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30:0378(47)AR - AFGE, Council of Prison Locals, Local 3546 and Justice, National Institute of Corrections, Central Office -- 1987 FLRAdec AR

[ v30 p378 ]
The decision of the Authority follows:

 30 FLRA NO. 47
 30 FLRA 378

 30 NOV 1987






Case No. 0-AR-1432


     I. Statement of the Case

     This matter is before the Authority on exceptions to the
award of Arbitrator Herbert Fishgold filed by the Agency under
section 7122(a) of the Federal Service Labor - Management
Relations Statute (the Statute) and part 2425 of the Authority's
Rules and Regulations. For the reasons discussed below, we deny
the exceptions.

     II. Background and Arbitrator's Award

     This grievance concerns a change in the grievant's tour of
duty. According to the Arbitrator, employees of the Activity have
been permitted to work flexible work schedules with starting and
quitting times arranged informally by supervisors and employees.
From the beginning of his employment until August 1986, the
grievant's hours of work were 8 a.m. to 4:30 p.m. in order to
accommodate family needs and a carpool. In August 1986, the new
division supervisor announced that the grievant and the other two
employees in the division would work from 9 a.m. to 5:30 p.m.

     In December 1986, the grievant's supervisor hired a new
employee and permitted her to work a schedule of 7:15 a.m. to
3:45 p.m. in order to accommodate a carpool. Subsequently, the
grievant requested reinstatement of his former schedule for
personal reasons which he maintained were similar to those
of the new employee. The grievant's supervisor refused to
reinstate his original schedule and the grievant filed the
grievance which was submitted to arbitration.

     Before the Arbitrator, the Activity argued that the
grievance was untimely because it was not filed within 30  days
of the grievant's schedule change in August 1986. The Arbitrator
agreed with the Activity to the extent the grievance claimed that
the Activity failed to bargain with the Union when it changed the
grievant's work hours. However, the Arbitrator found that the
grievance was timely filed with respect to the grievant's claim
that the Activity acted arbitrarily in denying reinstatement of
his former schedule because that claim did not arise until after
the approval of the new employee's work schedule.

     On the merits of this claim, the Arbitrator concluded that
the Activity had acted arbitrarily and inequitably. The
Arbitrator found that the purpose of the Activity's flexible work
schedule policy is to accommodate the personal needs of employees
to the extent consistent with the operational needs of
management. However, in the grievant's case, the Arbitrator found
that the change in the division's work schedule to 9 a.m. to 5:30
p.m. was a punitive measure to make the grievant more accountable
for his time. The Arbitrator further found that the use of work
hours as a punitive measure was arbitrary and contrary to the
parties' collective bargaining agreement which required fair and
equitable treatment in work schedule changes. Consequently, the
Arbitrator ruled that the Activity's refusal to reinstate the
grievant's original schedule violated the agreement and was not
encompassed by management's rights under section 7106(a) of the
Statute. Accordingly, the Arbitrator sustained the grievance and
directed the Activity to restore the grievant's work schedule of
8 a.m. to 4:30 p.m.

     III. Discussion

     The Agency contends that the award does not draw its essence
from the collective bargaining agreement and is contrary to
section 7106(a) of the Statute. Specifically, the Agency argues
that the Arbitrator's determination that the grievance was timely
filed is deficient under the express terms of parties' agreement.
The Agency also argues that the Arbitrator's restoration of the
grievant's original schedule is contrary to management's rights
to assign work and direct employees.

     We conclude that the Agency has failed to establish that the
Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute: specifically, that
the award is contrary to any law, rule, or regulation, or that
the award is deficient on other grounds similar to those applied
by Federal courts in private sector labor relations cases. See,
for example, Headquarters, Fort Sam Houston, Department of the
Army and Local 2145, American Federation of Government Employees,
AFL - CIO, 15 FLRA  974 (1984) (exception which merely disagrees
with the arbitrator's determination that the grievance was timely
filed provides no basis for finding the award deficient); see
also American Federation of Government Employees, AFL - CIO,
International Council of U.S. Marshals Service Locals and
Department of Justice, U.S. Marshals Service, 5 FLRA  542 (1981)
(The agency contended that the award, which found that management
violated the collective bargaining agreement when it instituted
tours of duty starting at 7 a.m. and 9 a.m. and which ordered
employees restored to the regularly scheduled tour of duty of
8:30 a.m. to 5 p.m., conflicted with management's rights to
direct employees and assign work under section 7106(a). The
Authority denied the exceptions finding that nothing in the award
prevented management from directing employees and assigning

     Accordingly, the Agency's exceptions are denied.

     Issued, Washington, D.C., November 30,  1987.

     Jerry L. Calhoun, Chairman

     Jean McKee, Member