American Federation of Government Employees, Local 2357, National Joint Council of Food Inspection Locals (Union) and United States Department of Agriculture, Food Safety and Inspection Service (Agency)

[ v62 p375 ]

62 FLRA No. 70

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2357
NATIONAL JOINT COUNCIL
OF FOOD INSPECTION LOCALS
(Union)

and

UNITED STATES
DEPARTMENT OF AGRICULTURE
FOOD SAFETY AND INSPECTION SERVICE
(Agency)

0-AR-4094

_____

DECISION

March 31, 2008

_____

Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member

I.     Statement of the Case

      This case is before the Authority on an exception to an award of Arbitrator Gerard A. Fowler 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.

      The issue before the Arbitrator was whether the Agency violated the parties' agreement by changing employees' lunch periods. The Arbitrator denied the grievance.

II.     Background and Arbitrator's Award

      The unit employees involved in this case are assigned to a specific meat packing plant (plant). Plant management requested that, for the following day only, the Agency allow it to begin operations one hour later than normal, which meant that the plant would schedule lunch periods for its employees later than usual. The Agency granted the request. Because the work of unit employees is coordinated with the operation of the plant, the granting of the request meant that unit employees' lunch periods were also delayed. The Union filed a grievance contending that the Agency's decision to change unit employees' lunch periods was contrary to the parties' collective bargaining agreement. The grievance was not resolved and was submitted to arbitration, where the Arbitrator framed the issue as follows:

Did the Agency violate Article 13, § 2.c of the LMA [Labor-Management Agreement] . . . when it changed the [inspectors'] lunch break time from 12:00 p.m. to 12:45 p.m.; and if so, what is the proper remedy?

Award at 2.

      The Arbitrator noted that under Article 13. Section 2.c, of the parties' agreement, which was drafted to "mirror" the regulations incorporated therein, employee lunch periods may not occur earlier than four hours after the beginning of the scheduled operations or later than five hours after operations begin. [n1]  Id. at 10. The Arbitrator also noted that, under Article 13, Section 2.b, inspectors' lunch periods must be scheduled to coincide with the plant's scheduled lunch break to enable the plant to run efficiently and effectively. According to the Arbitrator, the plant began operations on the relevant day at 8 a.m. and the inspectors' lunch period, which began one hour later than usual, was consistent with Article 13, Section 2.c of the agreement and 9 C.F.R. § 307.4(b) because it occurred not more than five hours after operations began.

      The Arbitrator found that FSIS (Food Safety Inspection Service) Notice 32-92, relied on by the Union, which limits midweek changes in inspectors' tours of duty, did not concern the scheduling of inspectors' lunch periods. [n2]  Specifically, he found that inspectors' lunch periods were the "only officially authorized interruption in the inspectors' basic tour workweek." Award at 14-15. Because the Arbitrator found that employee lunch periods are not a part of their tour of duty, he concluded that "changing the inspector[s'] lunch break from 12:00 until 12:45 was not a change in the inspector[s'] tour of duty." Id. at 15. He noted further that FSIS 32-92 allowed minor deviations from a plant's operating schedule.

      The Arbitrator rejected the Union's reliance on a previous arbitration award. He found that the facts were distinguishable because, in this case, the plant had requested the change in operating schedule and that request had been granted, whereas neither of those things had happened in the previous award. See Award at 16.

      [ v62 p376 ] The Arbitrator concluded that the facts of the case did not establish that the Agency violated Article 13, Section 2.c when it changed the inspectors' lunch periods. Accordingly, the Arbitrator denied the grievance in its entirety.

III.     Positions of the Parties

A.      Union's Exception

      The Union contends that the award is contrary to 9 C.F.R. §§ 307.4 and 381.37, Article 13, Section 2(c), and a previous arbitration award. Specifically, the Union claims that the Arbitrator erred in his interpretation of the regulatory phrases "work schedules," "schedule of operations," and "tours of duty." The Union states employees' lunch periods previously began no later than 12:00 noon., "despite the actual time plant operations began." Exception at 2. In addition, the Union contends that, under FSIS Notice 32-92, "midweek work schedule changes for inspection personnel are illegal," and "the Agency had more control over midweek schedule changes than it exercised." Id. at 3.

B.      Agency's Opposition

      The Agency contends that it properly "approved a timely submitted request from the plant to change its daily operating schedule from 7:00 a.m. to 8:00 a.m." Agency Opposition at 3. The Agency argues, for the same reasons found by the Arbitrator, that the parties' agreement permits minor variations of work schedules, that the award does not fail to draw its essence from Article 13, Section 2(c) of the parties' agreement. Finally, the Agency asserts that arbitration awards are not precedential and, thus, the Union's exception that the award conflicts with a previous award does not demonstrate that the award is deficient.

IV.     Analysis and Conclusions

      It is well settled that when a collective bargaining agreement incorporates the regulations with which an award allegedly conflicts, the matter is one of contract interpretation. See, e.g., AFGE, Local 2703, 59 FLRA 81, 83 (2003) (AFGE, Local 2703). Here, it is undisputed that Article 13 of the parties' agreement incorporates 9 C.F.R. §§ 307.4 and 381.37, which are Agency regulations. In addition, the Arbitrator framed the issue before him as one concerned only with contract interpretation. See Award at 2. Moreover, the Arbitrator limited his award to a determination of whether the Agency violated the parties' agreement and specifically found that the Agency did not violate Article 13, Section 2.c when it changed the inspectors' lunch periods. See id. at 16-17. Consequently, Article 13 governs the grievance and any alleged inconsistency between the award and those regulations does not provide a basis for finding the award deficient. See AFGE, Local 1658, 61 FLRA 80, 82 (2005). The issue before the Authority, therefore, is whether the award fails to draw its essence from Article 13 of the agreement. See AFGE, Local 2703, 59 FLRA at 83.

      In order for an award to be found deficient as failing to draw its essence from the collective bargaining agreement, it must be established that the award: (1) 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 the arbitrator; (2) does not represent a plausible interpretation of the agreement; (3) cannot in any rational way be derived from the agreement; or (4) evidences a manifest disregard of the agreement. See, e.g., United States Dep't of Defense, Dependents Schools, 53 FLRA 196, 208 (1997) (citing United States Dep't of Labor (OSHA), 34 FLRA 573, 575-77 (1990)).

      The Arbitrator found that Article 13 distinguished between a plant's operating schedule and a unit employee's tour of duty and concluded that employee lunch periods must take place no less than four, and no more than five, hours after plant operations begin. He also found that unit employees are required to be present when operations requiring inspections are being conducted, and that Agency management was permitted to approve minor changes in a plant's operating schedule, as long as plant management requested the change at least a day before the change would take place. He found that these requirements had been met. The Union has failed to demonstrate that, in these circumstances, the Arbitrator's interpretation of Article 13 is irrational, implausible, unfounded, or evidences a manifest disregard of the collective bargaining agreement. See Local 2703, 59 FLRA at 83. Therefore, the Union's exception does not provide a basis for finding the award deficient.

      In addition, it is well established that prior arbitration awards do not constitute applicable precedent. See, e.g., United States Dep't of Homeland Sec., United States Customs & Border Prot., United States Border Patrol, El Paso, Tex., 60 FLRA 883, 885 (2005). Consequently, the award relied on by the Union provides no basis for finding the Arbitrator's award deficient under the Statute. See id.

V.     Decision

      The Union's exception is denied. [ v62 p377 ]


APPENDIX

1.      Article 13 of the parties' agreement provides, in relevant part, as follows:

Article 13
Hours of Work

Section 2. Lunch Period
a.      The lunch period is the only officially authorized interruption in the inspector's basic tour of duty once it begins. The lunch period may be thirty (30) minutes, forty-five (45) minutes, or in any case will not exceed one (1) hour in duration. The lunch period is unpaid time and is not included in the employee's basic workweek.
b.      An on-line slaughter inspector's basic tour of duty generally corresponds with a plant's approved hours of operation. The on-line slaughter inspector's lunch period shall be scheduled to coincide with the plant's scheduled lunch break. Once established, lunch periods should remain relatively constant as to time and duration.
c.      In accordance with 9 CFR 307.4 and 9 CFR 381.37, lunch periods for inspectors shall not, except as provided herein, occur prior to four (4) hours after the beginning of scheduled operations nor later than five (5) hours after operations begin.

Award at 3.

2.      9 C.F.R. § 307.4 provides, in relevant part, as follows:

§ 307.4 Schedule of operations.
(b) A shift is a regularly scheduled operating period, exclusive of mealtime. One lunch period is the only official authorized interruption in the inspector's tour of duty once it begins. Lunch periods may be 30 minutes, 45 minutes, or in any case may not exceed one hour in duration. Once established, the lunch period must remain relatively constant as to time and duration. Lunch periods for inspectors shall not, except as provided herein, occur prior to 4 hours after the beginning of scheduled operations nor later than 5 hours after operations begin.
. . . .
(d)(1) Each official establishment shall submit a work schedule to the area supervisor for approval. In consideration of whether the approval of an establishment work schedule shall be given, the area supervisor shall take into account the efficient and effective use of inspection personnel. The work schedule must specify daily clock hours of operation and lunch periods for all departments of the establishment requiring inspection.
(2) Establishments shall maintain consistent work schedules. Any request by an establishment for a change in its work schedule involving an addition or elimination of shifts shall be submitted to the area supervisor at least 2 weeks in advance of the proposed change. Frequent requests for change shall not be approved: Provided, however, minor deviations from a daily operating schedule may be approved by the inspector in charge, if such request is received on the day preceding the day of change. 

3. FSIS Notice 32-92 provides, in relevant part, as follows:

MIDWEEK SCHEDULE CHANGES IN
INSPECTION PERSONNEL TOURS OF DUTY

III.      BACKGROUND
     A. The arbitration case concerned under what circumstances the Agency could make midweek schedule changes in inspectors' tours of duty because of changes in plant operating schedules. The Agency had determined that it would be seriously handicapped in carrying out its functions and that its cost would be substantially increased if there was no flexibility to effect changes in inspectors' tours of duty because of changes in plant operating schedules. . . .
     B. . . . Thus, while [the Agency] cannot establish plant operating schedules, the arbitrator concluded that it can and should require plants to provide sufficient advance notice of changes in those operating schedules whenever