U.S. Department of Defense, Defense Logistics Agency, Red River Army Depot, Texarkana, Texas and National Association of Government Employees, Local R-14-52

[ v55 p523 ]

55 FLRA No. 91

U.S. DEPARTMENT OF DEFENSE
DEFENSE LOGISTICS AGENCY
RED RIVER ARMY DEPOT
TEXARKANA, TEXAS
(Agency)

and

NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R-14-52
(Union)

0-AR-3102

_____

DECISION

June 29, 1999

_____

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

Decision by Member Wasserman for the Authority.

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Carol Kyler 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 to the Agency's exceptions.

      The Arbitrator concluded that the Agency violated the overtime provisions of the collective bargaining agreement continuously for a period of a year by failing to offer the grievants overtime in accordance with those contractual provisions. To remedy the violation, the Arbitrator awarded back pay. However, the Arbitrator limited the remedy to the time period of the 15 days immediately prior to the filing of the grievance.

      For the following reasons, we conclude that the Agency has failed to establish that the award is deficient. Accordingly, we deny the Agency's exceptions.

II.     Background and Arbitrator's Award

      The Union filed a grievance on behalf of three employees, claiming that the Agency had violated Article XI, Section 2 of the parties' collective bargaining agreement by failing to equitably distribute overtime among employees who were assigned to the same title, series, and grade within the immediate organizational element. Specifically, the Union claimed that the Agency assigned 540 hours of overtime to another employee between May 1996 and April 1997 that should have been assigned to the grievants. The grievants and the employee to whom the overtime was assigned (the selectee) are on an overtime rotation roster established by the Agency. Article XI, Section 2 states, in relevant part:

Upon the Employer's determination of the organizational element that will perform the overtime work, overtime offers will be equitably distributed on a rotational basis among the employees who meet the requirements of the prospective assignment and who are assigned to the same title, series, and grade within the immediate organizational element. Exceptions to the normal rotation roster may occur when work performed requires assignment of personnel who normally perform the duties for continuity of purposes. . .

Award at 5 [Emphasis in the original].

      The overtime assignments in dispute were "the processing, or closing, of late lines" (closing of late lines). Id. The closing of late lines entails, among other things, performing research on the location of "material" requested by customers that has not been shipped by the Agency. Id. at 6.

      The Agency determined that the accuracy with which an employee was able to perform work was a necessary qualification for the disputed overtime assignments. This determination was based on the Agency's change to a new computer system and its need to ensure the accuracy of data concerning the closing of late lines entered into both the old and new computer systems. See id. It was the Agency's view that the selectee was the "best qualified" for the assignments because of her accuracy in locating material in the various warehouses on the depot. Id. The Agency believed that the basis for the selectee's accuracy was that she applied a method of research different from that of the grievants. Instead of telephoning the warehouses to locate the material, as would be done by the grievants, she would go to the warehouses and locate the material herself. See id.

      The grievance was submitted to arbitration on the following stipulated issues:

a.     Is the grievance . . . arbitrable?
b.     Did the Agency violate the Collective Bargaining Agreement (CBA) when it, allegedly, failed to offer the Grievant's overtime in accor- [ v55 p524 ] dance with Article XI for the period of May 31, 1996 through April 16, 1997?
c.     If so, what is the proper remedy?

Id. at 2.

      As an initial matter, the Arbitrator concluded that the grievance was filed timely, and, therefore, arbitrable. The Arbitrator rejected the Agency's argument that the grievance was untimely filed because the grievants knew or should have known about the disputed overtime assignments long before they allegedly first became aware of the fact on April 14, 1997. The Arbitrator stated that Article XXX, Section 9 merely provides that a grievance must "be filed within fifteen calender days of the incident or learning of the incident being grieved." Id. at 4. The Arbitrator found that the grievance was timely filed because the Union filed the grievance on April 16, 1997, two days after the grievants first learned of the incident being grieved.

      As to the merits of the grievance, the Arbitrator concluded that the Agency violated Article XI, Section 2 of the parties' collective bargaining agreement by failing to offer the grievants overtime in accordance with that contractual provision for the period May 31, 1996, through April 16, 1997. The Arbitrator stated that Article XI, Section 2 of the parties' agreement constitutes "procedures that would be followed by the Agency when exercising its right to make [overtime] assignments." Id. at 5.

      The Arbitrator found that the grievants and the selectee were assigned to the same title, series, and grade within the immediate organizational element. The Arbitrator further found that the "prospective . . . assignment" under the contractual provision was the closing of late lines. Id. at 6.

      The Arbitrator, as relevant here, rejected the Agency's contention that the selectee was the best qualified for the overtime assignments because of her accuracy in locating material in the various warehouses on the depot. The Arbitrator noted that to qualify for an overtime assignment under the contractual provision, an employee must only "meet[] the requirements" of the assignment and not be the "best qualified" for the assignment. Id. at 7. The Arbitrator found that the grievants satisfied the qualifications for the overtime assignments because their position description contains a performance element concerning the closing of late lines and they previously had performed that task on overtime. See id. at 5 and 6-7.

      The Arbitrator found no merit to the Agency's argument that the basis for the selectee's accuracy in locating material was that she applied a method of research different from that of the grievants. The Arbitrator found that both the grievants and the selectee essentially used the same "clerical" method. Id. at 6. The Arbitrator noted that, while the selectee physically searched various warehouses on the depot to obtain the location of material, the grievants accomplished the same purpose by use of the telephone.

      As a remedy for the violation of the parties' agreement, the Arbitrator awarded back pay. In this regard, the Arbitrator found that the Agency's violation of the overtime provisions of the parties' agreement denied the grievants "the opportunity to work overtime . . . which they otherwise would have performed, and that, but for such action, they would not have suffered the withdrawal or reduction in pay." Id. at 8. However, the Arbitrator determined that, to the extent the grievance concerned a continuing violation, she would limit the remedy to the time period of the immediate 15 days prior to the filing of the grievance on April 16, 1997. The Arbitrator also awarded attorney fees, and retained jurisdiction in the event a dispute arises concerning the implementation of the award.

III.     Positions of the Parties

A.     Agency's Exceptions

      First, the Agency contends that the award violates its right to assign work under section 7106(a)(2)(B) of the Statute because the contractual provision, as enforced by the Arbitrator, "abrogates" management's right to determine the qualifications for assignments of overtime. Exceptions at 2 and 17. The Agency maintains that the Arbitrator did not enforce a contractual provision that was a procedure providing for the assignment of employees previously judged by management to be equally qualified to perform the disputed overtime assignments. Id. at 6. Rather, the Agency maintains that, under the agreement, management retained its right to establish the particular qualifications and skills to perform overtime work, and it had no duty to provide overtime to the grievants.

      The Agency argues that the selectee, and not the grievants, was qualified for the overtime assignments. The Agency asserts that the grievants had been previously judged by management to be qualified only as to the closing of late lines "using a limited clerical method." Id. at 6. The Agency states that the selectee's method to locate material was more than clerical in nature as she would determine the cause for the delay in [ v55 p525 ] the shipment of material. Thus, the Agency maintains that, by finding that the Agency improperly failed to assign the grievants the overtime, the Arbitrator substituted her judgment for that of management concerning the qualifications of the grievants.

      Consequently, the Agency claims that the award abrogates management's right to determine the qualifications for assignments of overtime. The Agency cites Bureau of Engraving and Printing, Washington, D.C. and International Association of Machinists, Franklin Lodge 2135, Washington, D.C., 32 FLRA 531, 537 (1988) (Bureau of Engraving and Printing).

      Second, the Agency contends that the award is based on a nonfact. The Agency asserts that the Arbitrator's finding that the grievants met the requirements of the disputed overtime assignments because the grievants and the selectee apply the same method to close late lines, is a nonfact. The Agency asserts that this finding is a central fact underlying the award that is clearly erroneous, and that the Arbitrator would have reached a different result but for that finding.

      Finally, the Agency contends, without explanation, that the award fails to draw its essence from the parties' collective bargaining agreement.

B.     Union's Opposition

      The Union contends that the Arbitrator correctly concluded that the Agency violated the overtime provisions of the parties' collective bargaining agreement. The Union argues that the award does not interfere with management's right to assign work. Rather, the Union states that "the agency's right to assign work is subject to appropriate arrangements which have been negotiated[.]" Opposition at 3.

      The Union also argues that the Arbitrator did not establish the particular qualifications and skills to perform the disputed overtime assignments, but, instead, found that the grievants met the qualifications of the assignments based on the record. Therefore, the Union maintains that the Agency's exceptions do not provide a basis for finding the award deficient.

IV.     Analysis and Conclusions

A.     The Award Is Not Contrary to Management's Right to Assign Work Under Section 7106(a)(2)(B) of the Statute.

      The Authority's role in reviewing arbitration awards depends on the nature of the exceptions raised by the appealing party. See U.S. Customs Service v. FLRA, 43 F.3d 682, 686 (D.C. Cir. 1994). In National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995), the Authority stated that if the arbitrator's decision is challenged, as it is here, on the ground that it is contrary to any law, rule, or regulation, the Authority will review the legal question de novo. In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. 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, the Authority defers to the arbitrator's underlying factual findings. See id.

      The Authority's framework for resolving exceptions to arbitration awards alleging that the 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 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, 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, the Authority will find that the award satisfies Prong II. An award that fails to satisfy either Prong I or Prong II will be set aside or remanded to the parties, as appropriate. See U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Depot, Norfolk, Virginia and International Association of Machinists and Aerospace Workers, Local Lodge 97, 54 FLRA 180, 184-85 (1998).

1.     The Award Affects Management's Right to Assign Work Under Section 7106(a)(2)(B) of the Statute.

      The right to assign work, under section 7106(a)(2)(B) of the Statute, includes the right to determine the particular qualifications and skills needed to perform the work and to make judgments as to whether [ v55 p526 ] a particular employee meets those qualifications. See American Federation of Government Employees, Local 2761 and Department of the Army, Army Publications Distribution Center, St. Louis, Missouri, 32 FLRA 1006, 1008 (1988). The right to assign work encompasses work which is performed on overtime. Id. The Authority has also held that an award requiring an agency to adhere to objective criteria in assigning overtime affects, among other management rights, the right to assign work under section 7106(a)(2)(B) of the Statute. U.S. Department of Veterans Affairs, Medical Center, Coatesville, Pennsylvania and National Association of Government Employees, Local R3-35, 55 FLRA 138, 140 (1999) (Chair Segal dissenting in part) (Coatesville); U.S. Department of Commerce, Patent and Trademark Office and Patent Office Professional Association, 37 FLRA 1204, 1214 (1990). Here, the award requires the Agency to follow the procedure for the equitable rotation of overtime among qualified employees established under Article XI, Section 2 of the agreement. Based on Authority precedent, the award ordering the Agency to utilize the overtime roster procedure affects management's rights. See Coatesville, 55 FLRA at 141.

2.     The Award Satisfies Prong I of BEP.

      In determining whether an award satisfies Prong I of BEP, the Authority determines whether the provision of the agreement being enforced by the Arbitrator was negotiated pursuant to section 7106(b) of the Statute. In the instant case, as interpreted by the Arbitrator, Article XI, Section 2 of the agreement requires the Agency to use the overtime roster procedure when employees are needed to work overtime. The Arbitrator's interpretation of this provision, and his finding that the Agency violated it, demonstrate that the Arbitrator was enforcing a provision in the parties' agreement within the meaning of BEP Prong I. See BEP, 53 FLRA at 153.

      Accordingly, we must now determine whether the provision was negotiated pursuant to a subsection of 7106(b). A contract provision negotiated under section 7106(b)(3) of the Statute satisfies Prong I of BEP. Under the framework used to determine whether a provision was negotiated under section 7106(b)(3) set forth in Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309, 313-14 (1990) (Customs Service), a provision is found to have been negotiated under section 7106(b)(3) if it constitutes an arrangement that does not abrogate the exercise of a management right.

      The Agency argues that the award abrogates its right to assign work. Since the Agency raises abrogation as an issue, we construe the Agency's argument as an acknowledgment that, in its view, the contract provision enforced by the Arbitrator, Article XI, Section 2, was negotiated pursuant to section 7106(b)(3) of the Statute. In response to the Agency's argument, the Union states that "the agency's right to assign work is subject to appropriate arrangements which have been negotiated[.]" Opposition at 3. Thus, the parties do not dispute that Article XI, Section 2, as interpreted and applied by the Arbitrator, constitutes an arrangement within the meaning of section 7106(b)(3) of the Statute. [n1]  Accordingly, under Prong I of BEP, we address only the issue of whether the award abrogates management's right to assign work. See, e.g., U.S. Department of the Air Force, Seymour Johnson Air Force Base, North Carolina and National Association of Government Employees, Local R5-188, 55 FLRA 163, 167 (1999).

      A provision abrogates management's rights if, as it is interpreted and applied by the arbitrator, it "precludes an agency from exercising[] a management right[.]" Customs Service, 37 FLRA at 314. As noted above, the right to assign work, under section 7106(a)(2)(B) of the Statute, includes the right to determine the particular qualifications and skills needed to perform the work and to make judgments as to whether a particular employee meets those qualifications. The right to assign work encompasses work which is performed on overtime.

      We reject the Agency's claim that Article XI, Section 2, as enforced, abrogates management's right to determine the qualifications for assignments of overtime. The Arbitrator did not require the Agency to assign work to unqualified employees because the Agency had already determined that the grievants were qualified to perform the duties. The Agency had assigned them to those duties previously. The Arbitrator made no finding as to the grievants' qualifications to perform the overtime work assignments but, rather, applied the Agency's previous determination that they were qualified. Thus, Article XI, Section 2, as enforced by the Arbitrator, reserves to management the right to assign work, under section 7106(a)(2)(B) of the Statute--that is, to determine the particular qualifications and skills needed to perform overtime and to make judgments as to whether a particular employee meets those [ v55 p527 ] qualifications. Therefore, the award does not abrogate management's right to assign work under section 7106(a)(2)(B) of the Statute.

      Consistent with the foregoing, we conclude the award satisfies Prong I of BEP.

      The Agency's reliance on Bureau of Engraving and Printing, 32 FLRA 531 is misplaced. In that case, the Authority found that award was contrary to management's rights to establish qualifications and to determine whether particular employees meet those qualifications because the arbitrator rejected management's determination as to those matters. Here, in contrast, the Arbitrator applied the Agency's previous determination that the grievants were qualified.

3.     The Award Satisfies Prong II of BEP.

      Next, we turn to Prong II of the BEP analysis. Under Prong II, the remedy awarded must reflect a reconstruction of what management would have done if management had not violated the agreement provision on a section 7106(b) matter. See BEP 53 FLRA at 154. Here, the Arbitrator ordered that the grievants be paid for all of the missed overtime opportunities. The Arbitrator based her remedy on a finding that, had the Agency followed the overtime roster procedure set forth in Article XI, Section 2, it would not have assigned all of the work to the selectee. The Arbitrator's award enforced the agreement provision as if the Agency had observed the agreement provision. Accordingly, the award satisfies Prong II of the BEP test.

      As the award satisfies both prongs of BEP, it is not deficient as inconsistent with management's right to assign work, and we deny this exception.

B.     The Award Is Not Based on a Nonfact.

      The Agency asserts that the Arbitrator's determination that the grievants met the requirements of the disputed overtime assignments because the grievants and the selectee apply the same method to close late lines, is a nonfact. To establish that an award is based on a nonfact, the excepting party must demonstrate that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. 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). A party may not raise nonfact allegations concerning a matter that was disputed below. U.S. Department of the Interior, Bureau of Mines, Pittsburgh Research Center and American Federation of Government Employees, Local 1916, 53 FLRA 34, 40 (1997).

      It is clear that whether the grievants satisfied the qualifications for the overtime assignments is a matter that the parties disputed below. Accordingly, it does not constitute a nonfact. Therefore, this exception provides no basis for finding the award deficient.

C.     The Award Draws Its Essence From the Parties' Agreement.

      In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential standard of review that Federal courts use in reviewing arbitration awards in the private sector. See 5 U.S.C. § 7122(a)(2); American Federation of Government Employees, Council 220 and Social Security Administration, Baltimore, Maryland, 54 FLRA 156, 159 (1998). Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the collective bargaining agreement when the appealing party establishes that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990). The Authority and the courts defer to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. at 576.

      The Arbitrator concluded that the Agency violated Article XI, Section 2