49:1563(140)AR - - Commerce, NOAA, National Weather Service and National Weather Service Employees Organization, Branch 2-03 - - 1994 FLRAdec AR - - v49 p1563
[ v49 p1563 ]
The decision of the Authority follows:
49 FLRA No. 140
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF COMMERCE
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION
NATIONAL WEATHER SERVICE
NATIONAL WEATHER SERVICE EMPLOYEES ORGANIZATION
July 13, 1994
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to a supplemental award of Arbitrator James P. O'Grady 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.
In his supplemental award, the Arbitrator denied a grievance contesting a change in the grievant's work schedule. For the following reasons, we conclude that the Union's exceptions provide no basis for finding the supplemental award deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Awards
A grievance was filed asserting that the Agency's decision to change the grievant's shift with less than 7 days' advance notice violated 5 U.S.C. § 6101(a)(3) and the parties' collective bargaining agreement.(1) As a remedy, the grievant sought 5 hours' overtime pay. The Arbitrator determined that the grievant's supervisor did not improperly change the grievant's shift and denied the grievance.
The Union filed exceptions to the award. On review of the exceptions, we rejected the Union's argument that the grievant's supervisor was not authorized to reschedule the grievant's shift. We noted that the Arbitrator relied on 5 C.F.R. § 610.102(e)(2) to find that the grievant's supervisor had such authority and that the Union did not assert that the regulation was inapplicable. However, we could not determine from the award whether the statutory requirements for changing the grievant's shift were satisfied. Consequently, we remanded the award to the parties for resubmission to the Arbitrator. U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Brownsville, Texas and National Weather Service Employees Organization, Branch 2-03, 48 FLRA 770 (1993).
In his supplemental award, the Arbitrator found that the grievant's supervisor had "credibly testified" that he had determined "that absent the change to the schedule . . . , the operations of the Brownsville W[eather] S[ervice] O[ffice] would have been seriously handicapped." Supplemental Award at 6. Additionally, the Arbitrator concluded that there was sufficient evidence of record for him "to make a finding that the [Agency's] operations at the Brownsville WSO would have been seriously handicapped if the [grievant's supervisor] had not altered the [g]rievant's schedule." Id. at 9. Accordingly, the Arbitrator denied the grievance.
III. Positions of the Parties
The Union contends that the supplemental award is contrary to law because the Arbitrator "focused solely on the issue of what effect the work schedule would have on the operations of the Brownsville Weather Service Office rather than on the agency's mission as a whole." Exceptions at 2. According to the Union, "under 5 U.S.C. § 6101, the effect of the schedule change (or lack thereof) must be measured against the impact it would have on the whole agency, not the local office." Id. at 2-3 (emphasis omitted). In support, the Union relies on Gahagan v. United States, 19 Cl. Ct. 168 (1989) (Gahagan). The Union also contends that the testimony of the grievant's supervisor establishes that the shift change was not made for reasons permissible under 5 U.S.C. § 6101.
The Agency maintains that the grievant's shift was changed in accordance with 5 U.S.C. § 6101 and applicable regulations. The Agency also contends that, as there was no unjustified or unwarranted personnel action affecting the grievant, he is not entitled to backpay.
IV. Analysis and Conclusions
Under 5 U.S.C. § 6101(a)(3), employees must be provided with 7 days' advance notice of their work schedules except when the head of an agency determines "that his organization would be seriously handicapped in carrying out its functions or that costs would be substantially increased[.]" Although this provision refers to effects on an agency head's "organization," nothing in the provision, or implementing regulations, indicates that such reference means that the exceptions to the 7-day notice apply only based on consideration of the effects on an agency as a whole. We note, in this regard, that 5 C.F.R. § 610.102(e), promulgated by the Office of Personnel Management (OPM) pursuant to its authority under 5 U.S.C. § 6101(c), provides that the authority to establish employee work schedules may be delegated by agency heads to lower-level officials. In our view, it is reasonable to conclude that agency officials who have been delegated authority to establish work schedules for a particular organizational segment also have authority to make changes in those schedules based on consideration of the effects of schedules on that segment.
In reaching this conclusion, we find that the Union's reliance on Gahagan is misplaced. As relevant here, Gahagan concerned a challenge to an NWS-wide policy requiring the rescheduling of NWS employees, without regard to the 7-day notice requirement in 5 U.S.C. § 6101, when necessary to minimize the payment of holiday premium pay. The court found that the policy violated section 6101 because there was no evidence that the Director of the NWS had "made a determination about serious handicaps or substantial costs." Gahagan, 19 Cl.Ct. at 179. In part, the court rejected the agency's attempt to justify its policy on the basis of a 1986 Policy Statement that the disputed schedule changes were necessary to accomplish the agency's mission efficiently and effectively. The court stated:
This single sentence in the 1986 Policy does not, . . . satisfy the terms of § 6101. This brief declaration does not state that NWS's functions will be seriously handicapped by a holiday-blind scheduling policy. This sentence refers to accomplishing NWS's mission efficiently. Improving an agency's efficiency is different from seriously handicapping its functions. A serious handicap would jeopardize an agency's entire mission and demand priority attention throughout the organization.
It is clear from the court's statement that schedule changes are not justified under 5 U.S.C. § 6101 when made for reasons of efficiency only. Moreover, in rejecting the agency's argument to the contrary, the court stated that a serious handicap, within the meaning of 6101, would jeopardize an agency's mission. However, the court did not have before it the issue the Union presents in its exceptions. That is, although the court held that, under section 6101, a serious handicap must exist in order to justify schedule changes with less than 7 days' advance notice, the court did not explicitly or implicitly address whether such handicap must be found to exist in an agency as a whole. As such, we reject the Union's argument that the award is deficient based on Gahagan.
Finally, the Arbitrator found that the supervisor had "credibly testified" that, had he not rescheduled the grievant, "the NWS operations at the Brownsville WSO would have been seriously handicapped . . . ." Supplemental Award at 9. In our view, the Union's argument that the testimony of the grievant's supervisor established that he used criteria not prescribed by law in rescheduling the grievant constitutes mere disagreement with the credibility and weight given to the witness' testimony by the Arbitrator and, as such, provides no basis for finding the award deficient. See, for example, National Treasury Employees Union, Chapter 32 and U.S. Department of the Treasury, Internal Revenue Service, Denver District, Denver, Colorado, 49 FLRA 1105, 1110 (1994).
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. 5 U.S.C. § 6101(a)(3), provides, in pertinent part:
(3) Except when the head of an Executive agency, . . . determines that his organization would be seriously handicapped in carrying out its functions or that costs would be substantially increased, he shall provide, with respect to each employee in his organization, that--
(A) assignments to tours of duty are scheduled in advance over periods of not less than 1 week . . . .
2. 5 C.F.R. § 610.102(e), concerning weekly and daily work scheduling, provides, in pertinent part:
(e) "Head of agency" means the head of an agency or an official who has been delegated the authority to act for the head of the a