National Marine Fisheries Service and Marine Engineers Beneficial Association (Authority decision, July 9, 1986)

Final FLRA decision. The Authority resolves exceptions to an arbitration award. Under 5 U.S.C. § 7123(a)(1), ordinary judicial review is generally unavailable for an order concerning an arbitration award unless it involves an unfair labor practice under § 7116; this decision does not decide one.

Plain-English summary

An arbitrator found that permanent fishery inspectors had not received the deployment preference promised by their agreement and awarded retroactive compensation. The Authority found no specific determination that available permanent inspectors had lost particular assignments and pay because of the practice. It struck the backpay portion of the award.

Decision snapshot

• Authority: 5 U.S.C. § 5596, 5 U.S.C. § 7122(a).
• Outcome: Arbitration award modified to remove backpay.
• Key point: Backpay requires a finding that the improper action directly caused lost pay.

Full text (FLRA public release)

[ v22 p443 ]

22:0443(43)AR

The decision of the Authority follows:

22 FLRA No. 43

NATIONAL MARINE FISHERIES SERVICE,
NORTHEAST REGION, NATIONAL OCEANIC
AND ATMOSPHERIC ADMINISTRATION,
UNITED STATES DEPARTMENT OF COMMERCE,
GLOUCESTER, MASSACHUSETTS
Activity

and

INTERNATIONAL ORGANIZATION OF
MASTERS, MATES AND PILOTS, AFL-CIO,
BOSTON, MASSACHUSETTS
Union

Case No. 0-AR-1008

DECISION

I. STATEMENT OF THE CASE

This case is before the Authority on exceptions to the award of Arbitrator John J. Graham filed by the Department of Commerce (the Agency) under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations.

II. BACKGROUND AND ARBITRATOR'S AWARD

The dispute before the Arbitrator concerned the preference to which permanent inspectors were entitled in assignments to foreign fishing vessels in the foreign fisheries observer program. According to the Agency, the program involves monitoring foreign fishing vessels in the United States fisheries conservation zone by placing fishery inspectors on the vessels. Beginning in 1983, the Agency has been required to place inspectors on all foreign fishing vessels in the zone. In order to meet requirements during peak fishing period, the Agency employs inspectors on temporary appointments, in addition to its permanent inspectors. All of the inspectors, permanent and temporary, are assigned to vessels from a single deployment list or roster.

The parties in this dispute negotiated a provision, Article 2, in their collective bargaining agreement, which provides that "(w)here possible, management will give first preference for deployments and other duties to permanent inspectors." The Activity gave preference to the permanent inspectors only in initial assignments by placing their names at the top of the deployment roster at the beginning of the fishing season. After the permanent inspectors were initially assigned, however, the Activity did not give them any further preference in assignments. Rather, upon deployment, their names were placed at the bottom of the roster and they were not offered another assignment until all other inspectors had been assigned and their names again reached the top of the list. The Union essentially claimed that under Article 2 of the parties' agreement "first preference" meant that whenever permanent inspectors returned from an assignment, their names should be placed on the deployment roster ahead of temporary inspectors. The Arbitrator agreed with the Union's position. The Arbitrator found that management had demonstrated a policy of preference for temporary inspectors and that its deployment practice had adversely affected the income of permanent inspectors. As his award, the Arbitrator determined that management had violated Article 2 of the parties' collective bargaining agreement by refusing and failing to give first preference for deployments and other duties to permanent inspectors. Further, as a remedy, the Arbitrator directed the Activity to comply with the agreement and to provide restitution for all losses incurred by the permanent inspectors.

III. FIRST EXCEPTION

A. Contentions

In its first exception, the Agency contends that the Arbitrator's award is contrary to section 7106(a) of the Statute. In support of this contention, the Agency argues that the Arbitrator's award interferes with management's right under section 7106(a)(2)(B) to determine the personnel by which Agency operations will be conducted and to determine which employees will receive particular work assignments. The Agency further argues that the agreement provision interpreted by the Arbitrator is not a proper procedure under section 7106(b)(2) of the Statute since it is directly related to the exercise of management's right to assign inspectors to foreign fishing vessels.

B. Analysis and Conclusions

As relevant to the Agency's exception, section 7106(a) (2)(B) of the Statute reserves to management officials the authority to assign work. Encompassed within that right is the discretion to determine the particular employees to whom work will be assigned, Department of the Air Force, Carswell Air Force Base and American Federation of Government Employees, Local 1364, 19 FLRA No. 51, slip op. at 2 (1986), and the discretion to establish the particular qualifications and skills needed to perform the work to be done and to exercise judgment in determining whether a particular employee meets those qualifications. Laborers International Union of North America, AFL-CIO, Local 1276 and Veterans Administration, National Cemetery Office, San Francisco, California, 9 FLRA 703, 706 (1982). However, the Authority has expressly held that when two or more employees are equally qualified and capable of performing the work involved, the selection of any one of those employees to perform the work would be consistent with management's exercise of its discretion in accordance with section 7106(a). In these circumstances the procedure by which employees previously judged by management to be equally qualified will be selected to perform the work is negotiable under section 7106(b)(2) of the Statute, and when negotiated by the parties is enforceable by grievance and arbitration. National Treasury Employees Union and U.S. Customs Service, 18 FLRA No. 94 (1985). In this case, management exercised its right under section 7106(a)(2)(B) of the Statute in determining that foreign fishing vessel observation work would be performed by fishery inspectors and in determining that both permanent and temporary inspectors were qualified to perform the work. Article 2 of the parties' agreement, as interpreted and applied by the Arbitrator, does not directly interfere with either determination in management's exercise of its right. As interpreted by the Arbitrator, Article 2 provides a procedure for the assignment of work to employees management has determined are qualified to perform the work, that is, that permanent inspectors be given first preference for all deployments, not just the initial deployments, by placing them ahead of temporary inspectors on the deployment roster when they return from an assignment. The Authority concludes that the Arbitrator simply enforced the procedure for deployments provided for in the parties' agreement. The Authority therefore concludes that the Agency has failed to establish that the Arbitrator's award is contrary to section 7106(a) of the Statute as alleged.

IV. SECOND EXCEPTION

A. Contentions

In its second exception, the Agency contends that the Arbitrator's award is contrary to the Back Pay Act, 5 U.S.C. Section 5596. In support of this contention, the Agency's argues that even if it committed an unjustified personnel action in its scheduling of inspectors for deployments, there was no evidence that the scheduling practice caused any permanent employees to lose pay, other than the statements of two permanent inspectors that their income was less in the year the practice was initiated than the previous year, and no evidence that but for the scheduling practice, the permanent employees would not have suffered a reduction in pay.

B. Analysis and Conclusions

In order for an award of backpay to be authorized by the Back Pay Act, the arbitrator must determine that the aggrieved employee was affected by an unjustified or unwarranted personnel action, that the personnel action directly resulted in the withdrawal or reduction of the grievant's pay, allowances or differentials, and that but for such action, the grievant otherwise would not have suffered the withdrawal or reduction. Norfolk Naval Shipyard, Portsmouth, Virginia and Tidewater Virginia Federal Employees Metal Trades Council, 21 FLRA No. 39 (1986). In this case, the Arbitrator determined that the Activity violated the parties' agreement by failing and refusing to give first preference for deployments and other duties to permanent inspectors. The Arbitrator also expressly found that management's scheduling practice adversely affected the income of permanent inspectors. The Arbitrator did not, however, specifically find that but for management's unwarranted action, the grievants would have been offered, would have accepted, would have worked, and would have been paid for any particular deployments. Compare Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 13 FLRA 386 (1983) (In which case the arbitrator determined that backpay was necessary to compensate bargaining-unit inspectors for overtime pay lost as a result of the activity's unwarranted assignment practice and directed that the parties determine the amounts due individual employees. The agency filed an exception contending that the award was contrary to the Back Pay Act because there was no finding that the practice had directly resulted in the loss of overtime pay of specific inspectors. In denying the exception, the Authority concluded that the findings required by the Back Pay Act had been made because the arbitrator specifically determined that in every disputed instance of overtime being assigned in violation of personnel policy and the parties' collective bargaining agreement, bargaining-unit inspectors were available to perform such work. The Authority explained that in view of this finding, there was no additional requirement to identify specific employees.) In this case, the Arbitrator did not determine that there were any specific instances where permanent inspectors were available for deployment and management failed to give them preference for the assignment in violation of the parties' agreement. Consequently, the Authority concludes that the Arbitrator's award of retroactive compensation for permanent inspectors is contrary to the Back Pay Act.

V. DECISION

Accordingly, for the above reasons, the Arbitrator's award is modified by striking the order of backpay for permanent inspectors.

Issued, Washington, D.C., July 9, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY