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22:0443(43)AR - National Marine Fisheries Service, Northeast Region, NOAA, Commerce, Gloucester, MA and MMP, Boston, MA -- 1986 FLRAdec AR

[ v22 p443 ]
The decision of the Authority follows:

 22 FLRA No. 43
                                            Case No. 0-AR-1008
                         I.  STATEMENT OF THE CASE
    This case is before the Authority on exceptions to the award of
 Arbitrator John J. Graham filed by the Department of Commerce (the
 Agency) under section 7122(a) of the Federal Service Labor-Management
 Relations Statute and part 2425 of the Authority's Rules and
    The dispute before the Arbitrator concerned the preference to which
 permanent inspectors were entitled in assignments to foreign fishing
 vessels in the foreign fisheries observer program.  According to the
 Agency, the program involves monitoring foreign fishing vessels in the
 United States fisheries conservation zone by placing fishery inspectors
 on the vessels.  Beginning in 1983, the Agency has been required to
 place inspectors on all foreign fishing vessels in the zone.  In order
 to meet requirements during peak fishing period, the Agency employs
 inspectors on temporary appointments, in addition to its permanent
 inspectors.  All of the inspectors, permanent and temporary, are
 assigned to vessels from a single deployment list or roster.
    The parties in this dispute negotiated a provision, Article 2, in
 their collective bargaining agreement, which provides that "(w)here
 possible, management will give first preference for deployments and
 other duties to permanent inspectors." The Activity gave preference to
 the permanent inspectors only in initial assignments by placing their
 names at the top of the deployment roster at the beginning of the
 fishing season.  After the permanent inspectors were initially assigned,
 however, the Activity did not give them any further preference in
 assignments.  Rather, upon deployment, their names were placed at the
 bottom of the roster and they were not offered another assignment until
 all other inspectors had been assigned and their names again reached the
 top of the list.  The Union essentially claimed that under Article 2 of
 the parties' agreement "first preference" meant that whenever permanent
 inspectors returned from an assignment, their names should be placed on
 the deployment roster ahead of temporary inspectors.  The Arbitrator
 agreed with the Union's position.  The Arbitrator found that management
 had demonstrated a policy of preference for temporary inspectors and
 that its deployment practice had adversely affected the income of
 permanent inspectors.  As his award, the Arbitrator determined that
 management had violated Article 2 of the parties' collective bargaining
 agreement by refusing and failing to give first preference for
 deployments and other duties to permanent inspectors.  Further, as a
 remedy, the Arbitrator directed the Activity to comply with the
 agreement and to provide restitution for all losses incurred by the
 permanent inspectors.
                           III.  FIRST EXCEPTION
                              A.  Contentions
    In its first exception, the Agency contends that the Arbitrator's
 award is contrary to section 7106(a) of the Statute.  In support of this
 contention, the Agency argues that the Arbitrator's award interferes
 with management's right under section 7106(a)(2)(B) to determine the
 personnel by which Agency operations will be conducted and to determine
 which employees will receive particular work assignments.  The Agency
 further argues that the agreement provision interpreted by the
 Arbitrator is not a proper procedure under section 7106(b)(2) of the
 Statute since it is directly related to the exercise of management's
 right to assign inspectors to foreign fishing vessels.
                       B.  Analysis and Conclusions
    As relevant to the Agency's exception, section 7106(a) (2)(B) of the
 Statute reserves to management officials the authority to assign work.
 Encompassed within that right is the discretion to determine the
 particular employees to whom work will be assigned, Department of the
 Air Force, Carswell Air Force Base and American Federation of Government
 Employees, Local 1364, 19 FLRA No. 51, slip op. at 2 (1986), and the
 discretion to establish the particular qualifications and skills needed
 to perform the work to be done and to exercise judgment in determining
 whether a particular employee meets those qualifications.  Laborers
 International Union of North America, AFL-CIO, Local 1276 and Veterans
 Administration, National Cemetery Office, San Francisco, California, 9
 FLRA 703, 706 (1982).  However, the Authority has expressly held that
 when two or more employees are equally qualified and capable of
 performing the work involved, the selection of any one of those
 employees to perform the work would be consistent with management's
 exercise of its discretion in accordance with section 7106(a).  In these
 circumstances the procedure by which employees previously judged by
 management to be equally qualified will be selected to perform the work
 is negotiable under section 7106(b)(2) of the Statute, and when
 negotiated by the parties is enforceable by grievance and arbitration.
 National Treasury Employees Union and U.S. Customs Service, 18 FLRA No.
 94 (1985).  In this case, management exercised its right under section
 7106(a)(2)(B) of the Statute in determining that foreign fishing vessel
 observation work would be performed by fishery inspectors and in
 determining that both permanent and temporary inspectors were qualified
 to perform the work.  Article 2 of the parties' agreement, as
 interpreted and applied by the Arbitrator, does not directly interfere
 with either determination in management's exercise of its right.  As
 interpreted by the Arbitrator, Article 2 provides a procedure for the
 assignment of work to employees management has determined are qualified
 to perform the work, that is, that permanent inspectors be given first
 preference for all deployments, not just the initial deployments, by
 placing them ahead of temporary inspectors on the deployment roster when
 they return from an assignment.  The Authority concludes that the
 Arbitrator simply enforced the procedure for deployments provided for in
 the parties' agreement.  The Authority therefore concludes that the
 Agency has failed to establish that the Arbitrator's award is contrary
 to section 7106(a) of the Statute as alleged.
                           IV.  SECOND EXCEPTION
                              A.  Contentions
    In its second exception, the Agency contends that the Arbitrator's
 award is contrary to the Back Pay Act, 5 U.S.C. Section 5596.  In
 support of this contention, the Agency's argues that even if it
 committed an unjustified personnel action in its scheduling of
 inspectors for deployments, there was no evidence that the scheduling
 practice caused any permanent employees to lose pay, other than the
 statements of two permanent inspectors that their income was less in the
 year the practice was initiated than the previous year, and no evidence
 that but for the scheduling practice, the permanent employees would not
 have suffered a reduction in pay.
                       B.  Analysis and Conclusions
    In order for an award of backpay to be authorized by the Back Pay
 Act, the arbitrator must determine that the aggrieved employee was
 affected by an unjustified or unwarranted personnel action, that the
 personnel action directly resulted in the withdrawal or reduction of the
 grievant's pay, allowances or differentials, and that but for such
 action, the grievant otherwise would not have suffered the withdrawal or
 reduction.  Norfolk Naval Shipyard, Portsmouth, Virginia and Tidewater
 Virginia Federal Employees Metal Trades Council, 21 FLRA No. 39 (1986).
 In this case, the Arbitrator determined that the Activity violated the
 parties' agreement by failing and refusing to give first preference for
 deployments and other duties to permanent inspectors.  The Arbitrator
 also expressly found that management's scheduling practice adversely
 affected the income of permanent inspectors.  The Arbitrator did not,
 however, specifically find that but for management's unwarranted action,
 the grievants would have been offered, would have accepted, would have
 worked, and would have been paid for any particular deployments.
 Compare Department of the Treasury, U.S. Customs Service and National
 Treasury Employees Union, 13 FLRA 386 (1983) (In which case the
 arbitrator determined that backpay was necessary to compensate
 bargaining-unit inspectors for overtime pay lost as a result of the
 activity's unwarranted assignment practice and directed that the parties
 determine the amounts due individual employees.  The agency filed an
 exception contending that the award was contrary to the Back Pay Act
 because there was no finding that the practice had directly resulted in
 the loss of overtime pay of specific inspectors.  In denying the
 exception, the Authority concluded that the findings required by the
 Back Pay Act had been made because the arbitrator specifically
 determined that in every disputed instance of overtime being assigned in
 violation of personnel policy and the parties' collective bargaining
 agreement, bargaining-unit inspectors were available to perform such
 work.  The Authority explained that in view of this finding, there was
 no additional requirement to identify specific employees.) In this case,
 the Arbitrator did not determine that there were any specific instances
 where permanent inspectors were available for deployment and management
 failed to give them preference for the assignment in violation of the
 parties' agreement.  Consequently, the Authority concludes that the
 Arbitrator's award of retroactive compensation for permanent inspectors
 is contrary to the Back Pay Act.
                               V.  DECISION
    Accordingly, for the above reasons, the Arbitrator's award is
 modified by striking the order of backpay for permanent inspectors.
    Issued, Washington, D.C., July 9, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY