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30:0386(49)AR - VA Medical Center, Leavenworth, KS and AFGE Local 85 -- 1987 FLRAdec AR

[ v30 p386 ]
The decision of the Authority follows:

 30 FLRA NO. 49
  30 FLRA 386

 30 NOV 1987






Case No. 0-AR-1410


     I. Statement of the Case

     This matter is before the Authority on exceptions to the
award of Arbitrator Thomas C. Hendrix 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 find
that the award is deficient.

     II. Background and Arbitrator's Award

     A grievance was filed alleging that the Activity was not
following past practice on weekend schedules. The remedy sought
was for the Activity to revert to the past practice of granting
employees every other weekend off. The grievance was not resolved
and was submitted to arbitration on the issue of whether the
Activity had complied with the time limits of the parties'
collective bargaining agreement for rendering a decision at step
2 of the grievance procedure.

     The Arbitrator ruled that the Activity had failed to comply
with the time limits and acknowledged that the parties' agreement
required that the grievance be resolved in favor of the grievant
if the requested remedy is "legal and reasonable under the
circumstances." Noting that both parties had declined to address
the merits of the grievance, the Arbitrator determined that the
remedy requested by the grievant "d(id) not appear to be
illegal." Accordingly, the Arbitrator sustained the
grievance and directed the Activity to "revert back to the
past-practice of granting employees every other weekend off."

     III. Exceptions

     A. Contentions

     The Agency contends that the Arbitrator's award is contrary
to management's right to assign work under section 7106(a)(2)(B)
of the Statute. Consequently, the Agency maintains that the
requested remedy was not properly granted under the terms of the
parties' collective bargaining agreement because it was not legal
and reasonable under the circumstances. The Agency also contends
that the award does not draw its essence from the parties'
collective bargaining agreement. The agency further argues that
the award is contrary to 5 C.F.R. 610.121, pertaining to the
establishment of work schedules.

     B. Analysis and Conclusions

     We conclude that the award is contrary to section

     This case is similar to National Association of Government
Employees, Local R1-25 and Brockton/West Roxbury VA Medical
Center, 21 FLRA  83 (1986), where the arbitrator found that the
activity had failed to follow established past practice when it
required employees to work midweek holidays. The arbitrator
sustained the grievance and enforced the established practice by
directing the activity to cease requiring employees to work
midweek holidays. The Authority found that the award was contrary
to management's right to assign work under section 7106(a)(2)(B).
The Authority explained that section 7106(a)(2)(B) encompasses
the right to determine when assigned work will be performed. The
Authority has found that the manner in which management has
assigned work in the past does not preclude management from
assigning work in another manner in the future. 21 FLRA  at 84.
The Authority concluded that by prohibiting the assignment of
work on midweek holidays, the award was deficient.

     Like the award in Brockton/West Roxbury VA Medical Center,
we find that the award in this case is deficient. The award
requires the Activity to "gran(t) employees every other weekend
off." As such, this award prohibits  the assignment of
work to employees on a weekend when the employees had worked the
previous weekend. The award does not concern the Activity's tours
of duty and administrative workweeks--which matters do not
concern the assignment of work. For example, American Federation
of State, County and Municipal Employees Local 2477 and Library
of Congress, 14 FLRA  59 (1984). Instead, the award (1) is
contrary to the Statute because it directly interferes with
management's right to assign work and (2) cannot be granted under
the terms of the parties' agreement in cases of untimeliness.
Accordingly, the award must be modified.

     IV. Decision

     The Arbitrator's award is modified to strike the granting of
the requested relief. 1

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

     Jerry L. Calhoun, Chairman

     Jean McKee, Member



     Footnote 1 In view of this decision, it is not necessary to 
address the Agency's other exceptions to the award.