United States Department of the Navy, Commander, Military Sealift Command, Washington, D.C. (Agency) and International Organization of Masters, Mates and Pilots (Union)
[ v57 p930 ]
57 FLRA No. 196
UNITED STATES DEPARTMENT OF THE NAVY
COMMANDER, MILITARY SEALIFT COMMAND
INTERNATIONAL ORGANIZATION OF
MASTERS, MATES AND PILOTS
July 10, 2002
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Robert O. Harris filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.
The Arbitrator sustained a grievance alleging that the Agency violated the parties' collective bargaining agreement and an agency regulation by paying the grievant at an improper rate when assigned ashore. For the reasons set forth below, we conclude that the award is deficient under § 7122(a) of the Statute. Accordingly, we set aside the award.
II. Background and Arbitrator's Award
The Agency, in accordance with a Commander, Military Sealift Command (COMSC) memorandum, sets the permanent rate of pay for civilian mariners (mariners) at the pay rate of mariners assigned to Class C vessels, the lowest paid ship class in the Agency's fleet. [n1] See Exceptions, Agency Exhibit 1 at 1. Mariners are paid at this Class C rate when they are assigned to a Class C vessel and when they are assigned ashore. [n2] When mariners are assigned to a vessel of a higher classification, they receive a temporary promotion to that classification. Upon conclusion of the tour of duty, they revert to their permanent rating and are paid at the Class C rate.
The positions that are authorized for each class of vessels are listed on a "manning scale." See CMPI at 2-3. There typically are four licensed mariner positions assigned to each Class C vessel: a Master, First Officer, Second Officer, and Third Officer. However, for a two-year period, the Agency deleted the First Officer position from the manning scales of the Class C vessels. The grievant, at the time of the grievance, held the permanent position of First Officer and was paid at the Class C rate when assigned ashore.
The Union filed a grievance alleging that during the two-year period during which the First Officer position was deleted from the manning scale for Class C vessels, First Officers should not be paid at the Class C rate when assigned ashore. The grievance was unresolved and submitted to arbitration, where, as relevant here, the Arbitrator framed the issue as whether the Agency violated the parties' agreement and the CMPI by funding positions not authorized on a manning scale.
The Arbitrator concluded that during the two-year period when the position of First Officer was eliminated from the manning scale on Class C vessels, the Agency could not use that position as the permanent rank for pay purposes for the grievant. In so doing, he relied on section 4.1 of the CMPI, which states that the manning scale identifies the positions that are authorized on specific vessels and that "[n]o position aboard a ship may be filled, nor may [Agency] funds be disbursed as pay, unless the position is authorized on the manning scale." Award at 12. Finding that the record did not contain evidence as to the grievant's appropriate pay level for that two-year period, the Arbitrator directed the parties to resolve this issue, and the Arbitrator retained jurisdiction in the event the parties could not reach a resolution. [ v57 p931 ]
III. Positions of the Parties
A. Agency's Exceptions
The Agency contends that the award is contrary to the CMPI because section 4, relied on by the Arbitrator, addresses positions aboard ships, not pay for positions ashore. According to the Agency, the Arbitrator should have applied section 5 of the CMPI, entitled "Marine Positions in Receiving Branch Ashore." Exceptions at 6. Specifically, the Agency cites section 5-6(a) of the CMPI, which provides that mariner positions ashore may be established from positions authorized in the regulation at rates currently authorized in the applicable wage schedule, and from a personnel document indicating the title and rate of pay. The Agency claims that although it could not have assigned a First Officer to a Class C vessel during the two-year period the position was not on the manning scale, the rate it adopted to use for positions ashore remained unaffected. In addition, the Agency argues that the award is contrary to 5 U.S.C. § 5348 because the Arbitrator was precluded from establishing a pay rate for mariners different than the Agency established under a statute that gives it "broad discretion" to set such rates. Id. at 4.
B. Union's Opposition
The Union contends that the award is not deficient because section 2-1e(3) of the CMPI defines a permanent position as a "position authorized on a manning scale" and, as the First Officer position did not exist on the manning scale for Class C vessels during the two-year period, it did not constitute a permanent position on those vessels during that time. Opposition at 8. The Union also contends that the Agency is arguing for the first time that mariners are not hired at the permanent rating of Class C vessels. Finally, the Union claims that the Arbitrator did not make a pay determination under 5 U.S.C. § 5348.
IV. Preliminary Issue
Under § 2429.5 of the Authority's Regulations, the Authority will not consider issues that could have been, but were not, presented to the arbitrator. See United States Dep't of Def., Educ. Activity, Arlington, Va., 56 FLRA 985, 987 (2000) (citation omitted). The Union contends t