43:0087(9)AR - - EPA, Research Triangle Park, NC and AFGE Local 3347 - - 1991 FLRAdec AR - - v43 p87



[ v43 p87 ]
43:0087(9)AR
The decision of the Authority follows:


43 FLRA No. 9

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. ENVIRONMENTAL PROTECTION AGENCY

RESEARCH TRIANGLE PARK, NORTH CAROLINA

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3347

(Union)

0-AR-2085

DECISION

November 13, 1991

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 James E. Fulford 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 grievance concerned the Agency's termination of the grievant's compressed work schedule. The Arbitrator found that, by changing the grievant's schedule without bargaining, the Agency violated the parties' agreement. As his award, the Arbitrator directed the Agency to: (1) bargain concerning the change in the grievant's work schedule; and (2) restore the grievant's original work schedule "until this matter has been settled by the parties or by the Federal Service[] Impasses Panel." Award at 5.

We conclude that the Agency's exceptions fail to establish that the award is deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

From April 22, 1990, until August 19, 1990, the grievant was temporarily assigned to the position of Imprest Funds Cashier. At the time of the temporary reassignment, the grievant was working a compressed work schedule. She was allowed to stay on the compressed work schedule until August 26, 1990, at which time she was informed that she had been permanently assigned to the Imprest Funds Cashier position and would no longer be allowed to work her compressed work schedule.

A grievance was filed concerning the termination of the grievant's compressed work schedule. The grievance was submitted to arbitration on the following issue: "Did the Agency violate the Labor agreement or laws, rules, or regulations when it took the grievant off her compressed work schedule?" Award at 1.

The Arbitrator found that the permanent reassignment of the grievant to the Imprest Funds Cashier position was a lateral transfer that carried with it more responsibility without an increase in salary. He determined that, although the grievant did not receive any benefit from her temporary assignment to the Imprest Funds Cashier position, the grievant "must have performed it in a superior manner since she was moved from a trial basis to a permanent basis." Award at 3. He further determined that the grievant's compressed work schedule "must have been approved by management because it was found that the grievant had full rights under the regulations of the Office of Personnel Management and the Agency to keep such working hours." Id.

The Arbitrator noted that the Agency had placed great reliance on the argument that, by failing to meet with the Agency and bargain at the appointed time, the Union had waived its right to bargain concerning the grievant's work schedule. The Arbitrator stated that, in his view, the question presented was "[d]id the failure to show up for one meeting forfeit the Union's right to bargain?" Id.

The Arbitrator found that the parties' agreement "does not show that the Union lost its rights to bargain by failing to show up for one meeting" or "that there is any time limit on the right of either party to request negotiations when an employee has been adversely affected by the exercise of the Employer's rights reserved in" the agreement. Id. at 4. The Arbitrator also found that the parties' agreement required the Agency to give the Union the opportunity to bargain concerning the impact and implementation of changes affecting employees' working conditions. He stated that "where there is nothing in the Labor agreement, laws, rules or regulations stating that the failure to show for one meeting cancels the rights of the parties to meet and negotiate, after proper notice has been given . . . the Union and Management should meet and bargain about the impact the cancelling of the grievant's right to work a compressed work schedule is having upon her." Id. at 4-5.

The Arbitrator made the following award:

The Agency will meet and bargain with the Union concerning the grievant's work schedule.

The grievant will be allowed to work a compressed work schedule until this matter has been settled by the parties or by the Federal Service[] Impasses Panel.

Id. at 5.

III. Positions of the Parties

A. The Agency

In its first exception the Agency contends that the award violates management's rights to: (1) determine its organization under section 7106(a)(1) of the Statute; (2) assign employees under section 7106(a)(2)(A); (3) assign work and determine the personnel by which Agency operations will be conducted under section 7106(a)(2)(B); and (4) select employees under section 7106(a)(2)(C). The Agency states that it "not only had the right to detail and reassign the grievant based on legitimate management considerations; but in doing so had the inherent right to terminate her participation in compressed work schedules based on the performance requirements of the new position." Exceptions at 2. The Agency argues, therefore, that the Arbitrator substituted his judgment for that of management, thereby violating section 7106(a) of the Statute.

In its second exception the Agency contends that the award is inconsistent with applicable law and Government-wide regulation. The Agency argues that 5 U.S.C. § 6122(b)(3) permits it to exclude any employee from participation in a compressed work schedule if the head of the Agency determines that the functions of the organization are being disrupted or if increased costs are incurred as a result of employee participation. The Agency also argues that under 5 C.F.R. Part 610 the Agency is required to schedule employees' work to accomplish the mission of the Agency and that, with appropriate notice, the Agency may change employees' schedules if the head of the Agency determines that the Agency would be substantially handicapped in carrying out its mission or that costs would be substantially increased.

The Agency claims that "clear and convincing evidence" was presented to the Arbitrator demonstrating that "management had never allowed the cost clerk position to be subject to participation in a compressed work schedule[.]" Id. The Agency states that "[a]t the conclusion of the detail, management evaluated the effect [that the] grievant's participation was having on the operation, and concluded that such participation was seriously handicapping the operations of the organization (National Contracts Payment Division)." Id. at 3. The Agency points out that the Union was given approximately 30 days' notice that the grievant's participation in the compressed work schedule program would be terminated.

In its third exception the Agency contends that the award is inconsistent with the parties' collective bargaining agreement and a Memorandum of Agreement (MOA) negotiated between the parties dated July 16, 1979, covering the establishment of, and employee participation in, compressed work schedules. The Agency argues that, under the terms of those agreements, employees are permitted to participate in the compressed work schedule program only if such participation does not hinder the performance of their duties. Quoting the MOA, the Agency states as follows:

All full-time employees are eligible to work under a 5-4/9 plan provided their participation does not hinder the performance of their duties. Because of specific job requirements in some offices, however, the same degree of personal choice may not be possible for all employees. As a result, there will [be] variations in the degree of flexibility possible from office-to-office. In a few instances, because of work requirements, individuals or even groups of employees may not be able to change from their present work schedule. Supervisors are responsible for determining whether an employee or group of employees must be excluded from participation, and they must justify such an exclusion in writing to the appropriate official.

Id., quoting Enclosure 5 (emphasis omitted). According to the Agency, because it had determined that the work requirements of the Imprest Funds Cashier position made that position incompatible with the use of a compressed work schedule, "the actions taken to terminate the grievant from participation in a compressed work schedule [were] in accordance with the Local agreement and Written agreement between the Parties." Id.

The Agency further contends that, even if negotiations concerning the termination of the grievant's work schedule were required, it attempted to conduct bargaining on the matter but the Union failed to meet with the Agency at the agreed-upon time. According to the Agency, the Union did not, at any time prior to the filing of the grievance, request another opportunity to negotiate concerning the impact of management's decision to terminate the grievant's participation in the compressed work schedule program. The Agency argues that "the Arbitrator failed to address the issue that the Union sat on its rights to bargain impact, as they were clearly given timely notice for bargaining." Id. at 4.

B. The Union

The Union contends that section 7106(b) of the Statute and the parties' agreement provide for impact and implementation bargaining over changes in employees' working conditions. The Union asserts that there is no dispute concerning whether the Agency has the right, under applicable law and regulations, to assign work and to assign employees in accordance with section 7106(a). According to the Union, the Agency's right to detail the grievant and to permanently reassign her to the Imprest Funds Cashier position was acknowledged as a part of the Union's position in the hearing before the Arbitrator. The Union states that "[t]he issue before the Arbitrator in effect was whether or not the Agency must negotiate with the Union over impact and implementation concerning a condition of employment that's being changed, prior to the Agency making the change." Opposition at 1.

The Union asserts that the award merely requires that the Agency: (1) conduct impact and implementation bargaining over the termination of the grievant's compressed work schedule; and (2) restore the grievant's work schedule pending the outcome of the negotiations. The Union states that "[c]learly arbitrators have the right, by law, rule and regulation to order the [A]gency to bargain and maintain [the] status quo until bargaining is completed[.]" Id.

IV. Analysis and Conclusions

A. The Award Is Not Deficient under Section 7106 of the Statute

In its first exception the Agency argues that the award is inconsistent with management's rights under section 7106(a) of the Statute. In American Federation of Government Employees, Local 1934 and Department of the Air Force, 3415 ABG, Lowery AFB, Colorado, 23 FLRA 872 (1986), the Authority held that Congress intended that the use of alternate work schedules be fully negotiable, subject only to the provisions of the Flexible and Compressed Work Schedules Act of 1982, Pub. L. No. 97-221, 96 Stat. 227 (codified at 5 U.S.C. §§ 6101 and note, 6106, 6120-6133), which was made permanent in Pub. L. No. 99-196, 99 Stat. 1350 (1986) (the Act) or with the laws superseding the Act. Under the Act and its implementing regulations, as more fully explained below, an agency's right to establish or terminate an established alternate work schedule is subject to bargaining. Thus, the establishment or termination of alternate work schedules is negotiable without regard to management's rights under section 7106 of the Statute.

The Agency argues that, because management had the right to detail and reassign the grievant, it also had the right to terminate the grievant's compressed work schedule "based on the performance requirements" of the Imprest Funds Cashier position. Exceptions at 2. To the extent that the Agency is arguing that the Arbitrator's award interferes with its decision to detail and permanently reassign the grievant, the Agency's argument is misplaced. The Arbitrator's award does not concern the underlying personnel actions placing the grievant in the Imprest Funds Cashier position. Therefore, the award does not concern management's rights, under section 7106(a)(2)(A) of the Statute, to assign employees to positions or, under section 7106(a)(2)(C), to select from among properly ranked and certified candidates for promotion, or from other appropriate sources, in filling a vacant position. Rather, the award requires the Agency to allow the grievant to retain her existing alternate work schedule, while continuing to work in the Imprest Funds Cashier position, pending the completion of bargaining over the termination of that schedule.

Moreover, even assuming that management's rights under section 7106(a)(2)(A) and (C) were involved in the Agency's decision to terminate the grievant's alternate work schedule, the award would not be deficient. Because, as we noted above, under the Act the termination of the grievant's compressed work schedule is negotiable without regard to the exercise of management's rights under section 7106 of the Statute, the Agency's argument would not provide a basis for concluding that the award is deficient. Accordingly, we deny the Agency's first exception.

B. The Award Is Consistent with Law and Applicable Government-wide Regulations

In this case, the parties negotiated a collective bargaining agreement provision and an MOA providing for unit employees' participation in alternate work schedules. Under 5 U.S.C. § 6130(a)(1), the termination of alternate work schedules for employees covered by a collective bargaining agreement providing for the use of such work schedules must be in accordance with 5 U.S.C. § 6131. Because the provisions of 5 U.S.C. § 6122 are expressly limited by the provisions of 5 U.S.C. § 6130, the Agency's reliance on 5 U.S.C. § 6122(b)(3) is misplaced.

Further, under 5 U.S.C. § 6131(a), if an agency head finds that a particular alternate work schedule will have an adverse impact on the agency, the agency head shall determine not to establish such a schedule or, where the schedule is already established, not to continue that alternate work schedule. See Appendix to this decision for the text of 5 U.S.C. § 6131. However, under 5 U.S.C. § 6131(c)(3)(A), if the agency seeks to terminate an alternate work schedule established under a collective bargaining agreement, the agency may reopen the agreement and bargain with the union concerning the decision to terminate the alternate work schedule. If bargaining between the parties over termination of the schedule reaches an impasse, the parties shall present the impasse to the Federal Service Impasses Panel (the Panel) in accordance with 5 U.S.C. § 6131(c)(3)(B) and Part 2472 of the Panel's Regulations. In short, an agency must bargain to impasse over its decision to terminate an alternate work schedule and, under 5 U.S.C. § 6131(c)(3)(D), may not terminate that schedule unless the collective bargaining agreement expires or final action is taken by the Panel.

Therefore, we conclude that the Arbitrator's award is consistent with 5 U.S.C. § 6131. Consequently, we reject the Agency's argument that the award is deficient as being inconsistent with law.

We note that our recent decisions in Air Force Accounting and Finance Center, Denver, Colorado, 42 FLRA No. 84, slip op. at 10 (1991) (AFAFC I) and Air Force Accounting and Finance Center, Lowry Air Force Base, Denver, Colorado, 42 FLRA No. 85, slip op. at 13 (1991) (AFAFC II) are distinguishable. In those cases, we determined that, under section 6122(a) of the Act, an agency has the right to make adjustments in the arrival and departure times of employees who work on flexible schedules in order to provide coverage during the hours that its offices are open. Consequently, we concluded that the agency did not have a duty to bargain over the substance of its decision to require such adjustments in arrival and departure times. This case, unlike AFAFC I and AFAFC II, concerns the termination of an alternate work schedule, not the adjustment of arrival and departure times in a flexible schedule to ensure office coverage.

As to the Agency's claim that the award is deficient because it is contrary to 5 C.F.R. § 610.121, we find that the Agency's reliance on that provision is misplaced. The regulations set forth in 5 C.F.R. Part 610 implement work schedules established under 5 U.S.C. § 6101, rather than alternate work schedules established under the Act. Consequently, 5 C.F.R. § 610.121 does not apply to the Arbitrator's award in this case. Therefore, we reject the Agency's argument that the award is inconsistent with applicable Government-wide regulations. Accordingly, we deny the Agency's second exception.

C. The Agency's Remaining Exception Does Not Demonstrate That the Award Is Deficient

In its third exception the Agency contends that the award is deficient because: (1) it is inconsistent with the parties' agreement, as supplemented by the MOA; and (2) the Arbitrator did not address the issue of the Union's failure to appear for impact bargaining.

We interpret the Agency's contention that the award is inconsistent with the parties' agreement as an argument that the award fails to draw its essence from the parties' agreement. To establish that an award is deficient because it does not draw its essence from the collective bargaining agreement, the party making the allegation must demonstrate that the award: (1) cannot in any rational way be derived from the agreement; (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; (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 Air Force, McClellan Air Force Base, California and International Federation of Professional and Technical Engineers, Local 220, 40 FLRA 968, 971 (1991) (McClellan Air Force Base). Under these tests, the Authority will not find that an award is deficient merely because a party disagrees with the arbitrator's interpretation of the agreement. McClellan Air Force Base, 40 FLRA at 971.

Based on his interpretation of the parties' agreement the Arbitrator concluded that the Agency was obligated to bargain with the Union over the termination of the grievant's compressed work schedule. Consequently, the Arbitrator ordered the Agency to bargain with the Union over the impact and implementation of the termination of the grievant's compressed work schedule and to restore the grievant's compressed work schedule pending completion of bargaining. The Agency has failed to demonstrate that the Arbitrator's conclusion that, under the parties' agreement, the Agency was obligated to bargain on its decision to terminate the grievant's compressed work schedule is irrational, unfounded, implausible, or evidences a manifest disregard for the agreement. Rather, the Agency's exception constitutes nothing more than disagreement with the Arbitrator's interpretation and application of the agreement, as well as an attempt to relitigate this issue before the Authority. This contention, therefore, provides no basis for finding the award deficient. See, for example, Ogden Air Logistics Center, Hill Air Force Base, Utah and American Federation of Government Employees, AFL-CIO, Local 1592, 39 FLRA 1282, 1286 (1991).

We also reject the Agency's contention that the award is deficient because the Arbitrator failed to address the issue that the Union "sat on its rights to bargain impact[.]" Exceptions at 4. Based on his interpretation of the collective bargaining agreement, the Arbitrator determined that: (1) the Union did not waive its right to bargain over the Agency's decision to change the grievant's compressed work schedule merely because it had failed to appear at the scheduled meeting; and (2) there was no time limit on the Union's right to request negotiations when an employee has been adversely affected by the exercise of management's rights. Thus, the Arbitrator clearly addressed the issue of whether, under the parties' agreement, the Union waived its right to bargain because it "sat on its rights to bargain impact." Id. The Agency's contention is merely a disagreement with the Arbitrator's conclusion that the Union retained the right to bargain. The Agency's contention, therefore, does not provide a basis on which to find the award deficient. Accordingly, we deny the Agency's third exception.

V. Decision

The Agency's exceptions are denied.

APPENDIX

5 U.S.C. § 6131 provides as follows:

§6131. Criteria and review

(a) Notwithstanding the preceding provisions of this subchapter or any collective bargaining agreement and subject to subsection (c) of this section, if the head of an agency finds that a particular flexible or compressed schedule under this subchapter has had or would have an adverse agency impact, the agency shall promptly determine not to--

(1) establish such schedule; or

(2) continue such schedule if the schedule has already been established.

(b) For purposes of this section, "adverse agency impact" means--

(1) a reduction in the productivity of the agency;

(2) a diminished level of services furnished to the public by the agency; or

(3) an increase in the cost of agency operations (other than a reasonable administrative cost relating to the process of establishing a flexible or compressed schedule).

(c)(1) This subsection shall apply in the case of any schedule covering employees in a unit represented by an exclusive representative.

(2)(A) If an agency and an exclusive representative reach an impasse in collective bargaining with respect to an agency determination under subsection (a)(1) not to establish a flexible or compressed schedule, the impasse shall be presented to the Federal Service Impasses Panel (hereinafter in this section referred to as the "Panel").

(B) The Panel shall promptly consider any case presented under subparagraph (A), and shall take final action in favor of the agency's determination if the finding on which it is based is supported by evidence that the schedule is likely to cause an adverse agency impact.

(3)(A) If an agency and an exclusive representative have entered into a collective bargaining agreement providing for use of a flexible or compressed schedule under this subchapter and the head of the agency determines under subsection (a)(2) to terminate a flexible or compressed schedule, the agency may reopen the agreement to seek termination of the schedule involved.

(B) If the agency and exclusive representative reach an impasse in collective bargaining with respect to terminating such schedule, the impasse shall be presented to the Panel.

(C) The Panel shall promptly consider any case presented under subparagraph (B), and shall rule on such impasse not later than 60 days after the date the Panel is presented the impasse. The Panel shall take