U.S. Department of the Treasury, Bureau of Engraving and Printing and Washington Plate Printers Union, Local No. 2 (Authority decision, July 29, 1991)

Final FLRA decision. The Authority denies the Bureau of Engraving and Printing's exceptions to an award requiring it to honor agreed staffing practices on currency presses during paid breaks. Judicial review under 5 U.S.C. § 7123(a) generally does not extend to Authority orders involving arbitration awards unless an order involves an unfair labor practice under § 7116. This decision does not address an unfair labor practice.

Plain-English summary

The Bureau of Engraving and Printing kept currency presses running through plate printers' breaks by putting a supervisory foreman alongside one printer. An arbitrator found that the foremen often performed supervisory duties rather than working as a second printer, contrary to the parties' agreed staffing practice. He also found that the agreement restricted assigning ordinary press work to foremen and ordered the bureau to stop the violations. The Authority upheld the award. It found that the two printer requirement enforced a staffing matter the agency had elected to bargain over, and that the related limits on foremen were an employee arrangement that did not prevent management from assigning press work in permitted circumstances. It also upheld the arbitrator's finding that the agency had not proved an emergency justifying the change.

Decision snapshot

• Authority: Management rights and elective bargaining under 5 U.S.C. § 7106; arbitration review under § 7122(a).
• Outcome: Agency exceptions denied; cease and desist award upheld.
• Key point: An agreed press staffing practice remained enforceable, and the award did not eliminate management's ability to assign work in allowed circumstances.

Full text (FLRA public release)

[ v41 p860 ]

41:0860(74)AR

The decision of the Authority follows:

41 FLRA No. 74

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE TREASURY

BUREAU OF ENGRAVING AND PRINTING

WASHINGTON, D.C.

(Agency)

and

WASHINGTON PLATE PRINTERS UNION

LOCAL NO. 2, INTERNATIONAL PLATE

PRINTERS, DIE STAMPERS AND ENGRAVERS

(Union)

0-AR-1962

DECISION

July 29, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an
award of Arbitrator Ira F. Jaffe filed by the Agency 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 to the Agency's exceptions.

The Union filed a grievance alleging that the Agency
violated the parties' collective bargaining agreement by
unilaterally changing the method of staffing twelve "I-8"
Currency Plate Presses (I-8 Presses) during unit employees'
paid break periods. The Arbitrator found that the Agency
violated the agreement with respect to the: (1) agreed-upon
"two person manning" of the I-8 Presses; and (2) assignment of
certain press operating duties to supervisory plate printers
(foremen). Award at 46. Accordingly, the Arbitrator ordered
the Agency to cease and desist from continuing to breach the
agreement by such actions.

For the reasons discussed below, we conclude that the
Agency has not established that the Arbitrator's award is
deficient under section 7122(a) of the Statute. Therefore, we
deny the Agency's exceptions.

II. Background

Prior to October 2, 1989, during breaks the I-8 Presses
were either stopped or left on idle. After October 2, plate
printers were released singly from each press, with the press
being operated throughout the breaks and the second plate
printer often being the plate printer foreman. Foremen, who
are supervisors and are excluded from the bargaining unit, are
all journeymen plate printers. Other than during the break
periods, foremen "do not perform Plate Printer work." Id. at

2. Also, prior to October 2, foremen "had not performed
   production work for as long as anyone could remember and all
   operation of the presses [was] performed exclusively by
   bargaining unit Plate Printers." Id. The Union has been the
   exclusive representative of the employees for "over 100 years."
   Id.

The parties disputed the degree to which foremen actually
performed "hands on" production work when serving as the second
crew member on the I-8 Presses during break periods. Id. The
Union argued that foremen performed no production work and,
therefore, the Agency's action in staffing the presses violated
the past practice regarding the "two Plate Printer manning of
[these] presses." Id. The Agency disagreed. The Union filed
a grievance which was denied and arbitration was invoked.

III. Arbitrator's Award

The Arbitrator noted that "[b]oth parties recognize[d]
that press manning on the I-8 Presses is protected against
unilateral change by Article VI of the agreement."(1) Id. at

35. The Arbitrator also noted the Authority's decision in
    Bureau of Engraving and Printing, Department of the Treasury
    and Washington Plate Printers Union, Local No. 2, International
    Plate Printers, Die Stampers and Engravers, 29 FLRA 467 (1987)
    (Bureau of Engraving and Printing), where the Authority denied
    the Agency's exceptions to an arbitrator's award concerning the
    staffing of a press referred to as a gravure press. In that
    case, the Arbitrator, who is also the Arbitrator in this case, found that
    the past practices encompassed in Article VI of the agreement
    required the Agency to operate its presses in accordance with
    the mutually agreed-upon and understood staffing schedule for
    the particular press. The Authority concluded that the
    Arbitrator's award merely enforced Article VI of the parties'
    agreement--the same provision involved in this case--which
    represents the Agency's election to bargain, under section
    7106(b)(1) of the Statute, over the number of employees to
    operate a press.

The Arbitrator, after considering Bureau of Engraving and
Printing, stated that the Authority's decision left "no doubt
that press manning at the [Agency] is encompassed in those past
practices protected by Article VI against mid-term change."
Award at 35. The Arbitrator also noted that there was "no
dispute" that the I-8 Presses have always been manned by two
journeymen plate printers. Id.

After noting the above, the Arbitrator stated that the
"central dispute" concerned "whether the [Agency's] approach of
having Plate Printer Foremen serve as the second member of the
crew operating presses during the rest break periods violated
the past practice relative to press manning." Id. at 36. The
Arbitrator noted that this issue encompassed the following
sub-issues:

1) whether, given the amount and types of work
actually performed by the Plate Printer Foremen
during the break periods, the [Agency's] actions
were consistent with the agreement to man the
I-8 Presses with two Journeymen Plate Printers;

2) whether there was a past practice or other
contractual prohibition against assigning
hands[-]on press operating work to supervisory
Plate Printers; and

3) if a contractual prohibition on such work
assignments has been shown, whether that past
practice is violative of law, and specifically
section 7106 of the Statute, and thus is
unenforceable.

Id.

After reviewing the record, the Arbitrator
determined that plate printer foremen were
absent from the presses for large portions of
the break periods and, even when present,
performed primarily supervisory duties rather
than duties of a second plate relief printer.
The Arbitrator concluded, therefore, that the
Agency violated the two plate printer staffing
requirement of the parties' agreement.

The Arbitrator next considered the "question
of whether . . . the Agreement, and particularly
the restrictions contained in Article VI,
limit[ed] the [Agency's] ability to assign press
operating work to Plate Printer Foremen." Id.
at 41-42. The Arbitrator noted that, despite
his finding that the Agency violated the
agreement with respect to the staffing
requirement, this question had to be addressed
because on "some days" the plate printer foremen
"did 'relieve' the absent Plate Printer--at
least to the extent that he was physically
present at the press for the entire period . . .
and he handled or otherwise covered needed work
at the end . . . without the need to further
burden the regularly assigned Plate Printer who
remained at work." Id. at 41. The Arbitrator
stated that "[i]nasmuch as the question as to
whether the [Agency] violated the Agreement in
those situations [was] presented," he found it
"necessary to focus on the above question." Id.

The Arbitrator stated that "a number of
factors" led him to conclude that the Agency's
failure to assign previous plate printer work to
supervisors was a "past practice grounded in
mutuality and protected by Article VI against
unilateral abrogation by the [Agency]." Id. at

42. The Arbitrator found "most significant[]"
    the fact that the Agency "agreed specifically in
    Article XVIII, Section 4, not to assign Foremen
    to operate presses except 'when necessary
    incident to repair.'" Id. The Arbitrator noted
    that "[i]f the Agency enjoyed the right to
    assign Foremen to perform press operations work,
    as contended by the [Agency] such language would
    have been unnecessary." Id.

The Arbitrator also found that the
"limitation contained in Article XVIII, Section
5, upon assignment of press work to Acting
Foremen who lack sufficient seniority to perform
that work as a Plate Printer . . . further
reinforce[d] the [p]arties' mutually agreed upon
limitations upon . . . management['s] right . .
. to assign supervisory personnel to perform
traditional press operation work." Id. at
42-43. The Arbitrator additionally found that
the Agency's "inability to cite even a single
example of such prior assignments" further
showed that the Agency "recognized that it too
lacked the right under the Agreement to assign
the work of operating the presses to supervisory
personnel." Id. at 42.

Having concluded that there was a contractual
restriction upon the assignment of press work to
supervisory personnel, the Arbitrator next
considered whether such restriction violated
section 7106(a)(2) of the Statute. The
Arbitrator considered Southwestern Power
Administration and International Brotherhood of
Electrical Workers, Local 1002, 22 FLRA 475
(1986) (Southwestern Power Administration), and
other Authority cases holding that contractual
provisions which limited management's rights
under the Statute were contrary to management's
rights under section 7106(a) of the Statute.
The Arbitrator also considered Authority
decisions, including 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 15) (Department of the Treasury),
holding that: (1) provisions which directly
interfere with the exercise of section 7106(a)
management rights could not constitute
procedures under section 7106(b)(2); and (2)
provisions that excessively interfere with
management's exercise of its section 7106(a)
rights could not constitute appropriate
arrangements under section 7106(b)(3) of the
Statute.

The Arbitrator concluded that the
"contractual restrictions . . . upon the
[Agency's] right to assign press work to
supervisory personnel [were] enforceable" under
section 7106(b)(1) of the Statute. Award at 46.
In so concluding, the Arbitrator relied on
Bureau of Engraving and Printing. Noting this
decision, the Arbitrator stated that he was
"unable to discern a legal distinction between
the validity of agreements resulting from
[s]ection 7106(b)(1) negotiations regarding the
number of employees assigned to a particular
work project (i.e., manning) and the 'types and
grades of employees or positions' to be assigned
to a particular work project (i.e., assignment
of work to Unit Plate Printers and not to assign
work to Plate Printer Foremen)." Award at 45.
Accordingly, he concluded that the contractual
restrictions were enforceable pursuant to
section 7106(b)(1) of the Statute.

The Arbitrator also found that the record
fell "far short of establishing the [Agency's]
claim of 'emergency' under either the Agreement
or under [section 7106(a)(2)(D) of] the
Statute." Id. at 46. The Arbitrator further
found that the record did not support an award
of backpay and, therefore, rejected the Union's
claim for such relief and for attorney fees.

Having concluded that the Agency violated the
parties' agreement "by its actions in operating
I-8 Presses with a single Plate Printer and a
Plate Printer Foreman," the Arbitrator ordered
the Agency to cease and desist from continuing
to violate the agreement by such actions. Id.
at 48.

IV. First Exception

A. Positions of the Parties

The Agency takes the position that the 1975
collective bargaining agreement under which the
award was issued has expired. The Agency states
that when the Arbitrator's award "was issued the
relationship between the [parties] was governed
by [the 1975 agreement]." Agency letter of July
16, 1990 at 1. The Agency states, however, that
following the issuance of the award, it
"cancelled the extension of this 1975 contract,
in accordance with a Memorandum of Understanding
executed by the parties at the time they first
began negotiations on a successor agreement."
Id. The Agency also states that even though its
position is that the 1975 agreement has expired,
it filed the exceptions as a "protective
measure, should the Authority . . . rule that
the 1975 contract is still in effect." Id.

The Union states that it filed a timely
grievance challenging the contractual and legal
validity of the Agency's actions in cancelling
the extension of the 1975 contract. The Union
asserts that as the matter concerning the
Agency's cancellation of the 1975 extension was
not before the Arbitrator and as the Agency's
cancellation of the extension forms the subject
matter of a later and independent dispute
between the parties, such matter may not be
raised in the exceptions.

B. Analysis and Conclusions

We interpret the Agency's contention that it
cancelled the 1975 agreement as a claim that the
award is deficient because it is moot. We
reject the Agency's contention.

First, we note that the record shows that the
matter concerning the Agency's cancellation of
the 1975 agreement was not presented to the
Arbitrator. Arbitration awards are not subject
to review on the basis of either evidence
offered by a party, or any issue presented to
the Authority, which was not presented to the
arbitrator. See, for example, National Weather
Service Employees Organization and U.S.
Department of Commerce, National Oceanic and
Atmospheric Administration, National Weather
Service, 38 FLRA 369, 383 (1990). See also
section 2429.5 of the Authority's Rules and
Regulations.

Further, as noted above, the Agency concedes
that the 1975 agreement governed the parties'
relationship at the time the award was issued.
Thus, based on the Agency's own statement, the
matter in dispute arose and was arbitrated under
the 1975 agreement. In view of the Agency's
admission and the record evidence, we find that
the 1975 agreement was valid at all times
relevant to this arbitration. Consequently, we
conclude that the Agency's claim that the 1975
agreement has been cancelled provides no basis
for finding the award deficient. See, for
example, Army & Air Force Exchange Service and
Local 1920, American Federation of Government
Employees, 32 FLRA 124, 126 (1988) (where the
Authority rejected a union's contention that an
award was deficient because a 1981 agreement
under which the grievance arose had expired
before the award was issued).

In view of the above, we conclude that this
exception provides no basis for finding the
award deficient.

V. Second Exception

A. Positions of the Parties

1. Agency

The Agency states that the Arbitrator
determined that the assignment of a foremen to
work with a plate printer did not constitute a
full two-printer complement as traditionally
used to operate an I-8 Press. The Agency states
that in reaching this determination the
Arbitrator found that the press duties involved
in operating the I-8 Press "must be apportioned
in a specific way between the two printers."
Memorandum Supporting Exceptions (Exceptions) at

6. The Agency asserts that "it was improper for
   the [A]rbitrator to substitute his judgment for
   that of management in deciding how work assigned
   is to be allocated between two printers on a
   press." Id. The Agency contends that under
   section 7106 of the Statute, management has the
   right "to determine the quantity of work to be
   done, and the level of effort to be expected of
   employees." Id.

The Agency states that it understood the
Authority's decision in Bureau of Engraving and
Printing as being "applicable to its staffing of
the I-8 [C]urrency [P]resses." Exceptions at 8.
The Agency contends, therefore, that when it
decided to operate such presses through the
break periods, it ensured that there would be
two qualified plate printers to staff each
press. The Agency "acknowledges" that if it is
found that the Agency negotiated on a matter
under section 7106(b)(1) of the Statute, then
the Agency would be bound to comply with such
matter for the life of the agreement. Id. The
Agency, however, "rejects the proposition that
negotiation in one permissive area--numbers of
employees--requires it to bargain in other
permissively negotiable areas." Id. The Agency
states that management's past practice as to the
number of employees assigned to a press "cannot
be expanded by the Union or by an arbitrator so
as to cover every work practice which might . .
. pertain[] to the types and grades of employees
or positions assigned, or the technology,
methods and means of performing work." Id.
(emphasis in original).

The Arbitrator, in the Agency's view,
exceeded his authority when he substituted his
judgment for that of management concerning how
work that is assigned should be allocated among
employees. The Agency asserts that the
Arbitrator's determination that the tasks of
press operations must be shared equally between
two plate printers on a press abridges
management's right under the Statute to allocate
work as it sees fit. The Agency contends that
"how the work of operating a press is allocated
between two plate printers is properly a
management determination, as it involves the
assignment of work, and the assignment and
direction of employees who are to perform the
work." Id. (emphasis in original). The Agency
asserts that there are "no enforceable clauses
in the governing 1975 contract" that would
suggest that management agreed to bargain over
how work is allocated between or among printers.
Id. at 10. The Agency further states that the
Arbitrator interpreted Bureau of Engraving and
Printing "too broadly" when he expanded the past
practice found therein to include the types of
employees, the methods and means of performing
the work, and the manner of allocating it to
employees. Id. at 9.

The Agency also contends that the
Arbitrator's determination that the agreement
restricts management's assignment of press
operation tasks to plate printer foremen
violates management's rights to assign and
direct employees and to assign work under
section 7106(a)(2)(A) and (B) of the Statute.
According to the Agency, the Arbitrator based
his decision on, among other things, Article
XVIII, Section 4 of the 1975 agreement, which
the Arbitrator "characterize[d] as management's
agreement 'not to assign Foremen to operate
presses' except when certain circumstances are
present." Id. at 11. The Agency states that a
virtually identical provision appeared in a 1988
agreement which was intended to succeed the 1975
agreement and that such provision was declared
nonnegotiable by the Agency head and not
appealed by the Union. The Agency asserts that
the provision that appears in the 1975
agreement, like that provision, is nonnegotiable
and cannot be properly enforced.

The Agency states that the Arbitrator also
relied on Article XVIII, Section 5 in
determining that the agreement restricts
management's assignment of press operation tasks
to plate printer foremen. According to the
Agency, this provision limits management's right
to assign acting foremen to work presses in the
sections where they perform supervisory duties.
The Agency contends that in Department of the
Treasury, 29 FLRA at 122-24, the Authority found
language similar to the language in Article
XVIII, Section 5 to be nonnegotiable.

The Agency further takes issue with the
Arbitrator's finding that the Agency's action in
not assigning plate printer foremen press
operation duties performed by unit employees
established a past practice. The Agency
contends that such practice cannot make
enforceable a contractual provision that
prevents management from assigning work.
Exceptions at 12. Noting Southwestern Power
Administration, among other cases, the Agency
contends that the Arbitrator "refuse[d] to
characterize the practice . . . as an
encroachment on management's right under Section
7106(a) to assign work," but instead upholds the
practice as an outgrowth of negotiations in a
"permissive" area--that is, types and grades of
employees or positions--under section 7106(b)(1)
of the Statute. Id. at 12-13. The Agency
asserts that the "assignment of supervisors to
operate currency presses does not concern the
'types and grades' of employees." Id. at 13.

2. Union

The Union asserts that the Arbitrator
properly ruled that the utilization of foremen
to staff the I-8 Presses during break periods
abrogated staffing and related work practices
made binding by Article VI and other pertinent
provisions of the parties' agreement. The Union
argues that the Agency raises the "very same
factual assertions that the Arbitrator found to
be unpersuasive based on the record evidence and
his independent observation of the work
processes and practices in dispute." Opposition
at 13. The Union contends that the Agency seeks
to relitigate matters presented to the
Arbitrator.

The Union states that the Arbitrator
interpreted and applied the parties' contract as
well as Authority precedent, in particular
Bureau of Engraving and Printing, 29 FLRA 467,
in determining that the "longstanding practice"
of staffing the I-8 Presses exclusively with two
fully functioning journeymen plate printers
constitutes an enforceable past practice under
Article VI of the parties' agreement. Id. at

13. The Union asserts that after reaching this
    determination, the Arbitrator correctly found,
    based on the record evidence, that the Agency
    violated the parties' agreement by not staffing
    the I-8 Press with "two fully functioning plate
    printers." Id. at 17.

The Union also asserts that the Arbitrator
correctly ruled that Article VI and other
provisions of the agreement, including Article
XVIII, Section 4, preclude the Agency from
assigning press duties to supervisory personnel
or foremen. The Union contends that the
Arbitrator's finding is "based squarely on the
pertinent contractual provisions and firmly
grounded in the hearing record; hence
relitigation of the issue is now foreclosed."
Id. at 19.

The Union further contends that the
lawfulness of the practice of not assigning
press duties to foremen is based on section
7106(b)(1) of the Statute. Citing Bureau of
Engraving and Printing, the Union asserts that
"the exclusive use of a complement of two
journeymen plate printers to perform production
duties is based on a prior agreement regarding
the 'numbers and types' of employees and
'positions' to be assigned to the 'work project'
of printing currency on I-8 press equipment."
Id. at 21. The Union also states that the
"underlying allocation of work duties, which
precludes foremen from performing production
work, likewise forms an integral part of the
established 'method' and 'means of performing'
currency printing at [the Agency]." Id. The
Union additionally contends that this practice
is "based on an agreement regarding the 'types'
and 'grades of employees or positions' assigned
to the 'work project' in question." Id.

The Union asserts that the Agency's reliance
on Southwestern Power Administration is
misplaced. The Union contends that the award
does not preclude the Agency from exercising its
rights to assign employees and to assign work.
Rather, according to the Union, the award merely
requires the Agency to use "a full [complement]"
of plate printers once it elects to run and
staff these presses during breaks, while
continuing to afford management discretion to
select and assign personnel through any "lawful"
means "which will not violate the agreed upon .
. . [press] staffing . . . or some other
provision of the agreement." Opposition at 24
(quoting Award at 45-46). The Union states that
management's reliance on its rights under
section 7106(a)(2)(A) and (B) of the Statute
"must necessarily fail" because the Arbitrator
"specifically enforced the parties'
well-established agreement pursuant to [section
7106(b)(1) of the Statute]" defining the
numbers, types and grades of employees or
positions assigned to a work project. Id. at
25-26.

The Union contends, in the alternative, that
the work practices upheld by the Arbitrator
constitute appropriate arrangements within the
meaning of section 7106(b)(3) of the Statute.
Id. at 25 n.9. The Union states that such
practices "do not substantially infringe on the
exercise of management rights and obviate
serious safety hazards and other adverse effects
that otherwise follow from the exercise of
management['s] rights." Id.

B. Analysis and Conclusions

1. Two-person Staffing Requirement

The Arbitrator determined that management's
staffing of I-8 Presses with a plate printer and
a plate printer foreman did not constitute a
full two-printer complement as required by
Article VI of the parties' agreement. The
Agency contends that this determination is
contrary to section 7106 of the Statute. The
Agency states that how the work of operating a
press is allocated between two plate printers is
properly a management determination because it
involves the assignment of work and the
assignment and direction of employees who are to
perform the work. We find that the Agency's
assertion provides no basis for finding the
award deficient.

Section 7106(b)(1) of the Statute provides
that nothing in section 7106 shall preclude an
agency and a labor organization from negotiating
"at the election of the agency," on, among other
things, the "numbers, types and grades of
employees or positions assigned to any . . .
work project, . . . or on the . . . methods and
means of performing work[.]" Consistent with
this section, an agency may elect to bargain on
these matters. Once a provision which concerns
matters which are covered by section 7106(b)(1)
is included in an agreement, the provision is
enforceable through grievance arbitration.
United States Department of Labor (OSHA) and
National Council of Field Labor Locals, 34 FLRA
573, 577 (1990) (United States Department of
Labor).

In this case, the parties negotiated Article
VI, a provision which pertains to past
practices. The Arbitrator stated one issue to
be decided with respect to the staffing
requirement was whether, given the amount and
types of work actually performed by the foremen
during the break periods, the Agency's actions
in assigning the foremen as relief printers were
consistent with the agreement to staff the I-8
Presses with two journeymen plate printers.

After considering Bureau of Engraving and
Printing, the Arbitrator determined that press
staffing is encompassed in the past practices
protected by Article VI of the parties'
agreement. He also noted that there was no
dispute that the I-8 Presses have always been
staffed by two journeymen plate printers. The
Arbitrator then determined, based on the record
evidence, that plate printer foremen were absent
from the presses for large portions of the break
periods and, even when present, performed
primarily supervisory duties rather than duties
of a second plate relief printer. The
Arbitrator concluded, therefore, that by failing
to comply with the agreed-upon two-person
staffing of the I-8 Presses, the Agency violated
Article VI of the parties' agreement.

As noted above, in Bureau of Engraving and
Printing, the Authority found that the award
simply enforced Article VI of the parties'
agreement, which represented the Agency's
election to bargain over the number of employees
to operate the printing presses involved in that
case. In light of this decision and the record
evidence, the Arbitrator found that the Agency
violated Article VI by failing to staff the I-8
Presses with two persons in accordance with this
article. We find nothing in the award that
conflicts with management's rights to assign
employees and assign work under section
7106(a)(2)(A) and (B) of the Statute. Rather,
the award merely enforces the parties' agreement
concerning the number of employees to operate
the I-8 Presses consistent with the Authority's
decision in Bureau of Engraving and Printing.
In particular, the Arbitrator interpreted and
applied Article VI and found that the Agency
violated the parties' agreement by failing to
staff the I-8 Presses with two persons in
accordance with this provision. We find,
therefore, that the Agency's contention that the
award violates management's rights to assign
employees and to assign work provides no basis
for finding the award deficient.

We also note the Agency's contention that the
Arbitrator interpreted Bureau of Engraving too
broadly to encompass the methods and means of
performing work. It is unnecessary for us to
determine whether Article VI of the parties'
agreement concerns the methods and means of
performing the Agency's work under section
7106(b)(1) of the Statute. Even if this
article determined the methods and means of
performing the Agency's work, the provision was
negotiable at the Agency's election. As the
provision was negotiable and was included in the
parties' agreement, it is enforceable. See
United States Department of Labor, 34 FLRA at
578.

Accordingly, we conclude that the Agency's
exception, as it relates to the two-person
staffing requirement, provides no basis for
finding the award deficient but instead
constitutes nothing more than disagreement with
the Arbitrator's interpretation and application
of the parties' collective bargaining agreement.
See Bureau of Engraving and Printing.

2. Restriction of Assignment of Press
   Operation Work to Supervisory Personnel

We conclude that the Agency has failed to
establish that that part of the award which
restricts the assignment of I-8 Press operation
work to supervisory personnel is contrary to
section 7106(a)(2)(A) and (B) of the Statute.

In Department of the Treasury, U.S. Customs
Service and National Treasury Employees Union,
37 FLRA 309 (1990) (U.S. Customs Service), we
reexamined our approach to cases in which an
agency contends that an arbitrator's award,
enforcing a provision of the parties' collective
bargaining agreement, is contrary to
management's rights under section 7106(a). We
held that when an agency makes such a contention
we will examine, as appropriate, the provision
enforced by the arbitrator to determine: (1) if
it constitutes an arrangement for employees
adversely affected by the exercise of
management's rights; and (2) if, as interpreted
by the arbitrator, it abrogates the exercise of
a management right. We explained that if it is
evident that the provision constitutes an
arrangement and, as interpreted by the
arbitrator does not abrogate management's
rights, the provision is within the range of
matters that can be bargained under the Statute.
Accordingly, we held that we will not find that
such an award is contrary to law and we will
deny the exception. We also held that if the
arbitrator's interpretation does result in an
abrogation of management's rights under section
7106(a), the award will be found deficient as
contrary to law, but the contractual provision,
susceptible to a different and sustainable
interpretation by a different arbitrator, will
not be affected.

We also noted in U.S. Customs Service that an
arbitrator's award is deficient if it fails to
draw its essence from the parties' agreement.
We encouraged the parties to set forth plainly
and precisely the arrangements to which they
have agreed for employees adversely affected by
the exercise of management's rights. We held
that when a party establishes that the
arbitrator's enforcement of the agreement does
not represent a plausible interpretation of the
agreement, or evidences a manifest disregard of
the agreement, we will find the award deficient.
In such a circumstance, however, the award will
be found deficient because it fails to draw its
essence from the agreement, not because it
conflicts with management's rights. Id. at
316-17.

Applying that approach in this case, we find
that the Agency fails to establish that the
award is contrary to management's rights to
assign and direct employees and to assign work
under section 7106(a)(2)(A) and (B) of the
Statute. See Department of the Treasury, 25
FLRA at 119-120, 123. Instead, the Arbitrator
has enforced a provision of the parties'
collective bargaining agreement which
constitutes an arrangement for employees
adversely affected by the exercise of
management's rights to assign and direct
employees and to assign work.

In our view, Articles VI and XVIII, Sections
4 and 5 of the agreement taken together
constitute an arrangement for employees
adversely affected by management's right to
assign and direct employees and assign them work
related to the operation of presses. The
Arbitrator noted that "[b]oth Plate Printers are
needed to work together as a team to accomplish"
necessary tasks for the operation of the
I-Press." Award at 12. The Arbitrator also
noted the impact of press understaffing on the
affected employees. We find, therefore, that
the provisions enforced by the Arbitrator
constitute an arrangement for employees
adversely affected by management's staffing of
its presses. In our view, the Arbitrator
enforced an arrangement for employees that
ensures that the presses will be operated
properly and safely. Consequently, we find that
the Arbitrator merely enforced an arrangement
negotiated by the parties when he directed the
Agency to cease and desist from continuing to
assign press operation duties to supervisors,
except as provided by the parties' agreement.

Further, we find that Articles VI and XVIII,
Sections 4 and 5, as interpreted and applied by
the Arbitrator, do not abrogate the Agency's
rights to direct and assign employees and assign
work to employees concerning the I-8 Presses.
In U.S. Customs Service, the Authority held that
an award "abrogates" a management right when the
award "precludes an agency from exercising" that
right. U.S. Customs Service, 37 FLRA at 314.
The Arbitrator's award does not preclude the
Agency from exercising the rights mentioned.
Rather, the award only requires the Agency to
comply with the terms of Articles VI and XVIII,
Section 4 and 5 of the parties' agreement, which
address the staffing of the printing presses.

In this regard, the Arbitrator noted that
during the plate printer's break the Agency also
used either a "relief plate printer" or "a plate
printer who was not on break and whose own press
was 'down' in circumstances which left him
without other pressing duties," to operate the
I-8 Presses. Award at 13. Also, supervisors
may operate the presses under the circumstances
provided by these provisions. Thus, as
interpreted by the Arbitrator, Articles VI and
XVIII, Sections 4 and 5 would not prevent the
Agency from assigning press duties to other
employees during the printers' breaks or from
assigning press work to supervisory personnel
under the appropriate circumstances.
Accordingly, we conclude that Articles VI and
XVIII, Section 4 and 5, as interpreted and
applied by the Arbitrator, do not abrogate the
exercise of management's rights to assign and
direct employees and to assign work under
section 7106(a)(2)(A) and (B) of the Statute.

Additionally, the Agency's contention that
management rights under section 7106(a) of the
Statute cannot be waived or relinquished through
collective bargaining provides no basis for
finding the award deficient. When presented
with exceptions to an arbitrator's award under
section 7122(a) where an arrangement for
employees adversely affected by the exercise of
a management right has been negotiated by the
parties and, as interpreted and applied by an
arbitrator, the provision does not abrogate
management's rights, that provision and its
enforcement do not constitute a waiver of
management's rights. U.S. Customs Service, 37
FLRA at 315.

We further note the Agency's contention that
a provision identical to Article XVIII, Section
5 was found nonnegotiable in Department of the
Treasury. The Authority found that the
provision, Provision 15, did not constitute an
appropriate arrangement because it excessively
interfered with management's rights under
section 7106(a)(2)(a) and (B) of the Statute.
We conclude that in light of U.S. Customs
Service, the decision in Department of the
Treasury is not controlling in this case.

Consistent with U.S. Customs Service, when an
agency maintains that an award enforcing a
provision of the parties' agreement is contrary
to section 7106(a), we will not apply the test
established in National Association of
Government Employees, Local R14-87 and Kansas
Army National Guard, 21 FLRA 24 (1986), "to
determine whether the provision excessively
interferes with the exercise of a management
right." U.S. Customs Service, 37 FLRA at 314.
See also U.S. Department of the Air Force,
MacDill Air Force Base, Florida and National
Federation of Federal Employees, Local 153, 38
FLRA 74, 78 (1990). That test "is a matter for
the negotiation process under the Statute."
U.S. Customs Service, 37 FLRA at 314. In
arbitration cases as here, as noted above, "we
will determine whether a negotiated arrangement
as enforced by an arbitrator abrogates
management's rights." Id.

Based on the above, we find no merit in the
Agency's contention that the award is deficient
because it directly interferes with management's
rights to assign and direct employees and to
assign work under section 7106(a)(2)(A) and (B)
of the Statute. Also, in view of this
determination, we find it unnecessary to address
the Agency's contention that the Arbitrator
erred in finding that the Agency's assignment of
supervisors to operate currency presses
constituted an election by the Agency to
negotiate the types and grades of employees
under section 7106(b)(1) of the Statute.

VI. Third Exception

A. Positions of the Parties

The Agency contends that the Arbitrator
improperly rejected the Agency's determination,
under section 7106(a)(2)(D) of the Statute, that
it faced an emergency in currency printing.

The Union contends that the Arbitrator
properly rejected management's claim that it was
compelled to act because of emergency
conditions. The Union asserts that there is
"ample" evidence in the record to support the
Arbitrator's factual determination that the
Agency had not established that an emergency
existed within the meaning of section
7106(a)(2)(D) of the Statute. The Union
requests the Authority to take "official notice"
of a document which it contends further shows
that no emergency existed to warrant the change
in the staffing of the I-8 Press. Id. at 20 n.7
and 27.

B. Analysis and Conclusions

We conclude that the Agency fails to
establish that the award is contrary to section
7106(a)(2)(D) of the Statute.

Section 7106(a)(2)(D) provides that an agency
may "take whatever actions may be necessary to
carry out the agency mission during
emergencies." The Agency argued before the
Arbitrator that emergency conditions existed
which required it to implement the staffing
changes in its press operations. The Arbitrator
found that the record evidence fell "far short
of establishing the [Agency's] claim of
'emergency' under either the Agreement or under
the Statute." Award at 46.

In our view, the Agency's exception
constitutes mere disagreement with the
Arbitrator's finding that the record evidence
did not establish the Agency's claim that an
emergency existed warranting the change in the
staffing of its presses. Disagreement with the
Arbitrator's evaluation of the evidence and
conclusions based thereon provides no basis for
finding the award deficient. See U.S.
Department of Justice, Federal Bureau of
Prisons, Terre Haute, Indiana and American
Federation of Government Employees, Council of
Prison Locals, Local 720, 38 FLRA 1438, 1442
(1991). Compare U.S. Customs Service, 29 FLRA
307, 324-325 (1987) (where the Authority in an
unfair labor practice case adopted the Judge's
findings that the evidence demonstrated, among
other things, that an emergency existed pursuant
to section 7106(a)(2)(D) of the Statute which
warranted the agency's actions). Consequently,
we find that this exception provides no basis
for finding the award deficient.(2)

VII. Decision

The Agency's exceptions are denied.

APPENDIX

The pertinent text of Articles VI and XVIII
is set forth below:

ARTICLE VI

PAST PRACTICES

SECTION 1. It is agreed and understood that any
prior work benefits and practices and
understandings such as but not limited to
existing smoking rules, provisions on employee
use of telephones, interpretations of language
in this Agreement which existed in the previous
Agreement, etc. which are not specifically
covered by this Agreement, shall remain in force
and in effect during the term of this Agreement
unless otherwise mutually agreed to by the
parties.

SECTION 2. Notwithstanding Section 1., the
Employer, after discussion with the Union, may
change a prior work benefit, practice or
understanding which is:

(a)--inconsistent with the designed use of
equipment, technology or work processes, or

(b)--reasonably provided [sic] to be a hazard
to the health and safety of employees.

ARTICLE XVIII

ASSIGNMENT AND DETAIL

. . . .

SECTION 4. A qualified Plate Printer or a
qualified Apprentice must be in attendance at
any press equipped with plates when such press
is being repaired and the press must be operated
incident to such repair except in circumstances
of preventive maintenance wherein alternative
provisions will be made by the Plate Printing
Division.

Nothing in this section shall preclude a
Foreman of Plate Printers, instead of a
qualified Plate Printer or qualified Apprentice,
from jogging a press when necessary incident to
repair.

SECTION 5. Acting foremen trained to supervise
an area shall not work presses there until
entitled to such assignment by virtue of
seniority. In recognition of this principle and
the Employer's right to train acting supervisors
on any type of equipment, regardless of
seniority, it is agreed that such training:

1. Shall not be qualifying training for
   assignment to that area as a plate printer.

2. Shall not exceed 15 working days.

. . . .

FOOTNOTES:
(If blank, the decision does not
have footnotes.)

1. Article VI and other relevant contract articles, mentioned
   hereafter, are set forth in the Appendix.

2. In view of our conclusion, it is unnecessary
   to consider the Union's request that we take
   official notice of a document which it contends
   shows that no emergency existed.