Social Security Administration, Southeastern Program Service Center, Birmingham Alabama and American Federation of Government Employees, Local 2206

[ v55 p320 ]

55 FLRA No. 49

SOCIAL SECURITY ADMINISTRATION
SOUTHEASTERN PROGRAM SERVICE CENTER
BIRMINGHAM, ALABAMA
(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2206
(Union)

0-AR-3030

_____

DECISION

March 26, 1999

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

Decision by Chair Segal for the Authority.

I. Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Edward P. Goggin 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 did not file an opposition to the Agency's exceptions.

      The Arbitrator found that the Agency violated the parties' collective bargaining agreement when it refused to permit employees to work part of their scheduled overtime prior to the beginning of their tour of duty. As a remedy, the Arbitrator directed the Agency to advise employees of this right. For the reasons explained below in Section IV, we find that the award is deficient because it affects management's right to assign work, and there is no basis in the record for concluding that the award provides a remedy for a violation of a contract provision negotiated pursuant to section 7106(b) of the Statute. Accordingly, we vacate the award.

II. Background and Arbitrator's Award

      The Agency instituted a requirement that, as relevant here, any scheduled overtime assignments must consist of a minimum of 1 hour per day. Subsequently, the Agency sent a message (hereinafter the "No Time-Splitting Message") to employees, notifying them that they were not permitted to combine time worked in the morning (prior to their tour of duty) with time worked in the evening (after their tour of duty) in order to total the minimum 1 hour of daily overtime.

      The Union filed a grievance alleging that the Agency's refusal to allow employees to work part of their 1-hour minimum overtime prior to the beginning of their work day violated Article 10, Section 3C of the parties' collective bargaining agreement. [n1]  When the grievance was not resolved, it was submitted to arbitration, where the Arbitrator set forth the issue as follows: "Does the Agency's change made on 9/6/96 [the No Time-Splitting Message] which denies employees on a fixed tour of duty the opportunity to work overtime . . . prior to the beginning of their tour of duty violate Article 10, Section 3C of the Agreement?" Award at 3. [n2] 

      The Arbitrator found that prior to the No Time-Splitting Message, the only limitation with regard to splitting overtime was that employees were required to perform overtime work in not less than 15-minute increments. The Arbitrator also found that, prior to the No Time-Splitting Message, employees had regularly split their scheduled overtime between their pre-tour hours and post-tour hours.

      Based on the Agency's prior practice, the Arbitrator determined that "the proper interpretation of the language of Article 10, Section 3C[] . . . is to allow employees to split their overtime[.]" Award at 9. The Arbitrator found that the Agency violated Article 10, Section 3C by denying employees the right to work overtime prior to the beginning of their tour of duty. Accordingly, the Arbitrator sustained the grievance and directed the Agency to advise employees that they have the right to work their scheduled overtime during their pre-tour hours.

III. Positions of the Parties

A. Agency

      The Agency asserts that the award is deficient on two grounds. [n3]  First, the Agency argues that "proposals [ v55 p321 ] that limit the duration of work assignments; i.e., overtime, affects [sic] the exercise of management's right" to assign employees under 7106(a)(2)(A) and to assign work under 7106(a)(2)(B). Exceptions at 4, citing American Federation of Government Employees, Local 3172 and U.S. Department of Health and Human Services, Social Security Administration, Modesto, California, 48 FLRA 489, 491-92 (1993) and American Federation of Government Employees, Council of Locals No. 163 and U.S. Department of Defense, Defense Contract Audit Agency, 51 FLRA 1504, 1513 (1996). The Agency also contends that the Authority has consistently held that the right to assign work includes the right to determine when overtime work will be performed. See Exceptions at 3, citing American Federation of Government Employees, Local 3157 and U.S. Department of Agriculture, Federal Grain Inspection Service, 44 FLRA 1570, 1596 (1992) (Federal Grain Inspection Service) (Proposal 5). According to the Agency, the award "abrogates management's right to determine when overtime will be assigned," and also "directly interferes" with management's right to assign overtime. Exceptions at 3, 4.

      Second, the Agency argues that the award fails to draw its essence from the parties' agreement, because Article 10, Section 3C does not address when overtime work may be performed. Instead, according to the Agency, this provision is an "appropriate arrangement[] for employees; i.e., compensation protections for employees to ensure them that if they work overtime, they will be paid in 15-minute increments." Id. at 4.

B. Union

      The Union did not file an opposition.

IV. Analysis and Conclusions

      The Agency's first exception -- that the award is contrary to management's right to assign work -- challenges the award's consistency with law, and as such, we review the question 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)). In applying a de novo standard of review, we assess whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, we defer to the arbitrator's underlying factual findings. See id.

      The Authority's framework for resolving exceptions alleging that an award violates management's rights under section 7106 of the Statute is set forth in U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and National Treasury Employees Union, Chapter 201, 53 FLRA 146, 151-54 (1997) (BEP). Upon finding that the award affects a management right under section 7106(a), the Authority applies a two-prong test. Under prong I of this framework, the Authority examines whether the award provides a remedy for a violation of either an applicable law, within the meaning of section 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to section 7106(b) of the Statute. Id. at 153. If the award provides such a remedy, the Authority will find that the award satisfies prong I of the framework and will then address prong II. Under prong II of BEP, the Authority considers whether the arbitrator's remedy reflects a reconstruction of what management would have done if management had not violated the law or contractual provision at issue. Id. at 154. If the arbitrator's remedy reflects such a reconstruction, then the Authority will find that the award satisfies prong II.

A. The award affects management's right to assign work.

      Management's right to assign work includes the right to assign overtime. See Federal Grain Inspection Service, 44 FLRA at 1596. "The right to assign overtime includes the right to determine when the overtime will be performed." Id., citing National Association of Government Employees, SEIU, AFL-CIO and Veterans Administration, Veterans Administration Medical Center, Department of Memorial Affairs, 40 FLRA 657, 670-71 (1991) (Provision 4).

      As interpreted by the Arbitrator, Article 10, Section 3C of the parties' agreement requires the Agency to permit its employees to work part, if not all, of their overtime before their tour of duty begins, without regard to the time of day the Agency determines that it needs overtime work to be performed. As the Agency's right to assign work includes the right to determine when overtime will be performed, the award affects the Agency's right to assign work under section 7106(a)(2)(A) of the Statute. [ v55 p322 ]

B. There is no basis in the record for concluding that the award provides a remedy for a violation of a contract provision that was negotiated pursuant to section 7106(b) of the Statute.

      Because the Union did not file an opposition, the Union does not argue that Article 10, Section 3C constitutes a provision negotiated pursuant to section 7106(b) of the Statute. Nor has the Authority heretofore found a provision similar to Article 10, Section 3C, as interpreted by the Arbitrator, to constitute either a procedure under section 7106(b)(2), or an appropriate arrangement under section 7106(b)(3).

      Because the award affects management's right to assign work under section 7106(a)(2)(B) of the Statute, and because there is no basis in the record for finding that Article 10, Section 3C, as interpreted by the Arbitrator, was negotiated under section 7106(b), the award does not satisfy prong I of BEP. Accordingly, we find the award deficient and grant the Agency's exception. [n4] 

V. Order

      The award is vacated.






Footnote # 1 for 55 FLRA No. 49

   Article 10, Section 3C of the parties' agreement provides, in pertinent part, that "[w]hen an employee . . . works regular overtime, such overtime will be scheduled and paid in increments of 15 minutes." Award at 2. The parties do not dispute that scheduled overtime must be worked in 15-minute blocks of time.