49:0575(53)AR - - AFGE, Local 2198 and VA Medical Center, Beckley, WV - - 1994 FLRAdec AR - - v49 p575



[ v49 p575 ]
49:0575(53)AR
The decision of the Authority follows:


49 FLRA No. 53

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2198

(Union)

and

U.S. DEPARTMENT OF VETERANS AFFAIRS

MEDICAL CENTER

BECKLEY, WEST VIRGINIA

(Agency)

0-AR-2530

_____

DECISION

March 21, 1994

_____

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 L. Beckman 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 filed an opposition to the Union's exceptions.

The Union filed two grievances alleging that the Agency violated the parties' collective bargaining agreement and published Agency policy by changing employees' work schedules. The Arbitrator denied the grievances in part and sustained them in part. The Arbitrator issued a "constructive advice remedy" in which he "cautioned" management "that its right to schedule the work force is not absolute[,]" but "is subject to applicable laws, applicable contract provisions and regulations." Award at 19.

For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

Prior to October 31, 1992, the Agency had a rotational work schedule under which the Agency's four police officers were assigned to a shift for 2 months and had 4 days off between rotations to a different shift. The officers were due to rotate shifts on November 15, 1992. On October 31, 1992, the police officers' supervisor revised the normal rotational schedule in order to cover the work of an officer who was going to be on annual leave for 3 weeks between November 17 and December 8, 1992. On November 2, 1992, the supervisor advised the Agency's Director of Police and Security that due to the temporary vacancy created by the annual leave of one of the officers, he needed to make deviations from the rotational schedule. The Director of Police and Security approved the supervisor's action in temporarily deviating from the normal schedule and concurred with the supervisor's intent to return to that schedule when all of the officers were again available to work.

Under the normal schedule, the officer who was going to be on annual leave would have had 4 days off before beginning his leave and the three remaining officers believed that they would have covered his work on an overtime basis. Under the revised schedule, the officer who was taking leave was required to work on the 2 days immediately preceding his leave and the remaining officers were scheduled to cover the work of the officer on leave without receiving overtime.

The Union proposed that the Agency retain the normal work schedule and that the remaining officers cover the work of the officer on leave by working 120 hours of overtime. The Agency rejected the proposal. The Union then filed a grievance alleging that the Agency had failed to follow an established past practice and violated the parties' master and local agreements by changing employees' work schedules and reducing the number of days off that were allowed the officer who was scheduled for annual leave. The Union also filed a second grievance alleging that the Agency violated Department of Medicine and Surgery Supplement, MP-1, Part 1, Chapter 42, c(8) (the DM&S Supplement provision) by rotating the officers' work schedules more frequently than every 2 months.(1)

At the third step of the grievance procedure, the Agency ordered the police officers' supervisor to comply with the DM&S Supplement provision, but concluded that overtime pay was inappropriate because management has the right to establish work schedules. The Agency's third-step response was unacceptable to the Union and the grievances were submitted to arbitration.

The Arbitrator stated the issues as follows:

(1) Did the [Agency] violate the collective bargaining agreement, as alleged in [the grievances,] in the manner in which it changed the work schedule for the period of November 15, 1992 through December 5, 1992? (2) If so, what is the remedy?

Award at 3.

Noting that there was no proof that the employees worked over 8 hours in a day or over 40 hours in a week during the 3 weeks in question, the Arbitrator rejected the Union's contention that the Agency violated the Fair Labor Standards Act in making the work schedule change. The Arbitrator also rejected the Union's argument that the change in the work schedule violated Article XIV of the parties' agreement, which requires the assignment of overtime on an "'equitable basis insofar as the requirements of the [Agency] will permit.'" Id. at 4, quoting Article XIV. The Arbitrator found that Article XIV did not mandate that overtime be scheduled. Rather, according to the Arbitrator, Article XIV established a procedure for assigning overtime only after management had decided to incur overtime, and Article XIV did not apply because management had not made the decision to incur overtime in this case.

However, the Arbitrator agreed with the Union's contention that the Agency violated its own published policy on scheduling the work force--the DM&S Supplement provision--by establishing a work schedule rotation that was more frequent than every 2 months. With respect to a remedy, the Arbitrator stated that "[i]t [did] not automatically follow" from his finding that the Agency violated its policy that the three grievants who requested overtime pay were entitled to monetary relief. Id. at 14. The Arbitrator noted that there was no contractual provision mandating a monetary remedy in the circumstances of this case. The Arbitrator concluded that, as a "reasonable remedy" for its violation of published scheduling policies, "management should be cautioned that the power to schedule [work], if misused, can be an instrument of harm to its individual employees and the relationship between the parties." Id. at 16.

In particular, the Arbitrator found that the Union's claim of an established practice for scheduling work was not a sufficient basis for a monetary remedy because, under Article VI, Section 2 of the parties' local agreement, management has "the power to change work schedules" and that "power is not lost" when "a given schedul[e] is used for a long time." Id. at 17. The Arbitrator also found that "[t]he act of publishing a scheduling policy does not waive management's retained right to schedule" work. Id. The Arbitrator concluded that, given the limited number of police officers available to cover the absence of the officer on leave and management's perceived need to avoid overtime, he could not find that the Agency's denial of the grievances at the third step of the grievance procedure was erroneous.

Accordingly, the Arbitrator sustained the grievances in part and denied them in part. As a remedy, the Arbitrator cautioned management that its right to schedule the work force is not absolute, but is subject to applicable laws, contract provisions, and regulations, including published Agency policy. The Arbitrator stated that "since the violation consisted of a transgression of management's own published policy, and since there was no law violation and no violation of the contract language dealing with overtime, . . . the constructive advice remedy [is] a reasonable and proper remedy." Id. at 19.

III. Positions of the Parties

The Union contends that the Arbitrator erred by finding that the Agency did not violate applicable law or the parties' agreements. The Union argues that the Agency's actions violated Article 3, Section 1 of the parties' master agreement and Article VI of the parties' local agreement because the work schedule change was made without negotiating with the Union.(2)

The Union also claims that, inasmuch as the Statute "specifically requires the parties to bargain and abide by the provisions of a collective bargaining agreement[,]" the award violates law because "a violation of the bargaining agreement is a violation of [the Statute.]" Exceptions at 2.

The Agency contends that the award draws its essence from the parties' agreements and that the Union is merely disagreeing with the Arbitrator's interpretation of those agreements. The Agency claims that the award should not be set aside on the ground that the Arbitrator failed to find a past practice because that issue involves the Arbitrator's interpretation of the facts of the case. Finally, the Agency argues that the award is not deficient on the basis that the Arbitrator rejected the remedy sought by the Union and fashioned his own remedy.

IV. Analysis and Conclusions

We conclude that the Union's exceptions provide no basis for finding the award deficient under section 7122(a) of the Statute.

We construe the Union's contention that the award is contrary to Article 3, Section 1 of the parties' master agreement and Article VI of the parties' local agreement as a contention that the award fails to draw its essence from the parties' agreements. In order for an award to be found deficient because it fails to draw its essence from the 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 the 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, American Federation of Government Employees, AFL-CIO, Local 916 and U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 48 FLRA 336, 340-41 (1993).

The Union has not shown that the award is deficient under any of these tests. The Arbitrator found that the Agency had the right under the management rights provision of the parties' local agreement to change employee work schedules. We find that the Union has not shown that the Arbitrator's finding represents an irrational or implausible interpretation of the agreement. In our view, this exception constitutes mere disagreement with the Arbitrator's determination that the Agency did not, either by past practice or by published policy, waive its right under the parties' agreement to change employee work schedules. Consequently, we find that the Union has not demonstrated that the award fails to draw its essence from the agreement.

As to the Union's contention that the Agency violated the Statute by violating the parties' agreements, we note that the Authority has consistently held that, absent a repudiation of an agreement, a contract violation does not constitute a violation of the Statute. See, for example, Department of Defense, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 40 FLRA 1211, 1217-19 (1991). The Union has not demonstrated that the Arbitrator erred by failing to find that the Agency's action amounted to a repudiation of the parties' agreements. Consequently, we reject the Union's contention.

Accordingly, we will deny the exceptions.

V. Decision

The Union's exceptions are denied.

APPENDIX

DM&S Supplement, MP-1, Part 1, Chapter 42, c(8) provides in relevant part:

(8) VA Police Officers will be rotated on duty shifts (watch periods) no less than every 4 months or more frequently than every 2 months.

Award at 13.

Article VI, Management Rights and Responsibilities, Section 2(b) of the parties' local agreement provides:

Section 2: Management officials of the agency retain the right in accordance with applicable laws and regulations--

. . . .

b. To hire, promote, transfer, assign, and retain employees in positions within the agency, and to suspend, demote, discharge, or take other disciplinary action against employees[.]<