49:1672(154)AR - - VA Medical Center, New York, NY and AFGE, Local 2094 - - 1994 FLRAdec AR - - v49 p1672
[ v49 p1672 ]
The decision of the Authority follows:
49 FLRA No. 154
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF VETERANS AFFAIRS
NEW YORK, NEW YORK
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
July 22, 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 M. Kaplan 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 Arbitrator denied a grievance alleging that the Agency improperly scheduled tours of duty so as to deprive certain employees of overtime opportunities. For the following reasons, we conclude that the Union has failed to establish that the award is deficient. Accordingly, we will deny the Union's exceptions.
II. Background and Arbitrator's Award
The Union filed a grievance alleging that the Agency's scheduling of certain employees' tours of duty improperly deprived the employees of overtime opportunities. When the grievance was not resolved, it was submitted to arbitration on the following issue, as formulated by the Arbitrator:
Did the [A]gency violate any provisions of the labor agreement, statute, or other rules and regulations regarding the scheduling of work for the aggrieved employees so as to deprive such employees of the opportunity to work overtime? If so, what shall the remedy be?
Award at 2.
The Arbitrator found that Article 5.1 of the parties' supplemental agreement provides that a basic workweek is, among other things, scheduled Monday through Friday. The Arbitrator also found that Article 5.2 of the agreement requires that assignments to non-basic workweeks will be posted at least 2 workweeks in advance.(*) In this connection, the Arbitrator determined that, although the aggrieved employees were assigned to non-basic workweeks, they were always given the 2 workweeks' advance notice required by Article 5.2.
The Arbitrator also found that the Agency's decision to schedule overtime was "exclusively a management prerogative" under section 7106 of the Statute and that, in this case, management had not declared a need for overtime. Id. at 8. The Arbitrator concluded that the "aggrieved employees were not deprived of the opportunity to work overtime because that opportunity never existed . . . ." Id. at 9. Accordingly, the Arbitrator denied the grievance.
III. Positions of the Parties
The Union contends that the Arbitrator failed to address the issue of whether the Agency violated the parties' agreement by changing the grievants' basic workweek. According to the Union, although the parties' agreement provides that the basic workweek is Monday through Friday, the Agency "illegally changed the workweek" in order to "deny the aggrieved [employees] overtime." Exceptions at 1. In this connection, the Union also claims that the Arbitrator erred in failing to determine that the Agency was obligated to give the Union notice and an opportunity to bargain over the change in the basic workweek.
The Agency contends that the Union's exceptions do not provide a basis for finding the award deficient. In this regard, the Agency asserts that the Union has not identified a law, rule, or regulation with which the award conflicts.
IV. Analysis and Conclusions
We construe the Union's allegation that the Arbitrator erred in failing to determine that the Agency violated the parties' agreement by changing the grievants' basic workweek as a contention that the Arbitrator exceeded his authority. See National Labor Relations Board, Washington, D.C. and National Labor Relations Board Union, 48 FLRA 1337, 1346-47 (1994). In this regard, an arbitrator exceeds his or her authority when, among other things, the arbitrator fails to resolve an issue submitted to arbitration.
The Arbitrator found that the aggrieved employees were assigned to non-basic workweeks, as provided for in Article 5.2 of the parties' agreement. However, the Arbitrator also found that there was no evidence that the Agency had failed to provide employees with the advance notice required for assignments to non-basic workweeks. We conclude, therefore, that the Arbitrator resolved the issue of whether the Agency's actions violated the parties' agreement and we will deny this exception.
Next, we construe the Union's claim that the Agency violated law, rule, or regulation by assigning the employees to non-basic workweeks as an allegation that, by sustaining the Agency's action, the award is contrary to law, rule, or regulation.
The Union has cited no provision of a law, rule, or regulation with which the award conflicts. Moreover, no provision of law, rule, or regulation prohibiting an agency from assigning employees to non-basic workweeks is apparent to us. An unsupported contention that an award is contrary to law, rule, or regulation provides no basis for finding an award deficient. See, for example, American Federation of Government Employees, Local 916 and U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 48 FLRA 336, 339 (1993). As the Union has not supported its claim that the award is deficient as inconsistent with law, rule, or regulation, we will deny this exception. See, for example, U.S. Department of the Air Force, San Antonio Air Logistics Center, Kelly Air Force Base, Texas and American Federation of Government Employees, Local 1617, 45 FLRA 797, 799 (1992).
Finally, we reject the Union's claim that the award is deficient because the Arbitrator failed to consider the issue of whether the Agency was obligated to give the Union notice and an opportunity to bargain over a change in the grievants' basic workweek. It is well established that, in the absence of a stipulation by the parties, an Arbitrator's formulation of the issues is accorded substantial deference. See U.S. Department of the Air Force, Air Force Flight Test Center, Edwards Air Force Base, California and American Federation of Government Employees, Local 3854, 48 FLRA 74, 80 (1993). In this case, there is no indication in the record that the parties stipulated the issue to be resolved in arbitration and the issue, as formulated by the Arbitrator, was limited to whether the Agency violated law, rule, regulation, or the parties' agreement by the manner in which it scheduled employees to non-basic workweeks. As noted above, the Arbitrator concluded that the Agency's action was not improper. As such, the Arbitrator's failure to expressly address whether the Agency was obligated to bargain over a change in the grievants' basic workweek does not demonstrate that the award is deficient. See U.S. Department of Justice, Federal Bureau of Prisons, Federal Prison Camp, Alderson, West Virginia and American Federation of Government Employees, Local 1494, 47 FLRA 95, 97 (1993). According