United States Department of Health and Human Services, Centers For Medicare and Medicaid Services, Baltimore, Maryland (Agency) and American Federation of Government Employees, Local 1923 (Union)

[ v57 p704 ]

57 FLRA No. 147

UNITED STATES DEPARTMENT OF HEALTH
AND HUMAN SERVICES, CENTERS FOR
MEDICARE AND MEDICAID SERVICES
BALTIMORE, MARYLAND [n1] 
(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1923
(Union)

0-AR-3407

_____

DECISION

March 6, 2002

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Louis B. Aronin filed by the Agency under § 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 sustained a grievance alleging that the Agency violated the flexiplace provision of the parties' collective bargaining agreement when it denied, in part, the grievant's request to work two days at an alternative duty station (ADS). The Arbitrator ordered the Agency to grant the grievant's request. We conclude that the Agency has failed to establish that the award is deficient. Accordingly, we deny the Agency's exceptions.

II.     Background

      The grievant is employed as a computer specialist at the Agency. Pursuant to Article 10, Section 3.D. of the parties' agreement, on March 17, 2000, he applied for inclusion in the Agency's flexiplace program. [n2]  In the application, the grievant requested to work at an [ v57 p705 ] ADS two days a week--Monday and Friday. On March 30, 2000, the grievant signed a flexiplace agreement detailing his duties, the equipment at his home, and an agreement to develop a work plan with his supervisor. The grievant's supervisor later signed an agreement incorporating the original request, which had been approved for only one day a week. Explaining her basis for not approving an additional day, the supervisor stated, "At this time I do not feel the workload will support two days a week at an ADS." Award at 6-7 (referring to the supervisor's March 30, 2000 response concerning the suitability of the employee's duties for flexiplace work (supervisor's March 30 response)).

      After reviewing the grievant's request and the supervisor's recommendation approving it, the Human Resources Group sent the supervisor a memorandum indicating, among other things, that the grievant met the criteria for inclusion in the flexiplace program. The grievant was approved for one day at an ADS. Thereafter, the grievant filed a grievance which was submitted to arbitration.

      The issue before the Arbitrator was:

Did the [Agency] violate the parties['] Agreement by denying Grievant's request for inclusion in the Flexiplace Program? If so, what is the appropriate remedy?

Award at 2.

      According to the Arbitrator, the parties' agreement provides that "`employees may elect to work . . . [at a] Flexiplace' subject to certain conditions[,]" which he found the grievant satisfied. Id. at 13 (quoting, in part, Article 10, Section 3). Having found that the grievant satisfied these conditions, the Arbitrator then stated that "[t]he satisfaction of the requirement in the Agreement, regarding the employee's official duties being performed at the ADS `without impairment to the mission of the Agency,' is in issue." Id. at 14 (quoting Article 10, Section 3.D.).

      The Arbitrator found that the evidence established that the duties performed by the grievant at the ADS on Mondays and those performed on Fridays at the official duty station were basically the same. The Arbitrator concluded that the duties performed at the ADS on Monday, as approved by the supervisor, did not adversely affect the Agency. He also found that what the grievant did at the office on Friday, which was essentially the same as what he did at the ADS, could not be viewed as having an adverse impact on the Agency's mission. The Arbitrator further stated that "[i]n fact, the sole reason stated, for denying the two days of ADS as requested, had no reference to `impairment to the mission of the Agency.'" Id. (quoting supervisor's March 30 response). According to the Arbitrator, the sole reason given by the supervisor, who had been detailed to the unit only three weeks earlier, for denying one day of the request was that she did not believe the workload would support two days at an ADS.

      The Arbitrator examined Article 10, Section 3.D.3 and stated that under this provision, the Agency could require employees to submit day cards showing what work was accomplished at the ADS, and therefore, could determine if there was sufficient workload to fill 16 hours at the ADS. In addition, the Arbitrator credited the grievant, who "testified that he did not work as a member of a team; was able to deal with co-workers via telephone and e-mail on the two days requested for the ADS; and that it would not impede audits scheduled for later in the year." Id. at 15. The Arbitrator evaluated the second line supervisor's testimony and found that his concern about confidential information being at the ADS was not persuasive because it was an after thought and "was never previously considered." Id. at 16. The Arbitrator found, therefore, "no validity for the inclusion of security documents as a reason" for reducing the grievant's request to one day. Id.

      Having found that the grievant met the basic requirements under the parties' agreement for inclusion in the flexiplace program and that "there was no evidence that [g]rievant's work at the ADS for two days would impair mission accomplishment or that any valid reason existed for the denial of the request," the Arbitrator concluded that the Agency violated the parties' agreement by granting only one day of the grievant's request. Id. (emphasis in award.)

      The Arbitrator further noted that the Agency had made a point in its brief regarding the right to assign employees. [n3]  However, the Arbitrator found that the "controlling vehicle" was not the Statute but the parties' agreement, Article 10, Section 3.D.4, wherein the parties agreed that employees' requests "`that meet the requirements . . . will be approved.'" Id. (quoting Article 10, Section 3.D.4.).

      Accordingly, the Arbitrator sustained the grievance and directed the Agency to grant the grievant's two day request. [ v57 p706 ]

III.     Positions of the Parties

A.     Agency Exceptions

      First, the Agency contends that the award is contrary to management's right to determine its mission under § 7106(a)(1) of the Statute. According to the Agency, the supervisor testified that she could not approve the grievant's flexiplace request for two days per week because "it was mission critical that the [g]rievant be in the office to work with others through brainstorming and daily interaction in developing a new strategy" for a contractor system security initiative. Exceptions at 7. The Agency also contends that the award violates its right to assign work under § 7106(a)(2)(B) of the Statute because it precludes management from exercising its right to determine how many work hours an employee needs to spend on formulating, planning, and working on a project, and affects the employee's availability to assist in such formulating and planning.

      Citing United States Dep't of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 53 FLRA 146 (1997) (BEP), the Agency contends that the award fails to satisfy Prong I of the BEP test because the flexiplace provision in the parties' agreement is not an appropriate arrangement under § 7106(b)(3) of the Statute. According to the Agency, this provision was not negotiated to ameliorate any adverse effects flowing from the exercise of a management right. The Agency asserts that even if Prong I of BEP was satisfied, the award does not satisfy Prong II of BEP because it does not reflect a reconstruction of what management would have done if it had not violated the agreement.

      Second, the Agency contends that the award is based on three nonfacts. The Agency asserts that the Arbitrator erroneously found that the grievant met all of the requirements for participation in flexiplace. According to the Agency, the supervisor never agreed with the grievant on the day or days of flexiplace, under the workplan, and, therefore, the grievant never met the third requirement under Section 3.D.3 of Article 10.

      The Agency next asserts that the Arbitrator erroneously found that granting the grievant two days of flexiplace did not adversely impact its mission. According to the Agency, the Arbitrator found that the "supervisor made no reference to impairment to Agency mission in denying the [g]rievant flexiplace two (2) days per week[.]" Exceptions at 11. The Agency asserts that the supervisor "stated on the flexiplace Workplan . . . that the workload of the [g]rievant would not support two days at an ADS." Id. The Agency refers to testimony in the record which it contends supports its position that impact on the Agency mission was the reason for the supervisor's decision.

      The Agency asserts that the Arbitrator erroneously found that the grievant did not work as a member of a team. The Agency refers to record evidence that it contends demonstrates the grievant worked as a team member.

      Finally, the Agency contends that the award does not draw its essence from the parties' agreement because it does not represent a plausible interpretation of Article 10, Section 3.D.3, cannot in any rational way be derived from this provision, and evidences a manifest disregard of this provision. According to the Agency, nothing in Article 10, Section 3.D.3 requires the supervisor to agree with the employee on the day or days of his request. The Agency asserts that this section allows for discretion on the part of the supervisor to jointly agree with the employee to one or two days.

B.     Union Opposition

      The Union contends that Article 10, Section 3.D does not deny management the right to assign work. The Union further disputes the Agency's contention that the award is based on nonfacts. According to the Union, evidence in the record supports the Arbitrator's finding that the grievant met all of the requirements for participation in the flexiplace program. The Union contends that the Agency "did not present testimony or evidence" that proved the duties listed in grievant's activity log, position description and work plan could not be performed at the ADS two days per week without impairing the Agency's mission. Opposition at 7. The Union contends that the record evidence supports the Arbitrator's finding that the grievant did not work as a team member. The Union further asserts that the memorandum referenced by the Agency in its exceptions as support for its contention that the grievant worked on a team provides no support for finding that the Arbitrator erred.

      The Union contends that the award draws its essence from the parties' agreement.

IV.     Analysis and Conclusions

A.     The Award Is Not Contrary to Law

      The Agency argues that the award is contrary to § 7106(a)(1) and (2)(B) of the Statute. When a party's exception challenges an arbitration award's consistency with law or regulation, the Authority reviews the question of law or regulation raised in the exception and the arbitrator's award de novo. See, e.g., NTEU, Chapter [ v57 p707 ] 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See, e.g., NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. Id.

      Where a party files exceptions alleging that an award violates management's rights under § 7106 of the Statute, the Authority first assesses whether the award affects the rights being relied on. See United States Dep't of Veterans Affairs, Med. Ctr., Coatesville, Pa., 56 FLRA 966, 971 (2000) (VAMC, Coatesville). If the award affects such rights, then the Authority applies the two-prong test set forth in BEP, 53 FLRA at 151-54. See VAMC, Coatesville, 56 FLRA at 971. If the award does not affect the rights, then the BEP analysis is not required and the exception is denied. See id.

1.     The Right to Determine Mission

      The Agency contends that the award violates its right to determine its mission under § 7106(a)(1) of the Statute. In support, the Agency essentially relies on the supervisor's explanation that she could not grant the grievant flexiplace two days per week because "it was mission critical that the [g]rievant be in the office to work with others through brainstorming and daily interaction in developing a new strategy" for a particular Agency initiative. Exceptions at 7. The Agency's arguments, however, do not relate to what the Agency's mission will be, but rather, relate to how that mission will be carried out. See Patent Office Professional Assoc., 56 FLRA 69, 104 (2000) (proposal that did not address hours the Agency was available to the public, but only addressed hours a system for performing work was available to employees, did not affect right to determine mission). Accordingly, we conclude that the award does not affect the Agency's right to determine its mission.

2.     The Right to Assign Work

      The Agency contends that the award directing the Agency to grant the grievant's request to perform his duties at the ADS two days per week violates its right to assign work under § 7106(a)(2)(B) of the Statute because it precludes management from exercising its right to determine how many man hours an employee needs to spend on formulating, planning, and working on a project, and affects the availability of the grievant to assist in such formulating and planning.

      With one exception, the Authority has held that the geographical location where the work of a position will be performed does not involve an assignment of work within the meaning of § 7106(a)(2)(B) of the Statute. See NAGE, Local R1-109, 53 FLRA 526, 535 (1997) and cases cited therein. With respect to the exception, the Authority has stated that, if management establishes that a relationship exists between the job location and the job duties, then a proposal governing the job location would be found to violate management's right to assign work. See id.

      The award in this case concerns the location where work that has previously been assigned by the Agency to the grievant will be performed. The Arbitrator's findings show that the Agency assigned the grievant, a computer specialist, duties to be performed in this position. The award does not concern the assignment of these duties to the grievant. Rather, the award concerns the location, that is the ADS, where these duties will be performed on two days of the week. Also, the Arbitrator's factual findings show that the duties performed by the grievant at the ADS on Mondays, which were approved by the supervisor, and those performed by the grievant on Friday at the official duty station are basically the same.

      Further, the award does not preclude management from exercising its right to determine how many work hours the grievant needs to spend on formulating, planning, and working on a project or prevent the grievant from being available to assist in formulating and planning projects. In this connection, the Arbitrator's factual findings show that the grievant has suspended his use of ADS to attend training programs and to conduct on-site audits and that Article 10, Section 3.D.3, recognizes the Agency's right to require employees to submit day cards showing what work was done at the ADS. Consequentially, the Agency can determine the grievant's activities at the ADS.

      Based on the record, the Agency has not established that the nature of the grievant's job would prevent the grievant from performing his duties at the ADS two days per week as determined by the Arbitrator. Accordingly, we conclude that the award does not affect the Agency's right to assign work.

      As the award does not affect management's right to determine its mission or to assign work, the BEP analysis is not required. See VAMC, Coatesville, 56 FLRA at 971. We therefore find that the award is not contrary to law as alleged. [ v57 p708 ]

B.     The Award Is Not Based on a Nonfact

      To establish that an award is based on a nonfact, the appealing 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. See United States Dep't of the AF, Lowry AF Base, Denver, Colo., 48 FLRA 589, 593 (1993). However, the Authority will not find an award deficient on the basis of an arbitrator's determination of any factual matter that the parties disputed at arbitration. Id. at 594 (citing National Post Office Mailhandlers v. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)). Additionally, "[t]he mere fact that the appealing party disputes an arbitral finding does not provide a basis for finding that an award is based on a nonfact." AFGE, Local 1923, 51 FLRA 576, 579 (1995). These principles appropriately accord deference to an arbitrator's factual findings because the parties have bargained for the facts to be found by an arbitrator chosen by them. See AFGE, Local 2459, 51 FLRA 1602, 1607-08 (1996).

      In the instant case, the matters the Agency asserts are nonfacts--whether the grievant met all the requirements for participation in flexiplace, whether two days of flexiplace adversely impacted the mission of the Agency, and whether the grievant worked as a team member--were disputed by the parties at arbitration. In this regard, the Agency argued that the grievant did not meet the requirements "to be placed in the Flexiplace Program" and disputed the Union's claim that "[g]rievant could perform the work for two days at the ADS without adversely affecting the Agency's mission." Award at 11 and 12. The Union argued that it did "establish that two days of work could be performed at the ADS." Id. at 13. The Arbitrator also considered the parties' arguments concerning whether the grievant was a "team member" and "credit[ed]" the grievant's testimony that he was not a member of a team. Award at 4, 8, and 15.

      The record thus shows that the matters raised by the Agency as nonfacts were disputed by the parties at arbitration. Accordingly, the Agency's exception does not provide a basis for finding the award deficient.

C.     The Award Does Not Fail to Draw Its Essence from the Parties' Agreement

      In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential standard of review that Federal courts use in reviewing arbitration awards in the private sector. See 5 U.S.C. § 7122(a)(2); AFGE, Council 220, 54 FLRA 156, 159 (1998). Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the collective bargaining agreement when the appealing party establishes that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990) (OSHA). The Authority and the courts defer to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. at 576.

      Article 10, Section 3.D.3. provides, in part, that "[e]mployees requesting to work at the ADS on a regular basis and their immediate manager will jointly develop a Workplan." The Arbitrator interpreted Article 10, "Section 3.D.3." and other provisions in Article 10. Award at 15. He evaluated the agreement signed by the grievant and the supervisor and found that the evidence demonstrated there was "no apparent validity to [the supervisor's] basis for confining [g]rievant's work at the ADS to one day rather than two days as requested." Id. The Arbitrator found that the grievant met the eligibility requirements under Article 10, Section 3.D.2. to participate in the program. Accordingly, he determined that the grievant's request met the requirements for approval under Article 10, Section 3.D.4.

      The Agency has not shown that the Arbitrator's interpretation of Article 10 is implausible or irrational or evidences a manifest disregard of the agreement. Consequently, the Agency has not established that the award fails to draw its essence from the parties' agreement.

V.     Decision

      The Agency's exceptions are denied. [ v57 p709 ]


APPENDIX

ARTICLE 10
HOURS OF WORK AND FLEXIPLACE

.     .     .     .

Section 2.     Definitions

.     .     .     .

H.     Flexiplace

Flexiplace is a voluntary program which enables an employee to work at an Alternative Duty Station (ADS) with management approval. An Alternative Duty Station may include an employee's residence or other designated location.

Section 3.     Work Options

Subject to the terms of this Agreement, all employees may elect to work flexitime, credit hours, an alternative work schedule and/or flexiplace.

.     .     .     .

D.     Flexiplace

1.     Requests
Employees will have the option at or prior to the beginning of any calendar quarter to request to perform work at an Alternative Duty Station (ADS) on a regularly scheduled basis. Employees may also request at anytime to work at an ADS on an irregular basis (episodic) to work on a specific assignment(s).
2.     Eligibility
All employees who meet the following criteria are eligible to participate in Flexiplace.
a.     The employee is in good standing and is not on a Performance Assistance Plan (PAP) or Performance Enhancement Plan (PEP).
b.     The employee is not on leave restriction.
c.     The employee is not in a probationary period or formal training status (formal training status does not include the normal progression of an employee through a career ladder.
d.     The employee's official duties can be performed, either in whole or in part, at the ADS without impairment to the mission of the Agency.
e.     The employee has the work space, utilities, equipment and reference materials suitable for the work to be performed at the designated ADS as specified in the Flexiplace Program Agreement (see Exhibit 1).
f.     The employee is willing to sign and abide by the Flexiplace Program Agreement.
3.     Workplan
Employees requesting to work at the ADS on a regular basis and their immediate manager will jointly develop a Workplan (Exhibit 2). Such Workplan will be developed within 10 workdays of the request and may be reviewed monthly (or as needed). The Workplan should include the following:
--     the employee's overall assignments (whether working at the office or ADS), including establishing any necessary priorities.
--     an inventory of necessary equipment and/or resource material(s).
--     the scheduled day or days the employee will be performing work at the ADS. On a case-by-case basis, the employee and manager may mutually agree to change the established schedule to meet ad hoc needs.
Employees may be required to submit a day card after his or her work at the ADS before the end of the pay period. The day card can be informal in nature at the employee's design. It should include the employee's name, date, and generally show the activities/accomplishments on his or her work at the ADS.
4.     Approval
Employee requests that meet the requirements of Section 3.D.2 and 3. above and the core day requirements will be approved. Managers may approve ADS requests which depart from the core day requirements to meet special circumstances, or needs of the employee or the office.



Footnote # 1 for 57 FLRA No. 147

   The caption of this case has been changed to reflect the current name of the Agency.


Footnote # 2 for 57 FLRA No. 1