American Federation of Government Employees, Local 2328 (Union) and United States, Department of Veterans Affairs Medical Center, Hampton, Virginia (Agency)

[ v61 p510 ]

61 FLRA No. 96

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2328
(Union)

and

UNITED STATES
DEPARTMENT OF VETERANS AFFAIRS
MEDICAL CENTER
HAMPTON, VIRGINIA
(Agency)

0-AR-3962

_____

DECISION

February 10, 2006

_____

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 Michael E. Zobrak filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions. [n2] 

      The Union filed a grievance alleging that the Agency violated the parties' collective bargaining agreement by implementing a compressed work schedule involving 12.5-hour tours without prior notification to the Union. The Arbitrator denied the grievance. For the following reasons, we deny the exceptions.

II.      Background and Arbitrator's Award

      The Intensive Care Unit (ICU) 4-East is one of fourteen nursing units at the VA Medical Center, Hampton, Virginia. Prior to 2003, all registered nurses in ICU 4-East worked either 8.5-hour tours or 8-hour tours. See Award at 3. The only exceptions were two registered nurses who were assigned 12-hour tours to accommodate their class schedule while they pursued academic degrees. See id.

      By memorandum dated September 30, 2003, the nurse manager informed the nursing staff of ICU 4-East that the Agency would provide "two compressed schedule options." Id. at 3. One compressed work schedule option involved a two-week pay period consisting of "six 12.5-hour tours and one 8-hour tour[.]" Id. The other compressed work schedule option involved a two-week pay period consisting of "four 12.5-hour tours and six 8-hour tours." Id. Employees were permitted to select one of the two options or to remain on their old schedule. The majority of the nurses in the ICU 4-East, including those working 8-hour tours, elected to change to one of the two compressed work schedule options. See id. at 4, 6. Those who did not make that election remained in their 8.5-hour tours. [n3] 

      The Union filed a grievance challenging the Agency's implementation of the compressed work schedule options without prior notification to the Union. See id. The grievance was unresolved and was submitted to arbitration, where the Arbitrator framed the issue as "whether the [Agency] violated the Agreement by establishing a compressed work schedule involving 12.5-hour tours." Id. at 2.

      As an initial matter, the Arbitrator found that Article 46, Section 4 of the parties' agreement requires the Agency to notify the Union of any changes to conditions of employment of bargaining unit members. [n4]  See id. at 6. The Arbitrator concluded that no notice was required here because there was no change in conditions of employment inasmuch as selection of the compressed work schedule by employees was optional and not mandatory. See id. The Arbitrator noted that while most of the nursing staff, including those working 8-hour tours, elected to change to one of the two compressed work schedule options and other nurses remained in their 8.5-hour tours, "[a]ll of these decisions by the nursing staff had no detrimental effect on any employee." Id.

      The Arbitrator rejected the Union's contention that there was a past practice limiting tours to 12 hours in duration for compressed work schedules and that this past practice could not be changed without the approval of the Union. The Arbitrator determined that there was no past practice limiting tours to 12 hours, and that [ v61 p511 ] "there is no contractual limitation to only a 12-hour tour." Id. at 7. Further, the Arbitrator found that "a 12.5-hour tour meets the needs of ICU 4-East." Id. at 7.

      Finally, the Arbitrator concluded that the Union failed to demonstrate that the 12.5-hour tour violates Article 20, Section 3.D of the parties' agreement, which requires a break of 12 hours between tours. See id. at 7-8. The Arbitrator found that the Union "failed to present evidence that any of the nurses in ICU 4-East who chose the compressed schedule actually worked without a 12-hour break." Id. at 8.

      Based on the foregoing, the Arbitrator denied the grievance.

III.     Union's Exceptions

      The Union contends that the award is contrary to the parties' agreement and regulations. See Exceptions at 2. The Union also disputes "the framing/interpretation of the evidence that contributed to the findings and the decision." Id.

      The Union makes two claims that the award fails to draw its essence from the agreement. First, the Union contends that the Arbitrator erred in concluding that implementation of the compressed work schedules did not constitute a change in conditions of employment that required notification to the Union under Article 46, Section 4 of the parties' agreement. In this regard, the Union asserts that the Arbitrator erred in finding that notification is dependent "on whether the change was voluntary or mandatory." Id.

      Second, the Union contends that the Arbitrator erred in concluding that the Union failed to demonstrate that the 12.5-hour compressed work schedule violates Article 20, Section 3.D of the parties' agreement because the Union did not present evidence that any of the nurses in ICU 4-East actually worked without a 12-hour break. See id. at 4. The Union asserts that, although the Union did not present such evidence, the Agency "did not present evidence to the contrary and did not contest the allegation of the violation by the Agency." See id.

      Further, the Union contends that the Arbitrator made several erroneous factual findings. For example, the Union claims that the Arbitrator erred in concluding that there is no past practice of limiting tours to 12 hours in duration for compressed work schedules in ICU 4-East. The Union asserts that the 12-hour tour "was universally accepted between both the Union and the Agency since 1984." [n5]  Id. at 4. The Union also states that the Arbitrator erred in finding that the operational needs of ICU 4-East are different from the other nursing units. See id. The Union argues that ICU 4-East shares "basic standards" of care and practice with other nursing units with 12-hour tours. Id.

      The Union also claims that the Arbitrator erred in describing one of the two compressed work schedules. Id. at 2. In this regard, the Union states that, "[i]n order for the nurses to work four 12.5 hour tours and six 8 hour tours, excluding the lunch time, they would work ninety-six (96) hours per pay period." Id. The Union adds that the Arbitrator erroneously described the operating hours of other units.

IV.     Preliminary Issue

      The Union's exceptions in this case were filed with the Authority and served on the Agency by mail on May 5, 2005. On May 13, 2005, the Authority's Case Control and Legal Publications Office (CC/LP) issued an Order directing the Union to cure certain procedural deficiencies. The Union timely complied with the deficiency Order. On June 23, 2005, the Agency filed an opposition, which the Authority received on June 27, 2005. The Authority issued an Order to Show Cause to the Agency to show why its opposition, which was due on June 13, 2005, should be considered by the Authority.

      In its response to the Order to Show Cause, the Agency argues that its deadline to file an opposition was extended by the Authority's deficiency Order to the Union. In support, the Agency cites AFGE, Local 169, 7 FLRA 27, 28 n.2 (1981) (Local 169). In Local 169, the union's exceptions were procedurally deficient and were later cured. The Authority found that the agency's opposition was timely as it was filed "within the required period" after the union's exceptions were cured. Id.

      We need not determine in this case whether the Agency's opposition was timely filed, because we find, for the reasons set forth below, that the Union has failed to establish that the award is deficient. See AFGE, Local 131, 60 FLRA 999, 999 n.* (2005); AFGE, Local 3599, 53 FLRA 1267, 1267 n.* (1998). Accordingly, we have not considered the opposition in reaching our decision.

      Nonetheless, we note that the decision relied on by the Agency, Local 169, was effectively overruled in AFGE, Local 1658, 61 FLRA 80 (2005) (Local 1658) [ v61 p512 ] (Chairman Cabaniss concurring as to other matters), a decision which was issued after the parties' submissions were filed in this case. In Local 1658, the agency argued that its time limit to file an opposition was tolled by the Authority's issuance of an order directing the union to correct a procedural deficiency. The Authority rejected this argument because, as relevant here, the Authority's order did not expressly extend the time limit for filing the opposition.

      Accordingly, we take this opportunity to clarify that the principles set forth in Local 1658, not those in Local 16, will apply in future cases in determining whether or not a deficiency order extends the deadline for filing an opposition to a party's exceptions to an arbitrator's award. Thus, a deficiency order will stay the deadline for filing an opposition either where the deficiency order states that no opposition would be due until the Authority ruled on whether the procedural deficiencies were cured or where the deficiencies in the exceptions are potentially jurisdictional. See Local 1658, 61 FLRA at 81.

V.     Analysis and Conclusions

A.      The award does not fail to draw its essence from the agreement

      The Union makes two claims that the award fails to draw its essence from the agreement. For an award to be deficient as failing to draw its essence from the parties' agreement, it must be established that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the agreement as to manifest an infidelity to the obligation of an arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).

      First, the Union contends that the Arbitrator erred in concluding that the implementation of the compressed work schedules did not constitute a change in conditions of employment that required notification to the Union under the parties' agreement. In this regard, the Union asserts that the Arbitrator erred in finding that notification is dependent on whether the change was voluntary or mandatory.

      As relevant here, Article 46, Section 4 provides that the Agency "shall provide reasonable advance notice to the appropriate Union official(s) prior to changing conditions of employment of bargaining unit employees." Applying this provision, the Arbitrator concluded that no notice was required here because there was no change in conditions of employment inasmuch as selection of the compressed work schedule by employees was optional and not mandatory, and the compressed work schedule had no detrimental effect on any employee. See Award at 6.

      Article 46, Section 4 is a contractual notice provision. The Union does not identify any language in the contract that defines the term "chang[es] [in] conditions of employment of bargaining unit employees." In our view, the Union has not shown that the Arbitrator's interpretation and application of that term to exclude a matter that was optional is irrational, unfounded, implausible, or evidences a manifest disregard for the agreement. Thus, the Union has not established that the award fails to draw its essence from Article 46, Section 4 under the standards set forth above. See, e.g., United States Dep't of Veterans Affairs, VA Pittsburgh Healthcare System, 60 FLRA 516 (2004) (Chairman Cabaniss concurring) (award setting aside agency's unilateral implementation of mandatory compressed work schedule found not deficient on essence ground).

      Second, the Union contends that the Arbitrator erred in concluding that the Union failed to demonstrate that the 12.5-hour compressed work schedule violates Article 20, Section 3.D of the parties' agreement. As relevant here, that provision states that, "[e]xcept in emergencies, employees will not be required to report to work unless they have had at least (12) hours of off-duty time between work tours." The Arbitrator found that the Union "failed to present evidence that any of the nurses in ICU 4-East who chose the compressed schedule actually worked without a 12-hour break." Award at 8.

      Although the Union argues that the Agency failed to dispute or disapprove the Union's claim, the Union's argument fails to establish that the Arbitrator's requirement that the Union prove a violation of Article 20, Section 3.D is irrational, unfounded, implausible, or evidences a manifest disregard for the agreement. Thus, the Union has not established that the award fails to draw its essence in this respect.

      Accordingly, we deny the exception.

B.      The award is not based on nonfacts

      To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593 (1993) (Lowry). The Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter [ v61 p513 ] that the parties disputed at hearing. Id. at 594 (citing Nat'l Post Office Mailhandlers v. United States Postal Serv., 751 F.2d 834, 843 (6th Cir. 1985)).

      The Union claims that the Arbitrator erred in concluding that that there is no past practice of limiting tours to 12 hours in duration for compressed work schedules in ICU 4-East. See Exceptions at 4. The Union asserts that the 12-hour tour "was universally accepted between both the Union and the Agency since 1984." Id. However, the parties disputed before the Arbitrator the existence of a past practice limiting tours to 12 hours tours for compressed work schedules in ICU 4-East. [n6]  See Award at 4, 5. Similarly, with respect to the Arbitrator's finding that that the operational needs of ICU 4-East are different from the other nursing units, the parties disputed before the Arbitrator whether the operational needs of ICU 4-East are different from the other nursing units. See id. at 5.

      As stated above, the Authority will not find an award deficient as based on a nonfact where the alleged nonfact was disputed by the parties at the hearing. See United States Dep't of the Treasury, Internal Revenue Service, Greensboro, N.C., 61 FLRA 103, 105 (2005) (Member Armendariz concurring in part and dissenting in part as to other matters); Lowry, 48 FLRA at 594. As these facts were disputed below, the Union's exception provides no basis for finding the award deficient as based on a nonfact.

      The Union also claims that the Arbitrator erred in describing one of the two compressed work schedules and in describing the operating hours of other units. However, the Arbitrator's descriptions as to these matters were not central facts in the Arbitrator's denial of the grievance. Therefore, the Union has not established that the award is based on a nonfact under the standard set forth above. See id. at 593.

      Accordingly, we deny the exception.

VI.     Decision

      The exceptions are denied. [n7] 


Appendix

Article 20-Hours of Work and Overtime provides, in pertinent part, as follows:

Section 3-Tours of Duty/Scheduling

D. Except in emergencies, employees will not be required to report to work unless they have had at least (12) hours of off-duty time between work tours. Exceptions may be made with the approval of the employee and supervisor. This will not preclude work on an overtime basis.

Article 46--Rights and Responsibilities, provides, in pertinent part, as follows:

Section 4-Notification of Changes in Conditions of Employment

The Department shall provide reasonable advance notice to the appropriate Union official(s) prior to changing conditions of employment of bargaining unit employees. The Department agrees to forward, along with the notice, a copy of any and all information/material relied upon to propose the change(s) in conditions of employment. All notifications shall be in writing to the appropriate Union official, with sufficient information to the Union for the purpose of exercising its full rights to bargain. [ v61 p514 ]


Concurring Opinion of Chairman Cabaniss:

      I write separately to address an ongoing issue in arbitration decisions, i.e., whether contract language reflecting statutory rights and obligations should be construed as creating a contractual right, or merely reflecting a statutory right.

      In the present matter, the Arbitrator framed the issue as "whether the [Agency] violated the Agreement by establishing a compressed work schedule involving 12.5-hour tours." Award at 2. The relevant contract provision in question, Article 46, Section 4, states that "[t]he [Agency] shall provide reasonable advance notice to the appropriate Union official(s) prior to changing conditions of employment of bargaining unit employees." Id. at 2-3. The Arbitrator found no violation of the agreement and denied the grievance. The Union challenged this finding, alleging that the Arbitrator's award on this issue failed to draw its essence from the agreement, and the majority opinion (with which I join) correctly denies that exception.

      Authority precedent notes that where parties have a contract provision that mirrors a provision in the Statute, "the Authority 'must exercise care' to ensure that the arbitrator's interpretation is consistent with the Statute." AFGE, Local 507, 58 FLRA 378, 382 (2003) (concurring opinion of Chairman Cabaniss), (citing to NAGE, Local R14-143, 55 FLRA 317, 319 (1999) (Chairman Segal concurring in part and dissenting in part) (citations omitted)). Additionally, when parties have such a provision that they intend to be interpreted differently than from the Statute, "'that should be made known to the arbitrator' who can then advise whether there is a contractual or statutory matter at issue." Id., (citing to United States DOD, Defense Mapping Agency, Aerospace Ctr., St. Louis, Mo., 43 FLRA 147, 153 (1991)).

      Although the parties' agreement provision is not a verbatim quote from the Statute, I believe most would find that a bargaining obligation based upon "changing conditions of employment" mirrors a provision of the Statute reflecting an agency's statutory duty to bargain prior to changing bargaining unit employees' conditions of employment. In the present instance, however, the parties did not address this issue to the Arbitrator, one way or the other, and the Arbitrator interpreted the provision before him as involving only a contractual obligation to engage in bargaining, as opposed to the Statute's obligation to bargain.

      The distinction between ascribing the Statute's obligation to bargain to this provision, and ascribing what the Arbitrator interprets this bargaining obligation means as a matter of contract, can be notable. For example, the Arbitrator here relied on the fact that the schedule change involved was voluntary, rather than mandatory. However, in assessing an agency's statutory duty to bargain, the Authority has not relied on this distinction between voluntary and mandatory considerations. See, e.g., United States Dep't of Health and Human Servs., Public Health Serv., Indian Health Serv., Quentin N. Burdick Memorial Health Care Facility, Belcourt, N.D., 57 FLRA 903, 907 (2002) (voluntary nature of use of government housing by employees did not affect determination that agency had to bargain prior to changing rental rate for that housing); United States Dep't of the Air Force, Air Force Materiel Command, 54 FLRA 914, 918-21 (1998) (agency decision to offer voluntary separation incentive pay to employees gave rise to bargaining obligation under the Statute); and United States Dep't of the Treasury, Customs Serv., Washington, D.C., 38 FLRA 770, 792 (1990) (whether employees volunteered for cross-assignments did not affect whether conditions of employment were changed by agency without providing union statutory right to notice and opportunity to bargain).

      I would have no difficulty concluding that the Agency's conduct here would violate its statutory duty to bargain, but the parties' agreement never identified whether or not this provision was meant to reflect the Agency's statutory duty to bargain, and the parties never said, so it would seem eminently logical for the Arbitrator to look at a contractual provision and conclude that it was a contractual (as opposed to statutory) obligation to bargain. This is fine if that is what the parties intended, but I imagine that most agreements in the Federal sector incorporate statutory obligations into their language without any thought whatsoever as to whether the parties mean to reflect that statutory obligation, or something different. That indifference can have consequences, as is apparent here.



Footnote # 1 for 61 FLRA No. 96 - Authority's Decision

   Chairman Cabaniss' separate opinion, concurring in part, is set forth at the end of this decision.


Footnote # 2 for 61 FLRA No. 96 - Authority's Decision

   For the reasons explained, infra, we have not considered the Agency's opposition in reaching our decision in this case.


Footnote # 3 for 61 FLRA No. 96 - Authority's Decision

   Of the two nurses who had been assigned 12-hour tours, one nurse selected a compressed work schedule option and the other nurse transferred to a different facility.


Footnote # 4 for 61 FLRA No. 96 - Authority's Decision

   Relevant portions of the collective bargaining agreement are set forth in the Appendix.


Footnote # 5 for 61 FLRA No. 96 - Authority's Decision

   The record indicates that of the 14 nursing units at the Agency, two units--Dialysis and Hospice-- had 12-hour tours. See Award at 4, 7.


Footnote # 6 for 61 FLRA No. 96 - Authority's Decision

   The Authority analyzes an exception challenging an arbitrator's finding of a past practice as a nonfact exception, while an exception challenging an arbitrator's interpretation of a past practice is analyzed as an essence exception. Se