American Federation of Government Employees, Local 919 and Department of Justice, Bureau of Prisons, U.S. Penitentiary, Leavenworth, KS
June 26, 1995
Arbitrator: Charles B. Blackmar
Overruled at 95 FLRR 1-1086
Related Index Numbers:
18.069 Assignment of Work, Overtime
22.008 Bargaining Units, Contract Interpretation
22.021 Bargaining Units, Management Rights
22.033 Bargaining Units, Performance of Unit Work By Supervisors
74.015 Overtime, Avoidance
74.048 Overtime, Contract Interpretation
THE AGENCY VIOLATED THE CONTRACT WHEN IT SCHEDULED A SUPERVISOR INSTEAD OF A BARGAINING UNIT MEMBER TO PERFORM WORK TO AVOID PAYING OVERTIME.
The grievants were employed as Food Service Foremen who supervised inmates detailed to work in the food service. The grievants were not supervisors but members of the bargaining unit. For an unexplained reason, a bargaining unit employee was not available for a five-day "straight time" shift. Rather than assign another bargaining unit employee, the agency assigned the Assistant Food Service Administrator to perform work regularly performed by the grievants. Consequently, the union filed a grieva nce, claiming that the assignment of the supervisor instead of a bargaining member violated the contract. The agency argued that there was no bargaining unit member available to perform the work on "straight time" and that under the agreement it had the right to assign supervisors to bargaining unit work for the purpose of avoiding overtime. The union argued that the grievants were qualified to perform the work and had made their availability known to management for overtime. In reviewing the agreement, the arbitrator determined that bargaining unit work should be performed by bargaining unit employees. Even though he found that the agency could take steps to manage overtime costs, regarding vacations and leaves, it could not deprive available bargaini ng unit employees of ordinary work and overtime. Thus, he sustained the grievance and ordered the agency to pay the union 40 hours of overtime pay to be distributed equally among all the grievants.
Opinion and Award
The facts underlying the grievance are not challenged by management. The grievants are employed as Food Service Foremen at the United States Penitentiary at Leavenworth, Kansas. They are designated "foremen" because they supervise inmates detailed to work in food service, but are members of the bargaining unit and not supervisors. For an unexplained reason, a bargaining unit employee was not available on straight time to work on the 4 A.M.-12 P.M. shift on April 15, 1994, and on April 18-21, 1994, a total of five days. Rather than assigning another bargaining unit employee to work this shift on overtime, management assigned a supervisory employee with the title of Assistant Food Service Administrator to perform the work regularly performed by a member of the bargaining unit. Although supervisory employees are subject to the statutory overtime provisions, they are apparently accorded compensatory time in lieu of overtime pay. The union filed a grievance alleging that, in assigning bargaining uni t work to a supervisor, management violated the Master Agreement of September 1, 1992, expiring by its terms on August 1, 1995, and the local supplemental agreement, modified by the reviewing authority to expire on the same date. Management argues that, under the applicable statutes and the collective bargaining agreement, it has the right to assign supervisors to bargaining unit work for the express purpose of avoiding overtime.
Timeliness of the Appeal to Arbitration
Article 31, Section g of the collective bargaining agreement provides that "the grieving party may submit the grievance to arbitration under Article 32 of this agreement within 30 calendar days from receipt of the final response."
Management's final response is dated May 16, 1994. The union's notice of intent to proceed to arbitration is dated July 14, 1994. Under date of July 25, 1994, management protested the timeliness of the appeal to arbitration. No mention of a question of timeliness was raised during the hearing.
Management's claim is overruled. The union's communication of July 14, 1994, invoking arbitration states that the agency response (apparently misstating the date of the response as May 10, 1994,) was received on July 11, 1994. Management did not attempt torefute this claim by evidence as to how and when its final answer was transmitted to the union, or when it was received. Even though management reserved the point in its communication of July 25, 1994, it made no further mention of the issue un til it filed its brief. By reason of this failure the face of the record demonstrates that the resort to arbitration was timely.
The union made two attempts to amend the grievance, long after the time for filing an initial grievance had passed. Management refused to consent to the amendments, relying on Article 32, Section a of the Master Agreement, which states that ". . .the issues, the alleged violations, and the remedy requested in the written grievance may be modified only by mutual consent." Management argues that the facts stated in the tendered amendments should have been made the subject of separate grievances, t o be heard by other arbitrators if the union presses them to arbitration.
The amendments refer to similar use of supervisors in bargaining unit positions in other departments of the institution so as to avoid paying overtime. The union argues that the instant grievance should be considered a "class action" grievance. The rules of civil procedure which apply to litigation, perhaps unfortunately, do not apply to arbitration proceedings unless the underlying collective bargaining agreement so provides. Management correctly argues that my jurisdiction only extends to the initial grievance, and to amendments consented to by management.
The conduct relied on in the proposed amendments, nevertheless, is appropriately brought out in evidence as demonstrating the purpose and intent of management to utilize supervisors in bargaining unit positions in order to avoid the payment of overtime. Management frankly concedes that it does so, and asserts that it has the right to do so. So the question becomes simply a legal one, to be determined by the language of the contract and the underlying law. I assume that the legal issue will be settled at some time, and that the law will be followed, but I have no authority to rule on anything except the April, 1994 grievance.
The union also introduced evidence on management's "vacating of positions" to avoid payment of overtime. It asserts that, on some occasions, the management would direct that a certain position not be worked for one or more shifts, because the detailing of an available bargaining unit employee would require the payment of overtime. The union argues that such vacation, in a prison, involves safety risks. This matter is beyond the scope of the April, 1994 grievance because the evidence shows tha t the food service foreman position was, worked on each of the shifts in question. Thus there was no vacating of a position.
The union protested about the holding of the hearing within the institution. The contract, however, gives management the right to designate the place of hearing.
The union also argued about the number of its representatives who were allowed to attend the hearing on pay status. The parties agreed to discuss the matter, and it forms no part of the issues submitted to me.
The union argues about bargainable issues under governing statutes and a recent executive order. I have no authority to make any decision about bargainability. The Federal Labor Relations Authority is the appropriate tribunal to determine such issues.
I elect to frame the issue before me as follows:
Did management violate the Master Agreement or the Local Supplemental Agreement by assigning a supervisor to perform work in the Food Service Department customarily performed by members of the collective bargaining unit, on April 15, 1994, and on April 18 through April 21, 1994? If there is a violation, what is the remedy?
Statutory and Contract Provisions
In contrast to collective bargaining agreements in the private sector, the parties bargain in the context of Chapter 71 of Title 5 of the United States Code. Section 7106(a)(2)(B) provides that management shall have the authority:
to assign work, to make determinations with respect to contracting out, and to determine the personnel by which agency operations shall be conducted.Section B defines the bargaining unit as follows:
Pursuant to statutory authority, the parties entered into a Master Service Agreement, effective September 1, 1992, and a Local Supplemental Agreement, remaining in effect until a new agreement is adopted.
Article I of the Master Agreement is entitled "Recognition." Section A reads as follows:The union is recognized as the sole and exclusive representative for all bargaining unit employees as defined in Section b of this Article.
The bargaining unit. . .consists of all employees, Class Act, Wage Board and professional, employed in any facility or operation of the Federal Bureau of Prisons.This section expressly excludes supervisors. The local agreement contains consistent provisions regarding representation.
Article 18, Section n of the master agreement treats of overtime, in the following language:
Section n . Opportunities for overtime shall be distributed and rotated equitably among qualified employees. Specific procedures regarding overtime assignments may be negotiated locally. Nothing in this section is meant to restrict the employer's management of overtime costs.. . .The local supplemental agreement, Section J, provides in part as follows:
A clear and legible signup sheet will be maintained by Department Heads, on which Employees may indicate the days and shifts for which they are available for overtime.. . .This supplemental agreement was subject to management review for compliance with applicable statutes and the master agreement. The reviewing authority did not modify the overtime provisions.
The first consideration for assigning overtime will be given to those employees with seniority.. . .
Article 5. Section a2b of the Master Agreement provides as follows:
Nothing in this agreement shall affect the authority of any management official of the Federal Bureau of Prisons: to assign work, to make determinations with respect to contracting out, and to determine the personnel by which Federal Bureau of Prisons operations will be conducted.The collective bargaining agreements do not have any provision similar to those often found in the private sector, which provide the circumstances and conditions under which supervisors could perform work of the collective bargaining unit, or which limit the right of management to assign bargaining unit work to supervisors. There is an express provision giving management full discretion in the contracting out of work. It mig ht be argued that there is some significance in the absence of a contract provision authorizing the practices shown by the evidence in this case.
Management concedes the union's factual contentions underlying the April, 1994 grievance. It admits that it assigned a supervisory employee to perform work normally performed by members of the bargaining unit, and that it did so solely because no member of the bargaining unit was available to perform the work on "straight time." The union's evidence showed that members of the bargaining unit qualified to perform the work had made their availability for overtime known to management.
Management's position is further demonstrated by its removing the overtime sign up sheet from the food service department, in spite of the contract provisions just quoted. This removal would seem to indicate that management had decided that there would be no overtime in the food service department. The sheet was restored when the union raised a question but, so far as the evidence shows, management has continued the practice of assigning supervisors rather than bargaining unit employees when overtime is necessary.
Almost all of the arbitration cases involving the problem of assignment of supervisors to bargaining unit work have arisen in the private sector. If the collective bargaining agreement contains express language prohibiting bargaining unit work by supervisors, then the case is clear. Numerous cases hold, however, that the general provisions of collective bargaining agreements relating to recognition of an exclusive bargaining agent, seniority, and distribution of overtime preclude assignment of routine work of the bargaining unit outside the bargaining unit when bargaining unit employees are available. See Elkouri and Elkouri, How, Arbitration works, 4th Ed., p. 547, footnote 478. There are contrary cases, but my distinct impression is that the more recent cases support the holding that the assignment of bargaining unit work outside the bargaining unit is permissible only if some justification appears. See footnote 497 in the Elkouri treatise.
At pages 515 and 516 of the text, and at page 138 to the supplement to the Fourth Edition, the Elkouris discuss cases involving the use of supervisors to perform bargaining unit work. Numerous cases consider reasons justifying such use of supervisors. Reasons include need for instruction, minimality of the work done by supervisors, unusual problems in the work, disagreement as to whether the work is bargaining unit work, and the like. None of these reasons applies here. Management suggest s that the minimization of overtime pay is reason enough.
In a private sector case general clauses such as these agreements contain, giving management the right to assign work or determine the duties of personnel, would not supply justification. The very assignment of the regular work of the position to the bargaining unit evidences management's choice. There is no suggestion that the work could be done more efficiently by supervisors, or of any other circumstances justifying a special assignment except the desire to minimize overtime pay. Interests of efficiency would ordinarily indicate that supervisors should supervise and that other employees should do their regular work. In making these observations I am quite aware that management, rather than the arbitrator, is responsible for matters of efficiency. Here, however, arguments based on efficiency were not and could not be made under the facts shown in evidence.
If this case were to arise in the private sector I would hold without hesitation that management could not assign bargaining unit work to supervisors (or to other non-bargaining unit employees) when the sole purpose of the assignment is to avoid statutory overtime. To hold otherwise would permit management to subvert the bargaining unit which it has expressly recognized. I would reach this conclusion by, fair implication from the contract language recognizing the bargaining unit and providing for assignment of overtime. In expressing these views I have considered the contract provisions giving the employer the authority of "management of overtime costs.. . ." A reading of this provision as permitting management to go outside the bar gaining unit to cover overtime costs would be too expansive.
What I must then decide is whether cases in the federal sector are so essentially different from cases in the private sector that a different result should be reached. Collective bargaining for federal employees is controlled by law and the parties are not free to put whatever language they desire in collective bargaining agreements. The agreements are subject to review, and legal points may be decided by the Federal Labor Relations Authority under 5 USC Sec. 7122, with further resort to the United States Courts of Appeals and to the Supreme Court pursuant to Sec. 7123. The Federal Labor Relations Authority also determines questions as to which issues may be the subject of bargaining.
Management at the hearing asserted that its position is supported by many decisions of the Federal Labor Relations Authority. Its brief attaches an opinion of that authority handed down March 18, 1983, in the case of American Federation of Government Employees, AFL-CIO, International Council of U.S. Marshals Service Locals and Department of Justice, U.S. Marshals Service Locals, 11 FLRA 672, 1983 WL 24234 (FLRA). There the union sought to include in the contract language "that woul d preclude the agency from assigning work normally performed by unit employees to supervisors, beyond their duty hours, where the work otherwise would be performed by unit employees on overtime. . ." The authority held that the proposal
. . .directly interfered with management's right to assign work under section 7106(a)(2)(B) of the Statute by improperly limiting management's discretion to determine which employees will receive particular work assignments. . .The authority held that the proposed clause was "outside the duty to bargain." It cited an earlier decision, 9 FLRA No. 74 (1982). Management argues that, based on these authorities, a clause precluding the assignment of bargaining unit work to supervisors could not be included in the collective bargaining agreement. It goes on to argue that a clause which is expressly precluded could not be supplied by implication. It also points to the language of the agreement confining the authority of the arbitrator, and suggests the union's position cannot be sustained within the four corners of the governing agreements. These are strong arguments, forcefully presented.
The Federal Labor Relations Authority, however, is not the ultimate resource on the governing law. There have been numerous decisions of the several federal courts of appeals which seem to afford more leeway in bargaining than the United States Marshals case does, and also the decision of the Supreme Court of the United States inFort Stewart Schools v. Federal Labor Relations Authority, 495 U.S. 641 (1990), upholding a FLRA decision holding that issues of mileage reimbursement, paid leave, and (in a case in which salaries were not prescribed by statute) teachers' salaries were bargainable matters. In line is National Treasury Employees Union v. Federal Labor Relations Authority, (U.S. App. D.C., 1986), opinion by Judge, now Justice, Scalia, who also wrote the Fort Stewart opinion. There the FLRA's holding that incentive pay was bargainable was sustained.
Based on the authorities just cited, I take the contract the parties have written and consider it in accordance with prevailing views of arbitral thought. The language, on its face, is sufficient to justify the union's position. An arbitrator, or other adjudicator, does not add or modify contract language in determining its fair implications necessary to make the contract language meaningful. The manifest sense, of the contract before me is that bargaining unit work shall be done by bargaining un it employees. Management may take appropriate steps to manage overtime (costs, by scheduling vacations and leaves, by making assignments of the regular employees, and by determining the appropriate number of employees to hire, but it may not assign ordinary work outside the bargaining unit when bargaining unit employees are available. The contract language before me was approved by appropriate authorities, mindful of the holdings of the Federal Labor Relations Counsel as to bargainable issues. The modern trend is to allow public employers and employees to enter into collective bargaining agreements similar to those which are common in the private sector. I take the contract the parties have made and construe it as similar contracts have been const rued by arbitrators. I agree with the union's position.
Management argues that the employees have no right to overtime, and that the provisions of the agreements regarding overtime apply only to such overtime work as it sees fit to make available to the bargaining unit. I agree that employees have no right to overtime, but conclude that, when regular positions are worked overtime, the work must be offered to available bargaining unit employees in the manner provided by the agreements.
Inasmuch as I rule only the grievance for work performed on five days in April of 1994, the remedy is nominal. By my findings, the management deprived the bargaining unit of five days of work which would have been performed at overtime rates. The union is entitled to recover 40 hours of overtime pay. For want of more definite information, I shall direct that the award be distributed equally among all employees holding the classification of food service foreman on April 15, 1994.
The grievance relating to the assignment of bargaining unit work to supervisors on April 15, 18, 19, 20 and 21 of 1994 is sustained. Management will pay for 40 hours of work at rates then prevailing for the classification of cook foreman, with the award to be divided equally among all employees holding the food service foreman classification on that date. All further relief of any nature is denied.