U.S. Department of the Air Force, Dover Air Force Base, 436th Air Lift Wing, Dover, Delaware and American Federation of Government Employees, Local 1709

[ v55 p935 ]

55 FLRA No. 154

U.S. DEPARTMENT OF THE AIR FORCE
DOVER AIR FORCE BASE
436TH AIR LIFT WING
DOVER, DELAWARE
(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1709
(Union)

0-AR-3143

_____

DECISION

September 30, 1999

_____

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

Decision by Member Cabaniss for the Authority.

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Guy Raymond 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' collective bargaining agreement when it failed to observe the seniority list in assigning overtime. The Arbitrator awarded the grievant backpay to remedy being passed over for an overtime assignment.

      For the following reasons, we conclude that the Agency has not established that the award is deficient under either section 7122(a)(1) or 7122(a)(2) of the Statute. Accordingly we deny the Agency's exceptions that the award fails to draw its essence from the parties' agreement and that the award is contrary to management's right to assign work under section 7106 of the Statute. [ v55 p936 ]

II.     Background and Arbitrator's Award

A.     Background

      The grievant is an electrician assigned to the Agency's 436th Air Lift Wing. The Union filed a grievance claiming the Agency violated the overtime provision of the parties' agreement when it failed to offer the grievant overtime before offering the work to a less senior employee. The Agency responded that the overtime provision permitted management to select an employee based upon the qualifications needed for a particular job. In the absence of a resolution, the parties proceeded to arbitration.

      During the arbitration proceedings, the Agency conceded it did not follow the seniority list. Award at 4. The Agency maintained, however, that the nature of the work to be performed allowed it to assign the individual perceived best qualified and able to complete the work most expeditiously and effectively. Id. at 5. The Agency selected the less senior employee because he was part of a three-person, dedicated team assembled the day before to address an on-going problem with a particular aircraft. Id. The Union, on the other hand, claimed the grievant possessed the same specific specialized skills and knowledge as the less senior employee; had worked the same problem previously; and if asked, would have worked overtime in this situation. Id. at 14.

      The Arbitrator framed the issue as follows: "Did Management violate the current labor agreement viz. Article 27 Sec. 1 when it assigned [a less senior employee] to Aircraft 7000045 to work on a wing overheat problem on March 6, 1998; thereby denying the grievant of an overtime opportunity due to him. If so, what shall the remedy be." [n1]  Award at 2.

B.     Arbitrator's Award

      The Arbitrator found the phrase "as far as the work permits," within Article 27, Section 1, to be ambiguous. [n2]  Award at 16. The Arbitrator noted his duty was to give "th[is] instant troublesome phrase" a construction that would be "reasonable and equitable" to both parties. Id. He noted that his evaluation would include both an application of principles drawn from the phrase and consideration of past practice and custom. Id.

      The Arbitrator found that the Agency had followed the Article 27 overtime procedure on previous occasions. Award at 17. The Arbitrator found that a year earlier, the parties had considered the issue of seniority in assigning overtime through a grievance that was settled by issuing certain guidelines. Id. Those guidelines provided that "worker qualification within a specialty" would be used to define who would be considered "competent and qualified" under Article 27. Id. at 13. The Arbitrator additionally noted that during the arbitration proceedings in this case, the Agency neither claimed that the grievant was unqualified to perform the work, nor made any other reference regarding the grievant's qualifications for the overtime assignment, and concluded that the grievant was as equally qualified to do the overtime work as the individual selected. Id. at 16-17.

      The Arbitrator also made several findings with respect to the phrase, "as far as the work permits," noting, for instance, that it was reasonably certain that the Agency would not assign work to unqualified employees. Award at 16. The Arbitrator found the phrase "was unnecessarily added to Section 1 and has no meaning as to the intent of the contract." Id. at 17. The Arbitrator also found that the parties had properly followed procedures in the past by asking for volunteers. Id. He found that the phrase in question "does not stand alone and independent of the [Article 27 overtime] procedure which the Agency did not follow in this case." Id.

      The Arbitrator found that the Agency was required to follow the settlement guidelines regarding "worker qualification within a specialty" and concluded the Agency violated the parties' agreement when it failed to offer the grievant the opportunity to work overtime. Award at 13, 17. The Arbitrator awarded the grievant payment in the amount of 10 hours at the grievant's effective rate for the loss of overtime opportunity. Id. at 18. [ v55 p937 ]

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency excepts to the award on two grounds. First, the Agency cites General Services Administration, Region 8 and American Federation of Government Employees, AFL-CIO, Council 236, 21 FLRA 405, 406 (1986), claiming the award is deficient because it does not draw its essence from the parties' agreement. Exceptions at 3. According to the Agency, the Arbitrator's determination that the disputed phrase of Article 27, Section 1 was "not necessary" and "has no meaning" - after first stating that it was his responsibility to interpret the phrase in a manner which was both "reasonable and equitable to both parties" - causes the rest of the award to fail to draw its essence from the parties' agreement. More specifically, the Agency asserts that by finding the phrase "as far as the work permits" to be controlling and then declaring that the phrase had no meaning, the rest of the Arbitrator's award cannot be rationally derived from the parties' agreement. The Agency also argues that, by rejecting any meaning to this phrase, the rest of the award evidences a manifest disregard for the agreement (or, more particularly, this phrase). Finally, the Agency asserts that finding no meaning to the phrase "as far as the work permits" does not represent a plausible interpretation of the agreement. Exceptions at 3-5.

      Second, the Agency cites National Education Association, Overseas Education Association, Laurel Bay Teachers Association and U.S. Department of Defense, Department of Defense Domestic Schools, Laurel Bay Dependents Schools, Elementary and Secondary Schools, Laurel Bay, South Carolina, 51 FLRA 733, 739 (1996), for the proposition that the award is contrary to management's right to assign work. Exceptions at 5-6. The Agency contends that under the parties' agreement, management retains the right to decide who is competent and qualified to perform specific work. Id. at 6. According to the Agency, by placing emphasis on the phrase in Article 27, Section 1, that references "competent and qualified" employees, the Arbitrator implicitly recognized management's right to determine and select competent employees for specific work. Id. The Agency contends that notwithstanding this implicit recognition, the Arbitrator failed to recognize that the Agency was simply exercising its inherent right in this particular case. Id. Therefore, the Agency contends, the Arbitrator's award directly interferes with management's right to assign work and the award is contrary to law. Id.

B.     Union's Opposition

      The Union contends that both of the Agency's exceptions are without basis and reflect mere disagreement with the Arbitrator's interpretation and application of the agreement. Opposition at 5. According to the Union, the award is consistent with the parties' negotiated agreement because the guidelines that the Arbitrator relied upon were the result of the parties' prior negotiations to resolve a grievance involving essentially the same issue and had, as such, become incorporated as a part of Article 27. Id. at 2. In addition, the Union contends that nothing in the parties' agreement permits an exception to the distribution of overtime by seniority. Id. The Union asserts that interpretation of the contract is a matter solely for the Arbitrator, since it is the Arbitrator's construction of the agreement for which the parties had bargained. Id. at 5.

IV.     Analysis

A.     The Award Draws its Essence From the Collective Bargaining Agreement

      The Agency's first exception -- that the award fails to draw its essence from the parties' agreement -- challenges the Arbitrator's interpretation of the collective bargaining agreement. In reviewing challenges to 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.

      According to the Agency, it is clear that the Arbitrator decided to "write [this clause] out of the agree- [ v55 p938 ] ment[,]" refused to give the phrase "any meaning," or otherwise gave "no meaning or effect" to the disputed language. Exceptions at 4-5. That assertion is not borne out by the record, however.

      To the contrary, it is apparent that the Arbitrator attributed meaning to the disputed phrase. The Arbitrator found the Union's interpretation of the phrase (as meaning the "same work normally assigned to employees in their specific specialty skills and knowledge") to be "plausible." Award at 16. The Arbitrator also stated that the phrase was not necessary because he determined that it was "reasonably certain that the Agency would not assign responsible work to unqualified employees." Id. In addition, as the Arbitrator explained, this meaning incorporates "the procedure which the Agency did not follow in this case" (Award at 17), which in turn is based upon the settlement agreement of an earlier grievance and the full language of Article 27, Section 1 and the "past practice" in applying that language (Award at 16-17).

      Therefore, while the Arbitrator made such statements as the disputed phrase "was not necessary" and "was unnecessarily added to Section 1 and has no meaning as to the intent of the contract" (Award at 16-17), that does not mandate a conclusion that the Arbitrator stripped the contract language in question of any meaning whatsoever. Rather, and based upon the language of the award, it is clear that the Arbitrator found that the phrase "as far as the work permits" had meaning, a meaning which was derived from and based upon the extrinsic matters noted, supra.

      In the absence of any assertion other than those noted, the Agency has not shown that the Arbitrator's award is irrational, implausible, unfounded, or that it evidences a manifest disregard of the parties' collective bargaining agreement.

B.     The Award is Not Contrary to Management's Right to Assign Work Under Section 7106 of the Statute

      The Agency's second exception -- that the award is contrary to management's right to assign work -- challenges the award's consistency with law. The Authority reviews the question of law raised by the exception 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, the Authority assesses 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, the Authority defers 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) of the Statute, the Authority applies a two-prong test to determine if the award is deficient. 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 the BEP framework, 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. 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).

      The Authority has long held that, if management retains the right to determine the qualifications for assignment of certain work and whether individual employees possess such qualifications, then the procedures by which one of the qualified employees is assigned such work is negotiable under section 7106(b)(2) of the Statute. See American Federation of Government Employees, AFL-CIO, Local 3172 and Department of Health and Human Services, Social Security Administration, Sacramento, California, 49 FLRA 845, 848 (1994). More specifically, "an agency can be required to select a candidate for a position on the basis of seniority where management is able to determine the source from which it will select and the qualifications needed for the position." Id. (quoting