45:1234(124)AR - - Air Force Logistics Center, Tinker AFB, OK and AFGE Local 916 - - 1992 FLRAdec AR - - v45 p1234
[ v45 p1234 ]
The decision of the Authority follows:
45 FLRA No. 124
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 Milden J. Fox, Jr. 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. The Union did not file an opposition to the Agency's exceptions.
The Arbitrator upheld a grievance alleging that the grievant was improperly denied the opportunity for overtime work on three specified weekends. The Arbitrator found that three employees in the Agency's tool and parts crib were each entitled to 16 hours of overtime pay.
For the following reasons, we deny the Agency's exception that the Arbitrator's award is contrary to section 7106(a)(2)(B) of the Statute. We find, however, that the Arbitrator exceeded his authority by ordering the Agency to pay three employees in the tool and parts crib 16 hours of overtime pay each. We will modify the award to limit the payment of overtime to the named grievant.
II. Background and Arbitrator's Award
The Agency's Aircraft Branch obtains its tools from tool and parts cribs, which usually have a tool and parts attendant on duty. Normally, when a tool and parts attendant is not on duty, and a sheet metal worker or aircraft mechanic is allowed in the tool and parts crib, that individual is directly supervised by the on-duty supervisor who management considers to be "PAC certified" for issuing items from the crib. Award at 4. The parties stipulated that "[w]ithout a Tool and Parts Attendant on duty, there are many items that can turn up missing from the Tool and Parts Crib." Id. at 3. During three weekends in May 1991, the Agency decided that a tool and parts attendant was not required when a small number of sheet metal workers worked overtime. Instead, management determined that on those three weekends the on-duty supervisor could check out the tools from the tool and parts crib involved. Approximately seven to ten sheet metal workers, ten aircraft mechanics, and two supervisors worked the three weekends.
The grievant, a tool and parts attendant, filed the grievance in this matter because he was not given the opportunity to work overtime on the three weekends in question. The grievance was not resolved and was submitted to arbitration.
The parties agreed on the following statement of the issue before the Arbitrator:
Was the Grievant . . . improperly denied the opportunity for overtime work on 4, 5, 11, 12, 18, or 19 May 1991 in accordance with law, rule and regulation? If so what shall the remedy be?
The Arbitrator found that the tool and parts crib is "a vital link in the system to prevent FOD [foreign object damage] in the repaired aircraft." Id. at 5. The Arbitrator found that very strict control is maintained and workers who merely misplace a tool or part that is later found are disciplined as a measure to prevent FOD in the aircraft. The Arbitrator found that due to the critical need to prevent tool misplacement and FOD, the crib is normally inventoried both at the beginning and toward the end of a shift, in addition to the usual checkout procedure.
The Arbitrator found that on the three weekends in question the crib was opened and used. The Arbitrator found that management's tool inventory log for the days in question was altered so that it was impossible to tell who had initialed the form. The Arbitrator concluded that "a story jumps out that the workers were allowed into the Tool and Parts Crib without the PAC certified supervisors being present." Id. at 6. The Arbitrator determined that this unsupervised work in the crib by non-PAC certified sheet metal workers and aircraft mechanics was a violation of Article 14, Section A of the parties' agreement.*/ The Arbitrator also concluded that because of the way the tool and parts crib was operated on the days in question it would have been impossible to carry out the requirements of certain regulations pertaining to tool control and accountability.
The Arbitrator found that a tool and parts attendant, either the grievant or one of his co-workers, was improperly denied the opportunity for overtime on each of the three weekends involved. Although he concluded that it had not been established which three employees should have been offered the overtime, the Arbitrator stated that he could determine that the grievant was not entitled to 48 hours of overtime. Rather, he found that, at most, the grievant was entitled to 16 hours of overtime for the weekend of May 4 and 5, 11 and 12 or 18 and 19, 1991.
As his award, the Arbitrator upheld the grievance, finding that the Agency had committed the unwarranted personnel action of using non-PAC certified bargaining unit employees to operate the tool and parts crib on the days in question. The Arbitrator ordered the Agency to pay each of three unspecified employees in the tool and parts crib for 16 hours of overtime. Because the Arbitrator could not determine, based on the record before him, which tool and parts attendants would have been assigned overtime on each of the three weekends involved, the Arbitrator ordered that the parties determine who should be paid 16 hours of overtime. The Arbitrator retained jurisdiction for any issues arising regarding the identity of the employees and the amounts due them.
III. First Exception
A. Agency's Position
The Agency contends that the award violates management's right to assign work as set forth in section 7106(a)(2)(B) of the Statute.
The Agency asserts that the Authority has consistently held that no arbitration award may interpret or enforce a collective bargaining agreement so as to improperly deny an agency the authority to exercise its rights under section 7106 of the Statute. In support of its assertion, the Agency cites 172d Infantry Brigade, Fort Richardson, Alaska and American Federation of Government Employees, Locals 1712, 1834 and 1949, 19 FLRA 542 (1985), and U.S. Department of the Navy, Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 35 FLRA 990 (1990). The Agency also cites American Federation of Government Employees, AFL-CIO, International Council of U.S. Marshals Service Locals and Department of Justice, U.S. Marshals Service, 11 FLRA 672 (1983) (Proposal 2), a negotiability decision in which the Authority found that a proposal was inconsistent with management's right to assign work because it precluded the agency from assigning supervisors work that would otherwise be performed by unit employees on overtime.
The Agency contends that there was no opportunity for overtime assignments for tool and parts attendants on the weekends in question because management exercised its right not to offer overtime to any tool and parts attendants. Conceding that the Arbitrator may have been correct in finding that non-PAC certified personnel were allowed in the tool and parts crib, the Agency argues that it was management's decision as to who would perform the work in question. The Agency contends that upholding the Arbitrator's award would have the effect of requiring management to allow only tool and parts attendants to work in the crib. The Agency asserts that such a restriction is a "work ownership restriction" and violates management's right to assign work. Exceptions at 8.
B. Analysis and Conclusions
We conclude that the Agency has failed to establish that the Arbitrator's award violates its right to assign work under section 7106(a)(2)(B) of the Statute.
In Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309 (1990) (Customs Service), we reexamined our approach to cases in which an agency contends that an arbitrator's award enforcing a provision of the parties' collective bargaining agreement is contrary to management's rights under section 7106 of the Statute. We held that when an agency makes such a contention we will examine, as appropriate, 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. We explained that 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 held that we will not find that such an award is contrary to law and we will deny exceptions that contest that the award is inconsistent with management's rights. We also held that 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, but the contractual provision, susceptible to a different and sustainable interpretation by a different arbitrator, will not be affected.
The Arbitrator found that non-PAC certified workers were allowed into the tool and parts crib without a PAC-certified supervisor present on the weekends in question. The Agency does not dispute this finding. The Arbitrator concluded that this was a violation of the Article 14, Section A of the parties' agreement, which requires that overtime work will be assigned to employees "who have the ability to perform the tasks for which overtime is required . . . ." Award at 7 (emphasis omitted). In this regard, the Arbitrator concluded that because of the way the tool and parts crib was operated on the days in question it would have been impossible to carry out the requirements of certain regulations pertaining to tool control and accountability.
We find that Article 14, Section A of the parties' agreement constitutes an arrangement for employees adversely affected by the exercise of management's right to assign work on an overtime basis when management chooses to assign that work to unqualified individuals. The parties stipulated that "[w]ithout a Tool and Parts Attendant on duty, there are many items that can turn up missing from the Tool and Parts Crib." Award at 3. The record establishes that employees who misplace a tool or part are subject to discipline. Thus, without a qualified tool and parts attendant on duty during overtime assignments, there is a greater likelihood that unit employees will be disciplined due to the misplacement of tools and parts. In our view, in finding that on the weekends in question employees were performing tasks that they were not certified to perform, the Arbitrator was enforcing an arrangement designed to protect unit employees from the adverse effects that could flow from the Agency's decision to assign overtime without assuring adequate coverage of such critical areas as the tool and parts crib.
We further find that the provision of the parties' agreement as enforced by the Arbitrator does not abrogate the Agency's rights to assign work or to determine the personnel by which Agency operations are conducted. In Customs Service, we 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 in this case does not preclude the Agency from exercising its rights. First, we find that although the Agency's ability to assign any employee it chooses to perform work in the tool and parts crib is somewhat circumscribed, the Arbitrator's enforcement of the agreement provision does not abrogate the exercise of the right to assign work under section 7106(a)(2)(B). Rather, the award permits the Agency to assign overtime work as long as those assigned "have the ability to perform the tasks for which overtime is required . . . ." Award at 7. The award leaves unimpaired the Agency's right to assign a PAC-certified supervisor to the tool and parts crib when the Agency determines that a tool and parts attendant is not needed because of the small number of mechanics or other employees working overtime. In addition, it is undisputed that the Agency retains the right to determine which employees are qualified to operate the tool and parts crib.
Further, we find that the Agency's reliance on Authority decisions to support its view that the award is inconsistent with the exercise of management's rights is misplaced. To the extent the Agency cites a decision addressing the negotiability of a union proposal, we stated in Customs Service that the test employed for determining the negotiability of matters proposed for bargaining under section 7117 of the Statute is different from that used in determining whether the enforcement of a negotiated agreement abrogates the exercise of a management right. To the extent the Agency relies on Authority decisions in arbitration cases that predate Customs Service, we note that the test set forth therein was designed to apply to that case and to all future cases involving exceptions to awards that are claimed to conflict with the exercise of a management right. See National Treasury Employees Union, Chapter 174 and U.S. Department of the Treasury, Customs Service, Region IV, 45 FLRA 1051 (1992) (the contractual provisions enforced by the arbitrator relating to the equitable assignment of overtime work among bargaining unit employees did not abrogate management's rights under section 7106 of the Statute).
IV. Second Exception
A. Agency's Position
The Agency contends that the Arbitrator's award exceeded the Arbitrator's authority because it goes beyond the scope of the matter submitted to arbitration. The Agency argues that in awarding three unspecified employees 16 hours of overtime pay, the Arbitrator awarded relief to employees who were not encompassed by the grievance. The Agency maintains that the issue submitted for arbitration by the parties was limited to whether th