47:1038(97)AR - - NTEU and Treasury, Customs Service, Pacific Region - - 1993 FLRAdec AR - - v47 p1038
[ v47 p1038 ]
The decision of the Authority follows:
47 FLRA No. 97
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL TREASURY EMPLOYEES UNION
U.S. DEPARTMENT OF THE TREASURY
June 30, 1993
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 Samuel A. Vitaro 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 filed an opposition to the Agency's exceptions.
The Arbitrator found that the Agency had improperly failed to offer overtime to full-time custom inspectors before assigning the work to intermittent customs inspectors. We conclude that the Agency fails to establish that the award is deficient. Accordingly, we will deny the Agency's exceptions.
II. Background and Arbitrator's Award
The Agency operates a port of entry in Anacortes, Washington. The port is staffed by a GS-11 port director and two GS-9 full-time customs inspectors. In addition, nine intermittent customs inspectors are also available for assignments. The principal inspection activities at the port involve the processing of vehicles and passengers arriving on an international ferry from Canada. A ferry arrives every day at approximately 3:00 p.m. During the summer months, an additional ferry arrives each day at approximately 9:00 p.m. Two or three inspectors are needed to process the regular ferry and four to six inspectors are needed to process the summer ferry.
Until June 1991, the three full-time employees were assigned to an 8:00 a.m. to 5:00 p.m. shift. During the summer months in 1988-1990, the two full-time inspectors were offered the opportunity for the entire summer to process the summer ferry. Because they had already worked the 8:00 a.m. to 5:00 p.m. shift, they were paid "1911 overtime" for the work on the summer ferry performed after 5:00 p.m.(1) Intermittent inspectors were used to supplement the full-time inspectors. Except for Sundays and holidays, the intermittent inspectors were paid at their regular rate of pay and received a minimum of 2 hours of pay. On Sundays and holidays, they were entitled to receive 1911 overtime pay.
In June 1991, the Agency realigned the workforce to better meet the workload by adding a second shift. The new shift was from 2:00 p.m. to 10:00 p.m. The port director and one full-time inspector were assigned to the 8:00 a.m. to 5:00 p.m. shift and one full-time inspector was assigned to the 2:00 p.m. to 10:00 p.m. shift. The two full-time inspectors alternated working the second shift. The full-time inspector on the second shift received regular pay and was not eligible for 1911 overtime during the second shift. In addition to establishing a second shift, the Agency also determined that it would handle the processing of the summer ferry by the use of intermittent inspectors assisting the second-shift inspector. The Agency ceased offering the work to the other full-time inspector as 1911 overtime.
The Union filed a grievance challenging the Agency's determination to stop offering the work of processing the summer ferry to the full-time inspector on the first shift on 1911 overtime. The grievance was not resolved and was submitted to arbitration.
Before the Arbitrator, the Union argued that the Agency's action violated Customs Directive 51250-03 (INS-2), which had been negotiated with the Union and which concerns the assignment of inspectional work.(2) The Union asserted that the overtime call-out provisions of INS-2 apply whenever there is a need for the performance of inspectional work between the hours of 5:00 p.m. and 8:00 a.m., which cannot be satisfied by regularly scheduled full-time inspectors, and that the call-out provisions require that the work be offered to full-time inspectors on 1911 overtime before the work can be assigned to intermittent inspectors. The Union maintained that its view was supported by 19 C.F.R. § 24.16, a previous arbitration decision, and past practice, both before INS-2 and for the 2 years after the institution of INS-2.
The Agency argued before the Arbitrator that the overtime call-out provisions of INS-2 do not apply to its action because the assignment of the work was not overtime for the intermittent inspectors. The Agency maintained that the call-out provisions would apply only when the intermittent inspectors would have been on 1911 overtime. The Agency also argued that the Union's view of INS-2 would abrogate its rights to assign work and to determine the assignment of types of employees, such as intermittents. The Agency further maintained that, in any event, its action was permitted under the provisions of INS-2 because it had acted to control overtime in view of a statutory cap on how much overtime custom inspectors may make and that its action was cost-effective because it would use intermittents on regular time rather than a full-time inspector on overtime.
The Arbitrator concluded that the call-out provisions of INS-2 applied to the assignment of processing the summer ferry. He determined that the practice prior to INS-2 and the initial practice under INS-2 supported this view. He found that the practice prior to INS-2 was to offer these assignments to full-time inspectors on overtime before assigning the work to intermittents and that this practice was consistent with the provisions of 19 C.F.R. § 24.16.(3) The Arbitrator further found that the practice under INS-2 until June 1991 was to offer the work of processing the summer ferry to the full-time inspectors on 1911 overtime and that this practice was not restricted to Sundays and holidays when intermittents would also be on 1911 overtime. He noted that intermittents were used, but that they supplemented the full-time inspectors. He also determined that established principles of contract construction supported the Union's view of INS-2. He found that the Agency's interpretation was not supported by any express provision of INS-2 and that other provisions of INS-2 reasonably suggested that the call-out provisions applied whenever service needs could not be satisfied by regularly scheduled staffing. The Arbitrator also found that to the extent that there was a conflict between the provision of INS-2 stating that management retains the sole right to determine when overtime will be required and the types of employees who will be assigned, and the call-out provisions, the more specific call-out provisions governed.
The Arbitrator also concluded that the Agency's action was not permitted by the efficiency provision of INS-2, which provides that efficient and effective use of staff to accomplish the mission is the basic criteria for the assignment of personnel. The Arbitrator was not convinced by the testimony of the area port director that she had acted for purposes of managing overtime under the statutory cap. He noted that in her testimony she denied that the amount of the overtime played a part in her decision to assign the work to intermittents without offering it to the full-time inspector to be performed on overtime. He also noted there was insufficient evidence to conclude that the statutory overtime cap was a problem. Although the Arbitrator recognized that the use of intermittents is more cost effective than full-time inspectors on overtime, he refused to find that the general provision on efficiency permitted the Agency to ignore the more specific call-out provisions.
In addition, the Arbitrator rejected the Agency's contention that applying the call-out provisions in the assignment of the summer ferry duties would abrogate management's right under section 7106(b)(1) of the Statute and the parties' agreements to determine the types of employees to be assigned work and management's right under section 7106(a)(2)(B) of the Statute and the parties' agreements to assign work. Relying on National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs Medical Center, Newington, Connecticut, 38 FLRA 211 (1990) (VA Medical Center), the Arbitrator found that the term "types" of employees within the meaning of the Statute and the parties' agreements does not include intermittents because "types" does not include distinctions between employees based on the number of hours they work. Relying on U.S. Department of Justice, Immigration and Naturalization Service and American Federation of Government Employees, National Immigration and Naturalization Service Council, 42 FLRA 222 (1991) (INS), which applied the Authority's decision in Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309 (1990) (Customs Service), the Arbitrator found that the call-out provisions constituted arrangements for employees adversely affected by the exercise of management's rights and that applying them to the assignment of the summer ferry duties did not abrogate management's right to assign work.
Accordingly, as the award, the Arbitrator ruled that the Agency was required to have offered overtime in the circumstances involved in this case to the available full-time inspector before using intermittents. However, because he found no evidence of entitlement to backpay, the Arbitrator rejected the Union's request for an award of backpay.
III. First Exception
A. Positions of the Parties
The Agency contends that the award is contrary to section 7106(a) of the Statute. The Agency argues that the award abrogates management's rights to determine its mission, budget, and the personnel by which Agency operations will be conducted and to assign work.
The Agency asserts that the award abrogates its right to assign work to be performed on regular time rather than on overtime. The Agency maintains that under the award, the summer ferry duties must first be offered for assignment as overtime. The Agency argues that because of the overtime cap, this will result in full-time inspectors being unavailable to perform complex inspectional duties on overtime for which intermittent inspectors are not qualified. The Agency claims that the award removes agency discretion in determining when overtime is to be used. The Agency also argues that where previously it exercised its management rights to determine the personnel by which operations would be conducted and to assign work, it now must first offer and use overtime before it may assign intermittent employees. The Agency maintains that the Arbitrator cannot compel it to make overtime assignments that it has determined are unwarranted.
The Agency also asserts that as a result of the Arbitrator's decision, the Agency will be unable to perform its work and its mission. The Agency maintains that under its biweekly overtime cap system, a full-time inspector might not be available to work and an intermittent inspector might not be qualified to work. The Agency explains that the biweekly cap on overtime pro-rates the maximum overtime earnings over 26 pay periods and sets a limit on the amount of overtime that an inspector can earn during a pay period. The Agency claims that it is likely as a result of the award that full-time inspectors will quickly earn overtime up to the cap and then be unavailable to perform inspectional duties on overtime for which intermittent inspectors are not qualified. The Agency thus claims that the award will prevent the Agency from performing its work and fulfilling its mission at the port of Anacortes.
The Agency further claims that the award abrogates its right to determine its budget because the Arbitrator failed to find that the Agency was privileged to change its assignment practice because of administrative efficiency within the meaning of INS-2. The Agency explains that intermittent inspectors are paid out of a budget account allocated for part-time employees. The Agency alleges that by directing that the Agency use overtime in lieu of properly expending its part-time budget, the award is deficient because it directs how the Agency's budget is to be allocated.
The Union contends that the Agency fails to establish that the award is contrary to section 7106(a) of the Statute.
The Union argues that the Arbitrator correctly applied the Authority's decision in Customs Service in determining that the call-out provisions of INS-2 constituted an arrangement and that, as he interpreted and applied them, the provisions did not abrogate management's right to assign work or overtime. In the Union's view, the record establishes that the INS-2 call-out order is a procedure for allocation of overtime among qualified groups and does not involve the Agency's right to make determinations based upon qualifications or job-related differences. The Union also argues that the claim that the award precludes the Agency from assuring the availability of qualified inspectors is without merit. The Union asserts that the Authority rejected the exact same argument in INS, stating that it constituted nothing more than disagreement with the arbitrator's reasoning, conclusions, and interpretation of the agreement.
The Union further argues that there is no basis for finding deficient the Arbitrator's rejection of the Agency's claim that it was privileged by the administrative efficiency provisions of INS-2 to disregard the call-out provisions. The Union asserts that the Arbitrator correctly found that the statutory overtime limitation was not a consideration in management's actions changing the assignment practice for the summer ferry.
B. Analysis and Conclusions
We conclude that the Agency fails to establish that the award is contrary to section 7106(a) of the Statute.
Section 7106(a)(2)(B) of the Statute reserves to management officials the right to assign work and to determine the personnel by which agency operations will be conducted. Encompassed within those rights is the discretion to determine the particular employees or personnel to whom work will be assigned and the discretion to establish the particular qualifications and skills needed to perform the work to be done and to exercise judgment in determining whether particular employees or personnel meet those qualifications. For example, American Federation of Government Employees, Council 147 and U.S. Department of Health and Human Services, Social Security Administration, Teleservice Center, Phoenix, Arizona, 38 FLRA 110 (1990) (SSA) (Provision 1); National Marine Fisheries Service, Northeast Region, National Oceanic and Atmospheric Administration, United States Department of Commerce, Glouchester, Massachusetts and International Organization of Masters, Mates and Pilots, AFL-CIO, Boston, Massachusetts, 22 FLRA 443, 445 (1986) (NOAA); National Treasury Employees Union and U.S. Customs Service, 18 FLRA 780, 781 (1985) (NTEU). However, the Authority has repeatedly and uniformly held that when two or more employees are equally qualified and capable of performing the work involved, the selection of any one of those employees to perform the work would be consistent with management's exercise of its discretion in accordance with section 7106(a). SSA; NOAA, 22 FLRA at 445; NTEU, 18 FLRA at 781. In these circumstances, the procedure by which employees previously judged by management to be equally qualified will be selected to perform certain work is negotiable under section 7106(b)(2) of the Statute and, when negotiated by the parties, is enforceable in arbitration. SSA; NOAA, 22 FLRA at 445; NTEU, 18 FLRA at 781.
It is not disputed in this case that management has exercised its rights under section 7106(a)(2)(B) of the Statute to determine that summer ferry inspection duties would be performed by nonsupervisory customs inspectors. Although the Agency maintains that there are inspectional duties for which intermittents are not qualified, it is also not disputed that both full-time and intermittent inspectors are qualified to perform the summer ferry inspection duties, as is evident by the Agency's determination to assign these duties to intermittents rather than full-time inspectors. The call-out provisions of INS-2, as interpreted and applied by the Arbitrator, do not directly interfere with management's exercise of its rights to make either determination under section 7106(a)(2)(B).
In our view, despite the Arbitrator's description of the provisions as an arrangement, the provisions, as interpreted by the Arbitrator, provide a procedure for the assignment of work to employees management has determined are qualified to perform the work, specifically, that the first-shift, full-time inspector must be offered the opportunity to perform the summer ferry inspection duties before the duties are offered to intermittent inspectors. Accordingly, we find that the Arbitrator simply enforced the procedure for assignment of work whenever service needs cannot be satisfied by regularly scheduled staffing. Consequently, we conclude that the Agency fails to establish that the award is contrary to section 7106(a)(2)(B) of the Statute. See NOAA, 22 FLRA at 445; NTEU, 18 FLRA at 781.
In so concluding, we find that we misconstrued the similar call-out provisions in INS as an arrangement and inappropriately applied Customs Service in denying the contention that the award was contrary to section 7106(a) of the Statute. Compare National Treasury Employees Union, Chapter 174 and U.S. Department of the Treasury, Customs Service, Region IV, 45 FLRA 1051 (1992) (Customs Service analysis appropriate where the arbitrator applied the call-out provisions of INS-2 not to determine which among equally qualified employees would be assigned work but, rather, to determine whether the assignment of personnel to replace a supervisor who performed some nonsupervisory inspectional duties conflicted with the right to assign work to supervisory personnel as claimed by the agency). To that extent, we will no longer follow INS. However, we emphasize that both the Arbitrator in this case, notwithstanding his application of Customs Service and INS, and the arbitrator in INS properly enforced the call-out provisions consistent with management's rights under section 7106(a)(2)(B) of the Statute. In particular, in this case the Agency provides no support in Authority precedent for its argument that its rights under section 7106(a)(2)(B) encompass the right to select intermittent inspectors for assignment over full-time inspectors merely because the assignment of a full-time inspector who would receive 1911 overtime pay will be more costly.
We also reject the Agency's argument that the award conflicts with the Agency's ability to carry out its mission because it is likely that as a result of the award, full-time inspectors will be restricted by the statutory cap on overtime earnings from being available to perform inspectional duties on overtime for which intermittent inspectors are not qualified. The Agency fails to establish that the award, which merely applies the parties' call-out provisions to the performance of the summer ferry duties, directly interferes with the Agency's right to determine its mission under section 7106(a)(1) of the Statute. The Agency has identified the performance of customs inspection duties as its mission. The inspectors performed customs inspection duties before the award and continue to perform customs inspection duties after the award. We find that the prerogative of the Agency to determine its mission is unaffected by the award. See U.S. Department of the Navy, Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 39 FLRA 590, 598 (1991) (award found to concern only employees' tour of duty; agency's right to determine its mission unaffected by the award). Moreover, we rejected a similar argument in INS. The agency in INS had also argued that it would be deprived of the ability to perform its work as a result of the award because the full-time inspectors would reach the statutory limit on overtime pay. We ruled that "[t]he legal limit imposed on the payment of overtime is a matter that is separate and apart from the provision in the parties' agreement governing the assignment of overtime that was applied by the Arbitrator." INS, 42 FLRA at 231. We reiterate our conclusion in INS that, if at some point during the fiscal year, the full-time inspectors reach the legal limit on payment of overtime and cannot be assigned further overtime, "[t]hat is the result of the law limiting overtime payments, not the result of the Arbitrator's award." Id.
We find nothing in management's right under section 7106(a)(1) of the Statute to determine its budget that precludes the award in this case. The award merely enforces the procedure agreed to by the parties for assignment of work whenever service needs cannot be satisfied by regularly scheduled staffing. The award does not prescribe a program, operation, or dollar amount that the Agency must include in its budget. The fact that the intermittent inspectors are paid from a different budget account than the full-time inspectors fails to establish that the award interferes with management's right to determine its budget. See U.S. Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 46 FLRA 1297, 1302 (1993); U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, National Council of SSA Field Operations Locals, 44 FLRA 1280, 1286 (1992).
Accordingly we will deny this exception.
IV. Second Exception
B. Positions of the Parties
The Agency contends that the award is contrary to section 7106(b)(1) of the Statute. The Agency argues that the award restricts the Agency's right to determine the types of employees needed to perform the work of the Agency. The Agency maintains that the Arbitrator wrongly concluded that there is no difference between a regular, full-time inspector and an intermittent inspector. The Agency argues that there are significant differences in their training, qualifications, knowledge, and proficiency. The Agency asserts that there are inspectional functions in the port of Anacortes that only full-time inspectors perform, including boarding ships, supervising the processing of arriving ferries, processing the entrance and clearance of vessels, collecting entrance and clearance fees and tonnage taxes, and the gauging of petroleum products. The Agency maintains that the intermittent inspectors do not have the knowledge or skill to perform any of these functions.
The Agency argues that management's right to determine the type of employees within the meaning of section 7106(b)(1) includes the right to make determinations based on work or job-related differences between employees. The Agency claims that the Arbitrator's reliance on VA Medical Center was misplaced because unlike the employees in that case, the difference between full-time and intermittent inspectors is not solely in the number of hours they work. The Agency asserts that the award precludes the Agency from determining its staffing patterns and, as a result, directly interferes with its right to determine the types of employees that will perform work.
The Union contends that the award simply enforces a procedure for the assignment of qualified employees to the summer ferry work and does not directly interfere with management's right under section 7106(b)(1) to determine the types of employees assigned to a work project. The Union argues that this case involves only the narrow question of the assignment rights of full-time inspectors concerning the summer ferry and not a question of the relative qualifications and job duties of full-time and intermittent inspectors, as asserted by the Agency. The Union also disputes the Agency's arguments that there are differences between full-time inspectors and intermittent inspectors. The Union maintains that there is no evidence that the duties performed by the intermittent inspectors with respect to the summer ferry differ from those of the full-time inspectors. The Union claims that the Agency's statement of the general differences between full-time and intermittent inspectors is not supported by the record because the change in assignment policy was not based on job-related criteria, but rather on costs.
B. Analysis and Conclusions
We conclude that the Agency fails to establish that the award is contrary to section 7106(b)(1) of the Statute.
When an agency contends that an arbitration award, enforcing a provision of the parties' collective bargaining agreement, is contrary to section 7106(b)(1), we examine the award and the record to determine whether the award has merely enforced a provision of the agreement that constitutes the parties' agreement on the section 7106(b)(1) matter in dispute. For example, National Treasury Employees Union, Chapter 97 and U.S. Department of the Treasury, Internal Revenue Service, Fresno Service Center, 45 FLRA 1242, 1250 (1992). We do not apply the approach set forth in Customs Service because section 7106(b)(1) concerns matters over which an agency may elect to bargain and the abrogation standard of Customs Service is not applicable to such matters. Id. If the award merely enforces the parties' agreement on the disputed section 7106(b)(1) matter, we deny the exception. Id.
In determining that the call-out provisions of INS-2, negotiated by the parties, applied to the assignment of summer ferry duties, the Arbitrator rejected the Agency's claim that applying the provisions would conflict with the Agency's right under section 7106(b)(1) to determine the types of employees to be assigned work. The Arbitrator ruled that the intermittent inspectors were not a different "type" of employee within the meaning of section 7106(b)(1). In its exception, the Agency claims that the Arbitrator erroneously concluded that its determination to assign intermittent inspectors to summer ferry duties was not an exercise of its right to determine the type of employees to be assigned work because the Arbitrator failed to recognize that there are significant differences between the qualifications of full-time inspectors and intermittent inspectors. The Union questions whether the Agency has established any differences in the qualifications of full-time and intermittent inspectors to perform the summer ferry inspectional duties that are in dispute in this case.
The Agency has failed to establish that the determination to assign the summer ferry inspectional duties to intermittent inspectors rather than a full-time inspector involves a determination pertaining to "types" of employees under section 7106(b)(1). Although the Agency enumerates many inspectional functions that it asserts can be performed only by full-time inspectors, it is not apparent that the assignment of summer ferry inspectional duties to assist the second-shift, full-time inspector involved any such duties. However, even if we were to decide that the assignment did concern types of employees within the meaning of section 7106(b)(1) because the Agency was conserving the overtime assignments of full-time inspectors for functions only they were qualified to perform, the award constitutes the Arbitrator's enforcement of the parties' agreement relating to the assignment of work to different types of employees. Thus, under our approach to exceptions contending that an award enforcing an agreement of the parties conflicts with section 7106(b)(1), no basis is provided for finding the award deficient even if the Agency is correct in asserting that the assignment of summer ferry duties concerned its determination of the type of employee to be assigned work. See id. Accordingly, we will deny this exception.
V. Third Exception
A. Positions of the Parties
The Agency contends that the award fails to draw its essence from the collective bargaining agreement. The Agency argues that the Arbitrator's interpretation of the call-out provisions is not reasonable and is not founded on the specific wording and purpose of the provisions.
Specifically, the Agency states that the language of the parties' collective bargaining agreement and INS-2 provides that only the Agency may determine when overtime is necessary. The Agency asserts that the Arbitrator disregarded these provisions and removed all management discretion in determining when overtime is required and when it will be assigned. The Agency further asserts that to the extent that the Arbitrator found a conflict between the provision in INS-2 granting the Agency sole discretion to determine overtime and the call-out provisions, he should have applied the management rights provision of the parties' collective bargaining agreement to conclude that management's right to determine overtime prevailed. The Agency claims that the parties' agreements provide for the efficient and economical assignment of personnel and that the Arbitrator disregarded these provisions. The Agency also claims that the Arbitrator erred in failing