32:0091(12)AR - - Bremerton MTC and Puget Sound Naval Shipyard - - 1988 FLRAdec AR - - v32 p91


[ v32 p91 ]
32:0091(12)AR
The decision of the Authority follows:


32 FLRA No. 12

UNITED STATES OF AMERICA
BEFORE THE
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.

BREMERTON METAL TRADES COUNCIL
Union

and

PUGET SOUND NAVAL SHIPYARD
Activity

Case No. 0-AR-1464

DECISION

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Janet L. Gaunt. The Arbitrator found that management did not violate 5 C.F.R. § 610.121(a)(2) by failing to provide the grievant with 2 consecutive days off outside of the basic workweek while changing his basic workweek in December 1986. Consequently, she denied the grievance.

The Union filed exceptions 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 Activity did not file an opposition.

We conclude that the Union has not established that the award is contrary to 5 C.F.R. § 610.111, pertaining to the establishment of workweeks, or 5 C.F.R. § 610.121, pertaining to the establishment of work schedules. Accordingly, we deny the exceptions.

II. Background

The Department of the Navy (the Agency) advised the Puget Sound Naval Shipyard (the Activity) that its overtime utilization was excessive. Thereafter, the Shipyard Production Officer directed his Group Superintendents to determine what support activities could be performed on nonstandard workweeks. In accordance with this directive, the Service Group Superintendent directed his Shop 99 Superintendent to determine what Shop 99 functions could be performed using nonstandard workweeks.

The Shop 99 Superintendent advised the Service Group Superintendent that maintenance functions could be performed using nonstandard workweeks. Acting under the verbal authority of the Shipyard Production Officer, the Service Group Superintendent approved the use of nonstandard workweeks in Shop 99 for maintenance functions. The planned change to a nonstandard workweek was reviewed by the employee relations division (Code 160) staff, who reported on the proposed change to the Head of Code 160 before the nonstandard workweek was implemented.

Beginning in October 1986, Shop 99 implemented a rotating 30-day tour on a nonstandard workweek. The grievant's tour on this nonstandard workweek began on Sunday, December 28, 1986. Previously, he had been working a standard workweek consisting of Monday through Friday with Saturday and Sunday off work. Under the nonstandard workweek, the grievant worked Sunday through Wednesday, was off work on Thursday and Friday, and worked Saturday.

In making the transition from the standard workweek to the nonstandard workweek, the grievant received only one regularly scheduled day off--Saturday, December 27, 1986. Although the grievant received only one scheduled day off, because of the holidays on Thursday, December 25, and Friday, December 26, he was off work for 3 days before he started his nonstandard workweek on Sunday, December 28. The Union filed a grievance claiming that by providing only one regularly scheduled day off between the standard and nonstandard workweeks, the Activity violated 5 C.F.R. § 610.121(a)(2).

III. Arbitrator's Award

The parties stipulated the following issue for resolution:

1. Did Management violate 5 CFR 610.121(a)(2) by failing to provide the Grievant with two (2) consecutive days outside the basic work week while changing his basic work week in December 1986 and January 1987?

2. If so, what is an appropriate remedy?

The Arbitrator noted that 5 C.F.R. § 610.121(a)(2) pertains to the establishment of work schedules and provides:

(a) Except when the head of an agency determines that the agency would be seriously handicapped in carrying out its functions or that costs would be substantially increased, he or she shall provide that--

. . . . . . .

(2) The basic 40-hour workweek is scheduled on 5 days, Monday through Friday when possible, and the 2 days outside the basic workweek are consecutive[.]

The Arbitrator rejected the Union's claim that the grievant was entitled to have 2 regularly scheduled days off before changing from a standard workweek to a nonstandard workweek. She found no such requirement in 5 U.S.C. § 6101, 5 C.F.R. § 610.121(a)(2), or any other regulations implementing workweeks and work schedules.

The Arbitrator found that the requirement for regularly scheduled days off applies only to the scheduled workweek itself, not to transitions between different work schedules. She noted that Agency regulations required that nonwork days which correspond to Saturday and/or Sunday to be consecutive "whenever practical." Because the grievant's days off in his nonstandard workweek were Thursday and Friday, the Arbitrator found that the regulatory requirement was met.

The Arbitrator also rejected other contentions of the Union. She found that the delegation of authority in Agency regulations to establish work schedules included the authority to establish nonstandard workweeks. She found that the authority to use nonstandard work schedules was validly delegated to the Shipyard Production Officer. The Arbitrator determined that the Department of the Navy was an "agency" within the meaning of 5 C.F.R. § 610.102(d) and that under 5 C.F.R. § 610.102(e), the instruction to use nonstandard work schedules was issued by an official delegated to act for the Secretary of the Navy. She also found that the required approval of Code 160 was obtained and that there was a proper determination made under 5 C.F.R. § 610.121(a) that nonstandard workweeks were necessary to avoid a serious handicap in carrying out the Activity's mission.

Accordingly, the Arbitrator denied the grievance.

IV. Discussion

The Union contends that the failure to provide the grievant with 2 regularly scheduled days off when changing from the standard workweek to the nonstandard workweek was contrary to 5 C.F.R. § 610.121(a)(2). The Union argues that the Arbitrator's award finding to the contrary is, therefore, deficient. The Union also contends that the award is contrary to 5 C.F.R. § 610.111 and § 610.121 because the Arbitrator misapplied the rules for workweeks to work schedules. The Union argues that 5 C.F.R. § 610.121 does not provide for delegation of authority to establish nonstandard workweeks. The Union further contends that there was no evidence that the Agency or the Activity made the determination required by 5 C.F.R. § 610.121 that the Agency would be seriously handicapped in carrying out its functions or that costs would be substantially increased if a standard workweek was provided.

We conclude that the Union has not established that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute. The Union has failed to establish that the award is contrary to any law, rule, or regulation or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor relations cases.

The Union fails to establish that the grievant was entitled under 5 C.F.R. § 610.121(a)(2) to have 2 regularly scheduled days off before changing to the nonstandard workweek. The Arbitrator found no such requirement in 5 U.S.C. § 6101 or 5 C.F.R. § 610.121(a)(2). She found that the requirement for regularly scheduled days off applies only to the scheduled workweek itself, not to transitions between different work schedules, and that this requirement was met. We find no basis in law or regulation on which to disagree with the Arbitrator. Therefore, we conclude that the Arbitrator's award is not inconsistent with 5 U.S.C. § 6101 or 5 C.F.R. § 610.121(a)(2). Compare Sanford v. Weinberger, 752 F.2d 636 (Fed. Cir. 1985) (the court determined that a work schedule of 7 consecutive days did not violate 5 C.F.R. part 610 because the employees were never scheduled to work more than 6 consecutive days in any administrative workweek and the number of consecutive days worked by employees spanning more than one administrative workweek is irrelevant to determining whether an employee is entitled to overtime compensation).

Contrary