Social Security Administration, Southeastern Program Service Center, Birmingham Alabama and American Federation of Government Employees, Local 2206
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55 FLRA No. 49
SOCIAL SECURITY ADMINISTRATION
SOUTHEASTERN PROGRAM SERVICE CENTER
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2206
March 26, 1999
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
Decision by Chair Segal for the Authority.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Edward P. Goggin 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 Regulations. The Union did not file an opposition to the Agency's exceptions.
The Arbitrator found that the Agency violated the parties' collective bargaining agreement when it refused to permit employees to work part of their scheduled overtime prior to the beginning of their tour of duty. As a remedy, the Arbitrator directed the Agency to advise employees of this right. For the reasons explained below in Section IV, we find that the award is deficient because it affects management's right to assign work, and there is no basis in the record for concluding that the award provides a remedy for a violation of a contract provision negotiated pursuant to section 7106(b) of the Statute. Accordingly, we vacate the award.
II. Background and Arbitrator's Award
The Agency instituted a requirement that, as relevant here, any scheduled overtime assignments must consist of a minimum of 1 hour per day. Subsequently, the Agency sent a message (hereinafter the "No Time-Splitting Message") to employees, notifying them that they were not permitted to combine time worked in the morning (prior to their tour of duty) with time worked in the evening (after their tour of duty) in order to total the minimum 1 hour of daily overtime.
The Union filed a grievance alleging that the Agency's refusal to allow employees to work part of their 1-hour minimum overtime prior to the beginning of their work day violated Article 10, Section 3C of the parties' collective bargaining agreement. [n1] When the grievance was not resolved, it was submitted to arbitration, where the Arbitrator set forth the issue as follows: "Does the Agency's change made on 9/6/96 [the No Time-Splitting Message] which denies employees on a fixed tour of duty the opportunity to work overtime . . . prior to the beginning of their tour of duty violate Article 10, Section 3C of the Agreement?" Award at 3. [n2]
The Arbitrator found that prior to the No Time-Splitting Message, the only limitation with regard to splitting overtime was that employees were required to perform overtime work in not less than 15-minute increments. The Arbitrator also found that, prior to the No Time-Splitting Message, employees had regularly split their scheduled overtime between their pre-tour hours and post-tour hours.
Based on the Agency's prior practice, the Arbitrator determined that "the proper interpretation of the language of Article 10, Section 3C . . . is to allow employees to split their overtime[.]" Award at 9. The Arbitrator found that the Agency violated Article 10, Section 3C by denying employees the right to work overtime prior to the beginning of their tour of duty. Accordingly, the Arbitrator sustained the grievance and directed the Agency to advise employees that they have the right to work their scheduled overtime during their pre-tour hours.
III. Positions of the Parties
The Agency asserts that the award is deficient on two grounds. [n3] First, the Agency argues that "proposals [ v55 p321 ] that limit the duration of work assignments; i.e., overtime, affects [sic] the exercise of management's right" to assign employees under 7106(a)(2)(A) and to assign work under 7106(a)(2)(B). Exceptions at 4, citing American Federation of Government Employees, Local 3172 and U.S. Department of Health and Human Services, Social Security Administration, Modesto, California, 48 FLRA 489, 491-92 (1993) and American Federation of Government Employees, Council of Locals No. 163 and U.S. Department of Defense, Defense Contract Audit Agency, 51 FLRA 1504, 1513 (1996). The Agency also contends that the Authority has consistently held that the right to assign work includes the right to determine when overtime work will be performed. See Exceptions at 3, citing American Federation of Government Employees, Local 3157 and U.S. Department of Agriculture, Federal Grain Inspection Service, 44 FLRA 1570, 1596 (1992) (Federal Grain Inspection Service) (Proposal 5). According to the Agency, the award "abrogates management's right to determine when overtime will be assigned," and also "directly interferes" with management's right to assign overtime. Exceptions at 3, 4.
Second, the Agency argues that the award fails to draw its essence from the parties' agreement, because Article 10, Section 3C does not address when overtime work may be performed. Instead, according to the Agency, this provision is an "appropriate arrangement for employees; i.e., compensation protections for employees to ensure them that if they work overtime, they will be paid in 15-minute increments." Id. at 4.
The Union did not file an opposition.
IV. Analysis and Conclusions
The Agency's first exception -- that the award is contrary to management's right to assign work -- challenges the award's consistency with law, and as such, we review the question of law raised by the exception and the Arbitrator's award de novo. See National Treasury Employees