53:0020(5)AR - - DOD, Army and Air Force Exchange Service, Dallas, TX and AFGE - - 1997 FLRAdec AR - - v53 p20



[ v53 p20 ]
53:0020(5)AR
The decision of the Authority follows:


53 FLRA No. 5

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF DEFENSE

ARMY AND AIR FORCE EXCHANGE SERVICE

DALLAS, TEXAS

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

(Union)

0-AR-2812

0-AR-2894

_____

DECISION

June 12, 1997

_____

Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member.

I. Statement of the Case

This matter is before the Authority on exceptions to two separate arbitration awards of Arbitrator Donald P. Goodman 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 Regulations.(1) The Union filed an opposition to the Agency's exceptions only in Case No. 0-AR-2894.

In both cases, the Arbitrator sustained a grievance concerning the work schedule of the grievant, a union official. We conclude that the Agency has failed to establish that either award is deficient. Accordingly, in both cases, we deny the Agency's exceptions.

II. Background

The grievant serves as the Union's assistant business agent. Under Article 9, Section 9 of the parties' master collective bargaining agreement, she is granted 50 percent official time and 50 percent leave without pay (LWOP) to serve in that position.(2) The Agency approved the grievant's request for a compressed workweek schedule and requested that she designate her regular assigned workdays. The grievant designated her "normal schedule[,]" but asserted that "[t]his arrangement in no way should or will be a waiver of any rights of our master contract . . . ." Union Exhibit 10. When the grievant thereafter submitted time and attendance reports that did not correspond to her designated schedule, management modified her time and attendance report by charging her annual leave and LWOP so that the hours would correspond to her schedule. The Union filed the grievance in Case No. 0-AR-2812 disputing the modifications of the grievant's time sheets.

Subsequently, the Agency notified the Union that it had revised the grievant's work schedule. The Union filed the grievance in Case No. 0-AR-2894 disputing the Agency's rescheduling of the grievant.

III. Arbitrator's Award in Case No. 0-AR-2812

The Arbitrator stated the issue as whether the Agency violated the master agreement when it modified the grievant's time sheets. The Arbitrator acknowledged that the grievant was required to comply with all provisions of the parties' collective bargaining agreement unless exempted by the agreement. Looking to the "underlying purposes" of Article 9, Section 9, he determined that the agreement did not permit the Agency to impose restrictions on the hours or days that the grievant can be on official time. Award at 5.

The Arbitrator found that a fixed work schedule could not necessarily accommodate all the representational activities the grievant needed to perform. Moreover, he determined that the grievant's designation of her "normal" workweek implied that "there will be 'abnormal' work weeks." Id. Emphasizing that the grievant has no regularly assigned duties to perform for the Agency, the Arbitrator concluded that Article 9, Section 9 exempted the grievant from "maintaining strict hours of work[.]" Id. at 6. He ruled that the grievant was required to complete time sheets and that they must account for her official time, but that she was not required to work specified days or hours each week. He rejected the Agency's reliance on Army Regulation (AR) 60-21/ Air Force Regulation (AFR) 147-15 and Article 24 of the agreement, which pertain to hours of work. The Arbitrator found that those provisions were inapplicable because, based on Article 9, Section 9, the grievant has no regularly assigned job for the Agency and, therefore, there are no hours during which the grievant is expected to perform her regularly assigned duties.

Accordingly, the Arbitrator determined that the Agency had violated the agreement in modifying the grievant's time sheets, and he ordered the grievant made whole.

IV. Arbitrator's Award in Case No. 0-AR-2894

The Arbitrator stated the issue as whether management violated the master agreement when it revised the hours during which the grievant would be considered on official time. Relying on his award in Case No. 0-AR-2812, the Arbitrator concluded that the Agency relinquished its right to specify the hours of work for the grievant when it negotiated Article 9, Section 9. He ruled that the grievant must complete time sheets, but that she was not required to use the Agency's designated time sheet form. Accordingly, the Arbitrator determined that management had violated the agreement, and he ordered the grievant made whole for any losses caused by management's revision of her work schedule.

V. Exceptions

A. Agency's Contentions

The Agency contends that both awards are deficient on four grounds.

First, the Agency contends that the awards conflict with management's right to assign work under section 7106(a) of the Statute. The Agency argues that the Arbitrator has granted the grievant special treatment that is precluded by the Authority's decision in U.S. Department of the Air Force, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 35 FLRA 1146 (1990), petition for review dismissed sub nom., AFGE Local 916 v. FLRA, 951 F.2d 276 (10th Cir. 1991) (Tinker AFB).

Second, the Agency contends that the awards conflict with the work scheduling provisions of AR 60-12/AFR 147-15 by exempting the grievant from the requirement of scheduled hours and days of work. The Agency claims that if the grievant does not have a set schedule, management will be unable to comply with agency time and attendance directives.

Third, the Agency contends that the Arbitrator's interpretation of Article 9, Section 9 in both awards fails to draw its essence from the agreement. The Agency argues that the Arbitrator's finding that Section 9 exempts the grievant from hours of work requirements of Article 24 is implausible because there is no such exemption in the agreement. The Agency also argues that the awards are internally inconsistent because they are based on findings that the grievant both is and is not bound by the agreement. In Case No. 0-AR-2894, the Agency additionally argues that under the agreement the grievant has the same obligation to complete time sheets as do other employees.

Fourth, the Agency contends that the Arbitrator's determination in both cases that Section 9 exempts the grievant from work scheduling requirements is based on a nonfact.

B. Union's Opposition in Case No. 0-AR-2894

The Union contends that the Agency's exceptions provide no basis on which to find the award in Case No. 0-AR-2894 deficient. The Union argues that the award does not conflict with section 7106(a) of the Statute because section 7131(d) of the Statute carves out an exception to management's right to assign work. The Union also argues that the Agency's contentions that the award fails to draw its essence from the agreement and is based on a nonfact constitute nothing more than disagreement with the Arbitrator's interpretation of the agreement.

VI. Analysis and Conclusions

A. Neither Award Is Contrary to Section 7106(a)(2)(B) of the Statute

The Agency argues without elaboration that by exempting the grievant from a fixed work schedule, the awards impermissibly affect its right to assign work under section 7106(a)(2)(B) of the Statute. As this exception involves the consistency of the award with the Statute, we review the questions of law raised by the exception and the award de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). For the following reasons, we conclude that the awards do not affect management's right to assign work within the meaning of section 7106(a)(2)(B).

The Authority has specifically addressed in two different contexts the relationship between the work of an agency and an employee's performance of representational activities under section 7131(d) of the Statute. In both, the Authority determined that the performance of representational activities does not constitute the "work" of the agency within the meaning of section 7106 of the Statute.

First, in considering the meaning of the technology of performing work under section 7106(b)(1) of the Statute, the Authority has held that performance of representational activities under section 7131(d) does not involve the performance of the work of an agency. American Federation of Government Employees, Council 214, AFL-CIO and Department of the Air Force, Air Force Logistics Command, 31 FLRA 1259, 1261-62 (1988) (use of telephones during the performance of representational activities under section 7131(d) does not involve the technology of performing work within the meaning of 7106(b)(1)); accord Defense Logistics Agency Council of American Federation of Government Employees Locals and Defense Logistics Agency, 32 FLRA 761, 763-64 (1988). Second, in considering proposals for the participation of unit employees as union representatives on joint labor-management committees for the purpose of making recommendations concerning conditions of employment, the Authority has concluded that such participation does not constitute the work of an agency because it does not involve the performance of official, prescribed duties. Accordingly, the Authority has held that such participation does not affect management's right to assign work under section 7106(a)(2)(B). E.g., International Organization of Masters, Mates and Pilots, Marine Division, Panama Canal Pilots Branch and Panama Canal Commission, 51 FLRA 333, 348-49 (1995); National Federation of Federal Employees, Local 1482 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center, Washington, D.C., 44 FLRA 637, 676 (1992).

The Office of Personnel Management (OPM) has also addressed the connection between the work of an agency and performance of representational activities under section 7131(d). In revising part 430 (Performance Management) of title 5 of the Code of Federal Regulations, OPM rejected a suggestion that union officials be granted presumptive ratings of "fully successful." 60 Fed. Reg. 43,937 (1995). OPM concluded that it would be inappropriate to include the performance of representational activities in an appraisal of employee job performance. OPM explained that the appraisal of an employee must be based solely on the performance of work, duties, and responsibilities that accomplish the agency mission and for which the employee is accountable to the employing agency.

Applying these distinctions between the work of an agency within the meaning of section 7106, and the performance of representational activities under section 7131(d), we conclude that the awards in these cases are not contrary to management's right to assign work within the meaning of section 7106(a)(2)(B) of the Statute. To the extent the awards exempt the grievant from maintaining a fixed schedule for official time, this exemption involves time spent on representational duties only. Therefore, the awards do not affect management's right to assign work.

We reach the same conclusion with respect to the scheduling of the grievant's LWOP. Because the grievant does not perform the work of the Agency at any time, the scheduling of LWOP similarly does not affect management's right to assign work within the meaning of section 7106(a)(2)(B).(3) Accordingly, this exception provides no basis for finding either award deficient.

We reject the Agency's reliance on Tinker AFB, which involved the authority of an agency to discipline an employee for her actions while on official time and did not involve the work schedule of a union representative. As set forth in Tinker AFB, management's right to discipline an individual engaged in union activity is linked to whether the individual is an employee of the agency and whether the activity for which discipline was imposed exceeds the bounds of protection under section 7102 of the Statute. Thus, although the union representative in Tinker AFB was on 100 percent official time, she remained an employee of the agency and was subject to discipline by the agency for misconduct that exceeded the bounds of protected activity under the Statute. Consequently, by precluding management from disciplining the employee, the award affected management's right to take disciplinary action under section 7106(a)(2)(A) of the Statute. In contrast, as explained above, management's right to assign work under section 7106(a)(2)(B) is linked to the performance by employees of their official, prescribed duties.

B. Neither Award Is Contrary to a Governing Agency Regulation

An arbitration award that conflicts with a governing rule or regulation is deficient under section 7122(a)(1) of the Statute. The Authority has defined rule or regulation to include both Government-wide rules and regulations and agency rules and regulations. E.g., U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine and National Association of Agriculture Employees, 51 FLRA 1210, 1216 (1996) (citing U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186 (1990)). However, collective bargaining agreements, and not agency rules or regulations, govern the disposition of matters as to which both apply. Id.

In both awards under review, the Arbitrator interpreted Article 9, Section 9 as applying to the work schedule of the grievant. Consequently, the agreement, and not the Agency's regulations and directives, governs the work scheduling matters in dispute in both cases. Accordingly, this exception provides no basis for finding either award deficient.

C. Both Awards Draw Their Essence From the Collective Bargaining Agreement

Relying in both cases on the underlying purposes of Article 9, Section 9, the Arbitrator interpreted that section as a relinquishment by the Agency of its right to specify the grievant's hours of work and an exemption of the grievant from maintaining a fixed work schedule. The Agency has not demonstrated that this interpretation disregards the agreement or is irrational, unfounded, or implausible. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-77 (1990). Accordingly, this exception provides no basis for finding either award deficient. In denying this exception, we reject the Agency's claim that the awards are internally inconsistent. The Agency has not demonstrated that the Arbitrator's acknowledgment that the grievant was required to comply with all provisions of the parties' collective bargaining agreement unless exempted by the agreement is inconsistent with his determination that Article 9, Section 9 exempted her from the hours of work provisions of Article 24.

D. Neither Award Is Based on a Nonfact

An appealing party may not challenge an arbitrator's interpretation and application of a collective bargaining agreement as a nonfact. E.g., American Federation of Government Employees, Local 3302 and U.S. Department of Health and Human Services, Social Security Administration, 52 FLRA 677, 679 (1996). In both cases, the Arbitrator's determination that Article 9, Section 9 exempts the grievant from work scheduling requirements constituted his interpretation of the parties' collective bargaining agreement. As such, it cannot be challenged as a nonfact. Id. at 680. Accord