35:0316(35)AR - - DOD, Defense Contract Audit Agency, Central Region and AFGE Local 3529 - - 1990 FLRAdec AR - - v35 p316



[ v35 p316 ]
35:0316(35)AR
The decision of the Authority follows:


35 FLRA No. 35

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF DEFENSE

DEFENSE CONTRACT AUDIT AGENCY

CENTRAL REGION

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 3529

(Union)

0-AR-1726

DECISION

March 29, 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 Stanford C. Madden 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. The Union filed an opposition to the Agency's exceptions.

The Arbitrator found that the Agency's action to prohibit employees working a compressed work schedule from submitting work schedules which included more than 8 hours on a holiday violated the parties' collective bargaining agreement. As his award, the Arbitrator provided that the grievant and other "[employees] who have worked compressed work schedules are . . . entitled to credit for the appropriate hours of their regular weekly schedule for their holidays since May, 1988." Award at 10.

For the following reasons, we find that the Agency failed to demonstrate that the award is contrary to law, rule, or regulation, or is deficient on other grounds set forth in section 7122(a) of the Statute. Accordingly, we will deny the Agency's exceptions.

II. Background and Arbitrator's Award

From 1982 to 1988, employees who worked four 10-hour days each week were paid 10 hours for holidays falling within their work schedule. In May 1988, the Agency rejected a proposed work schedule submitted by the grievant which included 10 hours scheduled for the Memorial Day holiday and advised the grievant that he could schedule only 8 hours for that day. The grievance, which was filed by the grievant on behalf of himself and other similarly-situated employees, alleged that the Agency violated the parties' collective bargaining agreement and 5 C.F.R. º 610.406 by denying the grievant holiday pay to which he was entitled under law and the agreement.

Before the Arbitrator, the Agency claimed that its previous payment for 10 hours on holidays was a mistake because the employees were actually working flexible schedules rather than compressed schedules. The Agency argued further that because the Agency had been applying applicable law and regulations incorrectly it "was entitled to make a correction unilaterally without notification to the Union or entering into negotiations on the subject." Award at 5.

The Arbitrator rejected the Agency's contention that the alternative work schedule set forth in the parties' agreement was a flexible work schedule and not a compressed work schedule. Although the Agency claimed that one feature of its "Maxiflex" program--the use of credit hours--was appropriate only under a flexible work schedule, the Arbitrator found that the Agency had provided no support for its contention that credit hours may not be earned on a compressed work schedule. Id. at 7. The Arbitrator also rejected the Agency's claim that because varied work schedules are a feature of flexible work schedules, the employees' use of varied work schedules indicated that employees were working a flexible schedule. The Arbitrator concluded instead that "the evidence showed" that few employees actually varied their work schedules. Id. at 8.

Moreover, the Arbitrator stated that "[i]n any event, the Agency sanctioned employees' option to work compressed schedules by [its] approval of [such] schedules on a wholesale basis, and by its payment of ten hour holidays, and particularly by its payment of retroactive holiday pay to reverse an earlier contrary position." Id. The Arbitrator stated further that "[a] party covered by a collective bargaining contract can not retreat from an interpretation of the contract which has been in force for an extended period . . . without negotiating the change." Id. Consequently, the Arbitrator awarded the grievant and those who have worked compressed work schedules since May, 1988, credit for the appropriate hours of their regular work schedules for holidays.

III. The Agency's Exceptions

The Agency claims that the Arbitrator's award: (1) violates law and regulation; (2) does not draw its essence from the parties' collective bargaining agreement; and (3) is based on a nonfact.

A. Exception 1

The Agency's exception that the award violates law and regulation is based on its assertion that it adopted a flexible work schedule under 5 U.S.C. º 6122 rather than a compressed work schedule under 5 U.S.C. º 6127. To support this exception, the Agency provides: (1) extensive quotes from 5 U.S.C. ºº 6122 and 6127 and Office of Personnel Management regulations which are set out in Book 620 of Federal Personnel Manual (FPM) Supplement 990-2; and (2) examples of differences between flexible and compressed work schedules it claims are mandated by the applicable law and regulations.

B. Exception 2

The Agency contends that the award does not draw its essence from the parties' collective bargaining agreement. The Agency argues that (1) the parties' agreement "calls the program 'Maxiflex'" and (2) the "Maxiflex program . . . is a flexible work schedule[.]" Exceptions at 6. The Agency further contends that 5 U.S.C. º 6124 and the agreement preclude employees on flexible work schedules from being paid more than 8 hours' holiday pay.

C. Exception 3

The Agency contends that the award is based on a nonfact. According to the Agency, the Arbitrator stated that his decision would have been different if the grievant had changed work schedules for the purpose of obtaining 10 hours' holiday pay. The Agency states that "[t]hat's exactly what [the grievant] did." Exceptions at 7. The Agency argues that prior to the pay period for which the grievant sought a four 10-hour-day work schedule, the grievant worked a 5-day work schedule. According to the Agency, the grievant changed his work schedule to test the payment of holiday pay.

IV. The Union's Opposition to the Exceptions

First, the Union contends that the Agency failed to serve its exceptions by certified mail or in person, as required by section 2429.27(b) of the Authority's Rules and Regulations.

In addition, the Union contends that, as to the Agency's first exception, "the Agency merely disagrees with the Arbitrator's judgment and decision and now wishes the Authority to reexamine the merits of the case." Opposition at 1. The Union notes that the Arbitrator found that the affected employees worked compressed work schedules which had been "sanctioned" by the Agency's past practice of approving such schedules and paying 10 hours' holiday pay. Id.

As to the Agency's second exception, the Union states that it "acknowledges the language of the collective bargaining agreement." Opposition at 2. The Union claims, however, that "the Agency implemented the change regarding compressed work schedules and the Union accepted this change[ ]" and, thus, according to the Union, "the change . . . became part of the contract." Id. According to the Union, "'[a] party covered by a collective bargaining contract cannot retreat from an interpretation of the contract which has been in force for an extended period so as to accrue reliance of the other party on that interpretation without negotiating the change.'" Id. (quoting Award at 2).

With regard to the Agency's third exception, the Union acknowledges that the grievant "changed his schedule in order to grieve the [Agency's] policy." Id. The Union states, however, that the grievant filed the grievance on behalf of the entire bargaining unit and that he will not be entitled to and will not seek credit for appropriate hours. The Union claims that the Arbitrator's award will affect only employees who were denied pay to which they would have been entitled had their normal schedules been accepted. The Union contends that it could not file an "'institutional'" grievance to resolve this matter and, thus, this grievance was filed on behalf of the employees who had been required to use annual leave in lieu of receiving holiday pay. Id.

V. Analysis

A. Preliminary Matter

We reject the Union's contention that because service of the Agency's exceptions was by regular mail, the exceptions should be dismissed. According to the Union, the Agency failed to serve notice of its exceptions by certified mail or in person, as required by section 2429.27(b) of the Authority's Rules and Regulations. We note, however, that the Union received the exceptions and that the Union does not claim, and there is no basis on which to conclude, that the Union was harmed by the manner in which the Agency's exceptions were served. Therefore, we will consider the Agency's exceptions. See American Federation of Government Employees, Local 2663 and Veterans Administration Medical Center, Kansas City, Missouri, 32 FLRA 619, 621 (1988).

B. The Award is Consistent with Law and Regulation

Under 5 U.S.C. ºº 6120-6133, employees are permitted to work flexible or compressed work schedules instead of standard 80-hour, 10-day biweekly work schedules otherwise required by 5 U.S.C. º 6101. Employees working flexible work schedules may vary the length of a workday or workweek by accumulating credit hours. See 5 U.S.C. º 6121(4). Employees working compressed work schedules are permitted to meet the 80-hour biweekly work requirement by working less than 10 days. See 5 U.S.C. º 6121(5). Full-time employees working flexible work schedules are entitled to 8 hours' pay for a holiday. See 5 U.S.C. º 6124; 5 C.F.R. º 610.405. On the other hand, full-time employees working compressed work schedules are entitled to pay for the number of hours they otherwise would have been scheduled to work on a holiday. See 5 C.F.R. º 610.406.

According to the Arbitrator, the record established that the employees in this case worked a compressed work schedule of four 10-hour days. The Agency claims in Exception 1 that because the employees actually worked a flexible work schedule, they are entitled to only 8 hours' pay for holidays. Accordingly, the Agency maintains that the Arbitrator's award granting the employees 10 hours' pay for holidays is inconsistent with law and regulation.

We find that the Agency has not established that the Arbitrator's award is inconsistent with the provisions of law and regulation governing flexible and compressed work schedules. We note first that the Agency raises the same arguments to support its claim that the employees worked a flexible and not a compressed work schedule that it raised before the Arbitrator. The Agency contends that the employees worked a flexible and not a compressed work schedule because certain features of its Maxiflex program are similar or identical to features of flexible work schedules which are outlined in OPM regulations.

The Arbitrator rejected the Agency's contention that the parties' work schedule was a flexible work schedule and stated that "[i]n any event, the Agency sanctioned the employee's option to work compressed schedules by [its] approval of [such] schedules on a wholesale basis, and by its payment of ten hour holidays, and particularly by its payment of retroactive holiday pay to reverse an earlier contrary position." Award at 8. The Arbitrator found that a party "can not retreat from an interpretation of the contract which has been in force for an extended period . . . without negotiating the change." Id.

The law and regulations governing flexible and compressed work schedules provide the parties with wide latitude in fashioning flexible and compressed work schedules. The Agency does not assert, and it is not apparent to us, that the law and regulations preclude the parties from adopting both types of work schedules in the same organizational element of an agency or from changing one type of work schedule to another. Consequently, we find that the Agency has not demonstrated that the Arbitrator's award violates applicable law and regulation.

We conclude that the Agency's arguments to support its claim that employees are working a flexible and not a compressed work schedule constitute nothing more than disagreement with the Arbitrator's finding of fact, reasoning, and conclusions and an attempt to relitigate the merits of the case before us. The Agency's arguments, therefore, provide no basis for finding the award deficient. See, for example, Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1923, 31 FLRA 1181 (1988) (exceptions which merely attempt to relitigate the merits of a case before the Authority and which constitute nothing more than disagreement with the arbitrator's decision provide no basis for finding an award deficient).

C. The Award Draws Its Essence from the Parties' Collective Bargaining Agreement

When a party contends that an award does not draw its essence from the parties' collective bargaining agreement, the party must demonstrate that the award: (1) cannot in any rational way be derived from the agreement; or (2) is so unfounded in reason and fact, and so unconnected with the wording and purpose of the agreement, as to manifest an infidelity to the arbitrator's obligation; or (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See General Services Administration, Region 4, Kennedy Space Center, Florida and American Federation of Government Employees, Council 236, 32 FLRA 1293, 1297 (1988) (Kennedy Space Center).

The Arbitrator rejected the Agency's argument that the parties' agreement provided a flexible work schedule and found that "[i]n any event, the Agency sanctioned the employee's option to work compressed schedules by [its] approval of [such] schedules on a wholesale basis, and by its payment of ten hours holidays, and particularly by its payment of retroactive holiday pay to reverse an earlier contrary position." Award at 8. Although the Agency continues to assert that the parties' agreement provides a flexible work schedule, the Agency makes no claim that the parties' agreement precludes the adoption of a compressed work schedule in lieu of or in addition to a flexible work schedule previously adopted. In these circumstances, we are unable to conclude that the Arbitrator's award is deficient under any of the tests discussed in Kennedy Space Center.

We conclude that the Agency's arguments constitute nothing more than disagreement with the Arbitrator's interpretation of the parties' agreement and conclusion that the Agency, by its actions, adopted a compressed work schedule for employees. These arguments do not provide a basis for finding the award deficient. See, for example, 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 case before the Authority and which constitute nothing more than disagreement with an arbitrator's interpretation of an agreement provide no basis for finding an award deficient). See also Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, AFL-CIO, 32 FLRA 79, 88 (1988) (Social Security Administration) (the question of the interpretation of the collective bargaining agreement is solely for the arbitrator because it is the arbitrator's interpretation of the agreement for which the parties bargained).

D. The Award is Not Based on a Nonfact

According to the Agency, the Arbitrator's award is based on his conclusion that "[t]here [was] no evidence whatever that employees changed [work] schedules for the purpose of t