United States Department of the Navy, Supervisor of Shipbuilding, Conversion and Repair, Gulf Coast, Pascagoula, Mississippi (Agency) and National Association of Government Employees, Local R5-125 (Union)

[ v62 p328 ]

62 FLRA No. 57

UNITED STATES
DEPARTMENT OF THE NAVY
SUPERVISOR OF SHIPBUILDING,
CONVERSION AND REPAIR, GULF COAST
PASCAGOULA, MISSISSIPPI
(Agency)

and

NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES
LOCAL R5-125
(Union)

0-AR-4005

_____

DECISION

December 20, 2007

_____

Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Robert G. Williams filed by the Agency under § 7122 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 exceptions.

      The Arbitrator sustained a grievance alleging that the Agency violated the parties' agreement by temporarily reassigning the grievant from one Agency division (Code 350D) to another division (Code 317B).

      For the reasons that follow, we deny the exceptions.

II.     Background and Arbitrator's Award

      The Agency is responsible for monitoring, supervising, and inspecting naval vessels under construction at privately owned shipyards along the Gulf Coast, including a facility in Pascagoula, Mississippi where the grievant is assigned. The Quality Assurance (QA) Department at the facility is divided into four divisions/labor codes. QA Specialists assigned to: (1) Code 350D are responsible for inspections on a certain guided missile destroyer; (2) Code 317B are responsible for inspections of landing platform dock ships; (3) Code 354H are responsible for inspections of landing helicopter dock; and (4) Code 320E are responsible for reviewing contractor plans and QA issues shipyard wide.

      The grievant is a QA Specialist, GS-1910-11, who was previously assigned to Code 350D. Management decided to temporarily reassign the grievant from Code 350D to Code 317 because Code 350D "was overstaffed and another employee was needed in Code 317B." Award at 25. The grievant had the lowest service computation date (SCD) in Code 350D so he was temporarily reassigned effective June 13, 2004 to Code 317, and later his reassignment was extended for another thirty days. At that time, two other QA Specialists working in another division were junior to the grievant.

      Thereafter, the grievant filed a grievance alleging that the Agency violated Article 47 of the parties' agreement when the Agency improperly temporarily reassigned him from Code 350D to Code 317B. [n*]  The Agency denied the grievance and the matter was submitted to arbitration on the stipulated issue of:

Did the Agency violate Article 47 of the Labor-Management Agreement [CBA] by moving the [g]rievant from Code 350D to Code 317B and if so, what shall be the remedy?

Id. at 2.

      Before the Arbitrator, the Agency argued that Article 47, Section 4 (Section 4) did not apply because the movement of the employee from one contractor work site to another did not change conditions of employment within the meaning of Section 1 of Article 47, and that Section 4 applied only to where conditions of employment were being changed. The Agency also asserted that the Union's interpretation of Section 4 violated its rights to assign employees and assign work under § 7106(a)(2)(A) and (B) of the Statute because Section 4 was neither a procedure nor an appropriate arrangement under § 7106(b). Finally, the Agency argued that, even assuming Section 4 applied, it complied with this section by computing the SCD based on only the one QA division that was overstaffed, rather than the entire QA department. In contrast, the Union argued that the Agency is required to follow the procedures set out in Section 4, which requires the Agency to first solicit volunteers and then select the "most junior . . . qualified employee" if there are no volunteers. Award at 18. It further argued that "qualified" pertained to all qualified employees in the entire QA organization, not just the one overstaffed QA division. Id. at 18-19.

      [ v62 p329 ] In resolving these contentions, the Arbitrator found that Section 4 applied to the temporary reassignment of the grievant. The Arbitrator further determined that the pool of employees to be examined, for purposes of identifying the most junior employee, was limited only by the requirement that the employees in the pool be "qualified." Id. at 18. The Arbitrator found that "qualified" meant those employees "in the same job classification[,]" meaning the entire QA organization and not just the one division where the Agency had determined it had too many employees assigned. Id. The Arbitrator also found that, so interpreted, Section 4 was not an appropriate arrangement under § 7106(b)(3), but that Section 4 did constitute a procedure under § 7106(b)(2).

      Based on the foregoing, the Arbitrator found that the Agency violated Section 4 when it evaluated the SCDs of only those employees in the grievant's QA division rather than the SCDs of the entire QA organization. As a remedy, the Arbitrator directed the Agency to reconstruct the reassignment that should have occurred under Section 4 and to pay the grievant lost overtime, if any, based on the difference between the overtime the grievant earned in 317B and the overtime he could have received in the division to which he should have been assigned.

III.     Positions of the Parties

A.      Agency's Exceptions

      The Agency asserts that the award violates management's right to assign employees under § 7106(a)(2)(A) of the Statute. Moreover, the Agency argues that under the Authority's framework set forth in United States Dep't of the Treasury, Bureau of Engraving and Printing, Wash., D.C., 53 FLRA 146 (1997) (BEP), the award fails to satisfy prong I because Section 4, as interpreted and enforced by the Arbitrator, does not constitute a procedure or an appropriate arrangement under § 7106(b)(2) or (3).

      According to the Agency, the Arbitrator's interpretation of Section 4 requires the Agency to make three assignments to correct a staffing imbalance that could be accomplished with one employee assignment. The Agency asserts that the award requires it to "assign two employees whose reassignments were not desired and who were performing work required by the Agency in QA divisions that were at appropriate manning levels." Exceptions at 7. Citing AFGE, AFL-CIO, Local 987, 35 FLRA 265 (1990) (AFGE, Local 987), among other decisions, the Agency contends that as interpreted and applied by the Arbitrator, the award "directly interferes with the Agency's right to assign employees." Id. The Agency argues that as the award "directly interferes with the Agency's right to assign employees, it does not constitute an enforceable negotiated procedure under [§] 7106(b)(2) of the Statute." Id. at 8.

      Finally, the Agency contends that the provision in dispute does not constitute an appropriate arrangement under § 7106(b)(3). According to the Agency, the record here does not contain any information as to the nature and extent of the adverse effect that the Union perceives that employee reassignments will have on employees nor does the record contain any evidence showing how the provision would mitigate adverse effects. The Agency asserts that even if the Authority should conclude that Section 4 was intended as an arrangement under § 7106(b)(3) of the Statute, it "excessively interferes with the exercise" of management's right "to assign employees." Id. at 9.

B.      Union's Opposition

      According to the Union, the Agency "misrepresents" the nature of the award. Opposition at 5. The Union asserts that the Arbitrator ordered the Agency to comply with a negotiated procedure. The Union asserts that under the award the Agency has "complete discretion to determine how its work is to be done" and the qualifications needed to perform the work. Id. at 4. Moreover, the Union argues that the procedure used for determining moves "is no different . . . than any other seniority based system for things such as overtime distribution or other assignment issues." Id. at 5. The Union also asserts that the procedure constitutes an appropriate arrangement and that the award does not violate management's rights under § 7106(b).

IV.     Analysis and Conclusions

A.      The Award Is Not Contrary to Law

      The Authority reviews questions of law de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.

      When resolving an exception alleging that an award violates management's rights under § 7106 of the Statute, the Authority first determines whether the award affects a management right under § 7106(a). See [ v62 p330 ] United States Small Bus. Admin., 55 FLRA 179, 184 (1999). If it does, then the Authority applies a two-prong test to determine if the award is deficient. See BEP, 53 FLRA at 151-53. If the award does not affect a management right, then the BEP analysis is not required. See United States Dep't of the Navy, Norfolk Naval Shipyard, Portsmouth, Va., 55 FLRA 1103, 1105 (1999) (Dep't of the Navy).

      With respect to the Agency's argument, the right to assign employees pertains to the right to assign employees to positions and includes the right to make initial assignments to positions, to reassign employees to different positions, and to make temporary assignments or details. See AFGE, Local 12, 61 FLRA 209, 221 (2005). Also included in the right to assign employees is the right to determine the qualifications and skills needed to do the work of the position to be filled, and whether an employee meets those qualifications and skills. See Professional Airways Systems Specialists, 61 FLRA 97, 99 (2005).

      Here, the Agency argues that the Arbitrator's award interpreting Section 4 affects its right to assign employees because the award forces management to reassign employees to certain positions without allowing management to consider the Agency's organizational or mission requirements (citing AFGE, Local 987, 35 FLRA at 271), or to determine where to assign employees (citing NTEU, 46 FLRA 696 (1992)). The Agency further argues that because the Arbitrator's interpretation and application of Section 4 limit its ability to assign employees to particular positions or condition its right to assign employees based upon the assignment of other employees, the award impermissibly conflicts with its right to assign employees (citing AFGE, Local 85, 32 FLRA 210 (1988)). See Exceptions at 7.

      We conclude that Section 4 does not impermissibly affect the Agency's right to assign employees because the Arbitrator's determination that it constitutes a negotiable procedure under § 7106(b)(2) of the Statute is consistent with Authority precedent. See Overseas Education Association, Inc., 29 FLRA 734, 793 (1987), enforced as to other matters, 872 F.2d 1032 (D.C. Cir. 1988) (per curiam); 911 F.2d 743 (D.C. Cir. 1990) (en banc). In this respect, Article 47, Section 4 provides, in part, that the "method used for reassignment . . . of employees will be first to solicit qualified volunteers who live closest to the work site. If there are no volunteers, the most junior qualified employee as determined by Service Computation Date for leave will be involuntarily reassigned . . . ." Award at 14. Interpreting Article 47, Section 4, the Arbitrator found that this provision was a procedure for "making assignments on the basis of seniority and qualifications[.]" Id. at 27. Authority precedent holds that seniority-based assignments are within the duty to bargain and enforceable if the agency retains the right to determine employee qualifications and seniority is applied only to equally qualified employees. See AFGE, Local 987, 35 FLRA at 269-70. See also AFGE, Local 1164, 60 FLRA 785, 787 (2005); AFGE, Local 1138, Council 214, 51 FLRA 1725, 1731 (1996).

      Consistent with the foregoing, and contrary to the Agency's assertions, the parties' CBA, as interpreted by the Arbitrator, does not impermissibly affect the Agency's right to assign employees because it permits the Agency to determine qualifications and requires reassignments only of employees who are equally qualified. We note that as the term "equally qualified," in Section 4 of the parties' CBA, refers only to "qualified employee[s]," there is no basis to conclude that the award would require reassignment of employees who are not "equally" qualified. See AFGE, Local 1164, 60 FLRA at 785 (in the circumstances presented Authority found proposal that referred only to employees whom the agency had "qualified" to perform work did not affect management's right to assign employees and assign work); cf. NTEU, 46 FLRA at 753-54 (same principle applied to right to assign work where Authority found that in the circumstances presented the proposal that referred to "qualified employees" did not affect management's right to assign work).

      As the award does not impermissibly affect management's right to assign employees under § 7106(a)(2) of the Statute, an analysis of the award under BEP is not required. See, e.g., United States Dep't of Transp., Federal Aviation Admin., 61 FLRA 54, 56-7 (2005).

B.     The Award Draws Its Essence from the Parties' CBA

      To the extent that the Agency's exception could be construed as contesting the Arbitrator's interpretation of Section 4, we construe it as an essence assertion.

      In order for an award to be found deficient as failing to draw its essence from the parties' collective bargaining agreement, it must be established 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 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 [ v62 p331 ] disregard of the agreement. United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).

      Article 47 is entitled "Employee Movement." Interpreting this provision, the Arbitrator determined the "intentions of the parties." Award at 15. The Arbitrator considered the record evidence and found that Article 47 "is intended to cover `employee movements,' meaning all such movements. The only restriction mentioned in [S]ection 4 is that the junior employee must be qualified." Id. at 19. Thus, the Arbitrator determined that, under Article 47, the reassignment procedures applied to the four QA divisions and, thus, management was required to select the junior QA employee that qualified for the reassignment from such divisions. The Agency has not demonstrated that the Arbitrator's interpretation is an implausible interpretation of the agreement. The Agency also has not demonstrated that the award is deficient under any of the other elements of the essence test. Accordingly, the Agency has not demonstrated that the award fails to draw its essence from the parties' agreement.

V.     Decision

      The Agency's exceptions are denied.


APPENDIX

ARTICLE 47
EMPLOYEE MOVEMENT

Section 1. The ability to assign employees to specific contractor sites is necessary for the Employer to fulfill his mission and is considered a condition of employment for all employees of the Employer.
Section 2. Moveme