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Title: Employer and Union
Date: June 26, 2000
Arbitrator: Philip Kienast
Citation: 2000 NAC 148

 
In the Matter of Arbitration

          between

Employer

          and 

Union

 

OPINION
AND
AWARD

 

                                                                                            

OPINION

            This proceeding is in accordance with the parties’ Agreement.  A hearing in this matter was held on March 8, 2000 and the record closed upon receipt by the Arbitrator of post hearing briefs on May 18, 2000.  The parties stipulated the issue for decision as:

Is the Military Sealift Command obligated to pay deck crew employees overtime when they are required to perform rounds in the engine room?

If so, what shall be the appropriate remedy?

Pertinent Agreement Provisions

ARTICLE III – PROVISIONS OF LAW AND REGULATION

Section 1.  In the administration of all matters covered by this Agreement, officials and employees are governed by existing or future laws and the regulations of appropriate authorities, including policies set forth in the Federal Personnel Manual; by published agency policies and regulations in existence at the time the Agreement was approved. . . .

ARTICLE VIII – COMPENSATION

Section 1.  5 USC 5348 provides the compensation of officers and crews of vessels shall be fixed and adjusted from time to time, as nearly as is consistent with the public interest, in accordance with prevailing rates and practices in the maritime industry.

Pertinent Regulations

Civilian Marine Personnel Instruction (CMPI 610(5)

b.            Limiting Work On Sea Watches.  Normally, deck and engine nonofficer personnel who stand watch at sea on Saturdays, Sundays, and holidays and deck nonofficer personnel who stand watch between 1700 and 0800, Monday through Friday will not be required to perform work without additional premium pay.  If required to perform other than normal watch work, deck nonofficers (Pacific Schedule) will receive overtime and deck nonofficers (Atlantic Schedule) and engine nonofficers (both schedules) will receive penalty time in addition to any premium compensation they may be receiving for standing such watches.  Exceptions to this general rule are as follows:

            (1)            When necessary for the navigation and safety of the ship.
(2)            When work cannot be delayed due to necessary operation of the ship.  (See 1-25 below.)
(3)            When the work consists of duties exempt from premium pay as provided in 1-15 below.
(4)            Sanitary work.
(5)            Where duplication of premium pay is prohibited in this Instruction.

Background

            The mission of the Employer is to supply U.S. Naval ships with fuel and provisions while they are at sea.  Some of the vessels used by the MSC to accomplish this mission have highly automated engine rooms that are unmanned by the engine crew members outside of the day shift from 8:00 a.m. to 5:00 p.m.

            The deck crew is typically comprised of three persons per watch and is responsible for lookout, steering and safety checks of the vessel.  It is uncontested that prior to the advent of automated engine rooms that the deck crew did not check or otherwise inspect the engine room while doing their safety rounds.

            The Union contends that MSC has directed deck crewmen assigned to rounds to do work not performed by deck crews in the private sector or which was formerly done by engine crew members on MSC vessels.  It argues this assignment of work requires the payment of one hour of overtime to the deck crew members so assigned.  The Union maintains the deck crew is doing engine room work when they check the engine room for hazards during their rounds while the engine crew is absent.

            The Employer contends the engine room visits during rounds by the deck crew is inherent to the duties of a watchstander.  It argues it is not asking the deck crew to perform engine room work, but simply asking them to check for fire and flooding in the engine room during the 16 hour period it is unmanned each day.  The Employer maintains such safety checks is precisely what the deck crew has traditionally been doing while doing rounds of the vessel.

Analysis and Conclusions

            The record discloses that the precise complement of duties and responsibilities of private sector deck crews are not identical to MSC deck crews.  For example, Vincent Coss testified that the deck crew of an MSC oiler does rounds while the vessel is underway but that the deck crew of comparable private vessels do not do rounds while the vessel is underway.  (Tr. 123)  The Arbitrator therefore concludes that performance of the deck crews responsibilities for the “safe navigation” of the vessel does sometimes vary in significant ways between the MSC and private sector vessels.  Accordingly, the fact that private sector deck crew do not do rounds in the engine room cannot support a finding that premium pay is due MSC deck crew members just because the engine room was added to the rounds on MSC oilers.

            The record also discloses that a deck crew member spends one third of his twice daily four hour watches on rounds of the ship looking for safety hazards such as fire and flooding.  Captain Butterfield testified that only five to eight minutes of this time is required to walk the engine room to check for safety hazards such as fire and flooding.  There is no evidence deck hands doing the engine room walk through are directed to engage themselves in any way with the mechanical equipment and/or control panels within the engine room.  The Arbitrator therefore concludes that the work performed by the deck crew while in the engine room is “watch work” clearly contained within the job description of deck hands (U11).

            Moreover, Section 610 of CMPI states clearly that deck crew members will receive overtime only if required to perform work “other than normal watch work” (U14).  The Arbitrator finds no persuasive evidence that deck personnel on the vessel in question were required to perform work other than normal watch work.  Accordingly, the Arbitrator concludes they are not due one hour of overtime for simply doing watch work in the engine room. 

            The Arbitrator is aware this conclusion differs from the opinion expressed by Marilyn Mullen in 1994 (U6).  However, absent other evidence that her 1994 opinion was accepted by the parties as the way watchstanders would  henceforth be compensated this single event cannot be construed as anything but the opinion of one compensation administrator.  It is woefully insufficient proof of a binding past practice.

            In light of the foregoing, the Arbitrator concludes the Employer was not obligated to pay overtime to the deckhand assigned to rounds which included the same safety inspection in the engine room that was done elsewhere on the vessel during rounds.  Grievance denied.

AWARD

1.         The Military Sealift command is not obligated to pay deck crew employees overtime when they are required to perform rounds in the engine room.

 

 

______________________________
Philip Kienast
Bothell, Washington
June 26, 2000

 

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