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35:1171(131)AR - - DOD, Army, Red River Army Depot and NAGE Local R14-52 - - 1990 FLRAdec AR - - v35 p1171

[ v35 p1171 ]
The decision of the Authority follows:

35 FLRA No. 131









LOCAL R14-52




May 31, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to the award of Arbitrator W. Edwin Youngblood filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency filed an opposition to the Union's exception. The Arbitrator denied a Union grievance which asserted that a tour of duty was changed in order to avoid paying employees premium pay for working on a holiday.

For the following reasons, we conclude that the Union has failed to establish that the Arbitrator's award is deficient, and we will deny the Union's exception.

II. Background and Arbitrator's Award

The grievance in this case involves employees in the Agency's Ledgers and Reports Branch who, pursuant to a Memorandum of Agreement, work a compressed work schedule consisting of four 10-hour days each administrative work week. The normal administrative work week begins on Thursday and ends the following Wednesday; employees work Thursday, Monday, Tuesday, and Wednesday and have Friday, Saturday, and Sunday as nonwork days. The Arbitrator noted that the Memorandum of Agreement provides that "'[m]anagement retains the right to change initially established tours as needed for efficiency of the operations.'" Award at 2.

The grievance arose when the Agency announced that as a result of the Columbus Day holiday on Monday, October 10, 1988, it would require employees to work on Friday, October 14, 1988 (normally a day off), and instead, have Monday, October 17, 1988 (normally a work day), as a nonwork day. During the following administrative work week, employees would resume their regular work schedule with Friday as a day off and Monday as a workday. The grievance contended that management changed the employees' tour of duty for only 1 week specifically to avoid allowing employees to work on the Monday holiday and, thereby, earn premium pay for that day.

The Arbitrator stated the issue before him as: "Was the tour of duty changed to avoid the payment of premium pay required if employees worked on October 10, a holiday?" Id. at 4.

As is relevant here, the Arbitrator found that the Union established a "prima facie" case that the change in the tour of duty violated Army Regulation (AR) 215-3.(*) Id. at 4. However, based on his review of the testimony and documentary evidence, the Arbitrator concluded that the change in tour of duty was made to increase efficiency of operations rather than to avoid paying employees premium pay for working on a holiday. The Arbitrator noted that a decision to change the tour of duty for efficiency of operations is permitted by the parties' Memorandum of Agreement. Therefore, the Arbitrator denied the Union's grievance.

III. Positions of the Parties

A. Union's Exception

The Union contends that the Arbitrator's award is deficient because it is contrary to AR 215-3. According to the Union, the evidence clearly shows that the Agency manipulated work schedules to avoid paying overtime in violation of AR 215-3. The Union requests the Authority to "find error in the decision and reverse the decision of the Arbitrator." Exception at 4.

B. Agency's Opposition

The Agency asserts that the Arbitrator's "findings, that the Agency changed the tour for the efficiency of the operations rather than to avoid premium pay for a holiday, and thus [the change] is protected by the Memorandum of Agreement, are substantially supported by the evidence." Opposition at 3. The Agency asserts that "no grounds for review of the Arbitrator's Award exist and no review should be undertaken." Id.

IV. Analysis and Conclusion

We conclude that the Union has failed to establish that the Arbitrator's award is inconsistent with AR 215-3.

The Arbitrator found, based on his evaluation of testimony and evidence presented at the arbitration hearing and his interpretation and application of provisions in the parties' Memorandum of Agreement, that (1) the Agency changed tours of duty to increase efficiency rather than to avoid overtime, and (2) the changes were permitted by the Memorandum of Agreement. In so finding, the Arbitrator rejected the same arguments that the Union makes in its exception. In our view, the Union's exception constitutes mere disagreement with the Arbitrator's findings and an attempt to relitigate the merits of the grievance. Accordingly, the exception provides no basis for finding the award deficient. See U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center, Washington, D.C. and American Federation of Government Employees, Local 3407, 35 FLRA No. 110, slip op. at 4 (1990) (exception contending that an award conflicted with an agency regulation constituted an attempt to relitigate the merits of the dispute and provided no basis for finding the award deficient).

V. Decision

The Union's exception is denied.

(If blank, the decision does not have footnotes.)

*/ AR 215-3 provides that "[t]ours of duty will not be changed or adjusted solely to avoid the obligation for granting leave or premium pay for holiday." Award at 3; Attachment 1 to Union's Exceptions.