39:0590(49)AR - - Navy, Phildelphia Naval Shipyard and Philadelphia Metal Trades Council - - 1991 FLRAdec AR - - v39 p590



[ v39 p590 ]
39:0590(49)AR
The decision of the Authority follows:


39 FLRA No. 49

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE NAVY

PHILADELPHIA NAVAL SHIPYARD

(Agency)

and

PHILADELPHIA METAL TRADES COUNCIL

(Union)

O-AR-1599

DECISION

February 14, 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 Edward A. Pereles 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 violated the parties' collective bargaining agreement, 5 U.S.C. º 6101 and 5 C.F.R. º 610.121 when it modified its third shift Production Department employees' work schedule by moving the Sunday night start to a Monday night start. In effect, the employees were required to begin their workweek on Monday night rather than Sunday night and to end their workweek on Saturday morning rather than Friday morning. Having found that the Agency violated the parties' collective bargaining agreement, the Arbitrator ordered the Agency to return all affected employees to the schedule in effect prior to May 24, 1987.(1)

For the reasons discussed below, we conclude that the Agency has not established that the Arbitrator's Final Award is deficient under section 7122(a) of the Statute. Accordingly, we deny the Agency's exceptions.

II. Background

From 1974 until the events of this case, the Agency's Production Department employees on the third shift worked Sundays through Fridays. By a memorandum dated April 22, 1987, the Agency notified the Union that it planned to change the days of the third shift workweek as reflected in an enclosure to the memorandum.(2) The memorandum requested the Union's comments or proposals on the impact or implementation of this change. The Union did not respond to the memorandum.

Subsequently, by memorandum dated May 19, 1987, the Agency notified the Union and affected third shift Production Department employees that, effective May 25, 1987, the employees were to change their "'3rd shift work week from the current run of 2400 Sundays through 0800 Fridays to 2345 Monday through 0745 Saturday.'" Final Award at 1 (quoting memorandum). The memorandum stated that, "'[f]or clarification purposes, this is NOT a staggered shift, but rather a true 3rd shift, following after a first and second shift. This change will improve efficiency by negating 'cold starts' by a small workforce.'" Id. at 2 (emphasis in original).

Thereafter, on May 26, 1987, the Union filed the grievance in this case concerning the change. The matter was submitted to arbitration. The stipulated issues before the Arbitrator were:

Is Management's change of the basic work week [for Third Shift Production Department employees] lawful and in accordance with provisions of the Collective Bargaining Agreement, Statutes and Implementing Regulations, and if not, is the Union's request for (a) return of the employees' shift work week prior to May 25, 1987 and/or (b) overtime for the period of the violation appropriate under the Agreement and/or the applicable laws and regulations? If so, what shall the remedy be?

Id. at 14-15.

Article IX, "Hours of Work and Basic Work Week," of the parties' collective bargaining agreement provides in relevant part:

Section 1 - The basis (sic) work week will consist of five (5) eight-hour days normally Monday through Friday inclusive. . . .

Section 2 - The Employer agrees not to change the basic work week of Monday through Friday except where directed by higher authority. The Employer further agrees not to change the basis (sic) work week of Monday through Friday without prior negotiations with the Council.

Section 3 - The standard workday shall consist of eight hours of work which normally shall be f[r]om 0730 to 1600 for the first or day shifts; from 1530 to 1945 and 2015 to 2400 for the second shift; and from 2345 to 0745 for the third shift, except for Sunday when the shift is 2400 to 0800.

Id. at 5.(3)

Before the Arbitrator, the Agency contended that it had based its decision that it could "change work schedules in derogation[ ] of the negotiated agreement" on Federal Personnel Manual (FPM) Bulletin 610-37 and section 7106 of the Statute. Id. at 3, 15.(4) The Agency argued that Article IX was "modified" when it was directed by a higher authority--FPM Bulletin 610-37--to change its workweek in accordance with 5 U.S.C. º 6101 and its revised implementing regulations. Id. at 12 (referencing 5 C.F.R. º 610.121(a) and (b)).(5) Further, the Agency argued that under section 7106(a)(1) and (2) of the Statute it "has the right to hire and assign employees in accordance with applicable law." Id.

The Agency further contended that "whether its decision [to change the days of the third shift workweek] establishe[d] a 'true' or new shift[,] or merely assign[ed] certain employees to more efficiently accomplish the mission of the Agency," was irrelevant because both actions were "clearly established by law and by implementing regulations." Id. at 3. Therefore, according to the Agency, such changes may be accomplished without regard to what is stated in the negotiated agreement. The Agency also claimed that it offered to bargain with the Union over the impact and implementation of its decision.

The Union claimed before the Arbitrator that, prior to the Agency's change, the scheduling of the third shift Production Department employees' workweek had basically remained the same since 1963. The Union admitted that it did not respond to the Agency's April 22, 1987, memorandum notifying it of the Agency's decision to change the third shift's workweek. However, the Union asserted that it "strenuously objected to the Agency's notice of pending change." Id. at 5. Further, the Union argued that "discussions (in April 1985) regarding changes in tours in [the] course of ongoing negotiations [did] not meet any standard for required notice or replace negotiations [as required by] Article IX, [s]ection 2 [of the parties' agreement]." Id.

III. Arbitrator's Award

The Arbitrator stated that the matter before him "involve[d] a question of [m]anagement's right to change the employees' schedule." Id. at 15. The Arbitrator found that the actions of the Agency, based principally on FPM Bulletin 610-37, were "not based on any direction from a 'higher authority' as required by Article IX, [s]ection 2 of the [a]greement." Id. The Arbitrator ruled that neither FPM Bulletin 610-37 nor 5 C.F.R. º 610.121(b)(1) required the Agency to make such a change, but rather, only provided that such a change "is discretionary." Id.

The Arbitrator also stated that a question was raised as to whether the Agency's decision to change the days of the third shift workweek constituted the establishment of a "'true' new shift" or whether it constituted an assignment change. Id. Based on the record evidence offered in support of the parties' positions, the Arbitrator stated that the "issue [was] cloudy." Id. However, he determined that the Agency's "movement of one day's work assignment from the beginning of the week to the end, and calling that change the establishment of a 'true' shift, appears to fly in the face of the law [5 U.S.C. º 6101] and the spirit of the implementing regulations as well as the [a]greement." Id. He concluded that he "was not convinced that the change made to the employees' work week schedule established a new shift[.]" Id. at 16. He found that, in light of the implementing regulations' reference to the "impracticability" of prescribing a regular schedule, the Agency's action was "more in the nature of a tour change[.]" Id. at 16 (referencing 5 C.F.R. ºº 610.111(b) and 610.121(a)(2)).

Further, "based on the law, implementing regulations, decisions and the unique circumstances of the matter before [him]," the Arbitrator determined that the Agency "failed to demonstrate" that in not continuing the Sunday through Friday shift, it would be "seriously handicapped in carrying out its functions." Id. Accordingly, the Arbitrator concluded that the Agency's change violated the law, implementing regulations, and the parties' negotiated agreement.

The Arbitrator noted that the Agency has the right to modify work schedules under the law and implementing regulations. However, the Arbitrator stated that the Agency "has the obligation to do so by making a convincing showing of the facts which would demonstrate a serious handicapping to . . . carrying out [its] mission in an efficient manner." Id. at 17 (referencing 5 U.S.C. º 6101(a)(3)(B)). The Arbitrator found that "[w]hile there was a suggestion of handicapping the efficiency of the [Agency], [m]anagement's testimony in the aggregate did not rise to the standard required by law and implementing regulations" because "[t]o do so, some type of analysis other than anecdotal must be presented." Id. Further, the Arbitrator found that the testimony suggesting "seriously handicapping" the Agency only applied to the "outside shops." Id. In summary, the Arbitrator concluded that "[m]anagement is free to manage and direct the working forces subject to what it has negotiated, providing [the] same is not inconsistent with law or implementing regulations[, and] providing [management] exercises its authority consistent therewith." Id.

As a remedy, the Arbitrator ordered the Agency to return all affected employees to the schedule in effect prior to May 24, 1987.

IV. Positions of the Parties

A. Agency's Exceptions

The Agency renews its exceptions to the Arbitrator's initial award and relies on the arguments presented with those exceptions in this case. Specifically, the Agency contends that the Arbitrator's award: (1) is contrary to section 7106(a)(1), (2)(A) and (B) of the Statute; (2) conflicts with a Government-wide regulation, namely, 5 C.F.R. º 610.121; and (3) is based on a nonfact.

1. Section 7106 of the Statute

The Agency contends that the award "is unduly intrusive of management rights" preserved by section 7106(a) of the Statute because "[t]he sweep of the award subverts essential judgments concerning the [Agency's] mission and the right of its managers to assign employees and work." Exceptions at 6-7.

As to management's right to assign work, the Agency asserts that "'[e]ncompassed within [the right to assign work] is the right to determine without interference when work . . . will be performed.'" Id. at 4 (quoting National Association of Government Employees, Local R1-25 and Brockton/West Roxbury V.A. Medical Center, 21 FLRA 83, 84 (1986)) (emphasis supplied by Agency). The Agency argues that the effect of the award "is to command that work be performed on Sunday evenings in direct contravention of management's judgement" that it be performed commencing on Monday evenings and ending on Saturday morning. Id. at 6. Further, the Agency asserts that "[t]he reserved rights to assign work and assign employees may not be waived or relinquished via collective bargaining." Id. at 5.

With respect to the Agency's mission, the Agency contends that because the Arbitrator's award "prohibit[s] the creation of a third shift encompassing Monday night through Friday night work" it violates the Agency's reserved right to determine its mission. Id. at 3, 4. The Agency claims that the mission of the Agency and the change in the workweek "are integrally related." Id. at 5-6. The Agency asserts that "[d]enying the [Agency] a third (night) shift on Fridays is particularly prejudicial to mission accomplishment since third shift workers on that day are able to build upon the efforts of the two shifts which have preceded them." Id. at 6. The Agency contends the record before the Arbitrator was replete with evidence that the preexisting shift was detrimental to ship overhaul and repair. According to the Agency, "[i]n the [s]hipyard environment . . . the timing of work assignments is a major determinant of the success or failure of the mission." Id.

2. Government-Wide Regulation

The Agency argues that the award is contrary to 5 C.F.R. º 610.121, a Government-wide regulation. The Agency states that Article 37, section 3(a) of the parties' agreement "acknowledges that certain mandatory contract changes may occur during the contract term." Id. at 7. The Agency claims that 5 C.F.R. º 610.121, issued shortly after the effective date of the parties' agreement, constitutes such a contractual modification. The Agency claims that "[t]he regulation bears directly upon the [U]nion's position that work schedules may be irretrievably fixed and the [A]rbitrator's directive to reinstitute a decidedly inefficient work schedule." Id. The Agency asserts that this regulation directs the heads of Federal agencies "to schedule work 'to accomplish the mission of the agency[,]'" and in so doing to "'schedule [the] . . . workweek so that it corresponds with the employee's actual work requirement[s].'" Id. at 7-8 (quoting 5 C.F.R. º 610.121(b)(1)).

The Agency contends that only managers can determine work requirements, and in this case, the Agency's managers determined that the existing third shift was inefficient and had to be changed. The Agency argues that section 610.121(b)(2) directs "in no uncertain terms," that "once the agency head has made such a determination 'he or she shall [re]schedule the regularly scheduled administrative workweek . . . .'" Id. at 8-9 (emphasis supplied by Agency). The Agency claims that although its managers followed the governing regulations and fulfilled their responsibilities, the Arbitrator, "despite the mandatory language of the regulation[,]" "robbed them of the rewards of their decision-making." Id. at 8. In summary, the Agency argues that the parties' contractual language was effectively modified by 5 C.F.R. º 610.121 and "the [A]rbitrator failed to recognize the force and effect of this critical modification." Id. at 9. Accordingly, the Agency claims that the award is in direct conflict with a valid Government-wide regulation and must be set aside.

3. Nonfact

The Agency contends that the Arbitrator erred when he stated that the changes "occasioned by" 5 C.F.R. º 610.121(b)(1) were "discretionary." Id. at 9. Therefore, the Agency asserts that "any conclusion premised on that statement constitutes reliance upon a non-fact." Id.

B. Union's Opposition

The Union incorporates by reference all arguments made in its submission to the Authority opposing the Agency's exceptions to the Arbitrator's initial award. Specifically, the Union contends that the Arbitrator's award is consistent with 5 U.S.C. º 6101 and is well supported by the record and should not be disturbed.

The Union asserts that the Agency "does not have unbridled discretion to make a shift change but is constrained by applicable law, namely 5 U.S.C. 6101 and implementing regulations, directives and instructions." Opposition at 1. The Union states that 5 U.S.C. º 6101 states that the basic workweek is Monday through Friday and provides exceptions to that workweek "only if the agency 'would be seriously handicapped in carrying out its function[s] or if costs would be substantially increased.'" Id. (quoting 5 U.S.C. º 6106(a)(3)) (emphasis supplied by Union). The Union asserts that "[m]anagement has an affirmative burden to demonstrate that either of these two exceptions appl[ies]." Id. In conclusion, the Union contends that after considering the record and resolving all factual disputes, the Arbitrator properly found that management's unilateral decision to change the basic workweek violated the provisions of the parties' collective bargaining agreement.

V. Analysis and Conclusions

A. The Award Does Not Violate Management's Rights Under Section 7106 of the Statute

The award does not violate section 7106(b)(1) of the Statute. Section 7106(b)(1) provides that an agency may elect, but is not required, to negotiate "on the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty[.]" A "tour of duty" is "the hours of a day (a daily tour of duty) and the days of an administrative workweek (a weekly tour of duty) that constitute an employee's regularly scheduled administrative workweek." 5 C.F.R. º 610.102(h). Therefore, an employee's daily tour of duty is his or her hours of work, and any change in the employee's work hours is a change in his or her tour of duty. See Department of the Air Force, Scott Air Force Base, Illinois, 33 FLRA 532, 541-544 (1988), affirmed as to other matters sub nom. National Association of Government Employees, Local R7-23 v. FLRA, 893 F.2d 380 (D.C. Cir. 1990).

In the instant case, as reflected by Article IX of the parties' agreement, the Agency elected to bargain over what days and hours would constitute the three shifts or tours of duty at the shipyard. Therefore, for the duration of the agreement absent any exceptions provided for in the agreement, the Agency was precluded from declining to bargain over any changes in the shifts or tours of duty of bargaining unit employees. Article IX, section 3 of the parties' agreement includes the three shifts in effect at the shipyard and provides that the third shift begins at 2400 on Sunday and ends at 0800 Friday. Further, in Article IX, sections 2 and 5 of the agreement, the Agency specifically agreed to negotiate with the Union prior to changing the hours of work or the basic workweek of its employees. Accordingly, as the Agency elected to bargain over what constitutes the tours of duty at the shipyard, we find that the award does not violate the Agency's right under section 7106(b)(1) of the Statute.

As to the Agency's contention that the award violates management's rights under section 7106(a) of the Statute, we find that the award does not violate such rights.

In Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309 (1990) (U.S. Customs Service), we reexamined our approach to cases in which an agency contends that an arbitrator's award, enforcing a provision of the parties' collective bargaining agreement, is contrary to management's rights under section 7106(a). We held that when an agency makes such a contention we will examine, as appropriate, the provision enforced by the arbitrator to determine: (1) if it constitutes an arrangement for employees adversely affected by the exercise of management's rights; and (2) if, as interpreted by the arbitrator, it abrogates the exercise of a management right. We explained that if it is evident that the provision constitutes an arrangement and, as interpreted by the arbitrator does not abrogate management's rights, the provision is within the range of matters that can be bargained under the Statute. Accordingly, we held that we will not find that such an award is contrary to law and we will deny the exception. We also held that if the arbitrator's interpretation does result in an abrogation of management's rights under section 7106(a), the award will be found deficient as contrary to law, but the contractual provision, susceptible to a different and sustainable interpretation by a different arbitrator, will not be affected.

We also noted in U.S. Customs Service that an arbitrator's award is deficient if it fails to draw its essence from the parties' agreement. We encouraged the parties to set forth plainly and precisely the arrangements to which they have agreed for employees adversely affected by the exercise of management's rights. We held that when a party establishes that the arbitrator's enforcement of the agreement does not represent a plausible interpretation of the agreement, or evidences a manifest disregard of the agreement, we will find the award deficient. In such a circumstance, however, the award will be found deficient because it fails to draw its essence from the agreement, not because it conflicts with management's rights. Id. at 316-17.

Applying that approach in this case, we find that the Agency fails to establish that the award is contrary to management's right to assign work under section 7106(a)(2)(B) of the Statute. See National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, 37 FLRA 392, 399-400 (1990). Instead, the Arbitrator has enforced a provision of the parties' collective bargaining agreement which constitutes an arrangement for employees adversely affected by the exercise of management's right to assign work to be performed on day and evening shifts.

Article IX of the parties' collective bargaining agreement addresses the concerns of employees adversely affected by management's exercise of its right to assign work, that is, its right to determine when work assignments on the three shifts will occur. The Union, in its closing argument before the Arbitrator, noted the impact of the change in employees' shifts on the employees and their families. See Transcript at 40-41. The Arbitrator noted that in Article IX of the parties' agreement the parties established the hours of work and the basic workweek for employees. Final Award at 5, 12. The Arbitrator found that the Agency violated this provision "when [the Agency] modified the 3rd shift Production Department employees' schedules by moving the Sunday night start to a Friday night start." Id. at 15. Therefore, we find that the Arbitrator merely enforced a provision of the parties' agreement that constitutes an arrangement for employees adversely affected by irregular work hours. That is, the Arbitrator enforced an arrangement that provides some certainty to employees concerning their work schedules to reduce the impact of shift work on them and their families. Consequently, we find that the Arbitrator merely enforced an arrangement negotiated by the parties when he directed the Agency to return all affected employees on the third shift to the schedule in effect prior to May 24, 1987.

Further, we find that Article IX, as interpreted and applied by the Arbitrator, does not abrogate the Agency's right to assign work to employees on the third shift. In U.S. Customs Service, the Authority held that an award "abrogates" a management right when the award "precludes an agency from exercising" that right. U.S. Customs Service, 37 FLRA at 314. The Arbitrator's award does not preclude the Agency from exercising its right to assign work. Rather, the award only requires the Agency to comply with the terms of Article IX of the parties' agreement which provides for the hours of work and basic workweek of its employees.

In this regard, the Arbitrator recognized the need "for [m]anagement to schedule its employees in a manner not inconsistent with what it determines to be the best management practice to meet necessary production schedules." Final Award at 16. However, the Arbitrator found, after considering applicable law and regulation and the parties' agreement, that in the "unique circumstances" of this case, management had not demonstrated that the change in the employees' tour of duty satisfied the requirements of applicable law and regulation and the parties' agreement. Id. Thus, the award would not prevent management from assigning work to employees on a Monday through Saturday tour of duty if management satisfied the requirements of the agreement and applicable law and regulation. Specifically, as found by the Arbitrator in interpreting the term "higher authority" in Article IX, section 2 of the parties' agreement, management would not be prevented from assigning work to the employees on a Monday through Saturday tour of duty if it demonstrated that its costs would increase substantially or that it would be seriously handicapped in carrying out its functions if it did not do so. See id. at 15, 16-17. The award, therefore, merely constitutes the interpretation and enforcement by the Arbitrator of the arrangement that is encompassed within Article IX of the parties' agreement. Accordingly, we conclude that Article IX, as interpreted and applied by the Arbitrator, does not abrogate the exercise of management's right to assign work under section 7106(a) of the Statute.

Additionally, the Agency is correct in asserting that management rights under section 7106(a) of the Statute cannot be waived or relinquished through collective bargaining. See Southwestern Power Administration and International Brotherhood of Electrical Workers, Local 1002, 22 FLRA 475, 476 (1986). However, when presented with exceptions to an arbitrator's award under section 7122(a) where an arrangement for employees adversely affected by the exercise of a management right has been negotiated by the parties and, as interpreted and applied by an arbitrator, the provision does not abrogate management's rights, that provision and its enforcement do not constitute a waiver of management's rights. U.S. Customs Service, 37 FLRA at 315.

The award also does not violate management's right to assign employees under section 7106(a)(2)(A) of the Statute. Under section 7106(a)(2)(A), management retains the right to assign employees to positions. The assignment of employees to positions is not affected by the award. The award concerns only the tour of duty on which the employees will perform the work of their positions. We find, therefore, that the award does not violate the Agency's right to assign employees. See, for example, Michigan Air National Guard, Adjutant General of Michigan, Department of Military Affairs and Michigan State Council of the Association of Civilian Technicians, 30 FLRA 165, 167-68 (1987). The Agency's contention in this regard, therefore, provides no basis for finding the award deficient.

Further, we find that the award does not violate the Agency's right to determine its mission under section 7106(a)(1) of the Statute. According to the Agency, its mission is to repair and overhaul ships. The award directing the Agency to return all affected employees on the third shift to the preexisting schedule does not directly interfere with that mission. The award only concerns these employees' tour of duty. Under the award, the employees still perform work involving the repair and overhaul of ships. Thus, we find that the award does not directly interfere with the Agency's right to determine its mission under section 7106(a)(1) of the Statute and, therefore, this contention provides no basis for finding the award deficient. Compare National Labor Relations Board Union, Local 21 and National Labor Relations Board, Washington, D.C., 36 FLRA 853 (1990) (a proposal prescribing the office hours of an agency that provides services to the public directly interfered with management's right, under section 7106(a)(1) of the Statute, to determine the mission of that agency because it restricted management's decision as to when the agency would be available to the public to provide those services).

Based on the above, we find no merit in the Agency's contention that the award is deficient because it interferes with management's rights under section 7106 of the Statute.

B. The Award Is Not Inconsistent with a Government-Wide Regulation

The Arbitrator noted that Article XXXVII, Section 3(a) of the Agreement "subjects the Agreement to . . . an amending process '. . . because of mandatory changes made in applicable laws, regulations or Executive Orders (issued) after the effective date of this Agreement.'" Final Award at 12. The Agency contends that 5 C.F.R. º 610.121, a Government-wide regulation issued shortly after the effective date of the parties' agreement, constitutes such a contractual modification. This regulation has been found to be a Government-wide regulation within the meaning of section 7117(a) of the Statute. See National Association of Government Employees, Local R7-23 and Department of the Air Force, Scott Air Force Base, Illinois, 23 FLRA 753 (1986) (Scott Air Force Base). The Agency claims that this regulation directs the heads of Federal agencies to schedule work to accomplish the mission of the agency and in so doing to schedule an employee's workweek so that it corresponds with the employee's actual work requirements. The Agency contends that the award is contrary to 5 C.F.R. º 610.121 because it prevents the Agency from fulfilling its responsibilities under this regulation by preventing the Agency from changing what it has determined to be an inefficient third shift. We find the Agency's contention provides no basis for finding the award deficient.

Under section 7116(a)(7) of the Statute, an agency may not "enforce any rule or regulation (other than a rule or regulation implementing [5 U.S.C. º 2302]) which is in conflict with any applicable collective bargaining agreement if the agreement was in effect before the date the rule or regulation was prescribed[.]" See U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center, Washington, D.C. and American Federation of Government Employees, Local 3407, 37 FLRA 1066, 1069 (1990) and cases cited therein. "However, nothing precludes the parties from agreeing to allow subsequently issued regulations to override a preexisting collective bargaining agreement." Id. In the instant case, as mentioned above, the Arbitrator determined that Article XXXVII, section 3(a) of the parties' agreement subjects the agreement to "an amending process" because of mandatory changes made in applicable laws, regulations or Executive Orders issued after the effective date of the agreement. Final Award at 12. In light of the Arbitrator's interpretation of Article XXXVII of the parties' agreement, the Arbitrator considered and applied FPM Bulletin 610-37 and the regulations attached thereto, to the circumstances of this case.

Turning to whether the award violates 5 C.F.R. º 610.121, we note that Article IX, section 1 of the parties' agreement provides that the basic workweek will consist of five 8-hour days, normally Monday through Friday.

Article IX, section 2 of that agreement provides that the Agency agrees not to change the basic workweek except where directed by higher authority. Final Award at 5. The Agency's actions were based principally on FPM Bulletin 610-37, which contained revised regulations, as relevant here, to 5 C.F.R. º 610, "Hours of Duty." The Arbitrator considered the Bulletin and 5 C.F.R. º 610.121 and found that "[n]othing in FPM [Bulletin] 610-37 or in Sec. 610.121(b)(1)" required the Agency to change the employees' tour of duty. Id. at 15. Rather, the Arbitrator found that the decision to change the employees' tour was left to the Agency's "discretio[n]." Id. Having considered both requirements, he concluded that the Bulletin did not constitute "higher authority" as required by Article IX, section 2.

Section 610.121(b)(1) requires that the Agency: (1) schedule employees' work so as to accomplish the Agency's mission, and (2) schedule administrative workweeks to correspond with actual work requirements. The Authority has held that 5 C.F.R. º 610.121(b) is qualified by 5 C.F.R. º 610.121(a), which directs agency heads to establish conventional workweek schedules except upon a determination that the agency would be seriously handicapped in carrying out its functions or that costs would be substantially increased. See Scott Air Force Base, 23 FLRA at 755-56. We find, therefore, that the Agency has misinterpreted the meaning of 5 C.F.R. º 610.121. The Agency reads this regulation only in regard to its rights to change the workweek pursuant to 5 C.F.R. º 610.121(b) without consideration of the requirements of 5 C.F.R. º 610.121(a).

The Arbitrator considered the requirements of 5 C.F.R. º 610.121 and the parties' agreement. The Arbitrator noted that the Agency waived any claim that the change would lower or improve cost. Final Award at 3. The Arbitrator found further, based on the testimony and facts before him, that in the "unique circumstances" of this case "the Agency failed to demonstrate that in not continuing the Sunday for Monday shift it would be 'seriously handicapped in carrying out its functions.'" Id. at 16. The Arbitrator noted that while "the Agency has the right to modify work schedules under the law and implementing regulations, it has the obligation to do so by making a convincing showing of the facts which would demonstrate a serious handicapping to the carrying out [of] the Agency's mission in an efficient manner." Id. at 16-17. The Arbitrator further, in considering the record evidence, stated that "[w]hile there was a suggestion of handicapping the efficiency of the Agency, [m]anagement's testimony in the aggregate did not rise to the standard required by law and implementing regulations." Id. at 17.

In our view, the Arbitrator's interpretation of FPM Bulletin 610-37 and 5 C.F.R. º 610.121 is consistent with the regulations. The Arbitrator evaluated the testimony and documentary evidence in the record and interpreted the Bulletin and 5 C.F.R. º 610.121 as it related to the parties' agreement, in particular, Article XXXVII, section 3(a) and Article IX, sections 1, 2 and 3, and found that the Agency did not meet the requirements of law (5 U.S.C. º 6101(a)(3)(B)) and regulations when it modified the third shift Production Department employees' schedule. We find that the Agency's contention that the award is contrary to 5 C.F.R. º 610.121 constitutes nothing more than an attempt to relitigate the merits of the grievance and disagreement with the Arbitrator's findings of fact, evaluation of the evidence and testimony, reasoning and conclusions, and interpretation and application of the parties' agreement. Accordingly, the Agency's contentions provide no basis for finding the award deficient. See, for example, U.S. Army Transportation Center, Fort Eustis, Virginia 23604-5353 and Local R4-6, National Association of Government Employees, 32 FLRA 1250, 1253 (1988) (exceptions which attempt to relitigate the merits of a grievance and which constitute nothing more than disagreement with an arbitrator's findings, conclusions, and interpretation and application of the collective bargaining agreement provide no basis for finding an award deficient).

C. The Award Is Not Based on a Nonfact

The Agency contends that the Arbitrator erred when he stated that the changes occasioned by 5 C.F.R. º 610.121(b)(1) were "discretionary." Exceptions at 9 (quoting Final Award at 15). The Agency contends, therefore, that any conclusion premised on that statement constitutes reliance upon a nonfact.

When a party contends that an arbitration award is deficient under the Statute because it is based on a nonfact, the party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached. U.S. Department of Veterans Affairs, Medical Center, New Orleans, Louisiana and National Federation of Federal Employees, Local 1904, 36 FLRA 718, 721 (1990). We are not persuaded that the instant award is based on a nonfact. In our view, the Agency takes issue with the Arbitrator's interpretation of law and its implementing regulation, namely, 5 C.F.R. º 610.121, discussed above, rather than with the Arbitrator's findings of fact. Such contention does not establish that the award is based on a nonfact. Consequently, the Agency's contention provides no basis for finding the award deficient. See, for example, U.S Department of the Treasury, Internal Revenue Service, Omaha, Nebraska District and National Treasury Employees Union, 36 FLRA 453 (1990).

VI. Decision

The Agency's exceptions are denied.

APPENDIX

Article IX, "Hours of Work and Basic Work Week," provides in relevant part:

Section 1 - The basis (sic) work week will consist of five (5) eight-hour days normally Monday through Friday inclusive. . . .

Section 2 - The Employer agrees not to change the basic work week of Monday through Friday except where directed by higher authority. The Employer further agrees not to change the basis (sic) work week of Monday through Friday without prior negotiations with the Council."

Section 3 - The standard workday shall consist of eight hours of work which normally shall be f[r]om 0730 to 1600 for the first or day shifts; from 1530 to 1945 and 2015 to 2400 for the second shift; and from 2345 to 0745 for the third shift, except for Sunday when the shift is 2400 to 0800.

. . . .

Section 5 - The standard work shift shall consist of eight (8) hours. [T]he Employer agrees to negotiate with the Council, prior to and concerning any changes the Employer wishes to make in the starting and quitting times of regular shifts. The assignment of any employee on the night shift shall not exceed four (4) months duration.

Section 6 - The Employer agrees not to change the shift of an employee without giving him the required written notification seven (7) calendar days prior to the first day of the administrative work week in which the shift change take[s] place) or change the work shift of an employee for less than three (3) weeks, except where the change is permitted by regulations of appropriate authority.

Relevant provisions of 5 U.S.C. º 6101, "Basic 40-hour workweek; work schedules; regulations," provide in relevant part:

(a)(2) The head of each Executive agency . . . shall--

(A) establish a basic administrative workweek of 40 hours for each full-time employee in his organization[.]

. . . .

(3) Except when the head of an Executive agency . . . determines that his organization would be seriously handicapped in carrying out its functions or that costs would be substantially increased, he or she shall provide, with respect to each employee in his organization that--

. . . .

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

Relevant provisions of 5 C.F.R. º 610.121, "Establishment of work schedules," provide:

(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[.]

. . . .

(b)(1) The head of an agency shall schedule the work of his or her employees to accomplish the mission of the agency. The head of an agency shall schedule an employee's regularly scheduled administrative workweek so that it corresponds with the employee's actual work requirements.




FOOTNOTES:
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1. In an earlier award dated July 14, 1988, the Arbitrator remanded to the parties the issue of whether any affected employees would be entitled to overtime for work which was "unlawfully" denied to them as a result of the change in their work schedule. Initial Award at 18. The Agency filed exceptions to that award. The exceptions were dismissed by the Authority as interlocutory. 33 FLRA 868 (1989). The Authority noted that the dismissal was "without prejudice to the renewal of any of the Agency's contentions in exceptions duly filed with the Authority after a final award [was] rendered by the Arbitrator." Id. at 870. On August 4, 1989, the Arbitrator issued his Final Award in the matter. The Arbitrator, noting that the Union had withdrawn its claim for the "alleged overtime," ruled that there was no claim for backpay. Final Award at item 1. The Arbitrator incorporated this ruling into his initial July 14, 1988, award and designated, by reference, his initial award as his Final Award in the matter. The Agency's exceptions to the Arbitrator's August 4, 1989 Final Award are before us in the instant case.

2. The record before the Authority does not contain a copy of the enclosure.

3. The text of other relevant sections of the parties' agreement is found in the appendix to this decision.

4. FPM Bulletin 610-37 notified Federal agencies that the Office of Personnel Management had issued final regulations on premium pay and hours of duty for Federal employees. See 48 Fed. Reg. 3931 (1983). In particular, the Bulletin stated that these regulations "clarify the definition of the term 'regularly scheduled' as it is used throughout the premium pay provisions of chapter 55 of title 5, Unit