30:0003(1)AR - VA REGIONAL OFFICE and AFGE,LOCAL 1765 -- 1987 FLRAdec AR
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The decision of the Authority follows:
30 FLRA NO. 1 30 FLRA 3 10 NOV 1987 VETERANS ADMINISTRATION REGIONAL OFFICE Activity AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1765 Union Case No. 0-AR-1272 DECISION I. Statement of the Case This matter is before the Authority on exceptions to the award of Arbitrator Lamont E. Stallworth 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. For the reasons which follow, we find that the award is deficient. II. Background and Arbitrator's Award A grievance was filed and submitted to arbitration on the issue of whether the Activity acted properly when it changed the tours of duty of the grievants, two permanent, part-time career employees. In 1982, each grievant became a permanent, part-time career employee and each grievant was assigned a tour of duty of 8 hours a day, 3 days a week. On February 13, 1986, the grievants were notified that as a result of a management decision to reduce salary costs, effective March 3, their hours of work would be reduced from 24 to 20 and their tours of duty would be changed to 4 hours a day, 5 days a week. It was this work schedule that resulted in the grievance. The Arbitrator concluded that under civil service laws and regulations pertaining to part-time career employment, the Activity was not authorized to reduce unilaterally the grievants' hours of work. In addition, the Arbitrator concluded [PAGE] that even if the Activity were authorized to reduce the hours of work of a part-time career employee, there must be notice to the employees of this possibility on appointment or conversion to part-time career employment. In this case, the Arbitrator found no such notification to the grievants. Accordingly, the Arbitrator, as his award, determined that the Activity had not acted fairly and properly. He ordered that the grievants be restored to their previous schedules and that they not be required to work the disputed tour of duty without their consent. He also awarded them backpay for the reduction in their pay as a result of the change in their tours of duty. III. Exceptions As one of its exceptions, the Agency contends that the award is contrary to management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency argues that the award essentially mandates that the grievants be assigned 24 hours of work per week contrary to management's determination to assign them only 20 hours of work per week. IV. Analysis and Conclusions A. Do we have jurisdiction to resolve the exceptions? The Union has contended that the reduction in hours of work of the grievants is a reduction-in-pay under 5 U.S.C. 7512 and, as a matter described in section 7121(f) of the Statute, exceptions cannot be filed to the award under section 7122(a). We reject the Union's contention and confirm our jurisdiction to resolve the Agency's exceptions. We find that for section 7512 to be applicable there must be a reduction in the basic pay for the position held by the employee. 5 U.S.C. 7511(a) (4). The reduction in the hours of work of grievants did not result in a reduction in the basic pay for their positions because the rate of pay for their positions remained the same. See, for example, Burkwist v. Department of Transportation, 27 MSPR 419 (1985). B. Is the award deficient? We conclude that the award is contrary to section 7106(a)(2)(B). The Authority has specifically held that proposals which restrict management's determination on the duration of work assignments conflict with management's right to assign work. American Federation of Government Employees, AFL - CIO, Local 3804 and Federal Deposit Insurance Corporation, Madison Region, 21 FLRA 870 (1986) (Proposal 13 and cases cited in the decision). In our view, management's determination as to the number of hours of work which will be scheduled and assigned to a part-time career employee is similar to management's determination of the duration of work assignments and is encompassed by management's right to assign work. Consequently, we find that by rejecting management's determination to schedule and assign the grievants 20 hours of work per week and by instead compelling the Activity to schedule and assign them 24 hours of work per week, the award restricts management's right to determine the number of hours of work the grievants will be assigned and is contrary to section 7106(a)(2)(B). V. Decision Accordingly, the award is set aside. 1 Issued, Washington, D.C., November 10,1987 Jerry L. Calhoun, Chairman Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY FOOTNOTES Footnote 1 In view of this decision, it is not necessary to address the Agency's other exceptions to the award. However, we note that there is no basis in law or regulation for the Arbitrator's conclusion that there must be notice to part-time career employees on appointment or conversion that management can reduce their hours of work.