[ v34 p335 ]
34:0335(64)AR
The decision of the Authority follows:
34 FLRA NO. 64
U.S. DEPARTMENT OF VETERANS AFFAIRS
MEDICAL CENTER
BIRMINGHAM, ALABAMA
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 2207
0-AR-1628
DECISION
January 18, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the
award of Arbitrator Robert G. Williams. The Arbitrator found that
a grievance claiming that management violated the parties'
collective bargaining agreements by: 1) assigning extra hours of
work to part-time employees before scheduling overtime for
full-time employees; and 2) failing to provide job descriptions
to employees and/or their exclusive representative, was properly
before him. The Arbitrator then sustained the portion of the
grievance concerning job descriptions and denied the portion of
the grievance concerning work assignment. The award also directed
management not to assign extra hours to part-time employees
without their consent.
Exceptions to the award were filed under section 7122(a) of
the Federal Service Labor - Management Relations Statute (the
Statute) and part 2425 of the Authority's Rules and Regulations
by both the Veterans Administration Medical Center, Birmingham,
Alabama (the Agency) and the American Federation of Government
Employees, Local 2207 (the Union). The Agency also filed an
opposition to the Union's exceptions.
For the reasons discussed below, we find, in agreement with
the Agency, that the portion of the award directing that
management not assign extra hours of work to part-time employees
without their consent violates section 7106(a)(2)(B) of the
Statute. The award will be modified to set aside that portion of
the award. The portion of the award that directs management to
provide position descriptions to requesting employees or their
representatives was not excepted to and, therefore, will not be
reviewed. Finally, we will deny the Union's exceptions as the
Union has failed to demonstrate that the Arbitrator's award is
contrary to law, rule, regulation, or is deficient on grounds
similar to those applied by Federal courts in private sector
labor relations cases.
II. Background and Arbitrator's Award
The Agency employs both full-time and part-time employees in
its Dietetics Service. Commencing in April 1987, the Union
contacted the Agency concerning the assignment of extra hours of
work to part-time employees. The Union argued that full-time
employees should be assigned overtime before any extra hours of
work are assigned to part-time employees. The Union also claimed
that every employee should be furnished a job description.
Following additional communication between the Union and the
Agency on these matters, the Union submitted a letter to the
Agency on June 12, 1987, which was characterized by the parties
as a third-step grievance. The Agency denied the grievance and
the Union thereafter invoked arbitration.
The Arbitrator framed the issues before him as follows:
1) Was a grievance properly filed in this case and, if so,
when was it filed?
2) Did the Agency fail to answer any grievance and, if so,
what shall be the remedy?
3) Did Management violate the Agreement, when it worked
part-time employees outside of their scheduled hours before
overtime was scheduled for full time employees and, if so, what
shall be the remedy?
4) Did Management fail to provide job descriptions to
employees and/or the Union and, if so, what shall be the
remedy?
Award at 2.
The Arbitrator first addressed the issues of whether the
grievance was properly filed, and whether the Agency failed to
respond to the grievance in a timely manner. The Arbitrator
rejected the Union's argument that a grievance had been filed on
May 13, 1987, and that the Agency's failure to respond to this
grievance and to the June 12 third-step grievance in a timely
manner justified a default award under the terms of the parties'
master agreement. The Arbitrator concluded, instead, that the
grievance was filed on June 12, 1987, and was properly before him
for a decision on the merits. Award at 17. In reaching that
conclusion, the Arbitrator found that while the Agency had failed
to answer the June 12 grievance in a timely manner, the Union was
not entitled to a default award under the terms of Article 13,
Section 9 of the parties' master agreement.
Next, the Arbitrator addressed the issue of whether the
Agency violated the agreement by assigning extra hours of work to
part-time employees before scheduling overtime for full-time
employees. The Arbitrator found that no violation occurred. In
reaching this result, the Arbitrator found that in the absence of
language in the parties' master and local agreements to the
contrary, management has the right to schedule extra hours of
work for part-time employees before scheduling overtime for
full-time employees. Award at 19. The Arbitrator further found,
however, that once workweek or tour of duty schedules are posted,
they cannot be changed unless management obtains the consent of
all parties as specified in the local agreement. Award at 20. To
further support his finding that management may assign extra
hours to part-time employees first, the Arbitrator found that
management had shown the existence of a past practice of
scheduling extra hours of work to part-time employees before
scheduling overtime for full-time employees. Award at 21-22. The
Arbitrator also found that the parties had not manifested an
intention to require that full-time employees be assigned
overtime before part-time employees could be assigned any extra
hours of work. Award at 22. Accordingly, the Arbitrator denied
that portion of the grievance claiming a violation of the
agreement. Award at 22.
Finally, the Arbitrator addressed the issue of the Agency's
failure to furnish copies of job descriptions. The
Arbitrator sustained the grievance to the extent that some
employees had not received their job descriptions, as requested.
Award at 22. The Arbitrator found that both the master and local
agreements require the furnishing of position descriptions to
employees upon their request. Award at 22-23. As the Union was
acting as the certified representative of the employees, the
Arbitrator concluded that the Union was entitled to the same
information. Id. at 23.
As his award, the Arbitrator directed that "(m)anagement
shall not assign extra hours to part-time employees without their
consent and shall provide position descriptions to requesting
employees of their representatives." Id.
III. Positions of the Parties
A. Agency's Exception
The Agency excepts only to the portion of the Arbitrator's
award directing that management not assign extra hours of work to
part-time employees without their consent. The Agency argues that
the Arbitrator exceeded his authority by issuing an order which
(1) conflicts with his determination on the merits of the
grievance that no violation of the parties' agreement occurred,
and (2) establishes a remedy for a matter that was not in
dispute. Alternatively, the Agency claims that the award is
contrary to management's rights under section 7106(a)(2) of the
Statute to assign work, to determine the personnel by which
Agency operations shall be conducted, and to assign and/or direct
employees.
More specifically as to its first contention, the Agency
states that the Arbitrator found no violation of the parties'
agreements concerning the scheduling of extra hours to part-time
employees. The Agency claims that the order that management may
not assign extra hours to part-time employees without their
consent conflicts with the denial of the grievance. The Agency
further claims that the matter of whether extra hours could be
assigned to part-time employees without their consent was not at
issue before the Arbitrator. Therefore, and based principally on
the Authority's decision in Veterans Administration and American
Federation of Government Employees, Local 2798, 24 FLRA 447
(1986) (award modified because arbitrator exceeded his authority
by failing to confine his decision and any possible remedy to the
issues submitted), the Agency argues that the Arbitrator
exceeded his authority by remedying an issue not before him.
The Agency also argues, alternatively, that the award
conflicts with various management rights under section 7106(a)(2)
of the Statute. The Agency asserts that the scheduling of
additional hours of work is a management right which the
Arbitrator may not subject to the consent of an employee. The
Agency further asserts that the Arbitrator may not enforce a
provision of an agreement which conflicts with management's
ability to assign extra hours of work or otherwise subject
statutory and regulatory requirements concerning overtime and the
establishment of work schedules to the consent of an employee.
B. Union's Exceptions
The Union claims that the Arbitrator "overstepped his
authority when determining that management has the right to
assign extra hours to part-time employees with mutual consent
after the two-week schedule has been posted and the work-week has
begun, to avoid overtime payment." Union's Exceptions at 1. The
Union agrees with the Arbitrator, however, that work schedules
and tours of duty may be changed with the consent of the employee
and the supervisor but not for the sole purpose of avoiding
overtime.
The Union also argues that the portion of the award finding
that the Union was not entitled to a default award is contrary to
the parties' agreement. The Union claims that the Arbitrator
altered both the language and intent of the agreement and
rendered his own "brand of justice." Id.
The Union requests that the award be set aside.
C. Agency's Opposition to Union's Exceptions
The Agency argues that the Union's exceptions constitute
mere disagreement with the Arbitrator's decision and do not
provide a basis for finding the award deficient.
IV. Analysis
A. Agency's Exception
As noted, the Agency argues that the Arbitrator exceeded his
authority by directing that management may not assign extra hours
of work to part-time employees without their consent.
Alternatively, the Agency argues that the award conflicts with
management's section 7106(a)(2) rights.
We find that the award is inconsistent with management's
right to assign work under section 7106(a)(2)(B) of the Statute.
Accordingly, we will modify the award to strike that portion
which would preclude management from assigning extra hours to
part-time employees without their consent.
It is well established that an arbitrator may not enforce a
collective bargaining agreement so as to infringe on the exercise
of a management right. See, for example, Naval Air Rework
Facility, Jacksonville, Florida and National Association of
Government Inspectors and Quality Assurance Personnel, 27 FLRA
318 (1987). Agreement provisions that would prohibit management
from reassigning an employee unless the employee consents
interfere with management's right to assign employees. National
Treasury Employees Union and Department of the Treasury and U.S.
Customs Service, 31 FLRA 181, 184-85 (1988), enf'd as to other
matters sub nom. Department of the Treasury, United States
Customs Service v. FLRA, 873 F.2d 1473 (D.C. Cir. 1989). Here,
the Arbitrator has directed that management may not assign extra
hours of work to part-time employees without their consent. By
conditioning the assignment of extra work on employee consent,
the Arbitrator has issued an award that conflicts with
management's right to assign work under section 7106(a)(2)(B) of
the Statute.
Having found that the award conflicts with the exercise of
management's right to assign work, we find it unnecessary to
address the Agency's contention that the award violates other
management rights under section 7106(a)(2) of the Statute.
B. Union's Exceptions
We conclude that the Union has failed to establish that the
Arbitrator's award is deficient on any of the grounds set forth
in section 7122(a) of the Statute, that is, that the award is
contrary to law, rule, or regulation or that the award is
deficient on other grounds similar to those applied by Federal
courts in private sector labor relations cases. Therefore, the
Union's exceptions will be denied.
The Union claims that (1) the Arbitrator exceeded his
authority by finding that management may assign extra hours of
work to part-time employees before assigning the extra hours to
full-time employees, and (2) the Arbitrator rendered his own
brand of justice by finding that the Union was not entitled to a
default award. These assertions constitute mere
disagreement with the Arbitrator's interpretation of the parties'
agreements. As to the assignment of extra hours, the Arbitrator
examined the workweek and overtime provisions of the agreements
and the practice that existed at the Agency in reaching his
conclusion. Similarly, when deciding that a default award was not
appropriate, the Arbitrator interpreted and applied the relevant
agreement provisions.
As the Union's exceptions constitute nothing more than
disagreement with the Arbitrator's interpretation and application
of the parties' agreements, the exceptions do not provide a basis
for finding the award deficient. See, for example, Oklahoma Air
Logistics Center, Tinker Air Force Base, Oklahoma and American
Federation of Government Employees, Local 916, Oklahoma City,
Oklahoma, 30 FLRA 20 (1987) (exceptions which constitute
disagreement with an arbitrator's interpretation and application
of a collective bargaining agreement do not provide a basis for
finding the award deficient).
V. Conclusions
The portion of the award prohibiting the assignment of extra
hours of work to part-time employees without their consent is
inconsistent with the Agency's right to assign work under section
7106(a)(2)(B) of the Statute. That portion of the award will be
set aside. The Union's exceptions do not provide a basis for
setting aside the award and will be denied.
VI. Order
The award is modified to strike the following portion:
"Management shall not assign extra hours to part-time employees
without their consent(.)" The portion of the award directing
management to provide position descriptions to requesting
employees or their representatives is left undisturbed. The
Union's exceptions are denied.