42:0804(53)AR - - Navy, Norfolk Naval Shipyard, Portsmouth, Virginia and Tidewater Virginia Federal Employees Metal Trades Council - - 1991 FLRAdec AR - - v42 p804
[ v42 p804 ]
The decision of the Authority follows:
42 FLRA No. 53
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator David A. Singer, Jr. 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.
The Union filed a grievance contesting the Agency's decision to change the workweek of certain employees so that they worked staggered shifts that extended over a weekend. The work schedule change was made in order to accomplish an asbestos removal project. The Arbitrator concluded that the Agency did not violate the parties' collective bargaining agreement when it made the change and he denied the grievance. For the following reasons, we deny the Union's exceptions.
II. Background and Arbitrator's Award
The employees involved in this matter were assigned to Shop 7 in the public works department of the Shipyard. In order to perform an asbestos removal project over a weekend, the Agency placed the employees on staggered shifts for a 2-week period. As a result of the change in schedule, the employees took their days off during the week and worked 12-hour shifts on Saturday and Sunday, February 10 and 11, 1990. The employees were paid for 8 hours of regular time and 4 hours of overtime on those days.
The Union filed a grievance alleging that the change in shifts was contrary to the parties' collective bargaining agreement and that the employees were entitled to 12 hours of overtime for the weekend shifts and to administrative leave for the days that they were off during the week. The grievance was not resolved and was submitted to arbitration on the following issue:
Were the provisions of the agreement and governing regulations violated by the changing of the employees' regular workweek hours for the replacement of asbestos ceiling tiles in building 414, on February 10 and 11, 199? If so, what is the appropriate remedy?
Award at 1.
The Union maintained before the Arbitrator that the Agency scheduled the staggered shifts in an attempt to avoid the payment of overtime and argued that it would have been possible to accomplish the asbestos removal without changing the employees' basic workweek. The Union contended that the Agency violated Article 15 of the collective bargaining agreement because there was no showing that costs would have been substantially increased without the change in schedules and there was no showing that the Agency's operations would have been seriously handicapped.(*) The Union asked the Arbitrator to award overtime pay for all the affected employees for all the hours worked on February 10 and 11, 1990, and to award the employees administrative leave for the weekdays that they were required to take off.
The Agency maintained that it had used the most logical and economical means to accomplish the asbestos removal project and that it had notified the Union well in advance of the schedule change. The Agency asserted that the possibility of unforeseen difficulties in the asbestos removal project contributed to the need for additional work and for overtime and that management could not have accomplished the project otherwise without relocating other employees performing production duties. The Agency estimated that it saved approximately $4,500 by using the staggered shift schedule.
The Arbitrator rejected the Union's contention that the staggered shift schedule was improper because it was a personal inconvenience to employees. He noted that although changes in work schedules always create some personal inconvenience for employees, the employees in this case were advised well in advance of the schedule changes and had an opportunity to prepare for the changes. The Arbitrator also rejected the Union's contention that the issue in this case was controlled by three prior arbitration awards.
The Arbitrator examined the Agency's action in the context of Article 15 of the parties' agreement and noted that Article 15 allowed "scheduling latitude" to the Agency. Id. at 13. He found that the Agency had given the Union advance notice, as required by section 1 of Article 15, that the staggered shift would be implemented. He then ruled that the Agency did not violate any regulation concerning the establishment of basic workweeks when it required the staggered shifts. Consequently, the Arbitrator found that the Agency had not violated Article 15, section 2.
In response to the Union's argument that the Agency would not have been seriously handicapped if the work schedule had not been changed, the Arbitrator stated that "the staggered schedule did serve to avoid disruption of regular shipyard activity" and noted that the project of asbestos removal was "unpredictable." Id. at 14. The Arbitrator stated that the employees involved in the schedule change "were not seriously adversely impacted by the staggered shift" and that the Agency "may not have been seriously handicapped had the staggered shift not been adopted, but there would have been considerable disruption at the workplace." Id. at 15 (emphasis deleted).
The Arbitrator rejected the Union's argument that the Agency's costs would not have increased significantly by using overtime for the asbestos removal project and found that the Agency's attempt to save money within the public works department was appropriate. He stated that the Union had failed to persuade him that the Agency "had established a history of tampering with work schedules in order to avoid payment of legitimate overtime costs." Id. at 16. The Arbitrator ruled that the Agency "appropriately adopted a staggered schedule, with[in] the provisions of Article 15, section 10, in order to reduce overtime costs." Id. He noted that the 16 employees affected "experienced little monetary penalty as a result of the staggered shift[,]" and denied the grievance. Id. at 17.
III. First Exception
A. Position of the Union
The Union asserts that the Arbitrator's award is contrary to 5 C.F.R. § 610.121 and Federal Personnel Manual (FPM) Supplement 990-2, chapter 610-5, which provide for a basic workweek scheduled on 5 days, Monday through Friday, and for 2 consecutive days off outside the workweek. The Union claims that the Arbitrator violated those regulatory provisions because the provisions do not address "staggered shifts" and because the Arbitrator found that it was not possible to give some of the affected employees 2 consecutive days off because of "job constraints." Exceptions at 1. The Union maintains that the Arbitrator's statements concerning the amount of disruption caused by the change in schedules and management's inability to provide consecutive days off "are a total repudiation of Article 15, section 10 of the negotiated agreement" and of the regulatory provisions incorporated in the agreement. Id. at 2.
The Union asserts that the Arbitrator changed the applicable regulations by finding that the change in schedules was necessary in order to minimize costs to the Agency and that an increase of costs for the public works department would increase the costs of the Agency. The Union argues that the grievance does not concern the costs of the public works department, but "was filed to prove that the Agency's costs would not have been substantially increased should the grievant(s) have been paid the overtime in lieu of implementing the staggered workweek." Id. The Union also maintains that the award is contrary to the parties' agreement because the Arbitrator has improperly "modified the terms of laws, rules, and regulations, not to mention the language of the negotiated agreement." Id.
B. Analysis and Conclusions
We conclude that the Union has failed to establish that the Arbitrator's award is deficient on the bases alleged in its exception. Under 5 U.S.C. § 6101, an agency is required to schedule tours of duty not less than 7 days in advance 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. The provisions of 5 U.S.C. § 6101 are implemented by 5 C.F.R. § 610.121. Under 5 U.S.C. § 6101, as implemented by 5 C.F.R. § 610.121, an agency is required to establish as a basic workweek employee work schedules which include Monday through Friday, when possible, with 2 consecutive days off. The requirement to schedule a workweek of Monday through Friday, whenever possible, with Saturday and Sunday off, is subject to two exceptions. An agency may make changes in work schedules when that agency determines that adherence to the existing workweek would: (1) substantially increase costs; or (2) seriously handicap the agency in carrying out its functions. See National Association of Government Employees, SEIU, AFL-CIO and Veterans Administration, Veterans Administration Medical Center, Department of Memorial Affairs, 40 FLRA 657, 660-62 (1991).
The Arbitrator considered the Agency's actions concerning the change of work schedules in light of Article 15 of the agreement, which incorporates the provisions of 5 C.F.R. § 610.121, and concluded that the Agency did not violate those provisions. The Arbitrator found that the Agency's action prevented disruption of work and reduced costs. We find nothing in the Arbitrator's award that is contrary to 5 C.F.R. § 610.121. The Union's contentions constitute mere disagreement with the Arbitrator's interpretation and application of the parties' collective bargaining agreement and with his conclusion that the Agency acted within its authority. That disagreement provides no basis for finding the award deficient. See, for example, U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1923, 37 FLRA 1144, 1150 (1990).
IV. Second Exception
A. Position of the Union
The Union contends that the award is deficient because it fails to draw its essence from the parties' collective bargaining agreement. The Union repeats its contention that the Arbitrator improperly modified the agreement by his statements concerning the change in work schedules. The Union asserts that it was possible to maintain the same basic workweek and to perform the asbestos removal project on the weekend without seriously handicapping the Agency. The Union also maintains that the Arbitrator erroneously categorized the public works department, rather than the shipyard, as the Agency and that he erroneously found that saving money in the public works department would help avoid substantial increases in the Agency's overall budget.
B. Analysis and Conclusions
To demonstrate that an award fails to draw its essence from an agreement, a party must show 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 the 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. For example, American Federation of Government Employees, Local 51, AFL-CIO and United States Mint, Department of the Treasury, 41 FLRA 48, 51 (1991).
The Union has not demonstrated that the award fails to draw its essence from the parties' agreement under any of these tests. The Arbitrator interpreted Article 15 of the parties' collective bargaining agreement and rejected the Union's allegations that the Agency violated the agreement by changing the schedule to provide staggered shifts. Nothing in the Arbitrator's interpretation of the agreement provisions is irrational or implausible or otherwise deficient under the tests set forth above. Accordingly, there is no basis on which to conclude that the award fails to draw its essence from the agreement.
V. Third Exception
A. Position of the Union
The Union contends that the award is deficient because it is based on nonfacts. The Union asserts that the Arbitrator erred in stating that "[t]he Union accepts the fact that staggered shifts may appropriately be scheduled in order to curtail expenses when job requirements were known in advance." Exceptions at 3. The Union maintains that the Arbitrator's statement is based on a nonfact because the Union had contended that "the Agency did manipulate the work schedule solely to avoid the payment of overtime." Id. The Union also refers to the Arbitrator's statement that the Agency "may not" have been seriously handicapped by performing the asbestos removal on overtime. Id. at 4. The Union asserts that the Arbitrator's statement shows that he did find a violation of 5 C.F.R. § 610.121(a), which requires that the Agency "must be seriously handicapped to properly change the basic workweek of its employees to accomplish its mission." Id. Therefore, the Union argues, the Arbitrator's ruling that no regulation had been violated was based on a nonfact. The Union also maintains that the Arbitrator did not address the proper issue, which was whether the Agency manipulated the work schedule in order to avoid paying overtime.
The Union further contends that the Arbitrator relied on a nonfact when he ruled that the employees did not experience a significant monetary penalty when they were not paid overtime for performing the asbestos removal work. The Union asserts that the loss of "$1,065.00 split between sixteen employees . . . is definitely a big monetary penalty[.]" Id.
B. Analysis and Conclusions
We conclude that the Union fails to establish that the award is based on a nonfact. In order for an award to be found deficient because it is based on a nonfact, the appealing party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached. For example, U.S. Department of the Air Force, Griffiss Air Force Base, Rome, New York and American Federation of Government Employees, Local 2612, 39 FLRA 889, 893 (1991).
In this case, the Union fails to demonstrate that the Arbitrator relied on a clearly erroneous central fact in making his award. The Arbitrator addressed the issue that was stipulated by the parties--whether the Agency violated the agreement and governing regulations by changing the employees' regular workweek hours on the days in question. As we have noted previously, the Arbitrator applied the parties' agreement and the incorporated regulations and found that the Agency's changing of the work schedule was consistent with both the agreement and the regulations. The Union's third exception constitutes mere disagreement with the Arbitrator's overall findings and conclusions and is an attempt to relitigate the merits of the grievance. Such disagreement provides no basis for finding the award deficient. See, for example, U.S. Department of Defense, Dependents Schools, Mediterranean Region and Overseas Federation of Teachers, 36 FLRA 861, 867 (1990) (claim that arbitrator's conclusions were not supported by evidence did not concern a central fact and constituted mere disagreement with the arbitrator's conclusions). Accordingly, we find that the Union's exception provides no basis for finding the award deficient as based on a nonfact.
The Union's exceptions are denied.
Article 15 of the parties' collective bargaining agreement provides in relevant part:
Section 1. When the Employer knows in advance of an Administrative workweek that the specific days and/or hours of the day actually required of an employee in that Administrative workweek will differ from those required in the current Administrative workweek, he or she shall reschedule the employee's regularly scheduled Administrative workweek to correspond with those specific days and hours. The Employer shall inform the employee, as soon as practical, and he or she will record the change on the employee's time card or other Agency document for recording work.
NOTE: The intent of the phrase "as soon as practical" is to give the employee affected by changes as much notice as the Employer can after knowledge of the change necessary in work schedule in order to lessen the adverse impact and allow employees for use of their nonwork time.
Section 2. The basic 40-hour workweek is scheduled on 5 days, Monday through Friday when possible. It is agreed and understood that, when necessary, the Employer may establish basic workweeks of other than Monday through Friday in accordance with regulations. Changes in shifts, will be in accordance with FPM 610, CPI 610, and 5 CFR Part 610.
. . . .
Section 10. Except when the Employer determines that the Agency would be seriously handicapped in carrying out its functions or that costs would be substan