31:0315(29)AR - Philadelphia MTC and Philadelphia Naval Shipyard -- 1988 FLRAdec AR



[ v31 p315 ]
31:0315(29)AR
The decision of the Authority follows:


 31 FLRA NO. 29

PHILADELPHIA METAL TRADES COUNCIL

                   Union

      and

PHILADELPHIA NAVAL SHIPYARD

                    Activity

Case No. 0-AR-1412

DECISION

     I. Statement of the Case

     This matter is before the Authority on exceptions to the
award of Arbitrator James W. McMullen, filed by the Activity
under section 7122 (a) of the Federal Service Labor - Management
Relations Statute (the Statute) and part 2425 of the Authority's
Rules and Regulations. The Union filed an opposition to the
Activity's exceptions.

     The Union grieved the Activity's placement of certain
employees on furlough during the Activity's curtailment of
operations during the Christmas - New Year's holiday. The
grievance alleged that the furlough violated the parties'
collective bargaining agreement. The Arbitrator determined that
the parties' agreement obligated the Activity to retain employees
who did not have sufficient annual leave to cover the period of
the curtailment in a duty status and not to furlough them. In its
exceptions, the Activity argues that the Arbitrator's award is
contrary to management's rights under section 7106(a) of the
Statute to layoff employees and to assign work.

     We find that the Activity has not established that the
Arbitrator's award is deficient. Therefore, we deny the
exceptions.

     II. Background

     The dispute arose when the Activity notified the Union of
its plan to curtail operations for 4 workdays during December 26,
1986 through January 4, 1987. The plan required that employees
with sufficient annual leave use that leave. Employees without
sufficient annual leave were to be furloughed, or placed in a
non-duty, non-pay status.

     The Union objected to the plan. It argued that
implementation of the furlough for employees who did not have
sufficient annual leave would violate Article XXXII, Section 1 of
the parties' agreement. The Activity responded that its plan
complied with all provisions of the agreement, and announced its
intention to proceed with the furlough. The Union then filed a
grievance. The Activity implemented the plan. The grievance
proceeded to arbitration.

     III. Arbitrator's Award

     The Arbitrator determined that sections 1 and 2 of Article
XXXII of the parties' agreement, which concern curtailments and
shutdowns of the Activity's operations, were in conflict. Award
at 7. The Union argued before the Arbitrator that the furlough
had violated the language of section 1 which provides that
"(e)mployees . . . who do not have sufficient annual leave, are
in a duty status, during holiday curtailments. Award at 7. The
Activity argued before the Arbitrator that its actions satisfied
the requirement in section 2 that it make "every reasonable
effort . . . to provide work" for employees who wanted to work
during the curtailment. Award at 7.

     The Arbitrator resolved the conflict by applying section 1
of Article XXXII. Award at 7. He reasoned that under the rules of
contract interpretation, specific provisions control over general
provisions. Award at 9. Therefore, because section 1 explicitly
applies to "holiday curtailments," it is more specific and should
control over section 2 which applies to "any period of shutdown
or reduced operations." Award at 9. He noted that the Activity's
position would render meaningless the requirements of section 1
that affected employees are to be retained "in a duty status
during the curtailment., Award at 8. He concluded that the
parties intended section 2 to apply to all curtailments except
those occurring during the Christmas - New Year's holiday. Award
at 9.

     The Arbitrator noted that this interpretation was supported
by two considerations. First, when the parties negotiated their
agreement, they were aware that employees had been retained in a
duty status during the Christmas - New Year's holiday period for
at least 18 years. Award at 9-10. Second, on several occasions
during the 18-year period, the Activity had placed
employees without sufficient annual leave on leave without pay
(LWOP), but later provided backpay after the Union had filed
grievances. Award at 10. The Arbitrator acknowledged that these
earlier situations differed from the one before him because
employees were not furloughed but were placed on LWOP. He
nevertheless determined that by providing backpay to the affected
employees, the Activity had "conceded its obligation under
section 1 to retain such employees in a duty status during the
holiday curtailment period." Award at 10.

     The Arbitrator concluded that the Activity had agreed to
retain the affected employees in a duty status and not to
furlough them during the curtailment. As his award, the
Arbitrator found that under the terms of Article XXXII, section
1, the Activity did not have a right to furlough employees who
had insufficient annual leave to cover the period of the 1986-87
holiday curtailment. As a remedy, the Arbitrator directed the
Activity to pay backpay to all employees who were improperly
furloughed during the curtailment. Award at Attachment 1. The
Arbitrator's award did not affect employees who had used annual
leave during the holiday curtailment period because they were not
furloughed.

     IV. Positions of the Parties

     A. Exceptions

     The Activity contends that the Arbitrator's award is
contrary to section 7106(a) of the the Statute on two grounds.
First, the Activity contends that the award violates management's
right to layoff employees under section 7106(a)(2)(A) of the
Statute. The Activity argues that management's right to layoff
employees includes the right to furlough them for 30  days or
less under 5 U.S.C. 7513 because such an action is a "layoff in
accordance with applicable law." Exceptions at 10. Therefore, the
Activity asserts that the Arbitrator's award which interprets the
parties' collective bargaining agreement to prohibit management
from exercising its right to layoff employees during the holiday
period is contrary to section 7106(a)(2)(A). Exceptions at 10.

     Second, the Activity contends that the award violates
management's right to assign employees under section
7106(a)(2)(B). The Activity argues that it exercised its right to
make work assignments by determining not to assign work during
the holiday curtailment period. Therefore, the Activity asserts
that by requiring the Activity to find work for affected
employees during the holiday curtailment period, the Arbitrator's
award interferes with its decision to have virtually no
operations during that period, and with its right to exercise the
judgment necessary to reach that decision. The Activity further
argues that in finding that it had agreed to retain employees "in
a duty status" during the holiday curtailment period, the
Arbitrator required management to assign work to employees in
violation of section 7106(a)(2)(B). Exceptions at 13-15.

     The Activity also argues that a past practice may not limit
the manner in which management exercises its rights under the
Statute. It further asserts that the award does not enforce an
appropriate arrangement for employees adversely affected by
management's exercise of its reserved rights because the award
would require management to a