34:0650(111)AR - - NTEU Chapter 137 and Customs Service, Region IV - - 1990 FLRAdec AR - - v34 p650
[ v34 p650 ]
The decision of the Authority follows:
34 FLRA No. 111
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL TREASURY EMPLOYEES UNION
UNITED STATES CUSTOMS SERVICE
January 29, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Stephen L. Hayford filed by the United States Customs Service, Region IV (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, Chapter 137 (the Union) filed an opposition to the exceptions.
The Arbitrator found that the Activity's actions in filling five vacant GS-9 Customs Inspector positions at Port Everglades constituted reassignments. The Arbitrator sustained the Union's grievance and found that the Activity violated the parties' national collective bargaining agreement in the manner in which it implemented the reassignments. The Arbitrator directed the Activity to rescind the five challenged reassignments and to rerun the reassignment actions in a manner consistent with the parties' agreement.
For the reasons stated below, the Activity's exceptions are denied.
The Activity has four ports in its Miami, Florida District, including one at Port Everglades. In January 1987, the Activity created six new GS-9 Customs Inspector positions at Port Everglades. Initially, the Activity decided to fill the positions through voluntary transfers of interested GS-9 Customs Inspectors from the Miami District. The Activity chose 6 of the 16 employees who expressed interest in transferring to Port Everglades. These transfers were effectuated in late February.
After the transfers were made, the Union filed a grievance asserting that the Activity had failed to use the reassignment procedure set forth in Article 20, Section 5 of the parties' national agreement.(1)The Activity granted the grievance and stated that if it used the reassignment option in the future, it would comply with the requirements of Article 20, Section 5. The Activity notified the Union that it would inform the employees who had been transferred that their selections had been made in error and would be rescinded. The Activity also stated to the Union that it intended to advertise the six vacancies throughout the Southeast Region and fill them under the Merit Promotion Plan.
In April 1987, the Activity posted a vacancy announcement for the Port Everglades vacancies. All of the 15 applicants for the positions were GS-9 Customs Inspectors from the Miami District. There were no "promotion eligible" candidates among the applicants. The Arbitrator stated that "[g]iven that fact, the [Activity] resorted to an 'alternate staffing method' and selected the persons to fill the Port Everglades vacancies from among the fifteen GS-9 Inspector applicants. The successful applicants were not selected in order of seniority."(2) Award at 3.
In June 1987, the Union filed a grievance alleging that the Activity's actions in filling the vacancies violated, among other things, Article 20 of the parties' national agreement. The grievance contended that the Activity's selections from among several applicants for lateral transfers violated the national agreement because the applicants selected were not those "'with the greatest amount of Customs service within the position being reassigned.'" Award at 4.
III. Arbitrator's Award
The Arbitrator stated that the issue before him was:
Did the [Activity] abridge any relevant law, rule or regulation or violate any applicable provision of the National Agreement when in June, 1987, it filled five vacant GS-9 Customs Inspector positions at the Port of Port Everglades? If so, what is the proper remedy?
The Arbitrator found that the Activity could use any of the alternate staffing methods in the merit promotion plan--including reassignments--to fill the five vacant positions. He then addressed the following three questions: (1) whether the Activity filled the vacancies at Port Everglades through reassignments; (2) if so, whether the Activity was obligated to comply with the procedures in Article 20, Section 5 of the national agreement; and (3) if it was obligated to comply, whether the Activity violated Article 20, Section 5 of the national agreement.
The Arbitrator determined that under applicable regulatory and contractual provisions, the personnel actions in this case "must be deemed reassignments." Award at 13. The Arbitrator rejected the Activity's "implied contention that the change of an employee from one position to another without promotion or change to a lower grade, somehow is not a reassignment if that action is implemented as an alternate staffing method during the course of what began as a merit promotion action." Id.
The Arbitrator further found that Article 20, Section 5 was applicable to the reassignments and the Activity was, therefore, obligated to comply with that contractual provision. He rejected the Activity's contentions that: (1) the merit promotion procedures are the only means whereby vacancies in newly-created positions can be filled; and (2) the Article 20, Section 5 reassignment procedures apply "only in non-routine circumstances pertaining to staffing imbalances, workload fluctuations, new programs or locations or special projects." Award at 14. The Arbitrator determined that the personnel actions in dispute were reassignments made pursuant to Section 3A of Article 20, which refers to reassignments made "due to . . . other legitimate reasons." Id. He found that "the reassignment of an employee to a vacancy in a new position, made as an alternative to a merit promotion when no promotion eligibles are available, is a 'legitimate reason' for a reassignment." Id. The Arbitrator concluded that Article 20, Section 5 applied to the Activity's filling of the vacant positions.
Finally, the Arbitrator found that the Activity violated Article 20, Section 5. He noted that Article 20, Section 5 provides that when more than one equally qualified employee is available for a reassignment, the Activity will seek a volunteer for reassignment from among those determined to be equally qualified. If more qualified employees volunteer than there are positions to be filled, Article 20, Section 5 requires the Activity to select those employees with the greatest amount of Customs service in the position being filled.
The Arbitrator determined that the employees who applied for the vacancies at Port Everglades "effectively 'volunteered' for reassignment to those positions." Award at 15. He stated that the Activity "does not claim that any of the fifteen volunteers were more qualified than the others [or] were not qualified to fill the positions[.]" Id. The Arbitrator held that in these circumstances, Article 20, Section 5 "require[d] that the Port Everglades vacancies be filled by the five volunteers with the greatest amount of service in the GS-9 Customs Inspector classification." Id. The Arbitrator concluded that since those five individuals were not selected, the Activity violated that provision of the contract.
Accordingly, the Arbitrator sustained the grievance and directed the Activity to: (1) rescind the five challenged reassignments; and (2) rerun the reassignment actions in a manner consistent with Article 20, Section 5 of the parties' national agreement. The Arbitrator stated that "the five vacant positions are to be filled by the reassignment of the five persons among those whose names appear [on the list of the applicants] who have the greatest amount of Customs service within the GS-9 Customs Inspector classification." Award at 16.
IV. Positions of the Parties
A. The Activity
The Activity contends that the Arbitrator's award is contrary to law, rule, and regulation and beyond the scope of the Arbitrator's authority. The Activity asserts that the award violates management's rights to assign employees and to select employees from any appropriate source because it directs the Activity to vacate positions and to follow Article 20, Section 5 in refilling the positions.
The Activity acknowledges that the Arbitrator correctly found that the alternate staffing method used in this case was reassignment. However, the Activity contends that the Arbitrator erred in finding that "Article 20, Section 5, seniority based selections must be applied to the type of reassignments made in the instant case." Exceptions at 8. The Activity asserts that selection on the basis of seniority under Article 20, Section 5 does not apply to every type of reassignment but is limited to particular types of reassignment described in Article 20, Section 3A, which were not involved in this case.
The Activity also asserts that the Arbitrator incorrectly interpreted the parties' national agreement by stating that reassignment eligibles are to be selected by seniority. The Activity argues that "[t]o do so requires an assumption that the applicants, who filed applications and proceeded through the application process, be regarded and treated as true volunteers who are equally qualified." Exceptions at 6. The Activity asserts that the Arbitrator wrongly made this assumption. The Activity asserts that "all candidates may not have been determined, by the employer, to be equally qualified . . . ." Exceptions at 9.
The Activity further contends that the award "is illegal and exceeds the Arbitrator's scope of authority because it orders the [Activity] to select, by seniority, certain, specific, employees from the selection certificate." Exceptions at 11. The Activity argues that by limiting its selections to employees on the certificate, the award is contrary to management's right under section 7106(a)(2)(C) to determine the source from which it will fill a vacant position. Id.
B. The Union
The Union argues that the Activity's exceptions should be denied because they amount to no more than disagreement with the Arbitrator's interpretation and application of the parties' collective bargaining agreement. The Union contends that the Activity retained its management prerogative to decide how to fill the positions at Port Everglades. The Union asserts that once the Activity decided to fill the positions by reassigning employees from one post of duty to the same positions at another post of duty, Article 20, Section 5 set out the procedures that the Activity was required to use in selecting the individuals who would be reassigned. The Union contends that the Activity's argument, that Article 20, Section 5 is not applicable to this case, is "an issue that the arbitrator was called upon to decide," and the Activity's disagreement with his conclusion provides no basis for review of the award. Opposition at 6.
We conclude that the Activity has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute; that is, that the award is contrary to law, rule, or regulation or that it is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations.
Management's rights under section 7106(a) of the Statute are subject to procedures negotiated under section 7106(b). Negotiable procedures are enforceable through grievance arbitration. See, for example, Internal Revenue Service, Cincinnati District Office and The National Treasury Employees Union, Chapter 9, 24 FLRA 288 (1986). Proposals which establish procedures--such as seniority--to be used by an agency when selecting from among employees previously determined by management to be qualified to perform the work required by a reassignment are negotiable. Local Lodge 830, International Association of Machinists and Aerospace Workers, AFL-CIO and U.S. Naval Ordnance Station, Louisville, Kentucky, 20 FLRA 848, 850 (1985), enforced sub nom. United States Naval Ordnance Station, Louisville, Kentucky v. FLRA, 818 F.2d 545 (6th Cir. 1987). Because Article 20, Section 5 of the parties' agreement provides that the Activity will make selections for reassignments from among equally qualified employees, we find, consistent with Naval Ordnance Station, that Article 20 constitutes an enforceable procedure under the Statute.
The Activity has failed to show that the award in this case is deficient under the Statute. The issue submitted to and decided by the Arbitrator was whether the Activity violated any law, rule, or regulation or the parties' national agreement when it filled five vacant positions at Port Everglades. The Arbitrator determined that Article 20, Section 5 established the parties' agreed-upon procedures for effecting r