United States, Department of Labor, Washington, D.C. (Agency) and American Federation of Government Employees, Local 12 (Union)

[ v59 p131 ]

59 FLRA No. 25

UNITED STATES
DEPARTMENT OF LABOR
WASHINGTON, D.C.
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 12
(Union)

0-AR-3485

_____

DECISION

September 12, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator M. David Vaughn 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 concluded that the Agency breached the parties' collective bargaining agreement when it unilaterally implemented an automated time and attendance program (ATA). For the reasons that follow, we conclude that the award is not deficient and deny the Agency's exceptions.

II.     Background and Award

      This matter stems from a grievance involving the Agency's decision to implement an ATA program that required employees on a flexible work plan to fill out their time sheets through software rather than manually filling out those time sheets consistent with Article 4, Section 3 of the parties' collective bargaining agreement. [n2]  When the grievance was not resolved, it was submitted to arbitration and the parties stipulated that the issue was, "[d]id the [Agency] violate the Agreement when it unilaterally instituted an automated time and attendance system for bargaining unit employees? If so what shall be the remedy?" Initial Award at 2. The Arbitrator determined that the Agency breached the agreement when it implemented and required use of the ATA in light of Article 4. The Arbitrator rejected an Agency contention that the ATA could be implemented under Article 30 (New Technology), regardless of Article 4, noting that Article 4 directly dealt with employee timekeeping. [n3]  Initial Award at 15. Moreover, the Arbitrator determined that nothing in the parties' agreement allowed the Agency to unilaterally implement the ATA system, and the Agency's decision to do so violated the agreement and the Statute. Id. at 13, 17.

      The Arbitrator directed the Agency to cease and desist from implementing the ATA system and restore the status quo. However, the Arbitrator also determined that the Agency could "continue to make [ATA] available to bargaining unit employees on a voluntary basis," noting that "I am not prepared to deprive employees who prefer such a system [ATA] from continuing that system, so long as it is voluntary." Initial Award at 16, 18.

      Based on this award, the Union sought clarification from the Arbitrator as to how Article 4 could remain viable if employees could choose to proceed [ v59 p132 ] under the terms of Article 4 or use the ATA system. The Union argued that to allow this voluntary use of the ATA system was inconsistent with the Arbitrator's determination that the Agency's unilateral implementation violated the Statute. Union Request for Clarification at 2.

      In response, the Arbitrator stated that the original award limited use of the ATA system only to employees who choose to use it for the purposes of its "keyboard entry, computational, and print-out capabilities. . . ." Clarification of Award at 2. The Arbitrator also, and for the first time, specifically stated that "I do not believe that it is contractually permitted for the [Agency] . . . to utilize their voluntary input to prepare payroll." Id. The Arbitrator explained that his initial award was:

not intended to authorize the [Agency] to make use of the electronic information about unit employees' time and attendance which would come into its possession solely through the voluntary use of ATA by those employees beyond the purposes provided for, and contemplated by, Article 4, Section 3, of the Agreement, as those purposes were interpreted by the Award.

Id.

      After the Arbitrator issued this clarification, the Agency filed exceptions claiming that the original award was modified in that, under the original award, the Agency was not precluded from using this voluntary ATA timekeeping information to process its payroll.

III.     Preliminary Matter - Timeliness of the      Agency's Exceptions

      On April 3, 2002, the Authority issued a Notice and Order to Show Cause. In that Order, the Authority determined that it appeared that the Agency's exceptions were untimely filed.

A.      Positions of the Parties

1. Agency's Response

      The Agency contends that the Arbitrator's subsequent clarification of the original award amounted to an actual modification of that award. Agency Response at 1, citing United States Dep't of the Treasury, IRS, Oklahoma City District, Lawton, Oklahoma, 37 FLRA 775 (1990); United States Dep't of Interior, Bureau of Land Management, Eugene District Office, 6 FLRA 401 (1981)). The Agency argues that under the original award, the Arbitrator determined that employees would use timekeeping procedures under Article 4, Section 3, but would be allowed on a voluntary basis to also use the ATA system. Accordingly, the Agency argues that while the original award did not preclude it from using voluntarily submitted ATA information in performing payroll functions, the modified award does. As such, it argues that the original award was modified on December 14, 2001, and that its exceptions, filed January 14, 2002, are properly before the Authority as they are timely.

2.      Union's Response

      The Union argues that the Arbitrator merely clarified his original award of October 30, 2001, and that as such, the Agency's exceptions are untimely. In this respect, the Union contends that even the Agency concedes that its exceptions relate to the original award. Union's Motion to Strike at 3; Opposition at 20. Moreover, it contends that the Agency "manufactured" its argument pertaining to using voluntary ATA information for its payroll merely to extend the time limits for filing its exceptions. Union's Motion to Strike at 3. Further, it argues that "[t]he use of employee data regarding the employee's time and attendance on ATA is a matter that was `encompassed in the original award'" and thus may not now be excepted to. Opposition at 24 (quoting United States Dep't of the Navy, Mare Island Naval Shipyard, Vallejo, Cal., 52 FLRA 1471, 1475 (1997) (Mare Island)). Additionally, the Union asserts that the original award was not modified, arguing that the Agency was prohibited under the status quo ante remedy from collecting this data for its payroll system. Id. at 4. Finally, the Union contends that the Agency's response to the Authority's show cause order went beyond the scope of that order and should not be considered. Union's Motion to Strike at 2, 3.

B.      Analysis and Conclusions

      Under 5 C.F.R. § 2425.1(b), the time limit for filing exceptions to an arbitrator's award begins on the date the award is served on the filing party. However, where a party seeks clarification of an award from the arbitrator, and the arbitrator in rendering such clarification of the original award actually modifies it, the time limit for filing exceptions to the modified award begins upon service of that award on the excepting party. See Mare Island, 52 FLRA at 1474. In this case, the Authority must determine whether the Arbitrator's opinion of December 14, 2001, simply clarified the October 30, 2001, award or actually modified it in order to determine if the Agency's exceptions were timely filed.

      Upon review, it is clear that the Arbitrator's original award, while purporting to maintain the status quo that existed prior to the Agency's implementation of the [ v59 p133 ] ATA system, nonetheless not only allowed employees to use the ATA system on a voluntary basis, but failed to place any specific prohibition on the Agency's use of data entered into the system. This lack of specific restriction is evidenced by the Union's request to clarify this inconsistency between the Arbitrator's decision to maintain the status quo and his decision to permit voluntary use of the ATA by employees. The Arbitrator remedied this inconsistency in his supplemental award by specifically prohibiting the Agency from using ATA data entered by employees on a voluntary basis for the purpose of processing its payroll. Given this specific alteration, we find that the Arbitrator modified his initial award. As the Agency's exceptions relate solely to the new prohibition set forth in the Arbitrator's supplemental award, we find that the exceptions are timely. [n4] 

IV.     Positions of the Parties

A.      Agency's Exceptions

      The Agency argues that the Arbitrator's award is deficient because it "goes beyond the scope of the matter submitted to arbitration." Exceptions at 7. The Agency contends that the sole issue before the Arbitrator was whether implementation of the ATA system was an alteration to employee timekeeping that violated Article 4, Section 3, and not whether information voluntarily obtained from employees using that system could be used by the Agency to process its payroll. Id. at 8. In this regard, the Agency argues that even the Arbitrator determined that there was a difference between the "front-end" of the ATA system (employee input for timekeeping) and the "back-end" (data accumulated from that input to process payroll). Id. Accordingly, it maintains that the Arbitrator exceeded his authority by denying it the right to use this data for payroll processing given the fact that the grievance was limited solely to the question of employee timekeeping. Id. (citing United States Dep't of the Army, Academy of Health Sciences, Fort Sam Houston, Tex., 34 FLRA 598, 600 (1990) (Health Sciences)).

      Additionally, the Agency argues that the Arbitrator's award is contrary to law because it infringes upon the Agency's right to determine the necessary technology for performing work under § 7106(b)(1) of the Statute. In this regard, the Agency cites Article 30 of the parties' agreement contending that under the language of that Article, "management reserved to itself the right to implement new technology, subject only to the obligation to bargain over adverse effects." Exceptions at 11.

      Moreover, the Agency notes that while the Arbitrator's award, in part, relates to the parties' obligations concerning how employees are to record their time, the Arbitrator's award addressing the use of ATA data voluntarily entered pertains to the Agency's ability to implement and use new technology for payroll processing. Id. As such, the Agency argues that the Arbitrator's decision prohibiting it from utilizing ATA technology in preparing its payroll interferes with its management right to determine technology and must, therefore, be set aside as contrary to law. Id.

B.     Union's Opposition

      The Union argues that the Arbitrator did not exceed his authority because the issue presented pertained to the use of information derived from the ATA system. Opposition at 27.

      The Union also argues that the Agency is merely seeking to have the Authority fashion a different remedy than that imposed by the Arbitrator. Id. It contends that the Arbitrator's determination to reinstate the status quo as a remedy is appropriate and that remedy precludes the Agency from using any ATA data entered by employees including information that the Agency wanted to use for payroll processing. Id. at 31.

      Finally, with respect to the Agency's contrary to law exception, the Union contends that this matter pertains to the "recordation of work time" which is negotiable under § 7106(b)(1) of the Statute and the Flexible and Compressed Work Schedules Act. Opposition at 31, 32 (citing AFGE, AFL-CIO, Local 1760, 8 FLRA 202 (1982)); United States Dep't of Health and Human Services, Region II, N.Y., N.Y., 26 FLRA 814 (1987). Moreover, the Union argues that the Arbitrator's interpretation found Article 30 inapplicable to this matter. Opposition at 33. As such, the Union maintains that the Agency's exception constitutes mere disagreement with the Arbitrator's interpretation of the parties' agreement. Id.

V.     Analysis and Conclusions

A.      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 [ v59 p134 ] awards relief to persons who are not encompassed within the grievance. United States Dep't of the Navy, Naval Base, Norfolk, Va., 51 FLRA 305, 307-08 (1995). Arbitrators do not exceed their authority by addressing any issue that is necessary to decide a stipulated issue, or by addressing any issue that necessarily arises from issues specifically included in a stipulation. SSA, Baltimore, Md., 57 FLRA 181, 183 (2001). Furthermore, in determining whether an arbitrator has exceeded his or her authority, the Authority accords the arbitrator's interpretation of a stipulation of issues the same substantial deference that it accords an arbitrator's interpretation and application of a collective bargaining agreement. Id. Finally, the Authority has consistently emphasized the broad discretion to be accorded arbitrators in the fashioning of appropriate remedies. See United States Dep't of the Interior, United States Geological Survey, Nat'l Mapping Div., Mapping Application Ctr., 55 FLRA 30, 33 (1998); AFGE, Local 916, 50 FLRA 244, 246-47 (1995) (citing AFGE Local 2429, 24 FLRA at 519).

      Here, the Agency argues that the Arbitrator's decision to preclude it from using data voluntarily entered by bargaining unit employees is deficient because this remedy addresses an issue not submitted to arbitration. We disagree.

      In his award, the Arbitrator determined that under Article 4, Section 3, of the parties' agreement, an employee on a flexible work plan would manually fill out a time and attendance form maintained at the employee's desk, sign it, and then at the conclusion of the pay period forward it to the supervisor. Initial Award at 10, 12. Under the new ATA system, however, the Arbitrator determined that the employee would fill in an electronic form that was no longer maintained at the workstation but rather on a computer server. Moreover, the Arbitrator noted that "certain procedural steps, such as signing the completed form and submitting it to the supervisor for certification, have been replaced by new, electronic procedures [i.e., ATA]." Id. at 12.

      Based on these unilateral changes, which the Arbitrator found significant, the Arbitrator determined that implementation of the ATA system constituted a breach of the parties' agreement, and, as such, that an appropriate remedy was to preclude the Agency from further using the ATA system except to allow use by bargaining unit employees on a voluntary basis. Initial Award at 16, 18. As discussed above, the Arbitrator, at the Union's behest, modified this remedy to preclude the Agency from using any data voluntarily entered into the ATA system by bargaining unit employees. Accordingly, the Arbitrator's remedy, restoring the status quo and precluding the Agency's use of this data, reflects the Arbitrator's resolution of the stipulated issue.

      Upon review, given the deference provided an Arbitrator's interpretation of the stipulated issue, the Agency has presented no basis for finding that the Arbitrator exceeded his authority. Accordingly, the Agency has not demonstrated that the award is deficient on that basis.

B.     The Award Is Not Contrary to Law

      When a party's exception challenges an arbitration award's consistency with law, rule, or regulation, the Authority reviews the questions of law raised in the exception and the arbitrator's award de novo. See NFEE, Local 1437, 53 FLRA 1703, 1709 (1998). When applying a de novo standard of review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. Id. at 1710. In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See NTEU, Chapter 50, 54 FLRA 250, 253 (1998).

      For the reasons that follow we conclude that, as the Union asserts, Article 4 of the parties' agreement -- the provision enforced by the Arbitrator -- is enforceable under the Flexible and Compressed Work Schedules Act without regard to management rights under § 7106 of the Statute. [n5] 

      Article 4 concerns the administration of the Agency's alternative work schedules program. See Initial Award at 3; 5 C.F.R. § 610.404 (requiring an agency that authorizes a flexible or compressed work schedule to establish a time-accounting method demonstrating employee's hours of work). The Authority has repeatedly held that the implementation and administration of alternative work schedules is fully negotiable, subject only to the Flexible and Compressed Work Schedules Act (Work Schedules Act) or other laws superseding the Act, and without regard to management rights under the Statute. NTEU, 52 FLRA at 1293; see also AFGE, AFL-CIO, Local 2361, 57 FLRA 766, 767 (2002) (AFGE); NTEU, Chpt. 24, 50 FLRA 330, 332 (1995); AFGE, Local 1934, 23 FLRA 872, 873-75 (1986). [ v59 p135 ]

      The Authority's holding that not only the establishment and termination, but also the implementation and administration, of alternative work schedules is negotiable is consistent with 5 U.S.C. § 6130(a)(1) and (2). [n6]  As plainly worded, this section provides that flexible and alternative schedules and their establishment and termination are subject to collective bargaining; nothing in the provision limits bargaining to establishment and termination of the schedules. The Authority's holding also is consistent with legislative history stating that collective bargaining over these schedules includes their "institution, implementation, administration and termination." S. Rep. No. 365, 97th Cong. 2d Sess. 14-15, reprinted in 1982 U.S.C.C.A.N. (96 Stat.) 576-77. Based on these provisions, the argument that the AWS Act exempts from management rights under the Statute only the establishment and termination of flexible and alternative schedules has been specifically rejected. See Bureau of Land Management, Lakeview District office, Lakeview, Oregon v. FLRA, 864 F.2d 89, 92 (9th Cir. 1988). In rejecting the argument, the court held that "[i]n order for employees to have the flexibility and choice envisioned by the [AWS Act], both the overall contours of the employees' available choices . . .and the manner in which an individual's choice is exercised within those contours, must be subjects included within the terms of the collective bargaining agreement and hence negotiable." Id. at 93 (emphasis in original).

      In sum, because alternative work schedules are fully negotiable within the limits set by the Work Schedules Act, proposals concerning an agency's alternative work schedules program are negotiable without regard to whether they are contrary to the various provisions of § 7106 of the Statute. See AFGE, 57 FLRA at 767; NAGE, Local R1-109, 56 FLRA 1043, 1045 (2001); Space Systems Div., L.A. Air Force Base, L.A., Cal., 45 FLRA 899, 903 (1992); NTEU, 39 FLRA 27, 34 (1991); decision and order on request for reconsideration as to other matters, 40 FLRA 849 (1991), enforced in part, vacated in part, and remanded in part as to other matters, 960 F.2d 1068 (D.C. Cir. 1992), decision and order on remand as to other matters, 45 FLRA 1256 (1992). Consistent with this holding, the Authority has rejected the claim that an arbitration award requiring an agency to bargain over an alternative work schedule is inconsistent with any management right under § 7106, on the ground that such provisions are fully negotiable and enforceable. See United States EPA, Research Triangle Park, N.C., 43 FLRA 87, 92 (1991) (EPA); see also NTEU, Chpt. 24, 50 FLRA at 333 (finding that an award enforcing an AWS provision is not inconsistent with 5 U.S.C. § 5546 because § 5546 is not a law superseding the Work Schedules Act).

      Because the provision at issue in this case is enforceable without regard to the management rights provisions in § 7106 of the Statute, it is not necessary to consider whether it is a permissive provision under § 7106(b)(1). Decision at 11. Accordingly, we deny the Agency's contrary to law exception based solely on the Work Schedules Act.

VI.     Decision

      The Agency's exceptions are denied.


Concurring Opinion of Chairman Cabaniss

      I join the majority in agreeing that the Agency's exceptions should be denied and that the Arbitrator's award should be upheld. However, I reach this result for the reasons I explain below.

      First, in their analysis the majority relies upon the Union's assertion that the provision enforced by the Arbitrator concerns the administration of the Agency's alternative work schedules program and would, therefore, not infringe upon any management right as such a provision is fully negotiable under the Work Schedules Act. However, the Authority has routinely found that issues not raised before an arbitrator are precluded from our review on exception. See 5 C.F.R. § 2429.5; see also AFGE, Local 507, 58 FLRA 578, 579 (2003) (Authority sua sponte reviewed the record and found that Union had not raised issue below); AFGE, 57 FLRA 769 (2002). Here, while the Union's contention was raised before the Authority on exception, a thorough review of the record, including the Arbitrator's original award, fails to show with any specificity that the Union actually raised this claim before the Arbitrator. This is true even though the Union should have been aware of the Agency's assertion that as applied, Article 4 infringed upon a reserved management right. See Initial Award at 15 (Agency's assertion that it had reserved its right to [ v59 p136 ] unilaterally implement new technology pursuant to Article 30.) As such, given our limitations under 5 C.F.R. § 2429.5, I would not entertain the Union's argument on this ground.

      Second, the majority determines that Article 4 "concerns the administration of the Agency's alternative work schedules program" and is, therefore, fully negotiable without regard to any infringement upon a management right under the Work Schedules Act. In reaching this decision, the majority relies on legislative history which states that the Work Schedules Act is intended to include within the collective bargaining process "'the institution, implementation, administration and termination of alternative work schedules." Id., S Rep. No. 365, 97th Cong. 2d Sess. 14-15 (1982), reprinted in 1982 U.S.C.C.A.N. (96 Stat.) 576-77). Reference is also made to Bureau of Land Managment, Lakeview District Office, Lakeview, Ore. v. FLRA, 864 F.2d 89, 92 (9th Cir. 1988). While I concur with the court's decision there that does not mean I concur with the meaning ascribed to it by the majority. In that case the agency had attempted use its § 7106 rights under the Statute to avoid bargaining over two proposals that would have looked solely at the impact upon unit work objectives as the sole criteria for agency approval or disapproval of alternative work schedule requests. The agency argued that its Work Schedules Act bargaining requirements went "only to the implementation and termination of an overall AWS plan and not to the negotiability of specific details of such a plan." Id. In rejecting that argument the court specifically noted that "[t]he difficulty with the [agency's] position is that the very purpose [of this statute] was to limit management's total control over work hours and to give employees some choice." Id.

      I am not convinced, as is the majority, that this court decision provides any guidance one way or the other as to whether the time keeping administration aspects at issue in this case are matters encompassed within the Work Schedules Act and thus not subject to § 7106. The Work Schedules Act does not use the term "administration," rather it is limited to merely the "establishment" or "termination" of a flexible or compressed work schedule. 5 U.S.C. § 6130(a)(1). As I noted in my dissent in Small Business Admin., 54 FLRA 562, 581 (1998), rev'd Eisinger v. FLRA, 218 F.3d 1097 (9th Cir. 2000), vacated and remanded Small Business Admin., 56 FLRA 926 (2000), the Supreme Court has stated that in construing statutes "[w]e do not start from the premise that th[e] language is imprecise. Instead, we assume that in drafting th[e] legislation, Congress said what it meant." United States v. LaBonte, 117 S.Ct. 1673, 1677 (1997). Accordingly, despite the above legislative history, which I note apparently expands the breadth of the Act in a single sentence without explanation, I believe that the Work Schedules Act should be interpreted as written, and its protections confined to those provisions in an agreement that either establish or terminate an alternative work schedules program, to include the specific details of such a program. Therefore, as I would find in agreement with the majority that a timekeeping provision such as Article 4 goes only to the administration of an alterative work schedules program, I would also find that such provision falls outside the protections of the Work Schedules Act and is, accordingly, subject to the invocation of management's rights under § 7106(a) and (b) of our Statute.

      However, as stated earlier, I too would reject the Agency's assertion that the award is contrary to law. In this regard, I would defer to the Arbitrator's interpretation of the contract that Article 4, Section 3 (Timekeeping), not Article 30, was controlling in resolving this issue because Article 4 was directly on point. In this respect, I also note that timekeeping provisions similar to Provision 4 have been found to be fully negotiable as they do not infringe upon a management right, and thus I am not convinced that the Arbitrator's decision to uphold Article 4 infringes upon a management right. See Planners, Estimators and Progressmen Association, Local No. 8, 13 FLRA 455, 455-56 (1983) (finding that timekeeping does not fall within the "methods, and means of performing work" under 5 U.S.C. § 7106(b)). As such, for these reasons, I would find that the award is not contrary to law.



Footnote # 1 for 59 FLRA No. 25 - Authority's Decision

   Chairman Cabaniss' concurring opinion is set forth at the end of this decision.


Footnote # 2 for 59 FLRA No. 25 - Authority's Decision

   Article 4, Section 3 reads:

Section 3. Timekeeping
Serial sign in/sign out sheets showing times of arrival and departure will be used to record and report attendance. Under the serial sign in/sign out method, employees sign their name and record their time of arrival in order, one after the other. When departing from work at the end of the employee's work day, employees again sign their name and record their time of departure in order, one after the other.
In addition to the serial sign in/sign out sheets, individual logs will be located at employees' desks and maintained daily by employees. For each pay period, employees will submit the logs to their supervisors for certification. For each day, total time will be rounded up or down to the nearest fifteen (15) minutes.
Joint Exhibit 1.

Footnote # 3 for 59 FLRA No. 25 - Authority's Decision

   Article 30 reads:

New Technology
Whenever the Department proposes to acquire or implement any mechanical device or system based upon new technology which may adversely impact on employees in the bargaining unit, the Department will notify the Union and when requested, bargain over the adverse effect. Appropriate training for affected employees so as to enable them to maintain their present job status shall be among the principal considerations as part of such bargaining.
Joint Exhibit 1.

Footnote # 4 for 59 FLRA No. 25 - Authority's Decision

   While the Authority will not grant the Union's motion to strike the Agency's response to the Order to Show Cause, as the Agency's reply was responsive to our Order, we will limit our consideration of that response to only matters encompassed within the Authority's Order to Show Cause.


Footnote # 5 for 59 FLRA No. 25 - Authority's Decision

   Although the record does not indicate that the Union raised the Flexible and Compressed Work Schedules Act before the Arbitrator, there was no reason for it to have done so. In this regard, the A