United States, Food and Drug Administration, Detroit District (Agency) and National Treasury Employees Union, Chapter 230 (Union)

[ v59 p679 ]

59 FLRA No. 122

UNITED STATES
FOOD AND DRUG ADMINISTRATION
DETROIT DISTRICT
(Agency)

and

NATIONAL TREASURY
EMPLOYEES UNION
CHAPTER 230
(Union)

0-AR-3709

_____

DECISION

February 20, 2004

_____

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 Paul E. Glendon 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, in part, and denied in part, grievances alleging that the Agency improperly terminated existing flexiplace agreements and improperly disapproved requests for new flexiplace agreements. [n1]  The Arbitrator ordered the Agency to reinstate some of the flexiplace agreements as well as to grant some of the requests for new agreements.

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

II.     Background

      From 1995, until the first CBA went into effect on October 1, 1999, there were several employees working at alternative workplaces pursuant to flexiplace agreements. Award at 2. The initial CBA formalized the flexiplace program in Article 26, establishing the Flexible Workplace Program (FWAP). [n2]  Id.

      In October 2000, the Agency terminated the pre-existing flexiplace agreements of six grievants. [n3]  Id. The grievants included a Compliance Safety Officer (CSO) from the Indianapolis Resident Post who reported to the office one day each pay period and a CSO from the South Bend Resident Post who reported to the office one day each pay period but whose agreement stated she would report to the office "when necessary." See id. at 2.

      The Agency, in memos sent to the grievants terminating their flexiplace agreements, stated that the terminations were in compliance with the CBA. Award at 2 3. The Agency explained that the terminations were necessary because certain positions were not amenable to flexiplace agreements; office interaction was important for the employees; flexiplace agreements were negatively affecting the "ability to maintain adequate office coverage;" and the Agency was "prioritizing [flexiplace agreements] to maintain reasonable costs[.]" See id.

      The Agency also denied requests from several grievants for new flexiplace agreements. [n4]  Id. at 3. Those grievants included four CSOs from the Detroit and Grand Rapids offices, requesting flexiplace agreements that would vary in hours and days each week and two South Bend CSOs, requesting the same schedule as that given to the third CSO in that office, who reported to the office one day of each pay period. Id.

      The Union filed two grievances, alleging that the Agency improperly terminated existing flexiplace agreements and that the Agency improperly denied requests for new flexiplace agreements. The grievances were unresolved and were submitted to arbitration.

      The Arbitrator framed the issue as, "[D]id the Employer violate Article 26 by terminating existing flexible workplace agreements and/or denying requests for new flexiplace agreements in October 2000?" See Award at 1.

      The Arbitrator first determined whether the CBA governed the pre-existing flexiplace agreements. The [ v59 p680 ] Arbitrator found the Agency's interpretation of Article 26, § 4(C) unconvincing. Id. at 9. The Arbitrator, based on the email message from the Agency and the Agency's explicit references to and reliance on the CBA in the notices of termination, found that the provision did not mean that employees must request a flexiplace agreement during the first sixty days of the CBA term or forever lose their opportunity to do so. Id. Thus, the Arbitrator determined that the Agency could only terminate the agreements "for cause" and interpreted § 7(A), the cause provision in the CBA, as requiring a change in circumstances that results in the agreement no longer meeting the contractual criteria. Id. at 9-10.

      The Arbitrator considered whether each flexiplace agreement was terminated "for cause." The Arbitrator determined that the terminations of the agreements of the CSO from Indianapolis and the CSO from South Bend were not "for cause." Id. at 11. The Arbitrator found that the Agency presented no evidence to support its justifications for the terminations. The Arbitrator concluded that the remote access system was adequate until 2000 and the Agency did not present any evidence of a change that would warrant termination of the flexiplace agreements. Id. The Arbitrator also decided that the termination of these agreements would not significantly increase office interaction because the CSO is the only employee in the Indianapolis office and the only employees in South Bend are CSOs who work in the field much of the time. Id.

      The Arbitrator then considered whether the denials of the requests for new flexiplace agreements were "fair[] and equitable[]." Id. Addressing the requests made by the four CSOs from the Detroit and Grand Rapids offices, the Arbitrator found that these denials were "fair and equitable" in accordance with the CBA. Award at 12.

      The Arbitrator found that the Agency improperly denied the request of the two CSOs from South Bend and that these grievants deserved the same consideration for flexiplace agreements as their counterpart, with the same position, in the same office, who had a pre-existing flexiplace agreement. [n5]  Id. at 12-13. The Arbitrator determined that the Agency's argument that the CSOs needed to be at the worksite to provide in-person office coverage was not convincing because the Agency did "not claim or prove the existing office coverage at South Bend, consisting mostly of a telephone answering machine to which the three CSOs faithfully attended through remote access, was inadequate for the needs of that post." See id. at 13. The Arbitrator also found that one of the CSOs had an existing informal agreement and found no reason not to formalize it. Id.

      Based on his findings, the Arbitrator ordered the Agency to restore the flexiplace agreements of the CSO from South Bend and the CSO from Indianapolis. Id. The Arbitrator ordered that the new requests of the two CSOs from South Bend be approved and the flexiplace agreements implemented immediately. Id.

III.     Positions of the Parties

A.     Agency's Exceptions  [n6] 

1.     The award is contrary to law.

      The Agency argues that the award violates its right to determine its organization. The Agency alleges that the Authority has held that management's right to determine its organization includes the right to determine how an agency will "structure itself to accomplish its mission and functions." See Exceptions at 9 (citing ACT, New York State Council, 56 FLRA 444, 449 (2000)). The Agency explains that the Arbitrator's award will eliminate its ability to operate a functional resident post because the award will place all three South Bend CSOs on a flexiplace agreement where they will each report to the office on one day each pay period. Exceptions at 8. The Agency contends the resident post is merely a "shell" without the capability of responding to unexpected visits from the public if the Agency is unable to ensure that employees are physically present on a regular basis. Id. at 8-10. The Agency argues that the award restricts it from having a "functional organizational and administrative structure." See id. at 10.

      The Agency also alleges that the award violates its right to assign work. Id. The Agency asserts that the award prevents it from assigning employees the task of being physically present in the office, a task already included in the duties assigned to CSOs. [n7]  Exceptions at [ v59 p681 ] 11-12. According to the Agency, the award also precludes it from assigning other tasks that can be performed only at the worksite. Id. at 12. The Agency explains that employees cannot operate with "such free discretion" and substitute their judgment for the Agency's judgment regarding assignments. See id.

      Finally, the Agency argues that the Authority has held that the right to assign work may include assigning the specific geographic location where the work must be performed when there is a nexus between the duties and the location. Id. at 12-13. The Agency argues that there is a nexus in this case because the duties of a CSO to respond to members of the public require those employees to be present in the office. Id. at 13.

      The Agency, citing the BEP framework, argues that Article 26 is not an appropriate arrangement because it does not ameliorate the "adverse effect flowing from the exercise of a management right" and does not enforce any law or procedure negotiated pursuant to § 7106(b)(2). See id. at 13-14. The Agency asserts that Article 26, as applied, excessively interferes with management rights to organize as well as assign work. Id. at 14. Thus, according to the Agency, the award fails to satisfy prong I of BEP.

2.     The award is deficient as failing to draw its essence from the CBA.

      The Agency argues that the award is not rationally related to the CBA because the Arbitrator found that the requests of the two CSOs from South Bend should be granted and their flexiplace arrangements implemented, while at the same time finding that the requests from the other four CSOs were properly denied. Exceptions at 14-15.

      The Agency asserts that the Arbitrator, when examining each grievant's request, reviewed the nature of the work to be done at home. Id. at 15. The Agency argues that the Arbitrator found that the description of work that the CSOs from Detroit and Grand Rapids proposed to do at home, tasks such as write reports and prepare for inspections, were not conducive to fixed flexiplace agreements and were more conducive to occasional flexiplace. Id. The Agency maintains that the Arbitrator should have applied the same standard to all of the CSOs and found that all of the requests were more appropriate for occasional flexiplace agreements because the position descriptions for CSOs "perform essentially the same type of work (i.e. inspections, investigations, and sample collections) . . . ." See id. at 16-17.

      The Agency also contends that the Arbitrator found that the requests from the two CSOs in South Bend should be approved merely because "what was good for [one employee whose flexiplace agreement had been approved] is also good for [two of the grievants]." See id. at 16. The Agency argues that the pre-existing flexiplace agreement with the CSO in the South Bend office should not have been relevant to the new requests from the other two CSOs in the South Bend office. Id.

B      Union's Opposition

1.     The award is not contrary to law.

      The Union agrees that the Agency has the right to determine its organization but asserts that the award does not affect the Agency's right to determine the structure, the lines of authority or the distribution of responsibilities within the Agency. Opposition at 11. The Union contends that the Agency misinterprets Authority precedent when arguing that the award in this case affects the right to determine organization. Id.

      The Union also argues that the award does not interfere with the Agency's right to assign work and describes the Agency's arguments as "borderline hysterical and a severe distortion of fundamental principles involving flexiplace or telework." See id. at 14. The Union contends that the Agency failed to prove that in-person office coverage was necessary. Id.

      The Union disputes the Agency's argument that there is a nexus between the job location and the job duties. Id. The Union explains that the precedent cited by the Agency does not support the Agency's argument. Id. The Union further asserts that the Authority "decided only once that geographical location of the work involved an assignment of work under [§] 7106(a)(2)(B) of the Act." See id. at 15 (citing NAGE, Local R1-109, 53 FLRA 526 (1997)).

      The Union contends that because the award does not affect the Agency's management, it is unnecessary to apply the two-prong BEP test. Id. at 16. The Union argues that even if the Authority finds that the award violates management's rights, the Agency's arguments would still fail. Id. The Union alleges that Article 26 is an appropriate arrangement and that Authority precedent supports the conclusion that Article 26 constitutes a procedure the Agency must follow when deciding whether to grant or continue flexiplace agreements. [n8]  Id. [ v59 p682 ]

2.     The award draws its essence from the CBA.

      The Union argues the award is based on the CBA and the Agency's essence exception "rehashes its disagreement with the Arbitrator's findings of fact, reasoning, and conclusions drawn from the evidence, re-labeling it as an `essence argument.'" See Opposition at 18. The Union explains that the Arbitrator considered each grievant's termination or request individually and, based on the facts, applied Article 26, § 4 criteria. Id. Because the Arbitrator applied the CBA to each grievant, the Union argues that the award is rationally related to the terms of the parties' CBA.

IV.     Analysis and Conclusions

A.     The award does not violate the Agency's right to determine organization or the right to assign work.

      When an exception alleges that an award is contrary to law, the Authority reviews the question of law raised and the award de novo. NTEU, Chapter 24, 50 FLRA 330, 332 (1995). In applying de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to an arbitrator's underlying factual findings. Id.

      When resolving an exception alleging that an award violates management's rights under § 7106 of the Statute, the Authority first determines whether the award affects a management right under §  7106(a). See United States Small Bus. Admin., 55 FLRA 179, 184 (1999). If it does, then the Authority applies the framework established in BEP. United States Dep't of the Treasury, Bureau of Engraving & Printing, Wash. D.C., 53 FLRA 146, 152-53 (1997) (BEP).

      The right to determine organization encompasses the right to determine the administrative and functional structure of the agency, including the relationship of personnel through lines of authority and the distribution of responsibilities for delegated and assigned duties. See, e.g., United States Dep't of Transp., Fed. Aviation Admin., 58 FLRA 175, 178 (2002) (FAA); United States Dep't of Veterans Affairs, Conn. HealthCare Sys.; Newington, Conn., 57 FLRA 47, 48 (2001). The right also includes the authority to determine how an agency will structure itself to accomplish its mission and functions and the right to determine how the agency will be divided into organizational entities such as sections. See, e.g., FAA, 58 FLRA at 178; United States Dep't of Def., Nat'l Guard Bureau, Wash. Army Nat'l Guard, Tacoma, Wash., 45 FLRA 782 (1992); NTEU, Chapter 83, 35 FLRA 398, 410 n.5 (1990) (citing Congressional Research Employees Ass'n, 3 FLRA 737, 737-38 (1980)). Finally, the right to determine organization encompasses the right to determine "where organizationally certain functions shall be established and where the duty stations of the positions providing those functions shall be maintained." See AFGE, Local 3529, 55 FLRA 830, 832 (1999) (citing NTEU, Atlanta, Ga., 32 FLRA 886, 889-90 (1988)).

      The Agency alleges that the award affects its organizational and administrative structure because the Arbitrator "permitted all the employees [in the South Bend office] to work at home 9 days out of [10 in each] pay period, thereby effectively eliminating the Agency's ability to maintain a functional operational resident post" and eliminating the Agency's ability to ensure that its facilities are capable of responding to the public. See Exceptions at 9-10. However, the factual finding, to which the Authority defers, does not support the conclusion that the Agency's right to determine its organization is affected because the Arbitrator found that office interaction would not significantly increase as a result of the termination of flexiplace agreements. Id. at 11, 13. Based on this finding, we conclude that the award does not affect the Agency's ability to maintain a functional operational post or determine its organizational structure.

      The Agency also alleges that the award violates its right to assign work. According to Authority precedent, the right to assign work includes the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what positions the duties will be assigned. United States Dep't of Health and Human Servs., Health Care Financing Admin., 57 FLRA 462, 463 (2001) (HHS) (citing AFGE, Local 3529, 56 FLRA 1049, 1050 (2001)). The Agency argues that its right to assign work in this case includes the right to mandate the location where the work is performed because there is a nexus between the assignment to respond to members of the public and the location where this duty may be performed. See Exceptions at 12.

      The Authority has held that if an agency establishes a relationship between job location and job duties, then a provision addressing job location would violate the right to assign work. United States Dep't of Health and Human Servs., Ctrs. for Medicare and Medicaid Servs., Baltimore, Md., 57 FLRA 704, 707 (2002) (HHS Baltimore) (citing NAGE, Local R1-109, 53 FLRA 526, [ v59 p683 ] 535 (1995). However, based on the Arbitrator's finding that employees have satisfactorily responded to the public, even while working under flexiplace agreements, the record does not support the conclusion that there is a nexus between the duties and the job location. Award at 11-13. Therefore, we find that the award does not affect the Agency's right to assign work in this manner.

      In addition, the Agency argues that the award prevents it from assigning the grievants any other duties that would require them to be physically present in the office. Exceptions at 11-12. Despite the Agency's allegations, there is nothing in the award that would preclude the Agency from assigning an employee duties that could only be performed in the office setting and modifying a flexiplace agreement accordingly. Award at 10, 12.

      The Arbitrator acknowledged that the Agency could terminate flexiplace agreements if it provided evidence that there was a change in circumstances such that the agreement no longer met the contractual criteria. Id. at 10-11. The Arbitrator found that one of the agreements was properly terminated due to a "significant change in circumstances making it reasonable to conclude . . . the flexiplace [agreement] no longer met [contractual criteria] . . . ." Award at 11. However, the Arbitrator determined that the Agency did not present evidence of such a change in the flexiplace agreements at issue. Id.

      Additionally, the Arbitrator recognized that requests for flexiplace agreements could be denied if, for example, office interaction was required for an employee to successfully perform his/her duties. Id. at 12. The Union concedes that the parties' CBA would clearly allow the Agency to cancel or disapprove a flexiplace agreement "due to a change in workload or duties[.]" Opposition at 14. In these circumstances, we conclude that the award does not preclude the Agency from assigning an employee duties that would require that employee to be physically present in the office.

      Based on the determination that the award does not affect the Agency's management right to determine organization or the right to assign work, the BEP analysis is not applicable. United States Dep't of Veterans Affairs Med. Ctr., Coatesville, Pa., 56 FLRA 966, 971 (2000). Therefore, we dismiss the Agency's exception.

B.     The award draws its essence from the CBA.

      In order for an award to be found deficient as failing to draw its essence from the CBA, it must be established that the award: (1) cannot in any rational way be derived from the CBA; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the CBA as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the CBA; or (4) evidences a manifest disregard of the CBA. United States Dep't of Def., Def. Logistics Agency, Def. Distribution Ctr., New Cumberland, Pa., 55 FLRA 1303, 1306-07 (2000) (New Cumberland) (Member Cabaniss concurring); United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).

      The Arbitrator concluded that the Agency violated Article 26 of the parties' CBA by improperly denying some of the grievants' requests for new flexiplace agreements. [n9]  Award at 13. The Arbitrator assessed the denials of each individual grievant to determine if the request was disapproved "fairly and equitably on a case by case basis, consistent with Article 26 Section 3.A. and with Section 4 criteria." See Id. at 11.

      The Agency's arguments do not support the conclusion that the award fails to draw its essence from the parties' CBA. The Agency argues that the Arbitrator's findings are contradictory by disapproving some but not all of the requests, and all the requests should have been disapproved because all CSOs have the same position description. Exceptions at 16-17. However, the CBA specifically notes that participation in the flexiplace program is determined on a "case by case basis." Attachment 3, Article 26, § 4B. The CBA also goes on to note that "[s]ituations appropriate for flexiplace depend on the specific nature and content of the job, rather than just the job series and title." Id. at § 3. Consequently, we conclude that the award does not fail to draw its essence from the CBA because the Arbitrator denied some but not all of the requests, and because the Arbitrator evaluated the requests on a case by case basis rather than treating all of the requests the same because all of the employees were CSOs and all had the same job description.

      The Agency's exception also misstates the Arbitrator's actions when the Agency alleges that the Arbitrator's reasoning was that "what was good for [one employee whose flexiplace agreement had been approved] is also good for [two of the grievants]." Exceptions at 16. To the contrary, the Arbitrator noted that, in terms of equity, the two grievants' claim of entitlement under the CBA "was as good as" that of the [ v59 p684 ] employee who already had permission for the same type of flexiplace agreement. Award at 13. Thus, this argument does not establish that the Arbitrator's approval of the two flexiplace requests was solely to provide a benefit already enjoyed by another employee.

      The Agency's exception does not demonstrate that the award is unfounded, implausible or evidences a manifest disregard of the CBA. New Cumberland, 55 FLRA at 1306-07. Thus, the award does not fail to draw its essence from the parties' CBA. Accordingly, we deny the exception.

V.      Decision

      The Agency's exceptions are denied.


APPENDIX

Article 26 - Flexible Work Place Program

Section 1

The Flexible Work Place Arrangements Program (FWAP) is a program that permits employees to work at home or at other approved locations remote to the conventional office site. For purposes of this Agreement, the terms "FWAP", "flexiplace" and "telecommuting" are synonymous and include working at home or in satellite office sites or other approved flexiplace work sites.

Section 3

Situations appropriate for flexiplace depend on the specific nature and content of the job, rather than just the job series and title.

A.      A flexible work place arrangement may be used when there is recurring opportunity to perform work at an alternate site. For example, the work does not require interaction with customers or peers on a daily basis, it does not require specialized equipment or reference materials unavailable except at the conventional office, and the employee's work habits are such that once an assignment is given, it can be accomplished without further oversight or supervisory consultation.
B.      A flexible work place arrangement may also be used on an occasional basis, for individual days or hours within a pay period, or for a special assignment or project on a short term basis (two consecutive weeks or less). For example, such work tasks may include: data analysis, reviewing grants/cases, writing decisions or reports; telephone intensive tasks such as obtaining or collecting information, following up on participants in a study or setting up a conference; and some computer oriented tasks such as programming, data entry and word processing. Typically, such tasks require uninterrupted concentration and result in measurable work outputs or products.
C.      A flexible work place arrangement may be appropriate to accommodate an employee with a temporary or permanent illness or disability, if the job can be accomplished at an alternate site, and the employee is capable of performing the job at home or at a telecommuting [ v59 p685 ] center but can not commute to and/or from work on a daily basis. If the request to participate in the flexible work place program is for medical reasons, the employee may be required to provide acceptable medical documentation. If the request is based on a temporary condition, medical documentation may need to be updated every six (6) months.

Section 4

A.      Flexible work arrangements must be consistent with maintaining adequate office coverage during normal business hours.
B.      The Parties agree that specific individual participation in flexiplace must be considered on a case by case basis. The designated approving official will approve or disapprove the request, on a fair and equitable basis, consistent with the following:
1.      The employee's latest rating of record is "fully successful" or better, and there is no reasonable cause to believe this level of performance will drop;
2.      The employee is not on leave restriction;
3.      The employee is not on a performance improvement plan (PIP);
4.      The employee has not received any disciplinary or adverse action in the last twelve (12) months that would adversely impact on the integrity of the flexible work place program or the Employer;
5.      The employee has demonstrated the ability to initiate his/her own work, to work without direct supervisory oversight, to recognize when supervisory or other assistance is needed on a project, and
6.      The employee's fully successful performance of the work does not require:
a.      Daily and frequent use of specialized equipment or technology that is available only at the official duty station;
b.      Daily and frequent face to face contacts with co-workers, managers and/or customers;
c.      Daily and frequent access to confidential or sensitive data and/or information (not attainable from home) such as personal and/or payroll records or proprietary information protected from unauthorized disclosure by the Privacy Act of 1974 and its implementing regulations;
     . . . .

Section 7

A.      The Employer may terminate an employee's participation in the program for cause, such as:
1.      Failure to continue to meet the criteria listed in Section 4 above;
2.      Failure to adhere to the provisions of the Agreement;
3.      Failure to accurately and truthfully report time worked;
4.      Organizational exigencies that impact on the mission of the Employer, and require the employee to perform work at the official duty station;
5.      For misconduct in connection with the employee's obligations under the flexible work place program; and
6.      Verifiable information that has been shared with the employee indicating customer dissatisfaction with the employee's performance or conduct.

      . . . .



Footnote # 1 for 59 FLRA No. 122 - Authority's Decision

   According to the parties' collective bargaining agreement (CBA), the term "flexiplace" is synonymous with the Flexible Workplace Program (FWAP) which is a "program that permits employees to work at home or at other approved locations remote to the conventional office site[.]" See Award at 2.


Footnote # 2 for 59 FLRA No. 122 - Authority's Decision

   The pertinent language from Article 26 is set forth in the attached Appendix.


Footnote # 3 for 59 FLRA No. 122 - Authority's Decision

   Although there were six grievants whose flexiplace agreements were terminated, the Authority will only address the terminations relevant to the Agency's exceptions.


Footnote # 4 for 59 FLRA No. 122 - Authority's Decision

   Although there were seven grievants whose requests were denied, the Authority will only address the denials relevant to the Agency's exceptions.


Footnote # 5 for 59 FLRA No. 122 - Authority's Decision

   The CSOs requested to work the same schedule as the third CSO in South Bend. Id. at 13.


Footnote # 6 for 59 FLRA No. 122 - Authority's Decision

   Throughout its exceptions, the Agency disputes the Arbitrator's assessment of the facts and the evidence presented. However, the Agency did not file an exception claiming the award was based on nonfact and even if it did, the Agency's dispute would be considered a bare assertion because the Agency does not support its claim and provides no basis for finding the award deficient. See Social Security Admin., 57 FLRA 530, 537 n.16 (2001).


Footnote # 7 for 59 FLRA No. 122 - Authority's Decision

   CSOs have the duty to "respond[] to all types of inquiries, concerns or complaints whether they are made by telephone or in person." Id. at 11.


Footnote # 8 for 59 FLRA No. 122 - Authority's Decision

   The Union contends that the Authority held that a similar provision was a procedure under §706(b)(2). See id. (citing NTEU, Chapter 6, 1 FLRA 897 (1979) (NTEU)).


Footnote # 9 for 59 FLRA No. 122 - Authority's Decision

   Because the Agency does not allege in the essence exception that the portion of the award reinstating flexiplace agreements that were improperly terminated failed to draw its essence from the CBA w