American Federation of Government Employees, Local 1709 (Union) and United States Department of the Air Force, Dover Air Force Base, Dover, Delaware (Agency)

[ v57 p711 ]

57 FLRA No. 149

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, Local 1709
(Union)

and

UNITED STATES DEPARTMENT OF THE
AIR FORCE, DOVER AIR FORCE BASE
DOVER, DELAWARE
(Agency)

0-AR-3410

_____

DECISION

March 11, 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 Norman J. Stocker filed by the Union under § 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 found that the Agency did not violate the parties' collective bargaining agreement when it denied the grievant's request to be put on an alternative work schedule (AWS).

      For the reasons that follow, we find that the Union has failed to show that the award is deficient under § 7122(a) of the Statute. Therefore, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      The grievant is a civilian employee who works with nine military members in a lab at the Air Force Base. Normal hours in the lab are 0730 to 1600. For 3 years prior to the grievance, he worked an AWS of 0630 to 1500 to fit his coaching schedule for the base basketball team. On August 4, 1999, the grievant asked to continue his AWS for personal reasons to accommodate family needs. The Agency denied the request "due to safety, supervision and mission needs." Award at 5.

      The parties framed the issue before the Arbitrator as follows:

Did the employer violate the labor-management contract when it denied [the grievant's] alternate work schedule request? If so, what shall the remedy be?

Id. at 2.

      Before the Arbitrator, the Union claimed that the Agency violated Article 26, Section 3 of the parties' collective bargaining agreement because that provision requires the Agency to provide an AWS if the employee so elects. The Union also argued that the Agency violated 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, 6120-6133) ("Work Schedules Act" or "Act") because the Agency failed to prove that its mission would suffer an adverse impact but "only responded with unsubstantiated assertions about mission requirements, morale, and safety." Id. at 5. [n1] 

      The Agency asserted before the Arbitrator that the parties' agreement does not require the employer to grant a request for an AWS. It also claimed that the Act does not apply in this case because the parties' agreement does not expressly incorporate the statutory provisions for establishment of an AWS, nor does it require the employer to show an adverse agency impact before disapproving an AWS.

      The Arbitrator denied the grievance. He interpreted the agreement and found it to mean that the Agency is not required to grant requests for an AWS. Rather, he found that under the agreement, the Agency retained the ability to decide whether or not to grant a request for an AWS.

      The Arbitrator also stated that he "personally viewed the work center, and agrees, there are safety concerns if someone is working alone and mission needs." Id. at 6.

      Finally, after finding that the Agency did not arbitrarily deny the grievant's request for an AWS, the Arbitrator stated the following:

In relation to the [Act], [s]ection 6130(a)(2) is clear, "Employees within a unit represented by an exclusive representative shall not be included [ v57 p712 ] within any program under this subchapter except to the extent expressly provided under a collective bargaining agreement between the agency and the exclusive representative."

Id. at 7. The Arbitrator made no further statement or finding in his analysis regarding this provision or any other provision of the Act.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union claims that the award is contrary to the Act. It asserts that the parties' agreement provides for all unit employees' participation in AWS, and contends that under § 6131 of the Act, an agency can terminate an AWS only if the head of an agency finds that a particular flexible or compressed schedule has had or would have an adverse agency impact. The Union claims that the Agency violated the terms of § 6131 and the parties' agreement because it failed to show adverse agency impact within the meaning of that section and because it failed to bargain with the Union concerning the decision not to continue an established AWS.

      The Union also excepts to the award on the ground that the Arbitrator relied on an ex parte communication when he, along with representatives of the Agency, visited the worksite and, according to the Union, did so without the Union's knowledge. Noting the Arbitrator's statement in the award that he "personally viewed the work center, and agrees, there are safety concerns if someone is working alone and mission needs[,]" the Union claims that any information about safety concerns introduced at the worksite prejudiced the Union. Exceptions at 2.

B.     Agency's Opposition

      The Agency claims that the AWS in this case is not subject to the Act. According to the Agency, the parties' agreement is the controlling authority, and the Arbitrator correctly interpreted the agreement provision in concluding that it does not "burden the [A]gency with the adverse agency impact standard found in the Work Schedules Act." Opposition at 6.

      The Agency also contends that the Arbitrator conducted a fair hearing and that the Union's assertion that it lacked knowledge of the Arbitrator's worksite visit is false because the Union was offered the opportunity at the hearing to attend. The Agency also claims that the Arbitrator "swears there were no discussions concerning the subject of the arbitration." Id. at 3.

      Finally, the Agency asserts that in Case No. WA-CA-90383, the General Counsel of the FLRA declined to issue a complaint against the Agency "concerning a similar denial of alternate work schedules, and agree[d] that the issue was `covered by' the labor-management agreement." Id. at 6-7.

IV.     Analysis and Conclusions

A.     The Award Is Not Contrary To Law

1.     Standard of Review

      The Union argues that the award is contrary to the Act. Where a party argues that an award is contrary to law, the Authority must review the questions of law raised by the arbitrator's award and the parties' exceptions de novo. NTEU, Chapter 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 a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.

2     The Award Does Not Violate § 6131 of the Work Schedules Act

      The Union's claim that the award violates § 6131 of the Act is misplaced. Section 6131 states that if an agency finds that a particular flexible or compressed schedule has had or would have an adverse agency impact, the agency shall either decide not to establish that schedule or discontinue its use. [n2]  That is, by its terms, § 6131 applies to actions establishing and discontinuing schedules. Nothing in § 6131 supports a conclusion that it applies to a situation like that in the instant case, where an AWS schedule itself is not discontinued but, instead, its applicability to one employee is at issue. [n3]  [ v57 p713 ]

      As the award does not involve discontinuation of a schedule and involves only the application of a flexible schedule, the relevant provision of the Act to the circumstances here is § 6122(b). Although not raised by the parties, we take this opportunity to address the applicability of § 6122 to the matter before us. [n4]  Under that provision, "subject to the terms of any written agreement" between the parties, an agency may restrict an employee's choice of arrival and departure times or exclude the employee from a flexible schedule like the one in this case if the agency determines that the organization in which the employee works "is being substantially disrupted in carrying out its functions or is incurring additional costs because of" the organization's participation in the flexible schedule.

      Under § 6122(b), therefore, an agency's decision to deny an employee's request to continue to work a flexible schedule is expressly "subject to the terms" of the parties' collective bargaining agreement. [n5]  Since by its terms § 6122(b) makes the standard to be met by an agency subject to the terms of a written agreement, an arbitrator properly looks to the agreement to determine whether an agency has met its obligations.

      Accordingly, we conclude that the award is not contrary to § 6131 of the Work Schedules Act. Therefore, we deny this exception. [n6] 

B.     The Award Does Not Fail To Draw Its Essence From the Parties' Collective Bargaining Agreement

      As noted above in connection with its claim that the award violates the Work Schedules Act, the Union argues that the Agency violated the parties' agreement because it failed to bargain with the Union concerning the decision not to continue an established AWS. Even if we were to construe this as a claim that the award fails to draw its essence from the parties' agreement, such an argument would fail. An award is not deficient as failing to draw its essence from the parties' agreement where the excepting party has failed to establish that the award cannot in any rational way be derived from the agreement; is so unfounded in reason and so unconnected to the wording and purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; does not represent a plausible interpretation of the agreement; or evidences a manifest disregard of the agreement. AFGE, Local 446, 57 FLRA 579 (2001).

      In this case, the stipulated issue before the Arbitrator was whether the Agency violated the parties' agreement when it denied the grievant's flexible schedule request. The Arbitrator found that the Agency met the requirements of the agreement in denying the request. In reaching this conclusion, the Arbitrator interpreted the agreement language that provides, "Employers will work with employees . . . to accommodate and utilize alternate work schedules. . . ." Award at 6. He found that under the agreement, the employer retains the final decision on granting an AWS request. Therefore, the Arbitrator concluded that the Agency did not violate the agreement by denying the request.

      In applying the standard set forth above, we conclude that the award draws its essence from the agreement and, therefore, is not deficient.

C.     The Union Did Not Establish That the Arbitrator Failed to Conduct a Fair Hearing

      The Union claims that the Arbitrator's visit to the worksite was ex parte because it did not have an opportunity to attend the visit or respond to it, and was thereby prejudiced. We construe this claim as a contention that the Arbitrator failed to conduct a fair hearing.

      To establish that an award is deficient on the ground that an arbitrator failed to conduct a fair hearing, a party must demonstrate that the arbitrator refused to hear or consider pertinent or material evidence, or that other actions in conducting the proceeding so prejudiced a party as to affect the fairness of the proceedings as a whole. See AFGE, Local 1668, 50 FLRA 124, 126 (1995). Under this standard, to sustain an assertion that ex parte contact by an arbitrator rendered a award deficient, a party must show that the arbitrator's actions in conducting the proceeding so prejudiced a party as to affect the fairness of the proceedings as a whole.

      The Union has not established on the record either that it lacked prior knowledge of the Arbitrator's visit to the worksite, or that the Arbitrator's actions in conducting the proceeding so prejudiced it as to affect the fairness of the proceedings as a whole. Accordingly, this exception must be denied. See, e.g., United States Dep't of the Navy, Naval Surface Warfare Center, Indian [ v57 p714 ] Head Division, Indian Head, MD, 56 FLRA 848, 850-51 (2000).

V.     Decision

      The Union's exceptions are denied.


APPENDIX

1.     Article 26, Section 3 of the parties' collective bargaining agreement provides in relevant part:

A.     Employers will work with employees (at their election), to accommodate and utilize alternative work schedules.

2.     The Work Schedules Act, 5 U.S.C. §§ 6120 et seq., provides in relevant part:

Section 6121: Definitions

      For purposes of this subchapter--

.     .     .     .
(5)     "compressed schedule" means--
(A)     in the case of a full-time employee, an 80-hour biweekly basic work requirement which is scheduled for less than 10 workdays[.]

Section 6122:     Flexible schedules; agencies authorized to use

      (a)     Notwithstanding section 6101 of this title, each agency may establish, in accordance with this subchapter, programs which allow the use of flexible schedules which include--

(1)      designated hours and days during which an employee on such a schedule must be present for work; and
(2)     designated hours during which an employee on such a schedule may elect the time of such employee's arrival at and departure from work, solely for such purpose or, if and to the extent permitted, for the purpose of accumulating credit hours to reduce the length of the workweek or another workday.

An election by an employee referred to in paragraph (2) shall be subject to limitations generally prescribed to ensure that the duties and requirements of the employee's position are fulfilled.

(b)     Notwithstanding any other provision of this subchapter, but subject to the terms of any written agreement referred to in section 6130(a) of this title, if the head of an agency determines that any organization within the agency which is participating in a program under subsection (a) is being substantially disrupted in carrying out its functions or is incurring additional costs because of such participation, such agency head may-
(1)     restrict the employees' choice of arrival and departure time,
(2)     restrict the use of credit hours, or
(3)     exclude from such program any employee or group of employees.

Section 6130:     Application of programs in the case of collective bargaining agreements

(a)(1)     In the case of employees in a unit represented by an exclusive representative, any flexible or compressed work schedule, and the establishment and termination of any such schedule, shall be subject to the provisions of this subchapter and the terms of a collective bargaining agreement between the agency and the exclusive representative.
(2)     Employees within a unit represented by an exclusive representative shall not be included within any program under this subchapter except to the extent expressly provided under a collective bargaining agreement between the agency and the exclusive representative.
.     .     .     .

Section 6131:     Criteria and review

(a)     Notwithstanding the preceding provisions of this subchapter or any collective bargaining agreement and subject to subchapter (c) of this section, if the head of an agency finds that a particular flexible or compressed schedule under this subchapter has had or would have an adverse agency impact, the agency shall promptly determine not to--
(1)     establish such schedule; or
(2)     continue such schedule, if the schedule has already been established. [ v57 p715 ]
(b)     For purposes of this section, "adverse agency impact" means-
(1)     a reduction of the productivity of the agency;
(2)     a diminished level of services furnished to the public by the agency; or
(3)     an increase in the cost of agency operations (other than a reasonable administrative cost relating to the process of establishing a flexible or compressed schedule).
.     .     .     .



Footnote # 1 for 57 FLRA No. 149

   Relevant provisions of the parties' collective bargaining agreement and the Act are set forth in the Appendix to this decision.


Footnote # 2 for 57 FLRA No. 149

   Under a flexible schedule, an employee may elect different starting and quitting times from a fixed schedule; under a - compressed schedule, an employee may work an 80-hour pay period in less than 10 workdays. 5 U.S.C. §§ 6122(a) and 6121(5)(A), respectively. This case involves only a flexible schedule, since the Agency denied the grievant's request to continue to have starting and quitting times different from the norm.


Footnote # 3 for 57 FLRA No. 149

   Insofar as the Authority's construction of § 6131 in AFGE, Local 1709, 57 FLRA 453 (2001), differs from that here, that aspect of AFGE, Local 1709 will no longer be followed.


Footnote # 4 for 57 FLRA No. 149

   We note that § 6122(b) would not apply in AFGE, Local 1709, because that case involved a compressed work schedule, and § 6122 applies only to flexible schedules.


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