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58 FLRA No. 140
DEPARTMENT OF THE NAVY
NAVAL COMPUTER AND
ATLANTIC DETACHMENT CUTLER
OF GOVERNMENT EMPLOYEES
June 4, 2003
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1]
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Lawrence E. Katz 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 did not file an opposition to the Agency's exceptions.
The Arbitrator found that the Agency violated the parties' oral agreement by reassigning an on-duty military guard to cover two vacant shifts, rather than assigning half of those shifts to two civilian guards on overtime. Accordingly, the Arbitrator awarded the two civilian guards four hours of overtime pay each.
For the following reasons, we find that the award is deficient under § 7106(a)(2)(B) of the Statute, and we set it aside.
II. Background and Arbitrator's Award
As relevant here, the parties reached an oral agreement providing that, when a guard shift becomes vacant, the Agency would assign half of that shift to a civilian guard on overtime, and half of that shift to a military guard. When a guard was absent from work for two days, the Agency reassigned a military guard, already on duty at another post, to cover the two shifts. Two civilian guards filed grievances alleging that they should have been assigned, on overtime, to cover half of the respective shifts. The grievances were combined, and when they were unresolved, they were submitted to arbitration, where the parties stipulated the issue as follows:
Was the decision to assign military members to perform roving security patrol duties on and after 18 January 2002, in lieu of paying overtime to the civilian guards to perform such duties a violation of Article 9, Section 3 of the negotiated agreement and a prior oral agreement and, if so, what shall be the remedy?[ [n2] ]
Award at 1.
The Arbitrator determined that the Agency violated the oral agreement by reassigning the on-duty military guard to cover the entirety of both vacant shifts. [n3] In this connection, the Arbitrator found that the Agency should have assigned "four hours of each shift to the aggrieved bargaining unit employees." Id. at 13. Accordingly, the Arbitrator awarded the two grievants four hours of overtime pay each.
III. Agency's Exceptions
The Agency argues that the award is contrary to management's rights to assign work and assign employees, as well as a contract provision that reserves management's rights. In this connection, the Agency contends that the award requires it to call in additional, civilian staff on overtime to cover vacant shifts, rather than reassigning on-duty military employees to cover those shifts, and thereby attempts to confine certain work assignments to bargaining unit employees. According to the Agency, the oral agreement was not negotiated pursuant to § 7106(b) of the Statute, and the award fails to reconstruct what management would have done under that agreement. Finally, the Agency asserts [ v58 p572 ] that the award is contrary to the Back Pay Act, 5 U.S.C. § 5596.
IV. Analysis and Conclusions
When an exception involves an arbitration award's consistency with law, the Authority reviews the question of law raised by 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 the standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See United States DOD, Dep'ts of the Army & the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
When resolving an exception alleging that an award violates management's rights under § 7106 of the Statute, the Authority first determines whether the award affects a management right under § 7106(a). See United States Small Bus. Admin., 55 FLRA 179, 184 (1999). If it does, then the Authority applies the framework established in United States Dep't of the Treasury, Bureau of Engraving & Printing, Wash., D.C., 53 FLRA 146 (1997) (BEP). Under prong I of the BEP framework, the Authority examines whether an award provides a remedy for a violation of either an applicable law, within the meaning of § 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to § 7106(b) of the Statute. Id. at 153-54. Under prong II, the Authority considers whether the award reflects a reconstruction of what management would have done if management had not violated the law or contractual provision at issue. Id. at 154.
Management's right to assign work under § 7106(a)(2)(B) of the Statute includes the right to assign overtime and determine when that overtime will be performed. SSA, S.E. Program Serv. Ctr., Birmingham, Ala., 55 FLRA 320, 321 (1999) (SSA). Restricting management's ability to assign certain overtime work to nonunit employees also affects that right. AFGE, AFL-CIO, Local 2317, 29 FLRA 1587, 1593 (1987).
The award requires the Agency to assign overtime in a minimum amount equivalent to half of a shift (here, four hours). In addition, the award precludes the Agency from assigning those four hours of overtime to nonunit employees. Thus, the award affects management's right to assign work under § 7106(a)(2)(B) of the Statute, and it is necessary to apply BEP.
Because the Union did not file an opposition, the Union does not argue that the oral agreement constitutes a provision negotiated pursuant to § 7106(b) of the Statute. Further, the Authority has found provisions similar to the oral agreement, as interpreted by the Arbitrator, not to constitute § 7106(b) provisions. See United States DOJ, Fed. Bureau of Prisons, United States Penitentiary, Leavenworth, Kan., 53 FLRA 165, 170-71 (1997) (provision restricting assignment of certain work to bargaining unit not a § 7106(b)(3) provision); United States Dep't of the Navy, Phila. Naval Shipyard, 35 FLRA 990, 996 (1990) (overtime provision not a § 7106(b)(1) provision); AFGE, AFL-CIO, Mint Council 157, 19 FLRA 640, 641-42 (1985) (provision requiring guarantee of minimum four hours overtime not a § 7106(b)(2) provision). In these circumstances, there is no basis in the record for concluding that the oral agreement, as interpreted by the Arbitrator, constitutes a provision negotiated under § 7106(b).
Because the award affects management's right to assign work under § 7106(a)(2)(B) of the Statute, and because there is no basis in the record for finding that the oral agreement, as interpreted by the Arbitrator, was negotiated under § 7106(b), the award does not satisfy prong I of BEP. See SSA, 55 FLRA at 322. Accordingly, we find the award deficient. [n4]
The award is deficient under § 7106(a)(2)(B) of the Statute, and we set it aside.
Concurring Opinion of Chairman Cabaniss:
While I agree with the outcome, I write separately to discuss two matters. I would not rely on the Mint Council decision to support the outcome here. That case dealt with a situation where employees were already entitled to work overtime, the question being how much overtime they would get: the present case deals with whether employees will get to work any overtime. Additionally, in determining that the provision here was not negotiated pursuant to § 7106(b), I would not as part of that analysis rely on whether or not other parties have negotiated similar language in the context of § 7106(b) negotiations. What a set of parties intend certain language to mean (and whether that language might violate § 7106(b)) may have substantial similarities to other collective bargaining situations, but the meaning of the language and whether the parties negotiated it in terms of § 7106(b) is ultimately a question of the specific facts and circumstances underlying a particular bargaining situation.
Footnote # 1 for 58 FLRA No. 140 - Authority's Decision
Footnote # 2 for 58 FLRA No. 140 - Authority's Decision
Article 9, Section 3 of the parties' agreement provides, in pertinent part, that "[n]o employee shall have his or her work days and/or work hours altered within a workweek for the primary purpose of avoiding the payment of overtime." Award at 2.
Footnote # 3 for 58 FLRA No. 140 - Authority's Decision
Footnote # 4 for 58 FLRA No. 140 - Authority's Decision