[ v34 p171 ]
The decision of the Authority follows:
34 FLRA NO. 38 NATIONAL TREASURY EMPLOYEES UNION LOCAL CHAPTER 48 and U.S. DEPARTMENT OF TREASURY INTERNAL REVENUE SERVICE RICHMOND, VIRGINIA 0-AR-1630 DECISION January 9, 1990 Before Chairman McKee and Members Talkin and Armendariz. I. Statement of the Case This case is before the Authority on an exception to the award of Arbitrator Peter R. Blum filed by the Internal Revenue Service (the Agency) on behalf of the Internal Revenue Service, Richmond District (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 National Treasury Employees Union (the Union) filed an opposition to the exception. The Arbitrator found that the Activity violated the parties' national collective bargaining agreement and a local memorandum of understanding by placing GS-3 and GS-4 seasonal employees on the same recall roster and by utilizing test scores to recall these employees. For the reasons discussed below, we find that the Agency has failed to establish that the award is contrary to management's right to assign employees under section 7106(a)(2)(A) of the Statute. Accordingly, we will deny the exception. II. Background The parties' national collective bargaining agreement (NORD II) provides for the release and recall of seasonal employees. NORD II provides that the release and recall of seasonal employees will be accomplished on the basis of "overall performance of those employees within the same post of duty (POD) possessing the skills needed." Arbitrator's Award at 24. NORD II requires that skill lists be prepared to be used for the release and recall of employees. Because NORD II does not define the term "skill," the Activity, after discussion with the local Union, prepared a local memorandum of understanding (MOU) in July 1985, which provides as follows: It is management's position that all GS-4 TSR's (taxpayer service representatives) will have approximately the same skills, that all GS-5 TSR's will have approximately the same skills, and the same for GS-6 TSR's. Therefore, we propose that skills lists be established based on the grade level of the employee at the time the lists are established each year (April 16 - See Article 12, Section 14 B-1). Id. (emphasis in original). In October 1985, the Activity hired seasonal employees as taxpayer service representatives from grade level registers prepared by the Office of Personnel Management. Because of a lack of GS-4 employees on the register, the Activity also selected GS-3 employees. None of these employees had prior experience with the Agency. All the newly hired GS-3 and GS-4 employees received the same training and upon completion of the training were ranked according to test scores. In December 1985, the GS-3 and GS-4 employees were placed on the same recall roster. On the basis of the test scores, some GS-3 employees were ranked higher than some GS-4 employees. As a result, some GS-3 employees from the roster were recalled to employment before lower-ranked GS-4 employees. The Union filed a grievance which claimed that GS-3 and GS-4 employees were improperly placed on the same recall roster and that some GS-3 employees were improperly recalled by the Activity before all the GS-4 employees were recalled. The grievance was denied and the matter was submitted to arbitration. III. Arbitrator's Award Before the Arbitrator, the Union argued that under NORD II, recall rosters are maintained on the basis of the skill level of employees. The Union further argued that under the MOU, the skill level of employees for placement on recall rosters is an employee's grade level. Therefore, the Union contended that the Activity should have placed all GS-4 employees on one roster and all GS-3 employees on a separate roster. The Activity argued that under NORD II, the GS-3 and GS-4 employees who were hired in October 1985 were properly placed on the same roster according to their training scores and were properly recalled under Article 14 of NORD II. The Arbitrator considered two issues: (1) whether the Activity violated the parties' agreements by placing GS-3 and GS-4 employees on the same roster; and (2) whether "the recall itself" violated the parties' agreements. Arbitrator's Award at 29-31. The Arbitrator first considered whether the Activity violated the parties' agreements by placing GS-3 and GS-4 employees on the same roster. The Arbitrator noted that before October 1985, the Activity had never hired GS-3 employees as seasonal taxpayer service representatives. He also noted that the MOU "may not have contemplated" the hiring of GS-3 employees. Id. at 29. However, the Arbitrator concluded that the MOU established skill lists based solely on the grade level of the employees at the time the lists are established each year. The Arbitrator found that the MOU did not permit the placement of GS-3 and GS-4 employees on the same list because employees at those grade levels have different skills, responsibilities, and pay. The Arbitrator also found that using separate rosters for separate grade levels was consistent with NORD II. Accordingly, the Arbitrator determined that the Activity was required to prepare separate recall rosters for GS-3 and GS-4 employees. Therefore, he ruled that the Activity violated the MOU by placing GS-3 employees and GS-4 employees on the same recall roster. The Arbitrator also considered whether "the recall itself" violated the parties' agreements. Id. at 30. The Arbitrator found that the parties' practice under NORD II and the MOU was that higher-graded personnel were recalled before lower-graded personnel to fill "positions for work usually performed by that grade." Id. at 31. He stated that there was "no question that the work at issue is that performed by GS-4 personnel as the IRS originally tried to fill the vacancies with only GS-4 personnel." Id. The Arbitrator determined that because of the parties' practice, the Activity was required to recall all the GS-4 employees before recalling any GS-3 employees. Therefore, the Arbitrator ruled that the Activity's recall of some GS-3 employees before all GS-4 employees were recalled violated the MOU and NORD II. The Arbitrator determined that employees hired as seasonal taxpayer service representatives in October 1985 at grade levels 3 and 4 were improperly placed on the same recall roster and were improperly recalled. The Arbitrator directed that the GS-4 employees who were not recalled before the GS-3 employees shall be given backpay for those days that they would have been available for work. IV. Positions of the Parties A. The Agency The Agency contends that the award is deficient because it violates management's right to assign employees under section 7106(a)(2)(A) of the Statute. The Agency argues that the Arbitrator improperly interpreted the definition of "skill" in the MOU and, thereby, "usurped" management's right to assign employees. Agency's Exception at 2. The Agency claims that the Arbitrator misinterpreted the MOU because the MOU defines "skill in terms of grade level following performance rather than grade level when hired(.)" Id. at 3 (emphasis in original). Because the newly hired employees had not performed work and been evaluated, the Agency claims that the GS-3 and GS-4 employees were properly placed on the same roster based on test scores. The Agency also argues that the Arbitrator erred when he concluded on the basis of the different position descriptions of the GS-3 and GS-4 employees that there was a clear difference in skills between the GS-3 and GS-4 positions. The Agency maintains that there is no clear difference between the GS-3 and GS-4 positions. The Agency asserts that the assignment to a GS-3 or a GS-4 position description did not accurately reflect the actual skills of the newly hired employees because they received the same basic training and, when called to work, performed the same duties. The Agency contends that by equating the skill of the newly hired employees solely with their grade level, the Arbitrator violated management's right to assign employees under section 7106(a)(2)(A). B. The Union The Union contends that the Agency's exception constitutes nothing more than disagreement with the Arbitrator's interpretation of the local MOU and NORD II. The Union also contends that the award is not contrary to management's right to assign employees under section 7106(a)(2)(A). The Union maintains that the award does not compel the Activity to assign particular employees to specific tasks or direct the Activity to assign newly hired employees to positions for which they are not qualified. In the Union's view, the MOU, as interpreted by the Arbitrator, establishes a procedure for selecting employees for jobs. The Union claims that the MOU does not conflict with management's right to assign work because management had already found that the newly hired GS-3 and GS-4 employees were equally qualified. The Union also notes that the Arbitrator interpreted the MOU as requiring recall based on an employee's grade level and that management had already established the grade level prior to determining the appropriate rosters for these employees. V. Analysis Management's right to assign employees under section 7106(a)(2)(A) of the Statute encompasses the rights to: (1) establish the qualifications, skills, and abilities necessary to perform the duties generally assigned to a position; and (2) determine whether an employee meets the established requirements. See, for example, Department of Defense Dependents Schools -- Pacific Region and Overseas Education Association, 31 FLRA 305 (1988); National Treasury Employees Union and U.S. Customs Service, 18 FLRA 780 (1985). When two or more employees are equally qualified and capable of performing the duties of the position being filled, the parties to a collective bargaining agreement may establish a procedure for the assignment of these qualified employees to the position. See, for example, National Marine Fisheries Service, Northeast Region, National Oceanic and Atmospheric Administration, United States Department of Commerce, Gloucester, Massachusetts and International Organization of Masters, Mates and Pilots, AFL - CIO, Boston, Massachusetts, 22 FLRA 443, 445 (1986) (National Marine Fisheries Service). A procedure providing for the assignment of employees previously judged by management to be equally qualified is negotiable under section 7106(b)(2) of the Statute and, when negotiated by the parties, is enforceable by an arbitrator. Id. In this case, the Arbitrator resolved the parties' dispute over which procedure of NORD II and the local MOU applied to the recall of the GS-3 and GS-4 employees hired in October 1985. The Activity maintained that the applicable procedure was to prepare a single roster of all the newly hired GS-3 and GS-4 employees based on training scores. The Union maintained that the applicable procedure was to prepare a roster of GS-4 employees and a roster of GS-3 employees and recall all the employees on the GS-4 roster before any employees on the GS-3 roster. The Arbitrator agreed with the Union. He determined that under NORD II and the MOU, the recall procedure was to prepare separate rosters by grade level and to recall all the employees on the GS-4 roster before any employees on the GS-3 roster. The Agency does not contend that the GS-3 and GS-4 employees were not equally qualified. In fact, the Activity had already determined that all of the newly hired GS-3 and GS-4 employees were equally qualified to perform the duties of the taxpayer service representative trainee positions. See Agency's Exception at 4 (citing testimony before the Arbitrator). As discussed above, procedures governing the assignment of employees are negotiable and enforceable provided that the procedures apply to employees who are previously judged by management to be equally qualified. Because it is uncontroverted that the GS-3 and GS-4 employees were equally qualified, we find that the Arbitrator's enforcement of NORD II and the MOU does not conflict with management's right to assign employees under section 7106(a)(2)(A). See National Marine Fisheries Service (the agency failed to establish that the award was contrary to section 7106(a) because the arbitrator simply enforced the procedure of the parties' collective bargaining agreement for the assignment of work to employees management had determined were qualified to perform the work). We reject the Agency's contention that the Arbitrator's interpretation of NORD II and the MOU conflicts with management's right to determine the qualifications and skills necessary for the assignment of employees. The Arbitrator did not: (1) reject a determination by the Activity that particular qualifications and skills were necessary to be recalled; (2) independently assess what skills and qualifications are necessary to be recalled; or (3) order the Activity to recall any employees whom management had determined did not possess the qualifications and skills necessary for assignment to the taxpayer service representative trainee positions. Instead, the Arbitrator merely corrected the order of the recall to conform to NORD II and the MOU. Compare Bureau of Engraving and Printing, Washington, D.C. and International Association of Machinists, Franklin Lodge 2135, Washington, D.C., 32 FLRA 531, 537 (1988) (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). VI. Conclusion We conclude that the award is not contrary to management's right to assign employees under the Statute. Therefore, the Agency's exception provides no basis for finding the award deficient and we will deny the exception. VII. Decision The agency's exception is denied.