[ v30 p165 ]
30:0165(20)AR
The decision of the Authority follows:
30 FLRA NO. 20
30 FLRA 165
23 NOV 1987
MICHIGAN AIR NATIONAL GUARD
ADJUTANT GENERAL OF MICHIGAN
DEPARTMENT OF MILITARY AFFAIRS
Agency
and
MICHIGAN STATE COUNCIL OF
THE ASSOCIATION OF CIVILIAN
TECHNICIANS
Union
Case No. 0-AR-1393
DECISION
I. Statement of the Case
This matter is before the Authority on exceptions filed by
the Agency to the award of Arbitrator Elliot I. Beitner 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. For the
reasons that follow, the Agency's exceptions are denied.
II. Background and Arbitrator's Award
The grievant applied for assignment to the alert function in
response to an announcement requesting volunteers for the
assignment. 1 The alert function consists of 12-hour shifts by
technician mechanics, who work 7 days on and 7 days off duty for
84 hours per pay period. The mechanics are responsible for
maintaining aircraft in a state of readiness to fly at all
times.
The parties negotiated the following provision in Article
XIV of their agreement, Workweek and Hours of Work:
Section 10. Consideration for assignment of employees to the
alert function will be made by the employer from employees that
indicate a preference to work in that function. Selection will be
based on seniority, merit, ability and other selective placement
factors. An alert tour will normally be a minimum of one (1)
year. Consideration will be given to the reassignment of an
employee after one (1) year consistent with mission
requirements.
When the grievant was not selected for the assignment, he
filed a grievance which was submitted to arbitration. In the
absence of a stipulation, the Arbitrator accepted the following
issue proposed by the Agency:
Did the Agency violate Article XIV, Section 10, of the
collective bargaining agreement when it denied the request of
(the grievant) for assignment to the Alert Function?
The Arbitrator heard testimony as to the bargaining history
of the agreement provision and particularly as to the relative
weight to be assigned to seniority as compared with merit,
ability, and other selective placement factors. The Union
asserted that seniority should be the basis for making
assignments to the alert function and that the other factors
operate only when an employee is removed from the function. The
Agency maintained that all factors must be given equal weight and
that it was justified in not selecting the grievant because of
his "attitude, interpersonal relations, and conducting (private)
business on government time." Award at 14.
The Arbitrator agreed with the Agency that under Article
XIV, Section 10, seniority is only one of the factors that govern
selection for assignment to the alert function. He also
determined, however, that if the Agency relies on criteria other
than seniority, "adequate proof (concerning the other criteria)
must be offered." Award at 20.
The Arbitrator found that the Agency failed to prove by
direct testimony or evidence that the grievant had performed
private work on Government time, or that he had a bad attitude
and poor interpersonal relations with the air crew. The
Arbitrator concluded that without proof of those allegations, the
Agency did not have sufficient basis to deny the assignment to
the grievant, an otherwise qualified applicant] who had
the required seniority and ability. He granted the grievance and
ordered that the grievant be assigned to the alert function with
any backpay that might have been lost.
III. First Exception
A. Contentions
The Agency contends that the Arbitrator substituted his
judgment for that of management when he ruled that the grievant
should have been selected over other available qualified
candidates for assignment to the alert function. The Agency
maintains that the criteria for selection contained in the
agreement are intended to be guidelines without any specific
weight assigned and that management had the right to select the
candidate it chose for the assignment under section 7106(a)(2)(B)
of the Statute, using the agreement criteria as a guide. The
Agency contends that it was justified in not selecting the
grievant because it questioned his reliability, exercise of
independent judgment, and ability to get along with other members
of his team.
The Union contends that the award constituted a finding that
management did not substantiate its stated reasons for not
selecting the grievant, who was otherwise qualified and possessed
the necessary seniority for assignment to the alert function. The
Union denies that the award interferes with management's right to
make assignments to the alert function and asserts that the
Agency is simply disagreeing with the Arbitrator's finding that
the Agency failed to follow the negotiated procedure for making
those assignments.
B. Discussion
We find that the first exception fails to establish that the
award violates management's right to assign work under section
7106(a)(2)(B) or that the Arbitrator improperly substituted his
judgment for that of management as to which employee should be
assigned to the alert function.
Proposals which establish procedures to be used by
management when selecting from among employees previously
determined by management to be qualified to perform the work
required by a reassignment are negotiable. Local Lodge 830,
International Association of Machinists and Aerospace Workers,
AFL - CIO and U.S. Naval Ordnance Station, Louisville, Kentucky,
20 FLRA 848, 850 (1985), enforced sub nom. U.S. Naval Ordnance
Station v. FLRA, 818 F.2d 545 (6th Cir. 1987). Similarly,
proposals concerning the criteria under which assignments to
shifts are made are not outside the duty to bargain when
management retains the discretion to limit the selection to
"qualified employees." National Treasury Employees Union and
Department of the Treasury, Internal Revenue Service, 14 FLRA
243 (1984) (Provision 6). See also Department of Health and Human
Services, Social Security Administration, Baltimore, Maryland, 21
FLRA 735 (1986), aff'd sub nom. American Federation of
Government Employees, Local 1336 v. FLRA, No. 86-1851 (8th Cir.
Sept. 28, 1987).
In this case, the agreement provision in dispute concerns
the assignment to the alert function tour of duty of employees
already determined by management to be qualified to perform the
duties of that tour of duty. In fact, the assignment to the alert
function of technician mechanics concerns the performance of
duties already assigned to those employees on a different shift
or tour of duty. The assignment of employees to the alert
function tour of duty does not constitute an assignment to a
different position with different duties. Thus, the provision
constitutes a negotiable procedure. See International Plate
Printers, Die Stampers and Engravers Union of North America, AFL
- CIO, Local 2 and Department of the Treasury, Bureau of
Engraving and Printing, Washington, D.C., 25 FLRA 113 (1987)
(Provision 16), finding that a provision which would establish
seniority as the criterion for selecting on which shift or in
which section employees will perform duties already assigned to
their positions does not violate management's right to assign
employees or to assign work and is within the duty to bargain.
Compare Veterans Administration Medical Center, Pittsburgh,
Pennsylvania and American Federation of Government Employees,
Local 2028, AFL - CIO, 25 FLRA 520 (1987) (arbitrator's award
which effectively rescinded assignment of grievants to a
different position and duties was found deficient as contrary to
section 7106(a)(2)(A) of the Statute).
The Arbitrator found that the Agency failed to establish by
sufficient evidence its reasons for denying the grievant an
assignment to the alert function for which he was qualified and
for which he had sufficient seniority. Contrary to the Agency's
contention, the Arbitrator in no way substituted his judgment for
that of management; he only enforced the negotiated procedure.
Therefore, we conclude that the Agency's first exception simply
constitutes disagreement with the Arbitrator's interpretation and
application of the collective bargaining agreement, evaluation of
the evidence, findings of fact, and reasoning and conclusions,
none of which provides a basis for finding the award deficient.
See, for example, Department of the Navy, Philadelphia
Naval Shipyard, Philadelphia, Pennsylvania and Philadelphia Metal
Trades Council, Philadelphia, Pennsylvania, 28 FLRA 574 (1987);
U.S. Department of Labor and Local 12, American Federation of
Government Employees, 24 FLRA 435 (1986).
IV. Second Exception
A. Contentions
In its second exception, the Agency alleges that the award
is contrary to the Back Pay Act, 5 U.S.C. 5596, because the
Arbitrator failed to make the required "but for" finding to
support an award of backpay to the grievant.
The Union contends that the grievant would have been
selected for the assignment based on his seniority if the Agency
had not improperly used the other selective factors as a reason
for not selecting him. The Union contends that the Arbitrator's
award that the grievant be given the assignment supports the
award of backpay.
B. Discussion
We disagree with the Agency that the Arbitrator's award is
contrary to the Back Pay Act, 5 U.S.C. 5596. The requirements for
an award of backpay under the Act are: (1) the arbitrator must
determine that the grievant was affected by an unjustified or
unwarranted personnel action; (2) the personnel action must
directly result in the withdrawal or reduction of the grievant's
pay, allowances or differentials; and (3) but for the unjustified
personnel action, the grievant would not have suffered the
withdrawal or reduction. U.S. Department of Labor, OIPA and
American Federation of Government Employees, AFL - CIO, Local 12,
26 FLRA 368 (1987).
In this case, no basis is provided for finding the award
contrary to the Back Pay Act. The issue submitted to and decided
by the Arbitrator was whether the Agency violated the collective
bargaining agreement when it did not select the grievant for the
alert function tour of duty. The Arbitrator expressly found that
the Agency failed to show that the grievant was unreliable or
that he had conducted or would conduct private business while on
duty. He concluded that, in the absence of that proof, the Agency
did not have sufficient basis on grounds of ability and seniority
to deny the assignment to the grievant. Award at 22. Thus, the
Agency's failure to comply with the agreement constituted an
unjustified or unwarranted personnel action within the
meaning of the Back Pay Act. The Arbitrator's direction that the
grievant should receive backpay lost because of not being granted
the assignment constitutes the required finding that but for the
Agency's failure to comply with the agreement, the grievant would
not have suffered a withdrawal of his pay, allowances, or
differentials. See American Federation of Government Employees,
Local 1760 and Social Security Administration, Northeastern
Program Service Center, 22 FLRA 195 (1986). Consequently, the
Agency's second exception fails to show that the award is
contrary to the Back Pay Act.
V. Decision
The Agency's exceptions are denied.
Issued, Washington, D.C., November 23, 1987.
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
Footnote 1 Other related grievances were also submitted to
arbitration but exceptions were filed only to the award as it
concerned this grievant.