U.S. Department of the Air Force, Seymour Johnson Air Force Base, North Carolina and National Association of Government Employees, Local R5-188

[ v55 p163 ]

55 FLRA No. 27

U.S. DEPARTMENT OF THE AIR FORCE
SEYMOUR JOHNSON AIR FORCE BASE
NORTH CAROLINA
(Agency)

and

NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R5-188
(Union)

0-AR-2980

_____

DECISION

January 28, 1999

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

Decision by Chair Segal for the Authority.

I. Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Claude R. Wolfe 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. The Union filed an opposition to the Agency's exceptions.

      The Arbitrator determined that the Agency violated the parties' collective bargaining agreement when it reduced the number of guaranteed work hours for certain employees. He ordered the Agency to cancel the reduction in hours, and to make whole the affected employees.

      For the reasons set forth below, we conclude that the award is not deficient under section 7122(a) of the Statute. Accordingly, we deny the Agency's exceptions.

II. Background and Arbitrator's Award

      The Agency employs "regular" employees, who have a guaranteed number of work hours per week, and "flexible" employees, who have no guaranteed work hours and are scheduled to work as needed. Award at 3. The Agency reduced the number of guaranteed hours for 17 regular employees. The Union grieved these reductions, and when the parties failed to resolve the issue informally, the Union invoked arbitration.

      At arbitration, the Arbitrator stated that the issue was whether the Agency's reduction in the number of work hours of the regular employees violated Article XII, Sections 6 and 7 of the parties' collective bargaining agreement. [n1]  The Arbitrator interpreted the parties' agreement as requiring the Agency to determine that fewer hours of work are needed at the activity as a whole before it may reduce the hours of work of regular employees. Based on his finding that the total number of work hours at the activity remained constant before and after the reduction in the regular employees' hours, the Arbitrator concluded that the Agency's reduction in regular employees' hours violated Article XII, Section 7(a) of the parties' agreement. Based on his finding that the Agency failed to reduce the hours worked by flexible employees before reducing regular employees' hours, the Arbitrator concluded that the Agency violated Article XII, Section 7(b).

      As a remedy, the Arbitrator directed the Agency to cancel the reduction in guaranteed hours for regular employees, to restore the guaranteed hours to those employees, and to make whole the 17 regular employees for loss of wages and other contractual benefits that resulted from the reductions.

III. Positions of the Parties

A. Agency's Exceptions

      The Agency argues that the award fails to draw its essence from sections 7(a) and (b) of the parties' agreement.

      With regard to section 7(a), the Agency asserts first that the Arbitrator's interpretation of that section is implausible in light of management's reservation of the right to assign work in Article III of the agreement. [n2]  Second, the Agency contends that, contrary to the Arbitrator's interpretation, section 7(a) requires only that the [ v55 p164 ] Agency determine that fewer hours are needed of the individual employee whose hours are reduced, not that fewer hours are needed at the activity as a whole. Third, the Agency asserts that the wording of section 7(a) is taken from paragraph 1.8.12.2 of Air Force Manual (AFMAN) 34-310, which the Agency states addresses only situations where fewer hours are routinely required of an individual employee. [n3]  According to the Agency, because there is no indication that a different meaning was intended for section 7(a), the Arbitrator's interpretation of it is implausible.

      With regard to section 7(b), the Agency argues that it does not follow from the fact that the total number of work hours remained constant before and after the reduction, that the employer did not reduce the number of hours worked by flexible employees. According to the Agency, because the award is "based on a non sequitur," it is not a rational and plausible interpretation of the agreement. Exceptions at 6.

      The Agency also claims that, as to section 7(b), the award is based on a nonfact. In particular, the Agency asserts that the Arbitrator erred in finding that hours worked by flexible employees were not reduced. According to the Agency, that was the central fact underlying the award.

      The Agency asserts that the award is contrary to regulation, because it conflicts with AFMAN 34-310. Additionally, the Agency contends that the award is deficient because it interferes with its right to determine its mission and abrogates its right to assign work. [n4]  The Agency maintains, in this regard, that the Arbitrator's failure to determine whether sections 7(a) and (b) were enforceable under Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309, 313-14 (1990) (Customs Service) requires that the award be vacated. The Agency alleges that the total number of hours worked at the activity is dictated by regulation, [n5]  and argues that "[i]f the [A]rbitrator's view of section 7(a) is accurate, then the Employer's right to reduce an employee's guaranteed hours is no longer the Employer's right in any meaningful sense, because by linking it to total hours worked, it too becomes dictated by regulation." Exceptions at 3.

B. Union's Opposition

      As a preliminary matter, the Union objects to the Agency's submission to the Authority of two Agency regulations: AFI 34-701 and AFMAN 34-310. According to the Union, these documents were not submitted to the Arbitrator.

      The Union contends that the Agency's arguments regarding sections 7(a) and 7(b) do not demonstrate that the award is deficient. In particular, the Union claims that the Arbitrator's award draws its essence from these sections, and that the award is not based on a nonfact. In addition, according to the Union, section 7 merely sets out the circumstances under which a reduction in guaranteed hours will be carried out and, as such, "has nothing to do with assigning work[.]" Opposition at 4.

IV. Preliminary Matter

      The regulations challenged by the Union as not properly before the Authority were submitted by the Agency as support for its exceptions that the award is contrary to law and regulation. Section 2425.2(b) of the Authority's regulations provides that an exception to an arbitration award must contain evidence and rulings supporting the exception, as well as legible copies of pertinent documents. Thus, if the Agency's exceptions are properly before the Authority, the copies of the disputed regulations were properly submitted also. See, e.g., American Federation of Government Employees, Local 1151 and U.S. Department of Veterans Affairs, 54 FLRA 20, 25 (1998) (union failed to support its exception that award violated agency regulation because union failed to supply copy of agency regulation).

      The Union does not claim that the Agency's exceptions are not properly before the Authority. Accordingly, we will consider the copies of the regulations submitted by the Agency in support of its exceptions. [ v55 p165 ]

V. Discussion

A. The award draws its essence from Article XII, Section 7(a) of the parties' agreement.

      Article XII, section 7(a) of the parties' agreement, set forth supra note 1, addresses reductions in guaranteed hours "[w]hen the [Agency] determines that less hours are required routinely each week[.]" The wording of AFMAN 34-310, set forth supra note 3, from which the Agency contends the language of section 7(a) is derived, is virtually identical. The Arbitrator interpreted Article XII, section 7(a) as prohibiting the Agency from reducing guaranteed hours unless the Agency determined that fewer hours were required at the activity as a whole. Although the Agency contends that it is required only to determine that fewer hours are required of the individual employees whose hours are reduced, the Agency has not shown that the Arbitrator's interpretation of section 7(a) is irrational, implausible, or unconnected to the wording of the agreement.

      With regard to section 7(b) of the parties' agreement, the Agency claims that "it certainly does not follow from the fact that the [Agency] redistributed a constant number of total hours, that the [Agency] did not reduce hours worked by flexible employees." Exception at 5. The Agency asserts, in this regard, that it did reduce the hours of flexible employees. The Agency's claim that the award fails to draw its essence from section 7(b) is, in effect, a restatement of, and depends on, its assertion that the award is based on a nonfact, which is addressed below. The Agency's argument does not demonstrate how the Arbitrator's interpretation is irrational, implausible, or unconnected to the wording of the agreement.

      In these circumstances, the Agency's exceptions do not demonstrate that the award fails to draw its essence from Article XII, Section 7 of the parties' agreement, and we deny the exceptions. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 576 (1990).

B. The award is not based on a nonfact.

      To establish that an award is based on a nonfact, the excepting party must demonstrate that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993). However, the Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties disputed at arbitration. Id. at 594 (citing Mailhandlers v. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)). As the parties clearly disputed before the Arbitrator whether the Agency had reduced the hours of flexible employees, the Agency's exception does not provide a basis for finding the award deficient. Accordingly, we deny this exception.

C. The award is not contrary to law.

      The Agency's assertions that the award is inconsistent with an Agency regulation, that the Arbitrator failed to follow Authority precedent, and that the award interferes with management's right to determine its mission under section 7106(a)(1) of the Statute and abrogates its right to assign work under section 7106(a)(2)(B), involve the award's consistency with law. Accordingly, we review the questions of law raised by these assertions and the Arbitrator's award de novo. See 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)).

      In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law, based on the arbitrator's underlying factual findings. National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998) (Army Research). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id. An arbitrator's failure to apply a particular legal analysis "does not render [an] award deficient because, . . . in applying the standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with law[.]" American Federation of Government Employees, National Border Patrol Council and U.S. Department of Justice, U.S. Immigration and Naturalization Service, United States Border Patrol, 54 FLRA 905, 910 n.6 (1998) (Border Patrol) (emphasis in original).

1. The award is not inconsistent with a governing Agency regulation.

      An award is deficient if it is inconsistent with a "governing" agency regulation. 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, 192 (1990). However, collective bargaining agreements, rather than agency-wide regulations, govern the disposition of matters to which they both apply. See, e.g., U.S. Department of the Navy, Naval Training Center, [ v55 p166 ] Orlando, Florida and International Union of Operating Engineers, Local 673, 53 FLRA 103, 108-109 (1997).

      The Agency argues that AFMAN 34-310, an agency-wide regulation, governs this dispute, and that the award conflicts with that regulation. The Arbitrator based his award on Article XII, Sections 6 and 7 of the parties' agreement, provisions that he found applicable to the instant dispute. Even assuming that AFMAN 34-310 is relevant to the instant dispute, the collective bargaining agreement governs the disposition of this matter. Id. Any alleged inconsistency between the agency regulation and the award does not provide a basis for vacating the award, because the award is based on the parties' agreement, and the agreement -- not the regulation -- governs the matter. Thus, the Agency's exception does not provide a basis for vacating the award and we deny this exception.

2. The award is not inconsistent with Authority precedent.

      The Agency alleges that Authority precedent, specifically U.S. Department of the Air Force, Air Logistics Center, Warner Robins Air Force Base, Georgia and American Federation of Government Employees, Local 987, 41 FLRA 1304, 1307 (1991) (Warner Robins), requires an arbitrator to undertake the analysis set forth in Customs Service whenever the arbitrator is faced with a contention that a contract provision is inconsistent with management's rights under section 7106(a) of the Statute. Because the Arbitrator enforced Article XII, section 7(a) of the parties' agreement without expressly conducting a Customs Service analysis, the Agency contends that the award is deficient as contrary to Authority precedent.

      In Warner Robins, the arbitrator refused to enforce a contract provision based on its conflict with a management right. The Authority subsequently determined that the provision was enforceable as an arrangement, and held that the award was deficient. The Authority stated, in this regard, that a "Customs Service analysis is required in cases where an arbitrator is faced with a contention that a provision . . . is inconsistent with management's rights under section 7106(a) of the Statute." 41 FLRA at 1307.

      As noted above, in applying the standard of de novo review, the Authority will not find an award deficient solely because the arbitrator failed to apply a particular legal analysis. See Border Patrol, 54 FLRA at 910 n.6 (arbitrator's failure to conduct SSA analysis did not render the award deficient). Under de novo review, the Authority determines whether an arbitrator's legal conclusions are consistent with the applicable standard of law, based on the arbitrator's findings of fact. See Army Research, 53 FLRA at 1710. That is, it is necessary for the Authority to determine whether the award is consistent with the underlying law to which the analysis applies -- here management's rights -- and if the record is not sufficient to make that determination, to remand the award. See id. To the extent that the above-quoted statement from Warner Robins implies that an arbitrator's failure to describe, in the award, a particular legal analysis -- standing alone, and apart from whatever conclusion the arbitrator reaches -- can render an award deficient, it is inconsistent with Border Patrol, and we will no longer follow it.

      Consistent with the foregoing, the Agency's contention that the Arbitrator's failure to describe a Customs Service analysis does not provide a basis for finding the award deficient. As set forth below, we resolve the Agency's management rights arguments on the merits.

3. The award is not contrary to management's rights under section 7106(a) of the Statute.

      The Authority's framework for resolving exceptions alleging that an award violates management's rights under section 7106 of the Statute is set forth in U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and National Treasury Employees Union, Chapter 201, 53 FLRA 146, 151-54 (1997) (BEP). Under prong I of this framework, the Authority examines whether the award affects a management right under section 7106(a) and, if it does, whether the award provides a remedy for a violation either of an applicable law, within the meaning of section 7106(a)(2) of the Statute, or of a contract provision that was negotiated pursuant to section 7106(b) of the Statute. Id. at 153. Under prong II of the BEP framework, the Authority considers whether the arbitrator's remedy reflects a reconstruction of what management would have done if management had not violated the law or contractual provision at issue. Id. at 154.

a. The award does not affect management's right to determine its mission, but does affect management's right to assign work.

      The Agency cites National Labor Relations Board Union, Local 21 and National Labor Relations Board, Washington, D.C., 36 FLRA 853 (1990) (NLRBU) for the proposition "that the decision by management as to when its facilities will be open to the public for the purpose of conducting business is directly linked to the agency's mission." Exceptions at 4. In NLRBU, the Authority held that a proposal establishing the hours in which an agency is open to the public affects "management's right . . . to determine the mission of th[e] agency because it restricts management's decision as to when the agency will be available to the public to provide those services." 36 FLRA at 857. [ v55 p167 ]

      The award in this case does not preclude the Agency from determining when its facilities will be open to the public, or from making any other determinations regarding its mission. The award requires only that the Agency determine that reduced hours are necessary at the activity as a whole before it reduces the guaranteed hours of regular employees. Thus, the award does not affect the Agency's right to determine its mission under section 7106(a)(1), and we deny this exception.

      An agency's right to assign work under section 7106(a)(2)(B) of the Statute includes the authority to determine the particular duties to be assigned, when work assignments will occur, and to whom or what positions the duties will be assigned. See American Federation of Government Employees, Local 3392 and U.S. Government Printing Office, Public Documents Distribution Center, Pueblo, Colorado, 52 FLRA 141, 143 (1996). As interpreted by the Arbitrator, Article XII, Section 7 of the parties' agreement prevents the Agency from reducing the guaranteed hours of existing regular employees unless the Agency first: (1) reduces the number of hours worked at the activity as a whole and (2) reduces the number of hours worked by flexible employees. Effectively, under this provision, if the Agency wishes to assign more work to flexible employees, then the Agency must maintain the number of guaranteed hours that it assigns to regular employees. Additionally, if the Agency wishes to reduce the overall amount of work performed at the activity, then it must reduce the number of hours assigned to flexible employees before it may reduce the number of hours assigned to regular employees. As the provision affects management's right to determine the individuals to whom duties will be assigned, as well as the amount of work to be assigned those individuals, it affects management's right to assign work under section 7106(a)(2)(B) of the Statute.

b. The award does not abrogate management's right to assign work.

      A contract provision negotiated under section 7106(b)(3) satisfies Prong I of BEP. Under the framework used to determine whether a provision was negotiated under section 7106(b)(3), which is set forth in Customs Service, a provision is found to have been negotiated under section 7106(b)(3) if it constitutes an arrangement that does not abrogate the exercise of a management right. 37 FLRA at 313-14.

      The Agency explicitly argues, and the Union does not dispute, that the analysis set forth in Customs Service, 37 FLRA 309, is the proper framework for assessing the award in this case. Under Customs Service, the Agency argues only that the award abrogates its right to assign work. Accordingly, under Prong I of BEP, we address only that issue.

      A provision abrogates management's rights if the provision, as interpreted and applied by the arbitrator, "precludes an agency from exercising[] a management right[.]" Customs Service, 37 FLRA at 314. As interpreted by the Arbitrator in this case, Article XII, section 7 precludes the Agency from reducing the guaranteed hours of regular employees unless the Agency reduces the hours worked at the activity in general and by flexible employees in particular. Section 7 does not preclude the Agency from assigning, or not assigning, work to regular or flexible employees, and does not prevent the Agency from determining the overall number of hours of work to be assigned. Section 7, as interpreted and applied by the Arbitrator, does not preclude the Agency from exercising its right to assign work. Thus, the award does not abrogate management's right to assign work under section 7106(a)(2)(B) of the Statute.

      Consistent with the foregoing, we conclude that section 7, as interpreted and applied by the Arbitrator, was negotiated under section 7106(b)(3) of the Statute. As such, the award satisfies Prong I of BEP.

      With regard to Prong II of the BEP framework, the Arbitrator ordered the Agency to cancel the reduction in guaranteed hours for regular employees, to restore the guaranteed hours that these employees previously enjoyed, and to make them whole for loss of wages and other contractual benefits lost by virtue of the reductions. This reflects a reconstruction of what the Agency would have done if it had not violated Sections 7(a) and (b) because it both reinstates the working conditions that would have existed if the Agency had not violated the agreement and compensates employees for the loss resulting from the violation. Thus, the award satisfies prong II of BEP.

      As the award satisfies both prongs of BEP, it is not deficient as inconsistent with management's right to assign work, and we deny this exception. [n6] 

VI. Decision

      The Agency's exceptions are denied.






Footnote # 1 for 55 FLRA No. 27

   Article XII, Section 6(a) of the parties' agreement provides, in pertinent part:

Regular employees will have an established basic workweek (guaranteed specified number of hours between 20- 40). . . . The Employer agrees not to reduce the number of guaranteed hours . . . unless the procedures and criteria for reducing guaranteed hours are followed, as listed in Section 7 . . . .

Article XII, Section 7 provides, in pertinent part:

(a) When the Employer determines that less hours are required routinely each week, and the only way to accomplish this requirement is to reduce an employee's guaranteed hours, action will be taken to make the required changes as set forth in this section.
(b) . . . [T]he Employer agrees that hours worked by Flexible employees shall be reduced before the Employer will consider reducing guaranteed hours of a Regular category employee in the same work section.

Footnote # 2 for 55 FLRA No. 27

   Article III, Section 1(b)(2) of the parties' agreement provides, in pertinent part, that management officials retain the right "to assign work . . ., and to determine the personnel by which Employer's operations shall be conducted[.]" Attachment 9 to Exceptions.


Footnote # 3 for 55 FLRA No. 27

   AFMAN 34-310, paragraph 1.8.12.2, "Reduction in Guaranteed Hours," provides, in pertinent part:

When a supervisor determines that less hours are required routinely each week, and the only way to accomplish this requirement is to reduce an employee's guaranteed hours, proper action will be taken to make the required changes. Guaranteed hours must not be reduced solely to avoid payment of benefits, or to provide more hours for other employees. . . .

Footnote # 4 for 55 FLRA No. 27

   The Agency also argues that the Arbitrator's interpretation of section 7(a) is implausible because it would mean that the Agency waived its management rights in the agreement. We construe this as a restatement of the Agency's management rights argument, and we do not address it separately.


Footnote # 5 for 55 FLRA No. 27

   The Agency cites Air Force Instruction (AFI) 34-701, paragraph 7.10, which requires the Agency to "[p]rovide as [sic] program of sufficient size and scope to support the mission of the installation." Exceptions at 3.


Footnote # 6 for 55 FLRA No. 27

   As part of its management rights exception, the Agency argues that the number of hours worked at the activity is dictated by regulation, not by management. In support of this, the Agency cites AFI 34-701, paragraph 7.10, which requires the Agency to "[p]rovide a program of sufficient size and scope to support the mission of the installation." Exceptions at 3. The Agency contends that the Arbitrator's award, by "compel[ling] the Employer to schedule and assign the grievants . . . to more hours per week than the Employer determines is appropriate based on the needs of the [activity]," abrogates management's right to assign work, and conflicts with AFI 34-701. Id. However, as discussed above, the award does not abrogate this management right, and the Agency does not otherwise indicat