United States, Department of the Treasury, Internal Revenue Service, Austin, Texas (Agency) and National Treasury Employees Union, Chapter 247 (Union)

[ v60 p606 ]

60 FLRA No. 122

UNITED STATES
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
AUSTIN, TEXAS
(Agency)

and

NATIONAL TREASURY
EMPLOYEES UNION
CHAPTER 247
(Union)

0-AR-3861

_____

DECISION

February 2, 2005

_____

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 LeRoy R. Bartman 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 a grievance alleging that the Agency violated the parties' agreement and a local alternative work schedules agreement (AWS agreement) by unilaterally changing the grievants' tours of duty.

      For the reasons that follow, we dismiss the Agency's exception regarding § 6131 of the Work Schedules Act and deny the remaining exceptions.

II.      Background and Arbitrator's Award

      The grievants, customer service representatives assigned to a call center, work on alternative work schedules under an AWS agreement and had been starting their tours of duty between 6:30 a.m. and 8 a.m. [n1]  As a result of changes made by the Joint Operations Center, which controls the call center, local management officials notified the Union that they proposed to change the grievants' start times to no earlier than 8 a.m. The Union refused to negotiate over the proposed change based on Article 23, § 2(A) of the parties' agreement. [n2]  The Agency then implemented the change in the grievants' start times and the Union filed a grievance alleging that the Agency violated the parties' agreement and the AWS agreement.

      The grievance was unresolved and submitted to arbitration, where the Arbitrator stated the issue as follows: "Did the Agency violate the [parties'] [a]greement, Article 23, Section 7(A) and (B) [n3] ; Article 54, Section 2(A); and Article 47, Section 3? If the answer is yes, what is the appropriate remedy?" Award at 3. [n4] 

      The Arbitrator concluded that the Agency's unilateral change in the grievants' start times violated the parties' agreement and the AWS agreement. In reaching this conclusion, the Arbitrator determined that the Union's refusal to negotiate was permitted by Article 23, § 2(A) of the parties' agreement. The Arbitrator also found that Article 23, § 7(A) and (B) did not preclude the grievants from starting work at 6:30 a.m.

      Accordingly, the Arbitrator sustained the grievance. As a remedy, the Arbitrator ordered that the grievants be returned to the tours of duty held prior to the Agency's unilateral change.

III.      Positions of the Parties

A.      Agency's Exceptions

      The Agency contends that the award is contrary to the Federal Employees Flexible and Compressed Work [ v60 p607 ] Schedules Act of 1982 (Work Schedules Act). Specifically, the Agency asserts that it has the authority under 5 U.S.C. § 6122(a) (§ 6122(a)) to make adjustments in the arrival and departure times of employees who work on flexible schedules in order to provide coverage during the hours that offices are open. [n5]  Citing 5 U.S.C. § 6131(a), the Agency further asserts that when, as here, there is an adverse agency impact, an agency must discontinue an alternative work schedule, notify the union of the change, and bargain the matter to impasse. [n6]  The Agency claims that it was required to adjust the grievants' start times so they would have work to do.

      The Agency also asserts that the Agency head, by his agent, notified the Union of the intent to change start times and provided an opportunity to bargain. The Agency contends that an agency head may delegate scheduling authority to lower-level officials and that those officials then have the authority to make schedule changes. See Exceptions at 9-10 n.3, citing United States Dep't of Commerce, Nat'l Oceanic & Atmospheric Admin., Nat'l Weather Serv., 49 FLRA 1563, 1565 (1994).

      Finally, the Agency argues that the award is contrary to the "intent of the [Statute.]" Exceptions at 12. In this regard, the Agency cites § 7101(a) and claims that changing the grievants' start times was necessary to provide service to the public. [n7] 

B.      Union's Opposition

      The Union contends that, consistent with Article 23, § 2(A) of the parties' agreement, the Agency was not permitted to change the grievants' start times unilaterally. The Union further contends that the Agency representative who changed the grievants' tours of duty was not the Agency head, as required by § 6122(b) of the Work Schedules Act. [n8]  In addition, the Union asserts that although an agency head may delegate authority to approve or disapprove negotiated agreements, the Agency provided no evidence that such a delegation occurred in this case.

IV.      Preliminary Matter

      Under 5 C.F.R. § 2429.5, the Authority will not consider issues that could have been, but were not, presented to an arbitrator. See United States Dep't of the Air Force, Air Force Materiel Command, Robins Air Force Base, Ga., 59 FLRA 542, 544 (2003). There is no evidence in the award or the record that the Agency's argument regarding § 6131 of the Work Schedules Act was presented to the Arbitrator. As this issue relates to the termination of the grievants' alternative work schedule, it could, and should, have been presented to the Arbitrator. Therefore, we dismiss this exception. See SSA, Office of Hearings & Appeals, Falls Church, Va., 59 FLRA 507, 509-10 (2003).

V.      Discussion

The award is not contrary to law.

      The Agency contends that the award is contrary to § 6122(a) of the Work Schedules Act and § 7101 of the [ v60 p608 ] Statute. [n9]  As the Agency's exceptions concern whether the award is contrary to law, the Authority's review is de novo. See 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. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In so doing, the Authority defers to an arbitrator's underlying factual findings. See id.

A.      Work Schedules Act

      It is well-established that, under the Work Schedules Act, matters pertaining to alternative work schedules for unit employees are fully negotiable and enforceable, subject only to the Work Schedules Act itself or other laws superseding it. See, e.g., AFGE, AFL-CIO, Local 2361, 57 FLRA 766, 767 (2002). The Work Schedules Act is intended to include within the collective bargaining process "`the institution, implementation, administration and termination of alternative work schedules[.]'" NTEU, 52 FLRA 1265, 1293 (1997) (quoting S. Rep. No. 365, 97th Cong., 2d Sess. 14-15 (1982), reprinted in 1982 U.S. Code Cong. & Admin. News at 565, 576-77).

      Under § 6122(a), employees' elections of arrival and departure times under a flexible schedule are "subject to limitations generally prescribed to ensure that the duties and requirements of the employee's position are fulfilled." This section permits an agency to make adjustments in the arrival and departure times of individual employees on flexible schedules within already established flexible bands. See Air Force Accounting & Fin. Ctr., Lowry Air Force Base, Denver, Colo., 42 FLRA 1226, 1238-39 (1991) (Lowry); Air Force Accounting & Fin. Ctr., Denver, Colo., 42 FLRA 1196, 1205-06 (1991) (Air Force). However, an agency's right under § 6122(a) does not encompass changes to flexible bands (i.e., the beginning and ending times) themselves. See United States Dep't of the Air Force, 416 CSG, Griffis Air Force Base, Rome, N.Y., 38 FLRA 1136, 1148 (1990) (Griffis). Changes in flexible bands must be made under § 6122(b), which requires that an agency act "subject to the terms of [the parties'] agreement," and that an agency head determine that the agency "is being substantially disrupted in carrying out its functions or is incurring additional costs." See Griffis, 38 FLRA at 1148. As noted above, see n.8, supra, the Agency does not argue that the Agency head made a determination under, or that the award is inconsistent with, § 6122(b).

      In this case, the Agency did not adjust employees' individual arrival times within already established flexible bands. Rather, the Agency changed the flexible bands during which employees could choose to start the workday. Thus, the changes made by the Agency do not fall within its rights under § 6122(a). See Griffis, 38 FLRA at 1148. Accordingly, the award is not contrary to § 6122(a) of the Work Schedules Act.

B.      Section 7101 of the Statute

      The Agency contends that changes to the grievants' start times were necessary to provide service to the public and, as a result, the award is inconsistent with § 7101 of the Statute, which provides for the "effective conduct of public business" and the "efficient accomplishment of the operations of the Government." The Agency ignores that the Work Schedules Act provides procedures to terminate alternative work schedules that create adverse agency impact. Nothing in the award precludes the Agency from using these procedures to terminate the schedules at issue. As such, this exception provides no basis for finding the award deficient.

VI.      Decision

      The Agency's exception regarding § 6131 of the Work Schedules Act is dismissed, and its remaining exceptions are denied.



Footnote # 1 for 60 FLRA No. 122 - Authority's Decision

   Articles 5 and 7, § B of the AWS agreement provide that compressed and flexible schedules may begin at 7 a.m. and that employees "with a 6:30 a.m. start time" will be "`grandfathered in' to that start time[.]" Award at 7, 8.


Footnote # 2 for 60 FLRA No. 122 - Authority's Decision

   Article 23, § 2(A) provides, in pertinent part, that "all terms and conditions of AWS agreements will remain in effect unless the [p]arties mutually agree to negotiate said local agreements." Award at 5.


Footnote # 3 for 60 FLRA No. 122 - Authority's Decision

   Article 23, § 7(A) and (B) provide, in pertinent part:

A. . . . [E]mployees may not start work more than one (1) hour to the availability of equipment, the beginning of scheduled work process, or before a taxpayer may be legally contacted.
B. Employees in positions involving public contact may begin work no earlier than:

            1. Revenue Officers (field going) 7:00 a.m.

            2. Tax Auditors 7:00 a.m.

             3. Revenue Agents (CEP) 7:00 a.m.

            4. Revenue Agents (field going) 7:00 a.m.

Award at 5-6.


Footnote # 4 for 60 FLRA No. 122 - Authority's Decision

   The Arbitrator did not address Articles 47 and 54.


Footnote # 5 for 60 FLRA No. 122 - Authority's Decision

   Section 6122(a) provides, in relevant part, that an agency "may establish . . . programs which allow the use of flexible schedules" and that:

An election by an employee [of such employee's time of arrival at work during designated hours] shall be subject to limitations generally prescribed to ensure that the duties and requirements of the employee's position are fulfilled.

Footnote # 6 for 60 FLRA No. 122 - Authority's Decision

   5 U.S.C. § 6131 provides, in pertinent part, that:

(a) Notwithstanding . . . any collective bargaining agreement . . . if the head of an agency finds that a particular . . . schedule . . . has had . . . an adverse agency impact, the agency shall promptly determine not to--
. . . .
(2) continue such schedule, if the schedule has already been established.
. . . .
(c)(3)(B) If the [parties] reach an impasse in collective bargaining with respect to terminating such schedule, the impasse shall be presented to the Panel.

Footnote # 7 for 60 FLRA No. 122 - Authority's Decision

   5 U.S.C. § 7101(a) provides, in pertinent part, that:

(1) . . . the statutory protection of the right of employees to organize, bargain collectively, and participate through labor organizations . . .
(A) safeguards the public interest,
(B) contributes to the effective conduct of public business, and
. . . .
(2) the public interest demands the highest standards of employee performance and the . . . development . . . of . . . work practices to facilitate . . . the efficient accomplishment of the operations of the Government.

Footnote # 8 for 60 FLRA No. 122 - Authority's Decision

   5 U.S.C. § 6122(b) provides, in relevant part, that:

[S]ubject to the terms of [the parties'] agreement . . . if the head of an agency determines that . . . the agency . . . is being substantially disrupted in carrying out its functions or is incurring additional costs because of . . . participation [in a flexible