34:0528(88)AR - - VA, VA Medical Center, Leavenworth, KS and AFGE Local 85 - - 1990 FLRAdec AR - - v34 p528
[ v34 p528 ]
The decision of the Authority follows:
34 FLRA No. 88
FEDERAL LABOR RELATIONS AUTHORITY
VETERANS ADMINISTRATION MEDICAL CENTER
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
January 24, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Sol M. Yarowsky. The Arbitrator denied a grievance which asserted that the Veterans Administration, Veterans Administration Medical Center, Leavenworth, Kansas (the Agency) violated the clean-up provision of a local collective bargaining agreement.
Exceptions to the award were filed by the American Federation of Government Employees, Local 85 (the Union) 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 Agency did not file an opposition to the exceptions.
For the reasons which follow, we find that the Union has not demonstrated that the award is contrary to law, rule or regulation, or that the award is deficient on any other grounds similar to those applied by Federal courts in private sector labor relations cases. Accordingly, we deny the exceptions.
II. Background and Arbitrator's Award
The grievants, two bargaining unit employees, are employed by the Agency as Housekeeping Aides. Housekeeping aides are required to wear hospital uniforms issued by the Agency. Housekeeping personnel are authorized to wear their uniforms to and from work. Award at 2. On June 10, 1987, the grievants were observed changing from their uniforms into their personal clothes several minutes prior to the end of their shift. On June 15, 1987, they received "letters of counseling" concerning their change of clothes on duty time. Id. The Agency asserted that changing from uniforms into personal attire during duty time is contrary to Agency policy and Government-wide regulations unless warranted by special conditions, such as the risk of infection or contamination, or authorized by an employee's supervisor.
The Union filed a grievance on behalf of the two employees claiming that issuance of the letters of counseling violated Article XII, Section 6 of the parties' local agreement. That section provides as follows:
ARTICLE XII HOURS OF WORK
Section 6. The Employer will provide a reasonable amount of time, not to exceed 15 minutes, or as otherwise determined necessary by the supervisor, consistent with the nature of the work performed, for employees to clean-up prior to the lunch period and at the end of the workday. In the same manner, a reasonable amount of time not to exceed 15 minutes will be allowed employees for the storage, clean-up and protection of Government property, equipment and tools prior to the end of the workday.
The Union claimed that the employees were not provided "a reasonable time at the end of the day for personal cleanup." Award at 2. The grievance requested that the letters be removed from the employees' personnel folders and that all employees in housekeeping be given a reasonable amount of time before lunch and at the end of the workday for purposes of personal clean-up.
The Agency's response to the grievance was that the letters were not issued for personal clean-up time. The Agency stated that the letters were issued for changing out of uniforms, which goes beyond personal clean-up provided for in the agreement.
The Arbitrator denied the grievance, finding that neither the agreement nor past practice authorized the grievants to use duty time for the purpose of changing clothes. The Arbitrator found that whatever practice may have existed in the past, the practice no longer continued as an actual working condition after the Agency instituted a change in policy. That change allowed employees to wear their uniforms to and from work. Award at 9. The Arbitrator also noted that granting or prohibiting the changing of clothes on duty time was "part of an agency's non-negotiable right to make assignments" under section 7106(a) of the Statute. Award at 10.
The Arbitrator stated that the letters of counseling were non-disciplinary in nature and served merely to alert the grievants to their departure from Veterans Administration regulations. The Arbitrator also found that as the grievants previously had been told that changing clothes was not authorized on duty time, the letters of counseling were "a corrective reminder of hospital policy." Award at 9.
Accordingly, the Arbitrator denied the grievance finding "neither contractual nor past practice foundation to substantively support this grievance." Award at 10.
III. Union's Exceptions
The Union excepts to the award on the basis that the Arbitrator misinterpreted and misapplied the parties' local and master collective bargaining agreements, Agency rules and regulations, and the Statute.
The Union argues that Article XII, Section 6 of the local agreement clearly states that employees are entitled to the use of duty time for the purpose of changing clothes. The Union cites to the Authority's decision in The Washington Plate Printers Union, Local No. 2, I.P.D.E.U. and U.S. Department of the Treasury, Bureau of Engraving and Printing, 31 FLRA 1250 (1988) (Bureau of Engraving and Printing) to support its position concerning the use of duty time for clean-up purposes.
The Union also argues that the Arbitrator incorrectly found that Agency regulations were controlling over the parties' master agreement. The Union states that the terms of the master agreement provide that "[w]here an Agency regulation conflicts with this Agreement, and/or a Supplemental Agreement, the Agreement shall govern." Exceptions at 2.
IV. Analysis and Conclusion
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 claims that the parties' local agreement clearly entitles employees to change clothes on duty time. The Union further claims that under the master agreement, any Agency regulation which conflicts with the local agreement is not controlling. The Arbitrator rejected the Union's contentions and found that neither the contract nor a past practice supported the Union's views. We find, therefore, that the Union's exceptions constitute mere disagreement with the Arbitrator's interpretation of the agreements and are an attempt to relitigate the merits of the case before the Authority. Such exceptions do not provide a basis for finding the award deficient. See, for example, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, AFL-CIO, 30 FLRA 482 (1987) (an exception which constitutes nothing more than disagreement with an arbitrator's interpretation and application of the collective bargaining agreement provides no basis for finding an award deficient) and Oklahoma Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, Oklahoma City, Oklahoma, 30 FLRA 20 (1987) (exceptions which attempt to relitigate the merits of a grievance and which constitute nothing more than disagreement with an arbitrator's findings of fact, reasoning and conclusions, evaluation of the evidence and testimony, and interpretation and application of the collective bargaining agreement provide no basis for finding an award deficient).
Additionally, the Union's reliance on Bureau of Engraving and Printing is misplaced. In that case, the Authority found that a contractual provision authorizing employees up to 10 minutes for personal "cleanup before lunch" interfered with the agency's right to assign work under section 7106(a)(2)(B) of the Statute. 31 FLRA at 1255. The Authority noted that contractual provisions which prescribe time periods for the performance of specific duties interfere with the exercise of management's right to assign work under section 7106(a)(2)(B). Id. However, because the employees were engaged in work which involved constant exposure to toxic substances, the Authority found the provision to constitute an appropriate arrangement under section 7106(b)(3) of the Statute because it sought to mitigate the "adverse effect on employees of the unclean and potentially unhealthful conditions inherent in their work[.]" Id.
In this case, the Arbitrator found, and we agree, that the Agency's conduct in prohibiting the changing of clothes on duty time was an exercise of management's right to assign work. The Arbitrator noted that management had exercised this right by allowing employees whose duties exposed them to potential ha