the provisions in Prisons were not enforceable under section 7106(b)(3). Id. at 171.

      Although I am reluctant to invalidate an arbitrator's enforcement of a contract provision to which the parties had agreed, analysis consistent with Authority precedent makes it necessary to do so in this case. [n5]  Based on this precedent, I find that the award does not satisfy Prong I of BEP. Accordingly, contrary to the majority, I find that the award -- as it applies to bargaining unit employees as well as to supervisors -- is deficient as contrary to management's right to assign work and, therefore, must be set aside. [n6] 


File 1: Authority's Decision in 55 FLRA No. 023
File 2: Opiniion of Chair Segal


Footnote # 1 for 55 FLRA No. 023 - Opinion of Chair Segal

   See also, e.g., U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and National Treasury Employees Union, Chapter 201, 53 FLRA 222, 228 (1997) (Authority concluded that the relevant contract provision "[a]s interpreted and applied by the Arbitrator" constituted an arrangement negotiated under section 7106(b)(3) of the Statute); U.S. Department of Defense, Defense Logistics Agency, Defense Contract Management Command, Defense Contract Management Area Operations Boston, Boston, Massachusetts and National Association of Government Employees, Local R1-210, 53 FLRA 210, 215 (1997) (same). The principal that enforceability of a contract provision is determined based on the arbitrator's interpretation and application well predates BEP. See, e.g., Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309, 314 (1990) (Customs Service) (Authority determines whether a contract provision constitutes an enforceable arrangement under section 7106(b)(3) by examining the provision "as interpreted by the arbitrator[.]"); National Marine Fisheries Service, Northeast Region, National Oceanic and Atmospheric Administration, United States Department of Commerce, Gloucester, Massachusetts and International Organization of Masters, Mates and Pilots, AFL-CIO, Boston, Massachusetts, 22 FLRA 443, 445 (1986) (Authority concluded that contract provision, "as interpreted and applied by the [a]rbitrator," did not affect management's rights).


Footnote # 2 for 55 FLRA No. 023 - Opinion of Chair Segal

   The majority states that "the parties and the Arbitrator considered Article 15, Section 1 to constitute a procedure within the meaning of section 7106(b)(2) of the Statute." Majority at 7. I see no basis in the record for the implication that this is undisputed. The majority cites, as support, portions of the award--describing the Union's arguments and stating the Arbitrator's conclusions-- that contain the word "procedure." However, there is no indication that the Union or Arbitrator were referring to a procedure within the meaning of section 7106(b)(2). To the contrary, there is no reference to section 7106(b)(2) anywhere in the award and the Arbitrator made no finding on this point. The portion of the award cited by the majority that describes the Agency's arguments does not even contain the word "procedure."


Footnote # 3 for 55 FLRA No. 023 - Opinion of Chair Segal

   Although I find the Arbitrator's interpretation of Article 15, Section 1, strained, I do not find it irrational or implausible. Accordingly, I would deny the Agency's exception that the award fails to draw its essence from the parties' agreement. See Labor, 34 FLRA at 575-77.


Footnote # 4 for 55 FLRA No. 023 - Opinion of Chair Segal

   There is no assertion that the provision was negotiated under section 7106(b)(1). I note, however, that the majority inexplicably fails to address the Union's claim that the contract provision -- which, according to the Union, "require[s] the utilization of a voluntary callback list to initially fill an assignment" -- is enforceable as an arrangement under section 7106(b)(3). Union's Opposition at 7. In effect, the majority finds that the contract provision, as interpreted by the Arbitrator, is not fully enforceable without addressing the Union's alternative argument that would support enforcement under section 7106(b)(3).


Footnote # 5 for 55 FLRA No. 023 - Opinion of Chair Segal

   Of course, it is the Arbitrator's enforcement of the provision that is deficient. The same contract provision, as interpreted and applied differently, may well be enforceable. See Customs Service, 37 FLRA at 314 (although an award interpreting and applying a contract provision so a