38:1542(124)AR - - HUD, Boston, MA and AFGE Local 3258 - - 1991 FLRAdec AR - - v38 p1542



[ v38 p1542 ]
38:1542(124)AR
The decision of the Authority follows:


38 FLRA No. 124

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

BOSTON, MASSACHUSETTS

(Activity)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3258

(Union)

0-AR-1897

DECISION

January 17, 1991

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 Allan S. McCausland filed by 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 Activity filed an opposition to the Union's exceptions.

The Arbitrator determined, in relevant part, that the Activity did not violate the parties' collective bargaining agreement or the Statute in implementing a rotation schedule for certain employees who were working under a flextime plan.

We conclude that the Union has not demonstrated that the award is deficient under the Statute. Accordingly, we will deny the Union's exceptions.

II. Background and Arbitrator's Award

The parties' collective bargaining agreement provides flextime for bargaining unit employees. Under the agreement provision, unit employees may vary their arrival and departure times daily, provided that they arrive no later than 9:30 a.m., leave no earlier than 3:30 p.m., and work 8 hours each day in addition to the amount of time allotted for lunch. On February 9, 1989, the Activity issued a memorandum to unit employees of the Loan Management staff that called for a rotation schedule among the four Loan Servicers. The memorandum stated that "at this time it has been determined that our [Activity's] Branch must have one experienced Loan Servicer on duty during the business hours of 8:00AM to 4:30PM daily." Exceptions at 3.

On February 14, 1989, representatives of the Union met with the manager of the Activity's Manchester Field Office and presented alternative bargaining proposals in response to the memorandum. On February 21, 1989, the Activity implemented its memorandum, thereby terminating the chosen flextime schedules of the four unit employees who are Loan Servicers and imposing a rotation schedule. The Union thereafter presented its bargaining proposals in writing and further requested that management make a "demonstration of need" in accordance with the agreement. Section 17.07(4) of the agreement provides in part that "[u]pon demonstrated need, Management may override, either temporarily or permanently, the work schedule choices of individual employees in order to maintain adequate office coverage or to meet other operational needs of the Department." Award at 4.

On March 6, 1989, management refused to bargain or stay implementation of the rotation schedule. Thereafter, the four affected employees and the Union filed grievances. The Activity denied the grievances, and the matter was submitted to arbitration.

The parties agreed that the following four issues were before the Arbitrator:

1. Whether management demonstrated need to override the chosen flextime schedules of the four grievants in the LM/PD Branch, in accordance with Section 17.07(4) of the Agreement.

2. Whether the employees' proposal received appropriate consideration by management including a response in writing, in accordance with Section 4.17 of the Agreement.

3. Whether the local LMR Committee played a proper role in the flextime issue in the LM/PD Branch, in accordance with Section 17.02 of the Agreement.

4. Whether management had a duty to bargain over the flextime issue in the LM/PD Branch, in accordance with Section 17.07(4) of the Agreement and 5 U.S.C. 7116(a)(5).

Award at 4.

The Arbitrator rejected the Union's position as to the second issue and upheld it as to the third issue. Inasmuch as the Union's exceptions deal only with the first and last issues addressed by the Arbitrator, only those issues will be discussed in detail here.

With respect to the first issue, the Arbitrator stated that under Section 17.07(4) of the agreement, management was permitted to override the work schedule choices of individual employees upon demonstrated need to maintain adequate office coverage or to meet other operational needs of the Activity. The Arbitrator noted that Section 17.07(4) of the agreement states as follows:

Upon demonstrated need, Management may override, either temporarily or permanently, the work schedule choices of individual employees in order to maintain adequate office coverage or to meet other operational needs of the Department. The determination of who will be required to work particular tours of duty in order to meet coverage or other operational requirements shall be within the discretion of Management. To the extent possible, however, personal scheduling preferences will be considered in making such decisions. When an employee's work schedule is changed, Management shall give the employee and the Union no less than five (5) days' notice where practicable.

Award at 4-5 (emphasis in award).

The Arbitrator found that management demonstrated a need to override the chosen flextime schedules of the grievants, in accordance with Section 17.07(4) of the agreement, based on its decision that the Branch must have one experienced Loan Servicer on duty during the business hours of 8:00 a.m. to 4:30 p.m. daily. The Arbitrator noted that the Agency had submitted sign-in logs into evidence that demonstrated that the Flexible Work Schedule being used by the employees did not provide the required coverage. The Arbitrator also noted that the Union did not refute the Agency's evidence or allegations regarding the unavailability of an experienced Loan Servicer from 3:30 p.m. to 4:30 p.m. each day. The Arbitrator also noted the Union's argument that the Agency had failed to demonstrate a need to have a Loan Servicer on duty until 4:30 p.m. each day. Award at 6.

The Arbitrator found that, under the parties' agreement, management had the responsibility for determining office coverage requirements and the personnel by which its operations were to be conducted. The Arbitrator further noted that, with one exception not here relevant, the agreement prohibited him from determining the appropriateness of management's determination of needed personnel by which the Agency's operations were to be conducted. The Arbitrator stated that once management determined that a Loan Servicer had to be available until 4:30 p.m., the only question left for the Arbitrator to decide was whether the evidence demonstrated that a Loan Servicer was available until 4:30 p.m. under the Flexible Work Schedule. Award at 8. The Arbitrator found that the evidence demonstrated that a Loan Servicer was not always available until 4:30 p.m. and therefore a need existed to provide one. According to the Arbitrator, this need provided the basis for management to override the Flexible Work Schedule of the grievants. Accordingly, with respect to the first issue, the Arbitrator found that the Agency did not violate Article 17, Section 17.07(4) or Article 4, Section 4.17 of the collective bargaining agreement. Award at 17.

With respect to the last issue, the Arbitrator found that management did not have a duty to bargain over the flextime issue and did not violate Section 17.07(4) of the agreement and section 7116(a)(5) of the Statute.

The Arbitrator found that there was no violation of the collective bargaining agreement and that the language in Section 17.07(4) was clear and unambiguous. The Arbitrator determined that the language in that section required notice to the employee and the Union, but that there were no bargaining requirements with respect to the determination of who would be required to work particular tours of duty in order to meet coverage or other operational requirements because those matters were within the discretion of management. Award at 14.

The Arbitrator rejected the Union's argument that it was logical to infer that bargaining was required under Section 17.07(4) because management had to give notice to the Union if it changed an employee's work schedule. The Arbitrator rejected the Union's argument based on: (1) the clear language of the collective bargaining agreement, which left the determination to the discretion of management; (2) the fact that Section 17.07(4) does not mention bargaining at all and that the Arbitrator did not have the authority to add words to the agreement or change its meaning; and finally, (3) the fact that notice did not necessarily connote a bargaining requirement and could equally mean simply that the Union was allowed the opportunity to know what was happening so that it could file a timely grievance if it determined the agreement had been violated. Award at 14-15.

The Arbitrator also rejected the Union's claim that the Activity had violated Federal statutes that require the bargaining of flexible work schedules. The Arbitrator noted that Article 17 of the agreement "embodies the collective bargaining product for flexible work schedules." Award at 15. The Arbitrator noted that although Federal statutes require compliance with the statutes and the collective bargaining agreement, changes that are made in compliance with an existing collective bargaining agreement do not require renegotiation of the agreement. Award at 15.

Accordingly, with respect to the first and last issues, the Arbitrator denied the grievance.

III. Positions of the Parties

A. Union

With respect to the first issue, the Union contends that the award fails to draw its essence from the agreement and is contrary to law. In this regard, the Union asserts that the Arbitrator improperly ruled that the contractual requirement that management "demonstrate need" before terminating flextime only required management to make a determination of office coverage requirements pursuant to section 7106(a) of the Statute, rather than to "demonstrate" a need to terminate flextime in accordance with the Work Schedules Act and the parties' agreement. Exceptions at 12-15. The Union contends that the Arbitrator's ruling results in an interpretation of the word "demonstrate" that has no basis in the agreement, the law, or the dictionary. Id. at 14. The Union asserts that management bears the burden of proof of demonstrating need and that the Arbitrator should not have simply accepted the determination of the Agency.

With respect to the last issue, the Union argues that the award improperly denies the Union its statutory right to bargain about alternative work schedules, including flextime. The Union asserts that if management has discretion to alter the employees' flextime schedules without bargaining, it could have obtained such discretion only through a clear and unmistakable waiver of the Union's bargaining rights. Exceptions at 8. The Union contends that Article 17 does not constitute a clear and unmistakable waiver of the right to bargain over changes made in accordance with Section 17.07(4) of the agreement. According to the Union, it has waived only its right with regard to who will be required to work particular tours of duty, but "has not waived its right to bargain over what, where, when, why and how." Exceptions at 9. Therefore, the Union asserts that it has the right to bargain over the substance and the impact and implementation of management's rotation schedule.

The Union further contends that even if there were a finding that it had waived its right to bargain over the decision to terminate the grievants' flextime privileges, the terms of the collective bargaining agreement "do not support a finding that the Union also waived its right to bargain over procedures and appropriate arrangements for the adversely affected employees." Exceptions at 10 (footnote omitted). In this regard, the Union asserts that the change in working conditions was more than de minimis, and that the Union had asserted its right to bargain. The Union contends that despite its persistent protest, management unilaterally implemented a change in the established working conditions of the grievants, thereby denying the Union an opportunity to bargain concerning the substance and the impact and implementation of management's rotation schedule in violation of section 7116(a)(5) of the Statute.

B. Agency

With respect to the Union's exceptions on the first issue regarding the Agency's demonstration of need, the Agency asserts that the Arbitrator's finding in this regard is not contrary to law. The Agency contends that the Union's argument ignores the Arbitrator's reading and application of Article 17 of the agreement. The Agency states that Section 17.07(2) contains no demonstration of need requirement and, therefore, the Arbitrator correctly found that management did not have to demonstrate need when determining office coverage requirements. Opposition at 5. According to the Agency, the Arbitrator's finding with regard to the demonstration of need question was simply a matter of factual determination and contractual interpretation. The Agency asserts that the Union's argument does not demonstrate that the Arbitrator's finding was contrary to law but only that his finding is contrary to the Union's interpretation of the agreement, and such a contention provides no basis for granting the Union's exceptions. Opposition at 5.

With respect to the Union's argument concerning the last issue and the Agency's duty to bargain, the Agency contends that it fulfilled its duty to bargain over flextime and the result of that negotiation is Article 17. The Agency contends that by bargaining and having reached agreement on Section 17.07(4), management obtained the right to override employee work schedule choices without having to pursue further negotiation. The Agency asserts that the Union's argument is based on a misreading of that provision. Opposition at 2.

The Agency also argues that the Union "gave up" its right to bargain regarding overriding employee work schedule choices when it reached agreement with the Agency on that particular matter. Opposition at 3. According to the Agency, "since the Agreement in the instant case specifically covers flextime, as negotiated by the parties, there is no need for the agency also to show a clear and unmistakable waiver by the Union of its right to bargain when Management wishes to override employee work schedule choices." Opposition at 3. Further, the Agency contends that the Union errs in asserting that the rotation schedule was subject to bargaining because its impact was more than de minimis. The Agency asserts that the de minimis impact question is a question of fact that should have been raised by the Union before the Arbitrator and is inappropriately raised for the first time in exceptions to the Authority. Opposition at 3-4.

The Agency also asserts that it is inappropriate for the Union to use the arbitration appeal process to seek Authority review of an Agency's refusal to bargain over flextime, and that the Union should have sought to resolve the bargaining issue by requesting intervention of the Federal Service Impasses Panel. According to the Agency, the negotiability issue raised by the Union is not properly before the Authority. Opposition at 4.

IV. Analysis and Conclusions

We find that the Union has not established that the Arbitrator's award is deficient.

As to the first issue, the Arbitrator determined that the Activity made a demonstration of need, within the meaning of Section 17.07(4) of the agreement, with regard to the rotation schedule. The Union disagrees with the Arbitrator's evaluation of what constitutes a "demonstrated need" under the parties' agreement and contends that the award fails to draw its essence from the agreement and is contrary to law. To demonstrate that an award fails to draw its essence from an agreement, it must be shown 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 obligation of the arbitrator; or (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See, for example, U.S. Department of the Treasury, Internal Revenue Service, Omaha, Nebraska District and National Treasury Employees Union, 36 FLRA 453, 462 (1990).

There is no basis in this case on which to conclude that the Arbitrator's interpretation of Section 17.07(4) of the parties' agreement fails to draw its essence from the agreement under any of the tests set forth above. The Arbitrator stated that once management determined that a Loan Servicer had to be available until 4:30 p.m., the only question left for the Arbitrator to decide was whether the evidence demonstrated that a Loan Servicer was available until 4:30 p.m. under the Flexible Work Schedule. Award at 8. The Arbitrator found that the evidence demonstrated that a Loan Servicer was not always available until 4:30 p.m. and therefore a need existed to provide one. According to the Arbitrator, this need provided the basis for management under Section 17.07(4) to override the Flexible Work Schedule of the grievants. The Arbitrator's interpretation of Section 17.07(4) is not irrational, implausible, or unconnected to the wording and purpose of the agreement. Accordingly, we find that the Union has not demonstrated that the award fails to draw its essence from the agreement.

With regard to its contention that the award is inconsistent with law, the Union claims that the Arbitrator improperly relied on section 7106 of the Statute, rather than the agreement, in determining whether management could terminate the flextime schedules. We reject this contention. The Arbitrator relied on other sections of the parties' agreement, including other portions of Article 17, when interpreting Section 17.07(4). For example, the Arbitrator relied on Section 17.07(1) and (2), which states that management is responsible for ensuring adequate office coverage during all official business hours and that management shall be responsible for ensuring that offices are adequately covered and for determining office coverage requirements. Award at 6-7. It is clear that the Arbitrator relied on the parties' agreement in interpreting Section 17.07(4), and did not condition his interpretation of the parties' agreement on the management rights clause of the Statute.

Accordingly, we deny the Union's exceptions with respect to the first issue resolved in the Arbitrator's award. The exceptions constitute nothing more than disagreement with the Arbitrator's interpretation of the agreement. See U.S. Department of the Navy, United States Marine Corps, Finance Center, Kansas City, Missouri and American Federation of Government Employees, Local 2094, 38 FLRA 221, 228-29 (1990).

With respect to the last issue, the Union argues that the award is deficient because it denies the Union its statutory right to bargain about alternative work schedules, including flextime. In essence, the Union contends that it did not waive its right to bargain over the matters in dispute in this case.

As noted above, the Arbitrator found that under Section 17.07(4) of the agreement, management was permitted to override the work schedule choices of individual employees upon demonstrated need to maintain adequate office coverage or to meet other operational needs of the Activity, which management had demonstrated. The Arbitrator also found that management did not have a duty to bargain over the flextime issue in making the schedule changes. The Arbitrator found that the parties' agreement requires notice to the employee and the Union, but that there is no impact and implementation bargaining requirement either contained or inferred in the agreement.

It is clear that a union may contractually agree to waive its right to bargain about specific subject matters during the term of a collective bargaining agreement. See, for example, U.S. Department of the Navy, United States Marine Corps (MPL), Washington, D.C. and Marine Corps Logistics Base, Albany, Georgia, 38 FLRA 632 (1990). Any such waiver must be clear and unmistakable. Id. In this case, the Arbitrator found that the language in Section 17.07(4) was "clear and unambiguous." Award at 14. As noted above, he determined that the language in that section required notice to the employee and the Union, but that there were no bargaining requirements with respect to the determination of who would be required to work particular tours of duty in order to meet coverage or other operational requirements because those matters were within the discretion of management. Id.

The Arbitrator rejected the Union's argument that it was logical to infer that bargaining was required under Section 17.07(4) because management had to give notice to the Union if it changed an employee's work schedule. The Arbitrator rejected the Union's argument based on: (1) the clear language of the collective bargaining agreement, which left the determination to the discretion of management; (2) the fact that Section 17.07(4) does not mention bargaining at all and that the Arb