54:0121(16)AR - - AFGE Local 1557 & VA Regional Office, Denver, CO - - 1998 FLRAdec AR - - v54 p121
[ v54 p121 ]
The decision of the Authority follows:
54 FLRA No. 16
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF VETERANS AFFAIRS
April 30, 1998
Before the Authority: Phyllis N. Segal, Chair; Donald S.
Wasserman and Dale Cabaniss, Members.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Carol J. Zamperini 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 Regulations. The Agency filed an opposition to the Union's exceptions.
The Arbitrator denied a grievance alleging that the Agency violated the parties' local supplemental agreement when it failed to implement compressed work schedules. For the reasons set forth below, we deny the Union's exceptions.
II. Background and Arbitrator's Award
The American Federation of Government Employees (AFGE) and the Department of Veterans Affairs (VA) have a master agreement that provides that local supplemental agreements may "include provisions on all negotiable matters . . . as long as the provisions d[o] not conflict with the [m]aster [a]greement." Award at 3. Consistent with the master agreement, the Union, an AFGE Local, and the Agency, a VA Regional Office, have a local supplemental agreement.
This supplemental agreement contains a provision permitting the implementation of flexible and compressed work schedules.(1) However, in 1985, pursuant to negotiations with AFGE and a decision of the Federal Service Impasses Panel (FSIP), VA issued a nation-wide policy prohibiting the use of compressed work schedules (CWS). VA Personnel Policy Manual (Policy Manual), Chapter 610; Award at 6.(2)
In 1994, the Union and the Agency entered into a partnership agreement pursuant to Executive Order 12871. Subsequently, the regional Partnership Council set up under that agreement determined that the parties would experiment with CWS. It submitted a CWS plan to VA's Under Secretary for Benefits, who denied the request, referring the parties to the earlier FSIP decision. In May, 1995, the Partnership Council again submitted a CWS plan and requested that the Under Secretary reconsider his denial. After several months, the Union was advised that the plan would not be implemented and it filed the instant grievance.
The Arbitrator stated the issue as follows:
In January, 1996, did the [Regional Office] Director and [the Union], have the authority to implement an experimental compressed work schedule, developed by the partnership council; if so, what should be the remedy?
Id. at 3. The Arbitrator found that "Article 4, Section 4 of the Master agreement restricts bargaining at the local level [where] the Agency has met its bargaining obligations at the national level." Id. at 12. The Arbitrator found that the VA's 1984 termination of compressed work schedules, which included bargaining with AFGE and referring the matter to the FSIP, provided such a restriction. The Arbitrator found that this policy change precluded further use of CWS within VA and overrode any supplemental agreement to the contrary. According to the Arbitrator, "[c]learly, Article 4, Section 4, of the National Agreement exercises the control over the local contract anticipated in Section 7114(c)(4) of the [Statute]."(3)
Id. at 13. The Arbitrator also found that there was nothing in Executive Order 12871 that required bargaining on issues that had been bargained or that permitted local unions to circumvent national agreements. The Arbitrator concluded, therefore, that the Agency and the Union did not have the authority to implement the CWS agreement.
III. Positions of the Parties
A. Union's Exception
According to the Union, Article 13, Section 3 of the local supplemental agreement permitted the local parties to experiment with flexible and compressed work schedules during the life of the local agreement. The Union contends that the award is contrary to the Federal Employees Flexible and Compressed Work Schedules Act of 1982, Pub. L. No. 97-221, 96 Stat 227 (codified at 5 U.S.C. §§ 6101 note, 6106, 6120-6133) (the Work Schedules Act), because the Agency never "reopened" the local supplemental agreement to discontinue compressed work schedules. Exceptions at 2.
The Union next contends that the award is contrary to section 7114(c) of the Statute. The Union asserts that VA did not reject the May, 1995, partnership agreement on CWS until January 1996. According to the Union, the Agency did not comply with the section 7114(c) requirement that an agency head disapprove an agreement within 30 days and, therefore, the CWS agreement became valid.
B. Agency Opposition
The Agency asserts that the Regional Office Director did not have the authority to agree to the implementation of compressed work schedules at the local level. The Agency asserts that the exceptions should be denied because the Master agreement, the VA Policy Manual, and specific written denial by the Under Secretary establish that the Regional Office Director and the Union did not have the authority in January, 1996 to implement an experimental compressed work schedule.
IV. Analysis and Conclusions
A. The Award Is Not Contrary to the Work Schedules Act
The Union argues that the award is contrary to the Work Schedules Act, because the Agency never reopened the supplemental agreement to cancel its provision for compressed work schedules. Where a party's exceptions involve an award's consistency with law, the Authority must review the questions of law raised by the Arbitrator's award and the parties' exceptions 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).
The termination of alternate work schedules provided for in a collective bargaining agreement must be effected in accordance with 5 U.S.C. § 6131. 5 U.S.C. § 6130(a)(1); U.S. Environmental Protection Agency, Research Triangle Park, North Carolina and American Federation of Government Employees, Local 3347, 43 FLRA 87, 93 (1991). An agency may terminate an alternate work schedule on finding that it has an "adverse agency impact." 5 U.S.C. § 6131(a). However, where the agency seeks to terminate an alternate work schedule established under a collective bargaining agreement, the agency must reopen the agreement and bargain with the exclusive representative concerning the decision. 5 U.S.C. § 6131(c)(3)(A). If this bargaining reaches an impasse, the parties must present the impasse to the FSIP. 5 U.S.C. § 6131(c)(3)(B).
In this case, the award is not deficient as contrary to the Work Schedules Act. In 1984, VA negotiated with AFGE a national policy that barred establishment of compressed work schedules, which was implemented by a decision of the FSIP. The Arbitrator's findings establish that VA "followed the procedures" for "terminat[ing] or not establish[ing] compressed work schedules" as set forth in the Work Schedules Act. Id. at 12.
Further, the Arbitrator found, and the Union does not dispute, that VA and AFGE have a master agreement that allows local supplemental agreements to "include provisions on all negotiable matters . . . as long as the provisions d[o] not conflict with the [m]aster [a]greement." Id. at 3. As the VA properly imposed a nationwide ban on compressed work schedules pursuant to the master agreement and this agreement controls the terms of local supplemental agreements, the Union has not established that the Agency was required by the Work Schedules Act to separately reopen the local supplemental agreement.
B. The Award Is Not Contrary to Section 7114(c) of the Statute
The Union's claim that the compressed work schedule agreement negotiated by the Partnership Council went into effect when VA did not disapprove it within 30 days pursuant to section 7114(c)(3) of the Statute provides no basis for finding the award deficient.
Section 7114(c)(4) of the Statute provides that an agency and an exclusive representative may negotiate procedures for approving local agreements subject to a higher level controlling agreement. The 30-day approval process of section 7114(c)(1) through (3) only applies to local supplemental agreements by default--if the parties have not adopted a procedure under section 7114(c)(4). American Federation of Government Employees, Local 1301 and U.S. Department of Justice, Federal Bureau of Prisons, 51 FLRA 1294, 1298 (1996).
Here, the Arbitrator found that the parties at the national level exercised the control provided in section 7114(c)(4) of the Statute by negotiating the procedure set forth in Article 4, Section 4, which subjects local agreements to the control of the national agreement. The Arbitrator found that under this procedure, local agreements on compressed work schedules were precluded. The master agreement's preclusion of local agreements on this subject makes further disapproval pursuant to section 7114(c) unnecessary. We find, therefore, that the award is not contrary to section 7114(c) of the Statute.
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. Article 13, Section 3 provides that, "[t]he parties agree that deviations will be made from the regular scheduled tours of duty to experiment with compressed and/or flex tour of duties."
2. Chapter 610, MP-5, Part I provides, in pertinent part:
The Federal Employees Flexible and Compressed Work Schedules Act of 1978 (Pub. L. 95-390, 92 STAT. 755) authorized experimentation with, and evaluation of, flexible and compressed work schedules for a 3-year period. Because of difficulties encountered during the experiment with compressed workweeks, such work scheduling practices are not being authorized within the Department of Veterans Benefits.
3. Section 7114(c)(4) of the Statute provides that, "[a] local agreement subject to a national or other controlling agreement at a higher