30:0386(49)AR - VA Medical Center, Leavenworth, KS and AFGE Local 85 -- 1987 FLRAdec AR



[ v30 p386 ]
30:0386(49)AR
The decision of the Authority follows:


 30 FLRA NO. 49
  30 FLRA 386

 30 NOV 1987



VETERANS ADMINISTRATION
MEDICAL CENTER, LEAVENWORTH,
KANSAS

                    Activity

     and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 85

                    Union

Case No. 0-AR-1410

DECISION

     I. Statement of the Case

     This matter is before the Authority on exceptions to the
award of Arbitrator Thomas C. Hendrix 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 discussed below, we find
that the award is deficient.

     II. Background and Arbitrator's Award

     A grievance was filed alleging that the Activity was not
following past practice on weekend schedules. The remedy sought
was for the Activity to revert to the past practice of granting
employees every other weekend off. The grievance was not resolved
and was submitted to arbitration on the issue of whether the
Activity had complied with the time limits of the parties'
collective bargaining agreement for rendering a decision at step
2 of the grievance procedure.

     The Arbitrator ruled that the Activity had failed to comply
with the time limits and acknowledged that the parties' agreement
required that the grievance be resolved in favor of the grievant
if the requested remedy is "legal and reasonable under the
circumstances." Noting that both parties had declined to address
the merits of the grievance, the Arbitrator determined that the
remedy requested by the grievant "d(id) not appear to be
illegal." Accordingly, the Arbitrator sustained the
grievance and directed the Activity to "revert back to the
past-practice of granting employees every other weekend off."

     III. Exceptions

     A. Contentions

     The Agency contends that the Arbitrator's award is contrary
to management's right to assign work under section 7106(a)(2)(B)
of the Statute. Consequently, the Agency maintains that the
requested remedy was not properly granted under the terms of the
parties' collective bargaining agreement because it was not legal
and reasonable under the circumstances. The Agency also contends
that the award does not draw its essence from the parties'
collective bargaining agreement. The agency further argues that
the award is contrary to 5 C.F.R. 610.121, pertaining to the
establishment of work schedules.

     B. Analysis and Conclusions

     We conclude that the award is contrary to section
7106(a)(2)(B).

     This case is similar to National Association of Government
Employees, Local R1-25 and Brockton/West Roxbury VA Medical
Center, 21 FLRA  83 (1986), where the arbitrator found that the
activity had failed to follow established past practice when it
required employees to work midweek holidays. The arbitrator
sustained the grievance and enforced the established practice by
directing the activity to cease requiring employees to work
midweek hol