United States, Department of Veterans Affairs, Ralph H. Johnson Medical Center, Charleston, South Carolina (Agency) and National Association of Government Employees, Local R5-136 (Union)

[ v60 p52 ]

60 FLRA No. 14

UNITED STATES
DEPARTMENT OF VETERANS AFFAIRS
RALPH H. JOHNSON MEDICAL CENTER
CHARLESTON, SOUTH CAROLINA
(Agency)

and

NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES,
LOCAL R5-136
(Union)

0-AR-3746

_____

DECISION

June 24, 2004

_____

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 Donald T. O'Connor 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 two grievances alleging that the Agency's work schedules for the Administrative Officers of the Day (AOD) violated the parties' master and supplemental collective bargaining agreements.

      For the reasons that follow, we remand the case to the parties, absent settlement, for resubmission to the Arbitrator for clarification of the award.

II.      Background and Arbitrator's Award

      After one of five AOD positions became vacant in the hospital, the Agency posted a revised schedule for the remaining four employees. In this schedule, the Agency required one AOD to work three different shifts (day, evening and night) each week.

      The Union then filed a grievance alleging that the Agency violated Article 13, Section 14 of the parties' supplemental agreement by requiring AODs to work three different shifts in a work week. [n2]  In response to the grievance, the Agency stated that "it was going to submit a new schedule that would not require any employees to work more than two different shifts in a week, but would require employees to work weeks with split days off." Award at 6.

      The new schedule required "one AOD each week to work three shifts, one AOD to work with split days off, and allowed the other two AODs to work less than three shifts in the same workweek and have two consecutive days off." [n3]  Id. In response to the new schedule, the Union filed another grievance, alleging that the work schedule for the AODs violated the parties' master and supplemental agreements. See id. at 7.

      The two grievances were not resolved and were submitted to arbitration. The Arbitrator framed the issues as follows:

A. Did the Employer during the first half of 2002 violate the Master and the Supplemental Agreements by posting work schedules for Administrative Officers of the Day that required that they work three different shifts in a week once every four weeks, work with split days off once every four weeks, or come back to work with less than nine hours off duty on a regular basis?
B. If so, what is the appropriate remedy?

Id.

      The Arbitrator sustained in part the two grievances. The Arbitrator found that the contractual provisions, "when read together[,] must be read as restrictions on management's rights to schedule in normal workweeks, but not abnormal workweeks." Id. at 18. [n4]  [ v60 p53 ]

      Specifically, the Arbitrator concluded that the Agency violated Article 13, Section 14 of the supplemental agreement by requiring the AODs to work three different shifts in a week once every four weeks. The Arbitrator stated that Article 13, Section 14 provides that "[e]mployees will generally not be required to work more than two different tours of duty in one workweek, unless other scheduling alternatives are not available." Id. at 11. The Arbitrator found that this provision prohibited the Agency from scheduling the AODs to work more than two different shifts in a "normal" or "regular" workweek. Id. The Arbitrator also found that in this case "we are not dealing with any abnormalities such as emergencies, absences, or temporary reductions of force." Id. The Arbitrator also concluded that the Agency violated Article 13, Section 1 of the master agreement by requiring the AODs to work with split days off once every four weeks. The Arbitrator found that a reasonable interpretation of Article 13, Section 1 "is that normally it should be possible to schedule all the AODs so that they have two consecutive days off." Id. at 14-15.

      In reaching his conclusions that the Agency's work schedules for the AODs violated contractual provisions in the parties' master and supplemental collective bargaining agreements, the Arbitrator stated that cases relied on by the Agency in which the Authority resolved negotiability disputes were "irrelevant" to his interpretation of the contractual provisions. Id. at 16. Thereafter, under the heading "What is the appropriate remedy?", the Arbitrator stated:

The Hospital suggests that I do not have the authority to order that they put a fifth AOD on since it would infringe on Management's rights. However, since it once had five AODs, I do not believe I am so limited.

Id. at 18. The Arbitrator further stated:

During the grievance procedure of these two grievances and during the arbitration hearing, the Union was silent on how the [e]mployer might come into compliance with the Master and the Supplemental Agreements. . . . The Union has danced around the issue of whether they are looking for management to put a fifth AOD back on the crew. That is one obvious solution if it is determined that none of the schedules proposed by the Hospital in 2002 complied with the agreements. Other possible approaches are to have a supervisor work sufficient number of shifts so that the four AODs are scheduled to work without either of the agreements being violated. A third approach is to temporarily transfer another bargaining unit employee into the AOD position so that the regular AODs are properly scheduled. Management may use any of these approaches to come into compliance with the agreements.

Id. at 19-20 (footnote omitted).

      As his "award," the Arbitrator ordered the Agency:

to draft a schedule that will in the normal workweek:
1. Permit AODs to have two consecutive days off each regular workweek;
2. not require AODs on normal workweeks to work more than two different shifts in each workweek, and
3. not require AODs to return to work with less than nine hours off in [the] normal workweek.
In developing such a schedule[,] management should meet and discuss with the Union any proposed schedule before it is adopted, recognizing that if the parties do not agree on a new schedule, management may adopt a new schedule so long as it is not in violation of the Master and Supplemental Agreements.

Id. at 20.

III. Positions of the Parties

A.      Agency's Exceptions

      The Agency contends that the award is contrary to law and fails to draw its essence from the parties' agreements because the award "mandate[s]" that the Agency apply one of three alternative remedial approaches to schedule the AODs to comply with the parties' agreements. Exceptions at 7.

      The Agency argues that the first alternative approach mandates that the Agency hire a fifth AOD, and that this alternative is contrary to management's right to hire under § 7106(a)(2)(A) and to assign work under § 7106(a)(2)(B). See id. at 8-9. In this regard, the Agency states it is not contemplating hiring a fifth AOD. [ v60 p54 ]

      The Agency asserts that the second alternative approach mandates that the Agency assign a supervisor a sufficient number of shifts so that the four AODs are scheduled to work "without either of the agreements being violated[,]" and that this alternative excessively interferes with management's right to determine to whom or to what position duties will be assigned, as well as when work assignments will occur. See id. at 9. The Agency asserts that this alternative approach precludes the Agency from determining whether or not a supervisor is necessary to carry out operational functions.

      Finally, the Agency contends that the third alterative approach mandates that management temporarily transfer another bargaining unit employee into the AOD position so that the regular AODs are properly scheduled, and that this alternative excessively interferes with management's right "to determine the personnel by which agency operations shall be conducted" under § 7106(a)(2)(B) and § 7106(b)(1). Id. at 10. The Agency asserts that there is no longer in existence a fifth AOD position to assign any personnel and that, as noted above, it is not contemplating creating such a position.

      In sum, the Agency maintains that "all three of these mandated alternatives" excessively interfere with management's rights under § 7106 of the Statute, id. at 8, and fail to draw their essence from the parties' agreements.

B.      Union's Opposition

      The Union disputes the Agency's contention that the award is contrary to management's right to assign work under the Statute. The Union asserts that the Agency has misinterpreted the award. The Union states that "the Arbitrator was of the opinion that he could have ordered a particular remedy if the Union ha[s] sought it" and since it did not, he "did nothing more specific than to order the [A]gency to comply with the contract." Opposition at 4. The Union states that the award does not order a particular approach in resolving the scheduling violation. Rather, according to the Union, the award leaves it up to the Agency to determine how to comply with the parties' master and supplemental agreements and only notes that there are at least three different options available. See id. The Union asserts that the award does not preclude the Agency from scheduling the employees outside of these options.

      Further, the Union disputes the Agency's contention that the award is contrary to § 7106(b)(1) of the Statute. The Union asserts that the three disputed contractual provisions are enforceable given that the Arbitrator placed no limitations on how the Agency decides to comply with them.

      Finally, the Union disputes the Agency's contention that the award fails to draw its essence from the parties' agreements. In this regard, the Union states that the award "simply requires the [A]gency to formulate a schedule that can be regularly used in normal conditions to allow compliance with the contract." Id. at 6.

IV.      Analysis and Conclusions

      The Authority reviews questions of law raised by an arbitrator's award and an exception to it de novo. NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citation omitted). In applying a standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. See United States Dep't of the Air Force, Warner Robins Air Force Base, Ga., 56 FLRA 541, 543 (2000) (citation omitted). In making such a determination, the Authority defers to the 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. See United States Small Business Admin., 55 FLRA 179, 184 (1999). If it does, then the Authority applies the framework established in BEP. See United States Dep't of the Treasury, Bureau of Engraving and Printing, Wash., D.C., 53 FLRA 146, 152-53 (1997) (BEP).

      The Agency argues that the award is contrary to § 7106 of the Statute, and fails to draw its essence from the parties' agreements, because the Arbitrator "mandates" that the Agency apply one of three alternative remedial approaches to schedule the AODs in order to comply with the parties' agreements. Exceptions at 7. However, the Union claims that the Agency has misinterpreted the award, because the award does not order any particular approach in resolving the scheduling violation.

      For the following reasons, we conclude that the award requires clarification from the Arbitrator. Specifically, it is not possible to determine if the award mandates that the Agency apply one of three alternative remedial approaches to schedule the AODs to comply with the parties' agreements, as interpreted by the Agency, or if the award leaves it up to the Agency to determine how to comply with the parties' agreements and does not require the Agency to take any specific action, as interpreted by the Union. [ v60 p55 ]

      There is language in the discussion portion of the award supporting a view that the award mandates that the Agency apply one of three alternative remedial approaches to schedule the AODs to comply with the parties' agreements. In this regard, the Arbitrator stated:

During the grievance procedure of these two grievances and during the arbitration hearing, the Union was silent on how the [e]mployer might come into compliance with the Master and the Supplemental Agreements. . . . The Union has danced around the issue of whether they are looking for management to put a fifth AOD back on the crew. That is one obvious solution if it is determined that none of the schedules proposed by the Hospital in 2002 complied with the agreements. Other possible approaches are to have a supervisor work sufficient number of shifts so that the four AODs are scheduled to work without either of the agreements being violated. A third approach is to temporarily transfer another bargaining unit employee into the AOD position so that the regular AODs are properly scheduled. Management may use any of these approaches to come into compliance with the agreements.

Award at 19-20 (footnote omitted).

      On the other hand, there also is language in the remedial portion of the award that supports a finding that the award does not require the Agency to take any specific action and leaves it up to the Agency to determine how to comply with the parties' agreements. The Arbitrator ordered the Agency to draft a schedule for the AODs that will in the normal week comply with his findings as to the requirements in the parties' agreements. See id. at 20. In this regard, the Arbitrator stated that the new schedules would:

1. Permit AODs to have two consecutive days off each regular workweek;
2. not require AODs on normal workweeks to work more than two different shifts in each workweek, and
3. not require AODs to return to work with less than nine hours off in [the] normal workweek.

Id. The Arbitrator further directed that, "[i]n developing such a schedule, [the Agency] should meet and discuss with the Union any proposed schedule before it is adopted[.]" Id. Finally, the Arbitrator stated that, "if the parties do not agree on a new schedule, management may adopt a new schedule so long as it is not in violation of the Master and Supplemental Agreements." Id.

      In these circumstances, it is not clear whether the award mandates that the Agency apply one of three alternative remedial approaches to schedule the AODs to comply with the parties' agreements, or, instead, whether the award leaves it up to the Agency to determine how to comply with the parties' agreements and does not require the Agency to take any specific action. Thus, we cannot resolve the exceptions based on the award before us.

      Consequently, we remand this award to the parties, absent settlement, for resubmission to the Arbitrator for clarification of the award. In clarifying the award, the Arbitrator should specify whether the award mandates that the Agency apply one of three alternative remedial approaches to schedule the AODs to comply with the parties' agreements, or whether the award leaves it up to the Agency to determine how to comply with the parties' agreements. [n5] 

V.      Decision

      Based on the foregoing, we remand the award for action consistent with this decision. [n6]  [ v60 p56 ]


APPENDIX

1. Article 13, Section 1 of the master collective bargaining agreement provides, in pertinent part, as follows:

Section 1- . . . The basic workweek will normally consist of five eight hour days. Management when possible will give employees two (2) consecutive days off. . . .

2. Article 13, Section 2 of the master collective bargaining agreement provides, in pertinent part, as follows:

Section 2- . . . The Master Agreement will not negate existing local arrangements for scheduling consecutive days off . . . .

3. Article 48, Section 5 of the master collective bargaining agreement provides as follows:

Section 5- The arbitrator will derive his/her authority from this negotiated agreement and, in rendering a decision, must not add to, subtract from, nor modify any of the terms of this Agreement.

4. Article 13, Section 14 of the supplemental agreement provides as follows:

Section 14. Employees will generally not be required to work more than two (2) different tours of duty in one work week, unless other scheduling alternatives are not available. . . .

5. Article 13, Section 20 of the supplemental agreement provides as follows:

Section 20. The Employer will make a reasonable effort to provide at least nine (9) hours off duty when going to a different shift unless there is no alternative scheduling possible to provide adequate coverage.

Separate Opinion of Chairman Cabaniss:

      I write separately to express my concern about what the Authority (and the parties) hopes to achieve by remanding this case back to the Arbitrator. I am mindful of footnote 5 of the decision, which alerts the Arbitrator to reconsider his beliefs regarding the Agency's rights under § 7106(a) of the Statute and the relevancy of the Authority's negotiability in determining whether an arbitrator's interpretation of a contract provision impermissibly interferes with those agency rights. That guidance notwithstanding, however, the process would be well served by the parties providing as much detail as possible of specific options as to how to effect a schedule without running afoul of § 7106(a), if such a result is to be found possible, and considerable discussion of relevant negotiability precedent. Otherwise, all the parties may obtain from this remand is no real solution of their conflict and more time spent on yet another round of arbitration exceptions that won't necessarily resolve the underlying issues in this case.



Footnote # 1 for 60 FLRA No. 14 - Authority's Decision

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


Footnote # 2 for 60 FLRA No. 14 - Authority's Decision

   The relevant portions of the master and supplemental collective bargaining agreements are set forth in the Appendix to this decision.


Footnote # 3 for 60 FLRA No. 14 - Authority's Decision

   According to the Arbitrator, under this new schedule:

[T]he AODs worked in a four week period[:] one week where he or she had to work on three different shifts, one week with split days off, and two weeks where he or she would not have to work on three different shifts in the week, would have two consecutive days off and would not have to come back in with less than nine hours off.

Id. at 6-7.


Footnote # 4 for 60 FLRA No. 14 - Authority's Decision

   The Arbitrator also concluded that the Agency did not violate Article 13, Section 20 of the supplemental agreement because the Agency did not require the AODs to return to work with less than nine hours off duty on a regular basis. As no exception is taken to this conclusion, we do not address it further.


Footnote # 5 for 60 FLRA No. 14 - Authority's Decision

   We note that the Arbitrator's statement -- that he had the right to require the Agency to fill the fifth AOD position because it had been filled in the past -- fails to take into account applicable Authority precedent concerning management's right to fill vacant positions. See, e.g., AFGE, Local 3354, 54 FLRA 807, 812 (1998) (the right to "fill vacant positions is encompassed within an agency's rights to hire and assign employees under § 7106(a)(2)(A) of the Statute"). We also note that, contrary to the Arbitrator's statement that cases in which the Authority resolved negotiability disputes were "irrelevant" to his interpretation of contractual provisions,