41:0056(6)AR - - Army, HQ, XVIII Airborne Corps, Fort Bragg, NC and AFGE Local 1770 - - 1991 FLRAdec AR - - v41 p56
[ v41 p56 ]
The decision of the Authority follows:
41 FLRA No. 6
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator C. Allen Foster 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 Agency did not file an opposition to the Union's exception.
The grievance in this case concerns the Agency's decision to expand the lunch period and workday of certain employees. The Arbitrator denied the grievance, which alleged that management's conduct in implementing the change violated the parties' collective bargaining agreement.
For the following reasons, we conclude that the Union failed to establish that the Arbitrator's award is deficient. Accordingly, we will deny the Union's exception.
II. Background and Arbitrator's Award
Sometime after March 24, 1989, the Agency notified the Union of its intent to expand the lunch period of certain employees from one-half hour to one hour, thereby expanding the length of the standard workday from 0730 to 1600 hours to 0730 to 1630 hours. The change was to become effective on April 23, 1989.
On April 3, 1989, the Union "made a proposal for negotiations of the change." Arbitrator's Award at 6. On the following day, the Union requested information concerning the change. The Agency responded on April 7, advising the Union that the change in the employees' tour of duty involved the exercise of management's right under section 7106(b)(1) of the Statute, and that the Agency would not bargain over the change but would consider impact and implementation proposals. In support of its position the Agency relied on a provision of the agreement and the Authority's decision in Department of the Air Force, Scott Air Force Base, Illinois, 33 FLRA 532 (1988) (Scott Air Force Base), aff'd as to other matters sub nom. National Association of Government Employees, Local R7-23 v. FLRA, 893 F.2d 380 (D.C. Cir. 1990). Additionally, the Agency explained that the change in the tour of duty was designed to prevent an adverse impact on the mission of the Agency by standardizing the tours of duty.
Thereafter, the Union submitted four proposals to the Agency. The Agency agreed to one proposal, indicating that such agreement "did not constitute negotiation on the aspects of the tour change." Id. at 8. The Agency also indicated that the change in the lunch period and workday would be implemented on May 8, 1989. The Union thereupon filed the instant grievance.
The Union argued before the Arbitrator that the Agency violated Article XI, section 4(d) of the parties' agreement by changing employee work hours. Article XI, section 4(d) provides as follows:
The Employer reserves the right to return to the one (1) hour lunch period and subsequent adjustment of the hour of departure in the event the shortened lunch period and resulting adjusted hour of departure adversely impacts on the Department/Division's ability to perform its mission. The Employer will notify the Union in advance of these actions and the parties will meet and confer, as appropriate.
The Union asserted that a change in an employee's hours of work does not constitute a change in the employee's tour of duty. The Union also maintained that the Agency failed to demonstrate "an adverse impact to justify a change." Id. at 3.
The Agency argued that it did not violate the agreement or applicable statutes when it implemented the change in tour of duty. The Agency argued, in this regard, that Article XI, section 4(d) was not applicable to the grievance. The Agency also maintained that the change in tour of duty was negotiable at the discretion of the Agency, that the Agency had elected not to bargain, and that the Agency did not invite negotiations over the change.
The Arbitrator determined that Article XI, section 4(d) did not apply to this case because it related only to situations in which employees had petitioned for and received approval for a lunch period of less than one hour. The Arbitrator also found, however, that assuming Article XI, section 4(d) applied to this case, that provision is simply indicative of management's intent to reserve its right to control the length of the lunch period, to the extent that the length of the lunch period affects the performance of the Agency's mission. The Arbitrator found that the absence of a standardized tour of duty prior to the change had an adverse impact on the Agency's mission and that the 30 minutes that was added to the workday would increase the service provided by the Agency. The Arbitrator also found, consistent with Article XI, section 4(d), that the Agency had provided the Union with advance notification of the change.
The Arbitrator next found that the parties' agreement provided that both the agreement and the Statute "control the policies between the parties." Id. at 9. The Arbitrator found that as there was no provision in the agreement that specifically addressed the issue in dispute, that "the case is controlled by 5 U.S.C. Chapter 71[,] [s]pecifically, section 7106(b)(1) of the [S]tatute . . . ." Id. at 9. Relying on Scott Air Force Base, the Arbitrator found that the change in the employees' work hours constituted a change in the tour of duty that was "within the Agency's discretion and was not negotiable." Id. at 10. The Arbitrator also found that the Agency "met [the] section 7106(b)(2) and (3) obligations to bargain over the procedures that must be followed when management exercises its authority and to make appropriate arrangements for employees adversely affected by management's exercise of it[s] authority." Id.
Based on the foregoing, the Arbitrator denied the grievance.
III. The Union's Exception
The Union does not except to the Arbitrator's finding that there was no violation of the parties' collective bargaining agreement. The Union's sole exception is that "the Arbitrator erred as a matter of law or court rule in denying this grievance[.]" Union's Exception at 1.
In support, the Union argues that the Arbitrator improperly relied on Scott Air Force Base to "hold that the employer herein had no duty to negotiate over the 'effect' . . . of the employee's changed work hours because same amounted to a 'tour of duty' under Scott which was only negotiable at the election of the employer pursuant to 5 USC 7106(b)(1)." Id. The Union contends that "it was clear that the employer refused to negotiate over the unpaid lunch break change," and that the Authority's decision in National Association of Government Employees, Local R1-109 and Veterans Administration, Veterans Administration Medical Center, Newington, Connecticut, 37 FLRA 448 (1990) (Veterans Administration) has modified or carved out an exception to Scott Air Force Base. Union's Exception at 1. The Union argues that the changes involved in this case, namely, a "longer lunch period . . . and resulting longer quitting time . . ." were negotiable under Veterans Administration because the Union did not seek to bargain over overtime or "additional paid periods." Id. at 2.
IV. Analysis and Conclusions
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.
It is not apparent to us from the Union's exception whether the exception is to the Arbitrator's finding that the change in employee work hours constituted a change in the employees' tour of duty under section 7106(b)(1) of the Statute, or to the Arbitrator's finding that the Agency met its obligations under sections 7106(b)(2) and (3) of the Statute. In either event, we find no basis on which to modify or reverse the award, as requested by the Union.
First, the Arbitrator correctly found, based on Scott Air Force Base, that the expansion of the workday from 0730 to 1600 hours to 0730 to 1630 hours constituted a change in the tour of duty. Thus, the matter was negotiable at the election of the Agency under section 7106(b)(1) of the Statute and the Agency elected not to bargain. See also National Association of Government Employees, Local R12-33 and U.S. Department of the Navy, Pacific Missile Test Center, Point Mugu, California, 40 FLRA No. 45 (1991), in which we found that the establishment of a new tour of duty is a matter falling within section 7106(b)(1) of the Statute.
Second, our decision in Veterans Administration does not warrant reversal of the Arbitrator's findings with regard to the Agency's duty to bargain in this case, either over the change itself or procedures and appropriate arrangements in connection with the change. In Veterans Administration, the union sought to negotiate for the inclusion of nonduty-noncompensated rest periods in the workday that would be offset by extensions of the workday. The Authority found the proposal to be negotiable based on the statutory and regulatory requirements regarding break periods. We further found that the proposal did not involve overtime or directly interfere with management's right to assign work.
The Union's assertion that Veterans Administration modified or created an exception to Scott Air Force Base lacks merit. There was no contention in Veterans Administration that the proposal in dispute concerned employee tours of duty that were negotiable only at the election of the Agency under section 7106(b)(1) of the Statute. Consequently, the issues presented in Scott Air Force Base were not raised and the Authority did not modify or carve out an exception to that decision.
The Union's argument that the changes in the "lunch period . . . and . . . quitting time" are negotiable under Veterans Administration because the Union did not seek to bargain over overtime or additional paid periods is also without merit. Union's Exception at 2. The Union has presented no evidence that the matters it sought to bargain were similar to those raised in Veterans Administration or that the Arbitrator's findings are inconsistent with Veterans Administration. In this connection, and contrary to the Union's assertion that "it was clear that the employer refused to negotiate over the unpaid lunch break change," the Arbitrator specifically found that the Agency had not failed to fulfill its bargaining obligation. The Arbitrator found that the change in the tour of duty was not negotiable