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The decision of the Authority follows:
45 FLRA No. 40
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Ed W. Bankston filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations.1/ The Union filed an opposition to the Agency's exceptions.
Two employees filed grievances alleging that the Agency improperly denied them opportunities to work overtime. The Arbitrator sustained the grievances.
For the following reasons, we conclude that the Agency's exceptions fail to establish that the award is deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
On March 19, 1991, the Agency gave two employees a "firm choice" making their continued employment contingent upon the successful completion of a 12-month drug rehabilitation program. Award at 2. The employees' return to their positions was also subject to the following conditions: (1) the employees' access to classified material was withdrawn; (2) their "P Stamps" were pulled, thereby requiring other certified employees to review and certify the employees' work; and (3) they were subject to frequent follow-up drug testing for 1 year and were required to remain drug-free.
On May 10-12, 1991, the Agency denied the employees the opportunity to work overtime "allegedly due to conditions of their participation" in the rehabilitation program. Id. at 1. The employees grieved the Agency's action. The grievances were not resolved and were consolidated for consideration before the Arbitrator.
The Arbitrator stated that the issue before him was "[w]hether the Agency violated the Agreement between the parties by denying overtime work opportunities to the grievants on May 10, 11, 12, 1991[,] and, if so, what is the proper remedy?" Id. Before the Arbitrator, the Agency contended that the denial of overtime was warranted because the grievants' ability to perform normal work assignments had been compromised by the conditions noted above, particularly by the removal of their "P Stamps" and their lack of access to classified materials.
The Arbitrator found that Article 5 of the Local Supplement to the parties' Master Labor Agreement, which generally provides that "'[o]vertime will be distributed as fairly and equitably as possible among the employees[,]'" controlled the allocation and distribution of overtime among employees. Id. at 3.2/ The Arbitrator stated that if the Agency decides that overtime work is needed, it must distribute such overtime according to the agreement. The Arbitrator determined that the grievants "complied with all provisions of Article 5 with reference to voluntarily 'signing-in' as 'qualified employees with the lowest overtime hours within the unit . . .' yet, were selectively bypassed and disallowed their overtime opportunity." Id.
The Arbitrator rejected the Agency's claim that, having lost their "P Stamps" and their access to classified material, the grievants were not "qualified employees" for purposes of overtime work. Id. Noting that the grievants remained "qualified employees" for all purposes other than overtime considerations and that the grievants' job tasks and work assignments were identical whether performed on straight time or overtime, the Arbitrator found that the Agency's position--that the grievants were qualified to perform the work during regular hours, but not to perform the same work on overtime--was "perplexing" and "difficult to reconcile." Id. at 3-4. The Arbitrator stated that the Agency's arguments would apply to both overtime and straight time situations. The Arbitrator noted, however, that the employees were being allowed to work during regular duty hours. The Arbitrator found that "whatever the perceived disparity between straight time and overtime situations ought to have been addressed initially." Id. at 7. The Arbitrator also noted that other certified employees who could have certified the grievants' work were available during the overtime worked on May 10-12, 1991. Finally, the Arbitrator found that the overtime work would not have interfered with the grievants' participation in the rehabilitation program.
The Arbitrator rejected the Agency's contention that, as part of their rehabilitation agreement, the grievants had forfeited their contractual right to overtime opportunities. Additionally, the Arbitrator rejected the Agency's claim that its actions were protected by its retained management rights under the Master Labor Agreement. In this regard, the Arbitrator concluded that "by virtue of Article 5 [of the Local Supplement], the Agency is left with little or no discretion as to the allocation of overtime." Id. at 5-6.
In conclusion, the Arbitrator found that the grievants were wrongfully denied overtime to which they were entitled under the contract. Accordingly, the Arbitrator sustained the grievances and directed that the grievants be made whole for the improper denial of overtime.
III. Positions of the Parties
A. Agency's Exceptions
The Agency asserts that the award infringes on management's rights under section 7106 of the Statute because the award: (1) "excessively interferes with management's rights to assign, to assign work, and to determine the personnel by which Agency operations should be conducted"; (2) "excessively interferes with management's right to determine its internal security practices"; and (3) "dictates the number of employees assigned on overtime[.]" Exceptions at 1.
According to the Agency, the Arbitrator "seemingly ignored the Agency presentation concerning these rights even though the Agency's entire argument was predicated on management's right to determine the requisite skills and qualifications to perform the overtime and management's obligation to ensure the employees' access to classified [information] was denied . . . ." Id. at 2-3. The Agency argues that the grievants "were decertified as part of the restructuring of their sensitive position[s], therefore, they were not ready, willing, and able to perform the full range of the overtime work." Id. at 2. The Agency contends that the Arbitrator interpreted the parties' Local Supplement in a manner that denies the Agency the authority to exercise its rights under section 7106 of the Statute. In sum, the Agency asserts that the award is contrary to the Statute and, therefore, should be set aside.
B. Union's Opposition
The Union asserts that the Agency's exceptions constitute nothing more than dissatisfaction and disagreement with the Arbitrator's award and, as such, provide no basis for finding the award deficient. Therefore, the Union requests that the exceptions be denied.
IV. Analysis and Conclusions
We conclude that the Agency has not established that the award is deficient as contrary to section 7106(a) of the Statute. When an agency contends that an arbitrator's award enforcing a provision of the parties' collective bargaining agreement is contrary to section 7106(a) of the Statute, we will, as appropriate, examine the provision enforced by the arbitrator to determine: (1) if it constitutes an arrangement for employees adversely affected by the exercise of management's rights; and (2) if, as interpreted by the arbitrator, it abrogates the exercise of a management right. See Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309, 313-14 (1990) (Customs Service).
If it is evident that the provision constitutes an arrangement and, as interpreted by the arbitrator, does not abrogate management's rights, the provision is within the range of matters that can be bargained under the Statute. Accordingly, we will not find that such an award is contrary to law and we will deny the exception. If the arbitrator's interpretation does result in an abrogation of management's rights under section 7106(a), the award will be found deficient as contrary to law. However, because the contractual provision may be susceptible to a different and sustainable interpretation by a different arbitrator, the provision itself will not be affected.
In this case, the Agency has not established that the Arbitrator's award is contrary to section 7106(a) of the Statute. Rather, the Arbitrator has enforced a provision of the parties' collective bargaining agreement that constitutes an arrangement for employees adversely affected by the exercise of management's right to assign overtime work. The Arbitrator found that Article 5 of the Local Supplement to the parties' Master Labor Agreement, which generally provides that overtime will be distributed as fairly and equitably as possible among employees, controlled the allocation and distribution of overtime among employees. Applying the provisions of Article 5 to the grievances before him, the Arbitrator determined that the grievants were wrongfully denied overtime to which they were entitled under the contract. Consequently, we find that the Arbitrator merely enforced an arrangement negotiated by the parties when he directed the Agency to pay the employees for the lost overtime opportunity. See U.S. Department of Justice, Immigration and Naturalization Service and American Federation of Government Employees, National Immigration and Naturalization Service Council, 42 FLRA 222, 230-31 (1991) (INS).
We also find that Article 5 of the Local Supplement, as interpreted and applied by the Arbitrator, does not abrogate the Agency's rights under section 7106(a) of the Statute. In Customs Service, the Authority held that an award "abrogates" a management right when the award "precludes an agency from exercising" that right. Customs Service, 37 FLRA at 314. The Arbitrator's award does not preclude the Agency from exercising its rights under section 7106 of the Statute. Rather, the award only requires the Agency to comply with Article 5 of the Local Supplement, which provides that overtime will be distributed as fairly and equitably as possible among employees. The Arbitrator's award would not prevent management from determining when overtime assignments are required, deciding how many employees are needed to work overtime, and assigning overtime work to unit employees, as long as such assignments comply with the requirements of the parties' agreement. Accordingly, we conclude that Article 5, as interpreted and applied by the Arbitrator, does not abrogate the exercise of management's rights under section 7106(a) of the Statute. See INS, 42 FLRA at 231.
In sum, we find no merit in the Agency's contention that the Arbitrator's award is deficient on the basis that it interferes with management's rights under section 7106(a) of the Statute.
The Agency's exceptions are denied.
. . . .
1. Planned overtime (that is week-end overtime announced by noon Thursday) will be offered to those employees at the lowest organizational element with current working experience on the specific work to be accomplished on overtime. If the Employer elects to change the area of consideration for planned overtime, the impact of this determination must be negotiated. Overtime will be distributed as fairly and equitably as possible among the employees. Exceptions to the normal method of assigning overtime may be the result of:
a. Loss of an identifiable amount of productive time due to familiarization of employees who have not been performing the specific task to be done on overtime.
b. Employees performing specialized repairs/modifications in conjunction with engineers.
c. Operations requiring certified (COP) employees to perform the task. Persons on detail or loan within a branch will be considered with their original unit of assignment until their detail or loan has exceeded five (5) days.
. . . .
II. Overtime procedures - Aircraft Division
. . . .
The Aircraft Production Branch will solicit volunteers for planned overtime in the following manner. (Any other organization which desires in the future to implement this procedure may do so by mutual agreement between the parties.)
a. Management will make available at unit level a weekly volunteer "sign-in" sheet whereby employees (within the unit) who wish to work planned overtime may make such desires known.
b. "Sign-In" sheets will be posted each Monday by 0900 (or first workday thereafter) and will be closed to volunteers noon Wednesday.
c. Employees who "sign-in" for overtime will be considered in accordance with current procedures (i.e., qualified employees with the lowest overtime hours within the unit will be considered first).
(If blank, the decision does not have footnotes.)
1/ The Agency also requested a stay of the Arbitrator's award when it filed its exceptions to the award. Effective December 31, 1986, the Authority's Regulations were revised to revoke those portions pertaining to the filing of requests for stays of arbitration awards (51 Fed. Reg. 45754). Accordingly, no action on the stay request was taken.
2/ The relevant portions of Article 5 are set forth in the