54:0891(88)AR - - AFGE, National Council of SSA Field Operations Locals, Council 220 and SSA - - 1998 FLRAdec AR - - v54 p891



[ v54 p891 ]
54:0891(88)AR
The decision of the Authority follows:


54 FLRA No. 88

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

NATIONAL COUNCIL OF SSA FIELD OPERATIONS LOCALS

COUNCIL 220

(Union)

and

SOCIAL SECURITY ADMINISTRATION

(Agency)

0-AR-2912

_____

DECISION

August 31, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

Decision by Member Wasserman for the Authority

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Jerome H. Ross 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 the Union's Motion for Summary Judgment and, in so doing, effectively denied a grievance alleging that the Agency had unilaterally implemented a change in the parties' collective bargaining agreement. The Union claims that the Arbitrator's decision is deficient because it is contrary to law, fails to draw its essence from the parties' agreement, is based on nonfact and is incomplete. The Union also claims that the Arbitrator exceeded his authority.

For the reasons explained below, we conclude that the Union's exceptions fail to establish that the Arbitrator's decision is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.

II. Background and Arbitrator's Award

This case concerns a conflict between a contract provision that pertains to compressed work schedules that was negotiated by the parties pursuant to the Federal Employees Flexible and Compressed Work Schedules Act of 1982 (the Work Schedules Act), 5 U.S.C. §§ 6120 et seq. and 5 U.S.C. § 6103(b)(2) (section 6103(b)(2)), which governs Federal holidays.

Article 10, Appendix A, section 13 of the parties' collective bargaining agreement (National Agreement), provides, as relevant here:

Prior to implementation, the Employer will inform employees of the effect compressed work schedules have on holidays, overtime pay and premium pay (5 CFR 610 and 5 U.S.C. 6120). . . . If the holiday falls on the employee's Monday day off due to the 5/4/9 schedule, the employee would get Tuesday off as "in-lieu-of" holiday.

Agency Exh. 1.(1)

By letter dated September 28, 1994, the Agency notified the Union that its method for designating a day off for employees working a 5/4/9 compressed work schedule was incorrect. Based on a clarification that was sent by the Office of Personnel Management (OPM) to all agency personnel directors, the Agency stated that pursuant to section 6103, the designation of an in-lieu-of holiday for employees on a 5-4-9 work schedule should always be the nearest workday preceding the holiday and never the workday thereafter. Consequently, the Union was advised that it was necessary to correct the language contained in Appendices A and B of the parties' National Agreement to conform with applicable law. The Union was further advised that beginning with the Columbus Day holiday, the mandate of section 6103 would be implemented.

The Union filed a grievance over the Agency's unilateral modification of the National Agreement. When the grievance was not resolved, it was submitted to arbitration on the following issue, as stipulated by the parties:

Whether the Agency implemented changes in the "in-lieu-of" holiday policy, practices or procedures for employees on compressed work schedules in violation of the National Agreement, law, rules or regulations. If so, what is the appropriate remedy?

Decision at 2.

The Union argued before the Arbitrator that the Agency's unilateral change of the compressed work schedules violated the National Agreement and the Statute. According to the Union, the Work Schedules Act provides that all alternate work schedules, including compressed work schedules, are fully negotiable and that a determination of adverse impact must be made prior to their termination. The Union also maintained that any alternate work schedules agreements or contract provisions negotiated under the Work Schedules Act supersede other laws with which they conflict and to which the Work Schedules Act does not refer.

The Agency observed that Article 1, Section 1 of the parties' National Agreement requires that they "be governed by existing or future laws . . . as defined in 5 U.S.C. 71." Id. at 3. The Agency also observed that the Statute does not permit labor organizations to negotiate changes to existing laws or to "negotiate statutory requirements for certain action to be taken or not taken where forbidden by law." Id. Contrary to the Union, the Agency claimed that where the National Agreement conflicts with a statutory requirement, the statute takes precedence.

During the two days of testimony in this case, the parties presented their cases-in-chief. However, at the Arbitrator's urging, it was determined to hold the remaining testimony in abeyance so that the parties could attempt to settle the grievance. Over seven months later, when a settlement had not been reached, the Union filed a Motion for Summary Judgment. In its motion, the Union argued that sufficient evidence had already been presented to enable the Arbitrator to render at least a partial decision on some of the most important issues presented in this case. In its response to the Union's motion, the Agency agreed that the parties had presented their cases-in-chief and requested that the Arbitrator direct the parties to modify the National Agreement so that it would comport with applicable law.

The Arbitrator found that the parties had negotiated the compressed work schedules provisions of their National Agreement pursuant to the authority granted by the Work Schedules Act and consistent with OPM guidance. Nevertheless, the Arbitrator further found that by memorandum dated December 15, 1993, OPM advised all Federal agencies that its prior guidance was incorrect and that section 6103 governs the determination of in-lieu-of holidays.(2)

The Arbitrator noted that section 6103(a) lists the Federal legal holidays and that section 6103(b)(2) provides:

Instead of a holiday that occurs [o]n a regular weekly nonworkday of an employee whose basic workweek is other than Monday through Friday, except the regular weekly nonworkday administratively scheduled for the employee instead of Sunday, the workday immediately before that regular weekly nonworkday is a legal public holiday for the employee.

Id. at 4.

The Arbitrator then noted that the incorrect OPM instruction stated, in relevant part:

When an employee has 3 consecutive nonworkdays off and a holiday falls on one of those nonworkdays, the following rules apply in designating a workday as the "in lieu of" holiday. When the holiday falls on the employee's first nonworkday, the preceding workday is designated as the "in lieu of" holiday. When the holiday falls on the second or third nonworkday, the next workday is designated as the "in lieu of" holiday.

Id. at 4-5.

The Arbitrator pointed out that the OPM instruction was inconsistent with section 6103 because, pursuant to the instruction, when a Federal holiday falls on a Monday which is an employee's second or third nonworkday, the in-lieu-of holiday is designated as Tuesday. However, pursuant to section 6103, the in-lieu-of holiday is designated as Friday.

Upon examination of the Work Schedules Act, the Arbitrator found "nothing . . . which modifies the requirement under 5 U.S.C. 6103(a)(2) that the 'in-lieu-of' holiday be taken on the workday immediately before the Monday at issue. Nor does the Legislative History of the Work Schedules Act indicate that Congress intended to modify [s]ection 6103 in any manner." Id. at 5 (footnotes omitted)(3). In addition, the Arbitrator found that section 6133(a) provides that OPM shall prescribe the regulations necessary for the administration of the program established under the Work Schedules Act. Accordingly, the Arbitrator found that the provision of the National Agreement at issue in this case is contrary to law. As such, he denied the Union's Motion for Summary Judgment.

III. Positions of the Parties

A. Union

1. The Arbitrator's Decision is Contrary to Law

The Union asserts four grounds on which it contends that the Arbitrator's decision is contrary to law. First, the Union argues that the decision is deficient because the Arbitrator erroneously determined that section 6103(b)(2) supersedes the compressed work schedules negotiated by the parties under the Work Schedules Act.

In support of this contention, the Union points out that section 7103(a)(14)(C) excepts from conditions of employment personnel policies, practices, and other matters to the extent that they are "specifically provided for" by Federal statute. However, citing International Association of Machinists and Aerospace Workers, Franklin Lodge No. 2135, et al. and U.S. Department of the Treasury, Bureau of Engraving and Printing, 50 FLRA 677, 681 (1995) aff'd mem. sub nom. Bureau of Engraving and Printing v. FLRA, No. 95-1499 (D.C. Cir. 1996), the Union asserts that "[m]ere reference to a matter in a statute is not sufficient to exclude it from the definition of conditions of employment under section 7103(a)(14)(C)." Exceptions at 7. According to the Union, the statute must "specifically provide for" the matter, and the exception applies only to the extent that it does so. Id.

The Union additionally argues that the legislative history of section 6103(b)(2) reflects that it was not intended to apply to employees who work on compressed work schedules such as those at issue in this case. Rather, the Union asserts it was only intended to apply to employees who regularly worked a 5-day, 40-hour week and were not given a day off from work when a holiday occurred on a Saturday. As the compressed work schedules set forth in Article 10 of the parties' National Agreement are intended to apply to 10-day, 80-hour biweekly work requirements, the Union maintains that the Agency was given the discretion to negotiate a different in-lieu-of holiday. As such, the Union claims that the Arbitrator erred in finding that section 6103(b)(2) superseded Article 10 of the National Agreement.

As a second ground, the Union argues that the Arbitrator's decision is contrary to law because section 6103(b)(2) is not the controlling statute. According to the Union, the Arbitrator misinterpreted the term "notwithstanding" as it is used in sections 6124 and 6127 of the Work Schedules Act and, consequently, concluded that section 6103(b)(2) "was to be left undisturbed by section 6124."(4) Id. at 9. In support of this contention, the Union explains that the legislative history of the Work Schedules Act defines the term "notwithstanding" as meaning "[i]f the requirements of section 6101 conflict with a flexible schedule, those requirements shall be deemed inapplicable." Id. Based on this definition, the Union asserts that it was clearly the intent of Congress to use the term "notwithstanding" to identify circumstances in which alternate work schedules negotiated under the Work Schedules Act supersede the provisions of sections 6101 and 6103(b)(2).

The Union also claims that the Arbitrator's decision is contrary to law because, by granting the Agency's Motion for Summary Judgment, the Arbitrator effectively terminated the parties' existing language regarding compressed work schedules "using the criteria in U.S.C. 7117." Id. at 11. The Union maintains that the Arbitrator's determination to do so was contrary to law because section 7117 does not apply to the termination of alternative work schedules. Rather, the Union submits that this matter is exclusively controlled by sections 6130 and 6131 of the Work Schedules Act.

Lastly, the Union claims that the Arbitrator's decision is contrary to law because it denies the Union an opportunity to bargain over all relevant aspects of the proposed change, in violation of the parties' National Agreement, sections 6130 and 6131 of the Work Schedules Act, and sections 7114 and 7116 of the Statute. According to the Union, the Arbitrator's decision resulted in a bypass of its statutory right to bargain at least the impact and implementation of the Agency's termination of the compressed work schedules negotiated by the parties.

2. The Arbitrator's Decision is Deficient on Other Grounds

In its second exception, the Union argues that the Arbitrator exceeded his authority by disregarding the "plain and specific limitations placed on his authority by the contract and the law." Id. at 17. In this connection, the Union submits that Article 25, section 6 of the parties' National Agreement states that "[t]he arbitrator shall have no power to add to, subtract from, disregard, alter, or modify any terms of th[e] agreement." Id. The Union argues that the Arbitrator's decision violates each of the enumerated contract limitations, as well as the rights provided by the Statute and the Work Schedules Act that have been incorporated into the National Agreement. According to the Union, these provisions required the Agency to provide it with notice and an opportunity to bargain before implementing any change in its compressed work schedule.

The Union maintains as its third exception that the Arbitrator's decision does not draw its essence from the National Agreement because it does not represent a plausible interpretation of the agreement's terms or of the terms of the Statute or the Work Schedules Act. The Union argues that the Arbitrator's decision disregards its statutory and contractual rights to notice and an opportunity to bargain, as specified in the National Agreement and in the "cited laws." Id. at 18. In the Union's view, "[t]hese rights are the very essence of the contract itself[.]" Id.

The Union also contends that the Arbitrator's decision is based on nonfact. In this regard, the Union asserts that the central fact upon which the decision was based was the Arbitrator's "interpretation of the key word 'notwithstanding' found in sections 6122, 6124, and 6127 of the [Work Schedules] Act." Id. at 20. In the Union's view, the Arbitrator misinterpreted this term and gave it a meaning that Congress never intended. The Union claims that but for the Arbitrator's misinterpretation of this term, he would have reached a different result.

Finally, the Union submits that even if the Authority concludes that the Arbitrator correctly determined that section 6103(b)(2) supersedes the Work Schedules Act, his decision remains incomplete. The Union asserts that pursuant to sections 7114 and 7116 of the Statute, and sections 6130 and 6131 of the Work Schedules Act, the Arbitrator was required to order the Agency "to provide the Union with its statutory and contractual bargaining opportunity." Id. at 21. As the Arbitrator failed to do this, the Union claims that his decision is incomplete.

B. Agency

In its opposition to the Union's exceptions, the Agency argues that the Union has failed to assert any valid reason for finding the Arbitrator's decision to be deficient. In particular, the Agency states that the Union has failed to demonstrate that the Arbitrator exceeded his authority, that his decision violates law, rule, or regulation, or that it does not draw its essence from the contract. The Agency therefore submits that the exceptions should be denied.

IV. Analysis and Conclusions

A. The Award Is Not Contrary To Section 6103(b)(2)

In its first exception, the Union challenges the Arbitrator's finding that section 6103(b)(2) supersedes the disputed provisions of the Work Schedules Act. As this exception involves the decision's consistency with law, we must review the question of law raised by the Arbitrator's decision and the Union's exception de novo. U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994).

The legislative history of the Work Schedules Act shows that Congress intended alternative work schedules to be fully negotiable, subject only to the provisions of the 1982 Act itself. S. Rep. No. 365, 97th Cong. 2d Sess. (1982) (hereinafter Legislative History), reprinted in 1982 U.S. Code & Congressional News at 565, 576-77. Consistent with the legislative history, the Authority has held that alternative work schedule provisions are fully negotiable, subject only to the Work Schedules Act or other laws superseding the Act. American Federation of Government Employees, Local 1934 and Department of the Air Force, 3415 ABG, Lowry AFB, Colorado, 23 FLRA 872, 874 (1986) modified as to other matters, National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 333 n.2 (1995).

For example, in Illinois National Guard v. FLRA, 854 F.2d 1396, 1405 (D.C. Cir. 1988) (Illinois National Guard), the court held that a portion of the National Guard Technicians Act, 32 U.S.C. § 709(g)(2), which provides that "[n]otwithstanding . . . any other provision of law, the Secretary concerned may . . . prescribe the hours of duty for technicians[,]" constituted "a narrow exception to the broadly applicable bargaining requirement of the [Work] Schedules Act." The Authority adopted that decision in National Guard Bureau and Adjutant General, State of Pennsylvania, 35 FLRA 48 (1990).

In this case, the language of section 6103(b)(2) provides that when a Federal holiday falls on a Monday, an employee "whose basic workweek is other than Monday through Friday" is required to take the preceding Friday as his or her in-lieu-of holiday.(5) However, a review of the Work Schedules Act, enacted many years later, reveals that it is silent on the matter of in-lieu-of holidays and fails to contain any similar provision. Therefore, the relationship of these two statutes must be ascertained.

A review of the legislative history of the Work Schedules Act discloses nothing that indicates that Congress intended to repeal or amend section 6103(b)(2) at the time that the Work Schedules Act was enacted. To the contrary, the legislative history of section 6124, which addresses flexible schedules and holidays, specifically states that "notwithstanding sections 6103 and 6104 of title 5, United States Code, an employee under a flexible schedule who is prevented or relieved from working on a day designated as a holiday by Federal statute or Executive order is entitled to pay with respect to that day for 8 hours[.]" Legislative History at 573 (emphasis added). By contrast, no similar exception is provided in connection with section 6127, which addresses compressed work schedules such as those at issue here. Rather, the legislative history of section 6127 states that "compressed schedule programs may be used "[notwithstanding section 6101 of title 5, United States Code." Id. at 574 (emphasis added). Accordingly, it is apparent that Congress was aware of the requirements of section 6103 but did not include this exception in section 6127 when it was enacted. As such, we conclude that Congress did not intend to exclude employees on compressed work schedules from the requirements of section 6103.

The regulations implementing the Work Schedules Act are also silent on the subject of in-lieu-of holidays. However, like the statutory mandate of section 6103(b), its implementing regulations, entitled "Determining the holiday" specifically provide:

For purposes of pay and leave, the day to be treated as a holiday is determined as follows:

. . . .

(b) When a holiday falls on a nonworkday outside an employee's basic workweek, the day to be treated as his or her holiday is determined in accordance with sections 6103(b) and (d) of title 5, United States Code, and Executive Order 11582.

5 C.F.R. § 610.202(b)

Despite the statutory mandate of section 6103(b)(2), as well as the requirements set forth in its implementing regulations, OPM provided agencies with inconsistent guidance on which the parties in this case relied. Although OPM is authorized to offer operational guidance and advice on personnel management to other agencies, it is not authorized to create policy that is contrary to law or regulation. OPM also is not an independent source of legal authority. Therefore, we find that the terms of the National Agreement, that were predicated on incorrect guidance received from OPM, did not take precedence over the Government-wide regulation.

Based on the foregoing, we find that section 6103(b)(2) can be harmonized with the Work Schedules Act by reading section 6103(b)(2) as providing a narrow exception to the broadly applicable bargaining requirement set forth in section 6130(a)(1) of the Work Schedules Act. This finding is consonant with the mandate that the duty to bargain does not extend to matters to the extent that they are inconsistent with Federal law.(6) See section 7117 of the Statute. Accordingly, we reject the Union's contention that the Arbitrator's decision is contrary to law.(7)

In reaching this result, we specifically reject the Union's contention that the Arbitrator misinterpreted the term "notwithstanding" as it is used in sections 6124 and 6127 of the Work Schedules Act because the legislative history of section 6122 states that "[i]f the requirements of section 6101 conflict with a flexible schedule, those requirements shall be deemed inapplicable." Exceptions at 9. First, as we have discussed above, section 6122 pertains to the use of flexible work schedules and not compressed work schedules, like those at issue in this case. In addition, it is clear that Congress used the term "notwithstanding" throughout the Work Schedules Act to provide for certain statutory exclusions where it found that such exclusions were required.

We also reject the Union's position that the Agency "terminate[d]" the compressed work schedules of unit employees. E.g. Exceptions at 2. The only aspect of the compressed work schedules the Agency changed concerned in-lieu-of holidays. Therefore, we find the Union's arguments that the Agency was required to follow the procedures set forth in sections 6130 and 6131 of the Work Schedules Act -- which pertain to the termination of alternative work schedules -- to be without merit.

B. The Arbitrator Did Not Exceed His Authority

In its second exception, the Union argues that the Arbitrator exceeded his authority by disregarding the limitations placed on his authority by Article 25, section 6 of the parties' National Agreement which provides that "[t]he arbitrator shall have no power to add to, subtract from, disregard" or otherwise modify the terms of the agreement. Exceptions at 17. According to the Union, the Arbitrator's decision violates this provision, in addition to the rights provided by the Statute that have been incorporated into the National Agreement. In particular, the Union claims that the Agency was required to provide it with notice and an opportunity to bargain over the change in the compressed work schedules prior to its implementation. The Union further claims that the Arbitrator's failure to do so renders his decision incomplete.

The Arbitrator did not interpret the grievance as including the issue of whether the Agency was obligated to bargain over the impact and implementation of the disputed change. In addition, the record shows that this claim was not explicitly raised before the Arbitrator and is, therefore, not properly before us. Accordingly, for the reasons discussed below, we conclude that the Arbitrator did not exceed his authority.

An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. U.S. Department of Defense, Army and Air Force Exchange Service and American Federation of Government Employees, (Worldwide Consolidated Bargaining Union), 51 FLRA 1371, 1378 (1996). Nevertheless, "the Authority, like the Federal courts, will accord an arbitrator's interpretation of a submission agreement and an arbitrator's formulation of the issue submitted in the absence of a stipulation the same substantial deference accorded an arbitrator's interpretation and application of the collective bargaining agreement." Air Force Space Division, Los Angeles Air Force Station, California and American Federation of Government Employees, AFL-CIO, Local 2429, 24 FLRA 516, 518-519 (1986).

In this case, the issue stipulated by the parties was "[w]hether the Agency implemented changes in the "in-lieu-of" holiday policy, practices or procedures for employees on compressed work schedules in violation of the National Agreement, law, rules or regulations." Award at 2. Therefore, it is apparent that the issue, as stipulated, did not specifically concern the Agency's obligation to provide the Union with notice and an opportunity to bargain over the change in the compressed work schedules. In addition, our review of the record shows that this issue was not set forth in the grievance filed with the Agency. Nor does the record show that it was presented to the Arbitrator during the two days of hearings. In our view, the Arbitrator's interpretation of the issue was entirely reasonable, and his decision is directly responsive to the issue as stipulated by the parties. Accordingly, the Arbitrator did not fail to resolve an issue submitted to arbitration.

Accordingly, based on the foregoing, we find that there is no basis on which to conclude that the Arbitrator exceeded his authority. As such, we deny this exception.

V. Decision

The Union's exceptions are denied.

 

APPENDIX

Section 6124 of the Work Schedules Act, entitled "Flexible schedules; holidays" provides, as relevant here:

Notwithstanding section 6103 and 6104 of this title, if any employee on a flexible schedule under section 6122 of this title is relieved or prevented from working on a day designated as a holiday by Federal statute or Executive order, such employee is entitled to pay with respect to that day for 8 hours[.]

Section 6127 of the Work Schedules Act, entitled "Compressed schedules; agencies authorized to use" provides, as relevant here:

(a) Notwithstanding section 6101 of this title, each agency may establish programs which use a 4-day workweek or other compressed schedule.

 




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

1. Article 10, Appendix A of the parties' National Agreement applies to employees who work in the Agency's field offices. Article 10, Appendix B applies to employees who work at the Agency's teleservice centers. The language of Appendix A, Section 13 and Appendix B, Section 4(f) is substantially the same.

2. In this connection, we note that although OPM's December 15, 1993, guidance was specifically drafted to address questions concerning in-lieu-of holidays for employees on 4-day, Monday through Thursday, compressed work schedules, it does state that section 6103(b)(2) takes precedence over guidance from the Federal Personnel Manual "on holidays for employees on compressed work schedules." Attachment to Exceptions at M8. We further note that in correspondence to the Agency dated February 12, 1996, OPM confirmed that its previous guidance extended to employees on 5/4/9 compressed work schedules. See id.

3. Although the Arbitrator cites section 6103(a)(2), it is clear that he intended to cite section 6103(b)(2).

4. Sections 6124 and 6127 of the Work Schedules Act are set forth in the Appendix to this decision.

5. We note that section 6121(5)(a) of the Work Schedules Act defines a compressed work schedule as "an 80-hour biweekly basic work requirement which is scheduled for less than 10 workdays[.]" 5 U.S.C. § 6121(5)(a). We also note that the language of section 6103(d)(2) indicates that section 6103(b) was intended to apply to employees who work on compressed work schedules. We, therefore, conclude that such schedules are encompassed within the meaning of the phrase "basic workweek [that] is other than Monday through Friday . . . ." 5 U.S.C. § 6103(b)(2).

6. In this connection, we specifically reject the Union's assertion that in-lieu-of holidays are not "specifically provided for" as that term is used in section 7103(a)(14)(C) of the Statute and that, as a result, the Agency had the discretion to bargain over this subject. In view of our finding that Congress did not intend s