United States, Department of Health and Human Services, Food and Drug Administration, Atlanta, Georgia (Agency) and National Treasury Employees Union (Union)

[ v59 p528 ]

59 FLRA No. 87

UNITED STATES
DEPARTMENT OF HEALTH
AND HUMAN SERVICES
FOOD AND DRUG ADMINISTRATION
ATLANTA, GEORGIA
(Agency)

and

NATIONAL TREASURY
EMPLOYEES UNION
(Union)

0-AR-3723

_____

DECISION

December 19, 2003

_____

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

I.     Statement of the Case

      This case is before the Authority on exceptions to an award of Arbitrator Jack Clarke 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.

      For the following reasons, we deny the Agency's exceptions.

II.     Background and Arbitrator's Award

      As relevant herein, the Union filed a grievance alleging that the Agency violated Article 25, Alternative Work Schedules, of the parties' collective bargaining agreement by requiring employees on flexible schedules to establish estimated times of arrival and to call in to their supervisors if they were going to vary from those times. [n2]  The grievance was not resolved and was submitted to arbitration.

      The Arbitrator stated: "The stipulated issues raised by the merits of the grievances are whether the Agency violated Article 25 of the . . . Agreement and, if so, what shall be the remedy." Award at 21. With respect to the question of whether the Agency had the right to require employees to estimate their time of arrival at work, the Arbitrator found that, under Article 25, the Agency "may condition approval" of an employee' request for an alternative work schedule (AWS) "on the employee's providing the times at which she/he expects to arrive for and leave work." Id. at 22. The Arbitrator also found that Article 25 authorized employees electing to work an AWS "to list arrival and departure times as bands of time." Id. at 23. However, the Arbitrator found that, with certain specified exceptions, Article 25 prohibited the Agency "from insisting or requiring employees to call in if they expect to arrive at work more than one hour after the time shown on their AWS schedule." Id. at 24. Specifically, the Arbitrator cited Section 9.E. of Article 25, which provides that an employee is not tardy until the beginning of the core hours.

      Consequently, the Arbitrator concluded that, by requiring employees to state specific hours of arrival and departure and to call in if they would arrive more than an hour after the stated time, the Agency violated Article 25. As a remedy, the Arbitrator ordered the Agency to apply Article 25 in a manner consistent with the interpretation of that provision set forth in his award and to cease and desist from acting in a manner that is inconsistent with that interpretation.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency notes that, under Authority precedent, matters pertaining to alternative work schedules, such as the flexible schedules involved herein, are fully negotiable and enforceable under the Statute, insofar as consistent with 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) (the Work Schedules Act), and notwithstanding management's rights under § 7106 of the Statute. The Agency argues, however, that Authority precedent contains an exception to the negotiability and enforceability of contractual provisions concerning AWS. Specifically, the Agency contends, Authority AWS precedent limits this exclusion from management's [ v59 p529 ] rights to only those matters that are "integrally related to" the institution, implementation, administration, or termination of an AWS. See NTEU, Atlanta, Ga., 32 FLRA 879, 882 (1988). According to the Agency, work schedule matters that are not "integrally related to" an AWS are thus reviewable for consistency with law, including management's rights, under § 7117 of the Statute.

      The Agency also maintains that the Arbitrator's award, precluding it from requiring employees on an AWS to call in if they will be more than one hour later than their estimated arrival time, is contrary to management's right to assign work under § 7106(a)(2)(B) of the Statute.

B.     Union's Opposition

      The Union contends that the Arbitrator's award concerns "the administration of the parties['] AWS program." Opposition at 4. According to the Union, under Authority precedent, such matters are enforceable in arbitration unless they are inconsistent with the Work Schedules Act. The Union maintains that the award is consistent with § 6122 and § 6131 of that Act.

      Assuming that the award is determined not to concern the administration of the AWS program, the Union asserts that it is enforceable because it does not affect the exercise of management's right to assign work, but, at most, constitutes an "incidental interference" with that right. Id. at 9.

IV.     Analysis and Conclusions

      The Agency claims that the award violates management's right to assign work under § 7106(a)(2)(B) of the Statute. Because the Agency's exception challenges the award's consistency with law, the Authority reviews the questions of law raised in the exception and the arbitrator's award de novo. See, e.g., NFFE, Local 1437, 53 FLRA 1703, 1709 (1998). When 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).

      An arbitrator's award enforcing a contractual provision pertaining to the implementation or administration of an AWS program is enforceable under the Statute, notwithstanding an exception claiming that the award violates management's rights under § 7106 of the Statute. See United States Dep't of Labor, Washington, D.C., 59 FLRA 131, 135 (2003) (Dep't of Labor) (Chairman Cabaniss concurring as to result). Citing NTEU, Atlanta, Ga., 32 FLRA 879 (1988), the Agency argues that this principle does not apply to the instant case because the award does not concern the implementation or administration of an AWS program. The Agency's argument is not convincing.

      The Arbitrator found that the Agency's call-in requirement was inconsistent with the flexible bands and the tardiness policies established in the parties' collective bargaining agreement for employees on alternate work schedules. Clearly, therefore, the award enforces a contractual provision that concerns the implementation and administration of the parties' AWS program. [n3]  As such, the award is enforceable notwithstanding management's right to assign work under § 7106(a)(2)(B) of the Statute. See Dep't of Labor, 59 FLRA at 135. Having reached this result, it is unnecessary to address the parties' contentions regarding management's right to assign work.

V.     Decision

      The Agency's exceptions are denied.


Concurring opinion of Chairman Cabaniss:

      I write separately in order to clarify my views with respect to cases of this type. In United States Dep't of Labor, Washington, D.C., 59 FLRA 131 (2003), I stated that I found nothing in the Work Schedules Act itself, as opposed to its legislative history, warranting the conclusion that the Act "is intended to include within the collective bargaining process `the institution, implementation, administration, and termination of alternative work schedules.'" Id. at 136. Because the Arbitrator in this case clearly enforced the flexible bands and tardiness policies established as a part of the Agency's alternative work schedule within the terms of the Work Schedules Act, I agree with the result.



Footnote # 1 for 59 FLRA No. 87 - Authority's Decision

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


Footnote # 2 for 59 FLRA No. 87 - Authority's Decision

   The Union filed two grievances concerning Article 25: a "mass grievance" on behalf of unit employees and an "institutional grievance" on its own behalf. The mass grievance alleged violations of Article 25 other than those stated above, but the Arbitrator denied the grievance as to those allegations. The Arbitrator also denied the institutional grievance. The Union does not except to the Arbitrator's denial of the other allegations of the mass grievance or of the institutional grievance.


Footnote # 3 for 59 FLRA No. 87 - Authori