43:1535(123)AR - - Treasury, US Mint and AFGE, Mint Council, Local 1023 - - 1992 FLRAdec AR - - v43 p1535
[ v43 p1535 ]
The decision of the Authority follows:
43 FLRA No. 123
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE TREASURY
UNITED STATES MINT
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
February 14, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator Thomas J. Ryan filed by the Union 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 Agency did not file an opposition to the Union's exception.
The Arbitrator denied a grievance alleging that the Agency violated the parties' collective bargaining agreement by assigning the grievant to the second shift. We conclude that the Union's exception provides no basis for finding the award deficient. Accordingly, we will deny the exception.
II. Background and Arbitrator's Award
On November 28, 1990, the grievant, a coin press operator, was reassigned from the first shift to the second shift. On an annual basis, the Agency makes shift reassignments on the basis of seniority in accordance with a "shift choice roster" which lists employees' shift preferences. Award at 2. When the new shift assignments were made, seven temporary employees with less seniority than the grievant were placed on the first shift. The grievant filed a grievance claiming that her shift assignment was not made on the basis of seniority. As a permanent employee, the grievant asserted that she possessed greater seniority than the seven temporary employees assigned to the first shift.
The grievance was not resolved and was submitted to arbitration. The Arbitrator framed the issue as: "Did the [Agency] violate Article 10-2 of the agreement when it assigned [the grievant] to the second shift on November 28, 1990? If so, what shall the remedy be?"(1) Id. at 5.
The Arbitrator concluded that "on a pure seniority basis" the grievant would "merit being assigned to the first shift." Id. at 9. However, the Arbitrator found that, in implementing Article 10-2, the practice had been to "realign the shifts with a basic nucleus of permanent employees on each shift" and to distribute the temporary employees on each shift. Id. at 3. According to the Arbitrator, this practice enabled the Agency, in the case of a furlough, to retain a sufficient number of permanent employees assigned to each shift in order to insure continuity of production. The Arbitrator noted that if the "shift rosters were assigned purely on seniority, the third shift would have all the young and inexperienced personnel, the second shift would be mixed, and the first shift would have all the experienced personnel." Id. at 9.
The Arbitrator stated that three of the seven temporary employees on the first shift were assigned, as needed, to other organizational units to maintain production levels. The other temporary employees "were added to the first shift primarily to maintain production levels" because two permanent employees were in a training program and two other permanent first shift employees were not available for work due to physical incapacities. Id. at 6.
The Arbitrator concluded that "the parties also realized" what could happen in utilizing "a purely seniority basis when filling shift assignments[,]" and, therefore, they "negotiated the exception provided for in Article 10-2: 'Some exception to the above may be necessary in regard to training programs or training replacements when shift preference rights are being exercised.'" Id. at 9.
The Arbitrator found that the Agency did not violate the contract when it assigned the grievant to the second shift. Rather, the Arbitrator concluded that the Agency had the "right to assign employees to work" and that the Agency was also "permitted, in accordance with Article 10-2, to exercise an exception regarding seniority, when the training of employees is involved." Id. at 10. The Arbitrator, therefore, denied the grievance.
III. The Union's Exception
The Union asserts that the award is "contrary to law, rule and/or regulation and fail[s] to draw its essence from the contract in that nothing in rule, law and/or regulation or in the contract justifie[d] the failure of the [A]rbitrator to abide by the terms of Article 10-2 . . . which required the [A]gency to put the grievant on [the] first shift instead of the numerous less senior individuals who were put on [the] first shift." Exceptions at 1.
The Union acknowledges that the parties' agreement "permit[s] some exceptions to shift assignments being made on a strict seniority basis because of training programs or training replacements." Union Brief at 2. However, the Union contends that only two of the less senior employees were placed on the first shift based upon training needs. The Union argues further that there was "absolutely no evidence . . . to support the [A]rbitrator's apparent conclusion that the [A]gency's interest in maintaining a balance on each shift between more experienced and less experienced employees constituted a 'training' need as that term was used in Article 10-2." Id.
IV. Analysis and Conclusions
We find that the Union's exception provides no basis for finding the award deficient. Although the Union asserts that the award is contrary to law, rule and/or regulation, the Union cites no law, rule or regulation with which the award conflicts, and none is apparent to us. The Union also has not established that the award fails to draw its essence from the parties' collective bargaining agreement.
To demonstrate that an award is deficient because it fails to draw its essence from an agreement, a party must show that the award: (1) cannot in any rational way be derived from the agreement; or (2) is so unfounded in reason and fact, and so unconnected with the wording