49:0802(74)AR - - Navy, Mare Island Naval Shipyard, Vallejo, CA and Federal Employees Metal Trades Council - - 1994 FLRAdec AR - - v49 p802



[ v49 p802 ]
49:0802(74)AR
The decision of the Authority follows:


49 FLRA No. 74

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF THE NAVY

MARE ISLAND NAVAL SHIPYARD

VALLEJO, CALIFORNIA

(Agency)

and

FEDERAL EMPLOYEES METAL TRADES COUNCIL

(Union)

0-AR-2496

_____

DECISION

April 20, 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 Thomas Angelo 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.(1)

A grievance was filed alleging that the Agency violated the parties' agreement when it forced employees to use annual leave during a temporary shutdown of the Agency's operations. In both an interim award, and a final award, the Arbitrator concluded that neither the parties' agreement nor applicable regulations authorized the Agency to force employees to use annual leave. Consequently, the Arbitrator ordered the Agency to restore the employees' leave.

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

II. Background and Arbitrator's Awards

A. Interim Award

On March 13, 1992, the Agency issued a notice to the Union of a planned shutdown. The notice advised the Union that the Agency would shut down from June 29, 1992, to July 4, 1992, and that employees would be required to take four days of annual or other leave if they were not designated to perform essential services. Subsequently, on April 21, 1992, the Agency issued a notice to employees advising them of the shutdown and the required use of annual or other leave. The notice advised employees that, because of a "low work load period at the end of June[,]" the shipyard could realize "significant energy conservation and cost savings" by shutting down its operations. Interim Award at 7. The notice also stated that "[i]n the present climate of severe budget restrictions the Shipyard must take advantage of all possible strategies to avert more stringent solutions to any budget shortfall." Id.

In response to the notice, the Union requested to bargain and the parties commenced negotiations. Subsequently, the Union requested the assistance of the Federal Service Impasses Panel (Panel). The Panel noted that the parties were at impasse over the Union's proposal, which would have required the Agency to give employees administrative leave for each day they were required to take annual leave, leave without pay, or other leave during the planned shutdown. In its decision and order, the Panel directed the Union to withdraw the proposal noting, in part, that the Union had provided insufficient justification warranting adoption of the proposal. See 92 FSIP 147, 150, 151, and 159 (June 25, 1992). While the Panel's decision was pending, the union filed two unfair labor practice (ULP) charges.(2) The General Counsel determined that both charges were without merit and dismissed them.

From June 29, 1992, through July 4, 1992, the Agency effected the shutdown of nonessential operations. On July 9, 1992, the instant grievance was filed. When the grievance was not resolved, it was submitted to arbitration on the following stipulated issue:

Did the Mare Island Naval Shipyard violate the Collective Bargaining Agreement when it effected the summer shutdown? And, if so, what should the remedy be?

Interim Award at 3.

Before the Arbitrator, the Union maintained that, although the Agency was entitled to effect a shutdown, the agreement did not allow it to force the use of annual leave in this case. The Agency contended, as an initial matter, that the grievance was both untimely filed and barred by the earlier filed ULP charges under 7116(d) of the Statute.(3) As to the merits of the grievance, the Agency contended that the collective bargaining agreement permits the use of forced annual leave for the purpose of reducing accumulated leave balances and for other administrative reasons.

The Arbitrator initially determined that the issues in the grievance and in the ULP charges were not the same and rejected the Agency's claim that the grievance was barred under 7116(d) of the Statute. In addition, the Arbitrator determined that the grievance had been timely filed.

As to the merits of the grievance, the Arbitrator determined that while the Agency was entitled to shut down its operations, it was not entitled to force employees to use annual leave in the circumstances of this case. In reaching this result, the Arbitrator examined Article 12, Section 8 of the parties' agreement, which addresses the Agency's right to force employees to use annual leave where administrative reasons exist for doing so, and lists examples of appropriate situations in which the Agency may require an employee to use annual leave.(4) That provision also incorporates, by specific reference, the requirements set forth in Federal Personnel Manual (FPM) chapter 630 and Civilian Personnel Instruction (CPI) 630.(5)

Upon reviewing Article 12, Section 8, the Arbitrator found that the question raised by the grievance concerned the Agency's discretion to determine whether administrative reasons existed to require the use of annual leave. The Arbitrator found that the Agency's discretion in this regard was limited by the requirement that it act in accordance with FPM chapter 630 and CPI 630. Consequently, the Arbitrator found that the Agency's decision to require the use of annual leave would be sustained if it could show that "the basis for forcing the use of annual leave was authorized by any of the contractual justifications contained in [Article 12,] Section 8 or appropriate FPM or CPI provisions." Id. at 17 (footnote omitted).

As to the contractual examples, the Arbitrator found that most of them did not apply to this case. However, the Arbitrator found that there were two examples on which the Agency appeared to rely. First, the Arbitrator addressed and rejected the Agency's reliance on the example contained in Article 12, Section 8, subsection g, which permits forced leave "to reduce annual leave accumulation[.]" Id. at 18. The Arbitrator stated, among other things, that the Agency never articulated the concern that leave balances were too high and that the notice to employees regarding the shutdown did not reference "any need to reduce accumulated annual leave balances." Id. In addition, the Arbitrator found that the evidence and testimony established that the "real objective" of the forced use of annual leave was the reduction of the Agency's "labor budget." Id. Second, the Arbitrator addressed and rejected the Agency's use of the example set forth in subsection h, which permits the use of forced annual leave for "temporary periods when plant operation is uneconomical." Id. The Arbitrator agreed with the Agency that that example refers to "holiday close downs as identified in CPI 630.S3[.]" Id. at 19. However, the Arbitrator found that, other than coinciding with a holiday period, the Agency presented no evidence to show that the shutdown constituted a "holiday shutdown." Id. at 20. Moreover, the Arbitrator found that the shutdown did not apply to a time when operation of the Agency would be uneconomical. In this regard, the Arbitrator found no evidence of "any peculiar, adverse economic problems . . . ." Id. at 21. Rather, the Arbitrator found that the Agency required the use of forced annual leave "in order to create a labor savings[,]" and to "thereby enhance its competitive standing for purposes of the Base Closure study." Id.

The Arbitrator further found that FPM chapter 630 and CPI 630 did not mandate a different result. More specifically, the Arbitrator stated that those regulations generally contemplate that the use of forced leave is appropriate in either "emergency events necessitating closure" or where "lack of work or lack of funds warrant closure." Id. The Arbitrator found that the record did not establish that there was any emergency condition, lack of work, or lack of funds to justify the use of forced leave.

Accordingly, the Arbitrator determined that the Agency's action in forcing the use of annual leave was inconsistent with the collective bargaining agreement. However, the Arbitrator noted that there were issues raised by the parties, including the applicability of FPM chapter 610, governing group dismissals, that necessitated the submission of additional arguments.(6) Accordingly, the Arbitrator reopened the record and afforded the parties an opportunity to file their submissions before rendering a final award.

B. Final Award

In his final award, the Arbitrator considered the applicability of FPM chapter 610, which provides, among other things, that agency operations may be curtailed for "better utilization of funds or resources."(7) Final Award at 5. The Arbitrator found, assuming that chapter 610 was applicable, that the Agency had not established an inconsistency between that regulation and the parties' agreement, such that the regulation would prevail over a conflicting provision of the agreement. In this connection, the Agency had argued that the parties' agreement contemplates that it will not be applied in a manner that is inconsistent with Government-wide regulations, such as FPM chapter 610, and that FPM chapter 610 privileged the Agency's action in forcing the use of annual leave. The Arbitrator rejected the Agency's claim and its arguments in support thereof. First, the Arbitrator rejected the Agency's reliance on Comptroller General decisions interpreting FPM chapter 610. The Arbitrator found, citing Authority and Federal court decisions, that Comptroller General decisions are of limited application in the Federal sector arbitration process and that, in any event, the particular decisions cited by the Agency were inapplicable to this case.

The Arbitrator also rejected the Agency's argument that the shutdown was in response to a budget reduction and, as such, was consistent with the "better utilization of funds and resources" standard referenced in FPM chapter 610, subchapter 3-2c. The Arbitrator found that the record did not establish that the shutdown was designed to respond to a budget reduction. Rather, he found that the shutdown was originally designed to anticipate a loss of work that never occurred. The Arbitrator concluded that the "shifting budgetary claims" offered by the Agency to justify the shutdown did not change his "earlier factual finding that the motivation for the shutdown was to improve the Agency's competitive standing before the Base Closure Commission." Final Award at 8-9 (footnote omitted). The Arbitrator added that the reference in FPM chapter 610 to utilization of funds and resources is intended to apply to "short term difficulties and possible solutions." Id. at 9. In view of this, the Arbitrator found that FPM chapter 610 contemplates that group dismissals will not exceed three work days. The Arbitrator found that the Agency "stretche[d]" the intended meaning of FPM chapter 610 by using it to justify an entire workweek of forced leave and doing so "for the primary purpose of improving the Agency's productivity statistics." Id.

Based on his findings in both the interim and final awards, the Arbitrator determined that the Agency's use of forced leave violated the parties' collective bargaining agreement. As his award, the Arbitrator directed the Agency to make whole the employees who were forced to use annual leave or other leave during the shutdown by restoring their leave within 30 days of receipt of the award.(8) The Arbitrator also retained jurisdiction to resolve any disputes over the meaning or application of the final award.

III. Positions of the Parties

A. Exceptions

The Agency contends that the award is deficient on several grounds.

First, the Agency contends that the award does not draw its essence from the collective bargaining agreement because the Arbitrator's interpretation of Article 12, Section 8 was implausible, evidenced a manifest disregard for the agreement, and was so unconnected with the wording and purpose of the agreement as to manifest an infidelity to the obligation of the Arbitrator. In this connection, the Agency argues that the Arbitrator ignored the wording of that provision, which vests the Agency with broad authority to require employees to use annual leave "whenever it is deemed expedient to do so for administrative reasons" subject to compliance with FPM and CPI 630. Exceptions at 4. The Agency asserts that instead of applying this portion of Article 12, Section 8, the Arbitrator improperly found that the circumstances giving rise to requiring annual leave were limited to the examples listed in Article 12, Section 8 and compliance with FPM and CPI. The Agency maintains that the examples contained in the agreement were not intended to be an all-inclusive list but, rather, were examples of administrative reasons for requiring the use of forced leave. The Agency also disagrees with the Arbitrator's finding that the forced annual leave was not contractually authorized for the purpose of reducing annual leave accumulation. The Agency argues that the record clearly establishes that the purpose of the forced annual leave was to reduce annual leave balances.

Second, the Agency contends that the award is inconsistent with FPM chapter 610 because the Arbitrator incorrectly interpreted the reference to the utilization of funds and resources in that chapter to apply to short term difficulties and possible solutions. The Agency argues that FPM chapter 610 does not limit the utilization of funds and resources to the short term. In addition, the Agency asserts that the Arbitrator misinterpreted FPM chapter 610 as limiting group dismissals to three workdays. According to the Agency, that FPM provision limits the use of excused absence to three workdays during a group dismissal. If a group dismissal extends beyond three workdays, the Agency maintains that other forms of leave are appropriate.

The Agency also asserts that it complied with various requirements contained in chapter 610. Specifically, the Agency argues that it provided two month's notice of the shutdown, consistent with the reasonable notice requirements of that FPM provision. In addition, the Agency notes that FPM chapter 610, subchapter 3-6c provides that group dismissals may be necessary to better utilize funds or resources. The Agency argues that, consistent with FPM chapter 610, subchapter 3-6c, its objective of reducing its labor budget falls within the broad category of better utilizing funds or resources.

The Agency maintains that if the Arbitrator had correctly interpreted FPM chapter 610, the Arbitrator would have sustained the Agency's action in forcing the use of annual leave. The Agency requests that the Authority remand this case to the Arbitrator for "reconsideration" based on a correct interpretation of FPM chapter 610. Final Award at 11.

Third, the Agency contends that the award is inconsistent with both FPM chapter 630 and CPI 630. The Agency asserts that the Arbitrator erroneously stated that those regulations contemplate that forced annual leave is only appropriate in emergency situations or where lack of work or lack of funds warrant closure. The Agency argues that FPM chapter 630 does not specifically address forced annual leave or the types of situations where forced annual leave would be appropriate but, rather, provides agencies with the authority to decide when annual leave will be taken. As to CPI 630, the Agency maintains that there are additional circumstances in which the Agency can require the use of annual leave apart from the limited circumstances identified by the Arbitrator. Specifically, the Agency states that CPI 630 provides for the use of forced annual leave for holiday shutdowns or brief periods of work interruptions. The Agency also states that another provision of CPI 630 mandates the use of annual leave in cases of interrupted or suspended operations. The Agency maintains that the Arbitrator mischaracterized the circumstances under which the Agency could require the use of annual leave under FPM chapter 630 and CPI 630. In this connection, the Agency argues that the shutdown constituted a suspended operation because normal operations were "suspended" during the period of the shutdown. Exceptions at 14. The Agency further argues that the shutdown constituted a holiday shutdown because the shutdown occurred four days preceding a Federal holiday.

B. Opposition

The Union contends that the award is not deficient and that the Agency's exceptions are an attempt to relitigate the matter before the Authority. In addition, the Union argues that the Agency violated the parties' collective bargaining agreement in a variety of ways when it forced employees to use annual leave during the temporary shutdown of its operations.

IV. Analysis and Conclusions

A. The Award Draws Its Essence From the Agreement

To demonstrate that an award fails to draw its essence from a collective bargaining agreement, a party must show 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 U.S. Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina and American Federation of Government Employees, Local 1770, 42 FLRA 1186, 1193 (1991).

The Agency has not demonstrated that the award fails to draw its essence from the agreement under any of the tests described above. We reject the Agency's argument that the Arbitrator ignored the wording of Article 12, Section 8 and improperly found that the Agency's authority for such leave was limited to the examples listed in that agreement. In this case, the Arbitrator reviewed the agreement and found that the Agency's right to require the use of forced leave for administrative reasons was contingent on compliance with FPM chapter 630 and CPI 630, or with the examples set forth in Article 12, Section 8. As to FPM chapter 630 and CPI 630, the Arbitrator found that there was no justification for the Agency's required use of forced leave. As to the contractual examples, the Arbitrator did not state that those were the only instances authorizing forced leave. Rather, the Arbitrator addressed and rejected the examples on which the Agency relied in requiring the use of forced leave.

In our view, the Agency's exception constitutes mere disagreement with the Arbitrator's interpretation of the agreement and is an attempt to relitigate this case before the Authority. Such an exception does not provide a 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, 1286-87 (1991).

B. The Award Is Not Deficient Based on FPM Chapter 610

We conclude that no basis is provided for finding the award deficient based on FPM chapter 610. As we noted, chapter 610 was abolished effective December 31, 1993. In these circumstances, the Authority has recognized the principle of administrative law "that, in general, agencies must apply the law in effect at the time a decision is made, even when that law has changed during the course of a proceeding." Aaacon Auto Transport v. ICC, 792 F.2d 1156, 1161 (D.C. Cir. 1986) (Aaacon). In Aaacon, the court explained that the Supreme Court has held that the law in effect at the time of the decision applies "unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary." Id. (quoting Bradley v. School Board of Richmond, 416 U.S. 696, 711 (1974)). In this case, FPM chapter 610, the law applied by the Arbitrator, was abolished effective December 31, 1993, and we can perceive no manifest injustice in giving effect to the abolishment of that provision. Consequently, because FPM chapter 610 has been abolished, no basis is provided for finding the award deficient. See National Federation of Federal Employees, Local 2119 and U.S. Department of the Army, Rock Island Arsenal, Rock Island, Illinois, 49 FLRA 151, 157 (1994) (in addressing the negotiability of a proposal, the Authority refused to consider FPM chapter 610 because it had been abolished). Accordingly, we will deny the exception.

C. The Award Is Not Inconsistent with FPM Chapter 630 and CPI 630

We find no merit to the Agency's contentions that the award is inconsistent with FPM chapter 630 and CPI 630.

Unlike FPM chapter 610, portions of FPM chapter 630 have been provisionally retained and are still in effect. As relevant to this case, subchapter 11 entitled "Excused Absences" is still in effect. The Agency argues that the Arbitrator misstated and otherwise limited the circumstances under which the Agency could require the use of annual leave. However, we find that the Agency fails to establish that the award is contrary to the retained provisions of chapter 630. The Arbitrator stated that chapter 630 "contemplate[s], generally, two situations where the use of forced leave is appropriate[.]" Interim Award at 21. The Arbitrator did not find that forced annual leave could be required only in those two situations, as the Agency claims. However, even if the Arbitrator mischaracterized FPM chapter 630, its provisions do not require the use of annual leave, as the Agency acknowledges. Therefore, no basis is provided for finding the award deficient because it is contrary to FPM chapter 630, subchapter 11.

The Agency's assertion that the award is contrary to CPI 630 is also predicated on the view that the Arbitrator misstated and otherwise limited the circumstances under which the Agency could require the use of annual leave. We find that the Agency's argument constitutes disagreement with the Arbitrator's interpretation and application of CPI 630 and provides no basis for finding the award deficient. In our view, the Agency is merely disagreeing with the Arbitrator's interpretation of that regulation. Additionally, the Agency's argument that the award is deficient because the shutdown related to examples in CPI 630 other than those addressed by the Arbitrator must be rejected. First, there is no evidence that the Agency was relying on or operating under the portion of CPI 630 concerned with interrupted operations. Second, the Arbitrator specifically found that the shutdown did not constitute a holiday shutdown. In our view, the Agency's exception constitutes mere disagreement with the Arbitrator's interpretation of the applicable regulations and provides no basis for finding the award deficient. See, National Association of Government Employees, Local R5-188 and U.S. Department of the Air Force, Seymour Johnson Air Force Base, North Carolina, 48 FLRA 110, 113-14 (1993).

V. Decision

The Agency's exceptions are denied.

APPENDIX

Article 12

Annual Leave

Article 12 of the collective bargaining agreement provides in relevant part:

Section 8. The Employer reserves the right to place an employee on annual leave with or without the employee's consent, in accordance with FPM and CPI 630, whenever it is deemed expedient to do so for administrative reasons. The following are examples of situations in which an employee may be required to use annual leave in accordance with FPM and CPI 630:

a. equipment breakdown, power failure, etc.

b. lack of material

c. transportation strikes

d. storms, floods and other natural phenomena

e. closing of industrial activities for retooling, equipment overhaul, etc.

f. temporary reduction in workload

g. to reduce annual leave accumulation

h. temporary periods when plant operation is uneconomical

When the use of annual leave is directed and the employee has no annual leave available, the employee will be granted leave without pay if requested. If the employee does not request leave without pay, the employee will be furloughed in accordance with applicable law and regulation.

When the Employer determines that it is necessary to place an employee in the Unit on enforced annual leave, the Employer agrees to give the maximum possible advance notice to the affected employee, including the specific reasons for the action. Employees who are to be placed on enforced leave will have the choice of Monday or Friday as their day off, enforced leave slips will be in duplicate and the Employer will consult with the Council, upon request, regarding any alleged inequity in selecting employees for enforced leave.

FPM Navy Supplement CPI 630.S3 provides in relevant part:

(6) Requiring annual leave to be taken

(a) Although employees normally request annual leave, there are certain situations in which management may direct the taking of annual leave, such as holiday close-downs and brief periods of work interruptions. Such situations require advance notice, as described below. . .

(b) Advance notice requirements

[Paragraphs 1-3 pertain to the obligation to give 24 hours notice, which language is directly cited in Article 12, Section 8 of the Agreement]

4. The foregoing applies only to conditions which cannot reasonably be foreseen, e.g., power or equipment failure, weather conditions affecting only certain kinds of work but not the activity as a whole, etc. Circumstances such as reduction of leave accumulation for budgetary reasons, etc., are not considered 'unforeseen.'"




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The Union also filed a submission, which consisted of a "response" to the Agency's exceptions prepared by the Arbitrator. The Authority's Rules and Regulations do not provide for the filing of supplemental submissions. Although Section 2429.26 provides that the Authority may, in its discretion, grant leave to file other documents as it deems appropriate, the Union fails to demonstrate a reason for the Authority to consider the Union's unsolicited supplemental submission. Accordingly, we have not considered the submission. For example, National Union of Labor Investigators and U.S. Department of Labor, Office of Labor Management Standards, 46 FLRA 1311, 1311 n.1 (1993).

2. One charge involved an allegation that the Agency had failed to bargain in good faith with respect to the shutdown. The other charge claimed that the Agency had unlawfully failed to maintain the status quo while the matter was pending before the Panel and had repudiated the sick leave provisions of the parties' agreement.

3. Section 7116(d) of the Statute provides in relevant part:

[I]ssues which can be raised under a grievance procedure may, in the discretion of the aggrieved party, be raised under the grievance procedure or as an unfair labor practice under this section, but not under both procedures.

4. The full text of Article 12, Section 8 appears in the Appendix to this decision.

5. The relevant provisions of CPI 630 are set forth in the Appendix to this decision. As to FPM chapter 630, we note that during the pendency of this case, various provisions of the FPM were abolished and others were provisionally retained through December 31, 1994. FPM Sunset Document at 1. Portions of FPM chapter 630 have been provisionally retained. Id., Chapter Summary Sheet at 78.

6. Subsequent to issuance of the Arbitrator's award, FPM chapter 610 was abolished effective December 31, 1993. FPM Sunset Document, Chapter Summary Sheet at 77.

7. The Arbitrator also addressed an issue concerning the use of Mondays and Fridays as days off in forced leave situations and a claim that an alleged mid-term agreement superseded provisions of Article 12. Although the Union had raised arguments with respect to the former issue in its Opposition, neither the Agency nor the Union excepted to the Arbitrator's findings. Accordingly, those matters will not be considered further.

8. The Arbitrator did not identify what type of leave constituted "ot