[ 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 that the Agency is asserting for the first time in its exceptions that mariners are not hired at the permanent rating of Class C vessels and, instead, are hired for positions ashore. See Opposition at 10. However, the record demonstrates that the Agency made this assertion below. See Transcript at 109-112, Attachment 2 to Opposition; Agency's Post-Hearing Brief at 13-14, Attachment 1 to Opposition. Therefore, we consider the Agency's assertion.
V. Analysis and Conclusions
An award is deficient if it is inconsistent with a governing agency regulation. See United States Dep't of the Army, Fort Campbell Dist., Third Region, Fort Campbell, Ky., 37 FLRA 186, 192 (1990). As the Agency's exception challenges the award's consistency with the CMPI -- an Agency regulation -- we review the exception and the award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a de novo standard of review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
Section 5 of the CMPI, titled "Marine Positions in Receiving Branch Ashore," establishes "marine positions ashore to be occupied by civil service mariners awaiting assignment to ships, in training, on leave, ashore for disciplinary purposes or for other similar reasons." Id. at 12. In addition, section 5-6(a) provides, in part, that:
Area Commanders may establish civil service mariner positions [ashore] from positions authorized in [section] 3-5 [of the regulations] and at rates currently authorized in the applicable wage schedule. [n3]
Exceptions, Union Exhibit 4 at 13.
Applying this regulation, the First Officer position is authorized in section 3-5 and there is no contention that the Class C pay rate is not authorized by the wage schedule. Further, nothing in this regulation prohibits payment for a position ashore that does not exist on a particular manning scale, and nothing in the regulation indicates that deleting a position from a manning scale also results in it being deleted from the wage schedule that applies to positions ashore. As such, the Arbitrator's reliance on section 4.1 of the CMPI, which states that Agency funds may not be disbursed for positions aboard "unless the position is authorized on the manning scale," is misplaced. Id. at 8-9. As set forth above, section 4.1 addresses only "position[s] aboard a ship." Id. There is no indication that this section of the CMPI concerns payment for mariners assigned ashore. [ v57 p932 ]
The Union contends that 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 of Class C vessels for the two-year period, it could not constitute a permanent position for pay purposes during that time. However, the dispute in this case is not over whether the First Officer is a permanent position. The dispute is over the pay rate for this position when assigned ashore. The definition cited by the Union does not relate to this issue and, as such, does not support the Union's contention.
Based on the foregoing, the Arbitrator's award, which is based on a portion of the regulation that applies to positions aboard a ship, is inconsistent with section 5 of the regulation, regarding the establishment of positions and pay rates ashore. Thus, we conclude that the Arbitrator's award is contrary to the Agency's regulation and must be set aside. [n4]
The award is set aside.
Footnote # 1 for 57 FLRA No. 196
The memorandum provides, in part, that the pay practice for mariners "is to set the rate of pay . . . to the lowest ship pay class . . . . Area Commands are to set [mariner] rates of pay . . . to the lowest pay category for the rating for which a ship exists in the fleet."
Footnote # 2 for 57 FLRA No. 196
Mariners assigned ashore (not on a vessel) can be on leave, in training, or awaiting assignment to a vessel. While assigned ashore, they are considered to be assigned to the "Receiving Branch." Civilian Marine Personnel Instructions 512 (CMPI), § 5-1, Attachment 4 to Opposition.
Footnote # 3 for 57 FLRA No. 196
Footnote # 4 for 57 FLRA No. 196