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The decision of the Authority follows:
45 FLRA No. 114
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator John Paul Simpkins 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 exceptions.
The Union filed a grievance protesting the Agency's changes in the flexitime work schedules of five employees. The Arbitrator denied the grievance, finding that the changes were made in accordance with the parties' collective bargaining agreement and the Work Schedules Act.1/
For the following reasons, we conclude that the award must be remanded to the parties for resubmission to the Arbitrator consistent with this decision.
II. Background and Arbitrator's Award
The five grievants are secretaries employed by the Agency. Before July 13, 1989, the grievants' work schedules permitted them to accumulate credit hours so that they worked 9 days in each 2-week period. On July 13, 1989, the grievants' immediate supervisors requested the grievants to change their work schedules so that they would work 10 days in each 2-week period. The grievants filed grievances alleging that the requests violated the parties' collective bargaining agreement and Agency practice because the requests to change the work schedules were not signed by the employees' second-level supervisors. The requests were rescinded.
In August 1989, the employees received requests from their second-line supervisors to change their work schedules so that they would work 10 days in each 2-week period. The employees filed individual grievances over the changes in their work schedules. The employees' grievances set forth how the changed work schedules "would create problems and/or hardships to them personally." Award at 3. The grievances also "questioned [the Agency's] need to have [its] secretaries change work schedules." Id.
The grievances were denied and, after being consolidated, were submitted to arbitration. The issue before the Arbitrator, as stipulated by the parties, was:
Did the [Agency] violate Article 35, Sections 35.01 and 35.06(b) of the CBA (Collective Bargaining Agreement) by requiring the grievants to change their flexitime schedules in August, 1989? If so, what shall the remedy be?
Id. at 20-21. The Arbitrator noted the parties' stipulations that the Agency's alternative work schedule system "is a flexible work schedule as opposed to a 'compressed' work schedule as defined by" the Work Schedules Act and that Article 35 (Flexitime) of the parties' agreement "is consistent and in accordance with the provisions of" the Work Schedules Act. Id. at 3, 4. Additionally, the Arbitrator noted that the parties had asked him to "focus on" the parties' agreement, "particularly Article 35, Sections 35.01
and 35.06(b)," and "to consider" the Work Schedules Act, "specifically [s]ections 6122(a) and (b) and 610(a)(1) and (2)[.]" Id. at 4, 5.2/
Before the Arbitrator, the Union contended that the Agency had violated the parties' agreement and applicable law because the Agency had issued an Agency-wide schedule change and had "failed to demonstrate any work-related reason for implementing the changes" in the grievants' work schedules. Id. at 7. The Union argued that the grievants had shown that the changes "would significantly impact upon [the grievants] by raising commuting costs, child care costs, work-related expenses and travel time" (id. at 8), and the Union had "shown by extensive evidence" that the Agency had "no 'business related' reason based upon work requirements for the changes" (id. at 11).
The Agency contended before the Arbitrator that the Union failed to demonstrate that the Agency's actions violated law or the parties' agreement. The Agency asserted that under the Work Schedules Act, it had the authority to change alternative work schedules if those schedules proved disruptive or too costly to the Agency. The Agency acknowledged that it was required to specify the work requirements that formed the basis for its decision to change work schedules and to give consideration to the hardship the decision would cause the employees. The Agency argued, however, that neither the law nor Article 35 of the agreement set a standard for the reasons or required a balancing between the needs of the Agency and the employees. The Agency urged the Arbitrator to reject the Union's attempt "to establish that the 'just and sufficient cause' standard, applicable under Article 36 [of the agreement,] should apply" to the grievances because Article 36 deals only with disciplinary matters and does not apply to matters covered by Article 35 of the agreement. Id. at 17. In sum, the Agency contended that the Agency had met the requirements of the agreement in making its decision to change the grievants' work schedules.
The Arbitrator concluded that the Agency did not violate Article 35, Sections 35.01 and 35.06(b). The Arbitrator found that Article 35 of the agreement drew its essence from, and complied with, the Work Schedules Act and is binding on the parties. The Arbitrator rejected the Union's "argument that because hardships were pleaded by the [g]rievants, these grievances should be sustained." Id. at 21. The Arbitrator found that "[i]t is, or should be obvious, from [the language of Article 35] that the final determination concerning a supervisor's initiated change in an employee's established working schedule shall be that of the [Agency] -- not the employee or the Union." Id. at 22.
The Arbitrator also rejected the Union's arguments that the Arbitrator should apply a "just and sufficient cause" standard and should sustain the grievances because the Agency had given only "flimsy and unsubstantiated work-related reasons" for the changes in work schedules. Id. The Arbitrator found that, although "the [Agency's] evidence of how, precisely, these [work] schedules adversely affected the administration and operations was not the strongest, the fact remains that the [Agency] is not obligated to show 'just and sufficient cause', and, in fact, has no burden of proof to substantiate its work requirements under the law or the [c]ontract." Id. The Arbitrator stated that it was "apparent from the evidence that there were work-related problems within" the Agency that the Agency "sought to correct by instituting maximum staff coverage" by making the work schedule changes. Id. at 22-23. The Arbitrator concluded that "[t]he [Agency's] actions, therefore, met the requirements of Section 35.06(b)." Id. at 23.
The Arbitrator noted that the Union "raised the argument" that, by "deny[ing] access to flexitime on an across-the-board basis," the Agency had "violated the spirit and intent of the [f]lexitime provision" of the parties' agreement. Id. The Arbitrator found that the fact that the Agency had eliminated flexitime for professional employees "nullif[ied] the Union's allegations of discrimination against" bargaining unit employees and "support[ed] the [Agency's] position that it has indeed made changes in work schedules across the board to fill work requirements perceived by [m]anagement." Id.
Accordingly, "[b]ased upon the [a]greement" the Arbitrator concluded that he had "no choice but to deny the consolidated grievances in this matter." Id.
III. Positions of the Parties
A. Union's Exceptions
The Union contends that the award violates the Work Schedules Act. In particular, the Union asserts that the Arbitrator's "statement that the [Agency] has no burden of proof to substantiate its work requirement under the law or the [parties' agreement] is contrary to the provisions of [the Work Schedules Act], Section 6131(a) and (b), the legislative history and all rulings on such matters." Exceptions at 5.
The Union contends that even though it cited section 6131 of the Work Schedules Act to the Arbitrator, the Arbitrator ignored this provision. According to the Union, section 6131 requires that before discontinuing a flexible work schedule, an agency must make a finding that the work schedule "has had an adverse agency impact" and "must show from its findings how the agency has been adversely impacted . . . ." Id. (emphasis in original). The Union argues that the Arbitrator acknowledged that "the [Agency's] evidence of how, precisely, these [work] schedules adversely affected the [Agency's] administration and operations was not the strongest." Id. In the Union's view, the Agency presented "only assertions by various supervisors that there was a lack of coverage [of certain work assignments] on occasions," but that "[t]here was no evidence submitted to show adverse impact on the operations of the [Agency]." Id. at 7-8.
The Union also argues that because the Agency "took all of the bargaining unit employees, support staff and professional staff, off of flexitime/compressed time, the [Agency] was obligated" under section 6131(c)(3)(A) of the Work Schedules Act to reopen the parties' agreement, and by failing to do so the Agency "failed to initiate bargaining on the proposed change as required by law." Id. at 8.
B. Agency's Opposition
The Agency contends that the Union's exceptions should be denied because: (1) the award is not contrary to law, rule, or regulation; (2) the exceptions are based on the Union's misinterpretation of the Work Schedules Act; and (3) the exceptions essentially constitute only disagreement with the findings and reasoning of the Arbitrator in interpreting the parties' agreement.
The Agency asserts that the Union is incorrect in arguing that the Arbitrator was required to apply section 6131(a) and (b) of the Work Schedules Act in determining whether to uphold the Agency's decision to change the grievants' work schedules. According to the Agency, section 6131(a) and (b) applies only to the negotiation process and the role of the Federal Service Impasses Panel (the Panel) in resolving negotiation impasses over whether an agency may decline to negotiate over, or may terminate existing, alternate work schedule (AWS) programs. The Agency asserts that this provision "does not at all concern grievance arbitration over the administration of the collective bargaining agreement AWS provisions." Opposition at 1-2. Thus, the Agency contends that the standard of proof that the Panel is directed to apply by section 6131 "is inapplicable to the arbitration of a contract administration grievance such as this." Id. at 2. Moreover, the Agency argues that the Union's argument that the Agency was required to seek to negotiate the employee schedule changes that were the subject of this grievance constitutes an unfair labor practice allegation that "was never raised in the grievance or before the [A]rbitrator, and may not now be raised in this exception." Id.
The Agency states that section 6122(a) of the Work Schedules Act provides that "the election of a flexible schedule by any employee 'shall be subject to limitations generally prescribed to ensure the duties and requirements of the employee's position are fulfilled.'" Id., quoting 5 U.S.C. § 6122(a). The Agency contends that the parties' agreement "sets forth terms and conditions whereby the Agency may change the work schedule of an employee" and "provides for procedures to accomplish this change." Id. The Agency asserts that the Union has misinterpreted the parties' agreement as establishing a standard that "employees have a 'right' to the schedule that they wish and the Agency must establish there is 'just and sufficient cause' to change any schedule." Id. The Agency contends that the Arbitrator properly found that there was no such right in law or the parties' agreement.
IV. Analysis and Conclusions
For the reasons discussed below, we will remand the award to the parties for resubmission to the Arbitrator for action consistent with this decision.
The Authority has held that "[u]nder 5 U.S.C. § 6130(a)(1), the termination of alternate work schedules for employees covered by a collective bargaining agreement providing for the use of such work schedules must be in accordance with 5 U.S.C. § 6131." U.S. Environmental Protection Agency, Research Triangle Park, North Carolina and American Federation of Government Employees, Local 3347, 43 FLRA 87, 93 (1991) (EPA) (the Authority found that an arbitrator's award directing the agency to bargain over a change in a grievant's work schedule, and to restore the grievant's original work schedule until the matter was settled by the parties or by the Panel, was consistent with 5 U.S.C. § 6131). Under 5 U.S.C. § 6131(a), an agency may terminate an alternate work schedule established under a collective bargaining agreement only upon finding that the work schedule has had or would have an "adverse agency impact." Under 5 U.S.C. § 6131(b), to determine that an adverse impact has occurred, an agency must find: (1) a reduction in the productivity of the agency; (2) a diminished level of services furnished to the public by the agency; or (3) an increase in the cost of agency operations (other than a reasonable administrative cost relating to the process of establishing a flexible or compressed schedule).
The Arbitrator found that it was "apparent from the evidence that there were work-related problems within" the Agency that the Agency sought to correct by making the work schedule changes. Award at 22. The Arbitrator also found that, although "the [Agency's] evidence of how, precisely, these [work] schedules adversely affected the administration and operations was not the strongest," the Agency "has no burden of proof to substantiate its work requirements under the law or the [c]ontract." Id.
The Arbitrator was in error in finding that the Agency has no burden of proof under the law. As we noted above, 5 U.S.C. § 6131(a) and (b) require that whenever an agency terminates an alternate work schedule established under a collective bargaining agreement, the agency must find an adverse agency impact. There is nothing in the record which establishes that the Arbitrator considered and applied the standards of 5 U.S.C. § 6131(b) in reaching his decision. Indeed, the Arbitrator does not even mention those standards in making his findings. We find that, in order to determine whether the Agency satisfied its obligation of finding an "adverse agency impact" under 5 U.S.C. § 6131(b), the Arbitrator must consider and apply those standards. Accordingly, we will remand the award to the parties for resubmission to the Arbitrator to determine whether the Agency's action in terminating the grievants' work schedules was consistent with the Work Schedules Act, including in particular 5 U.S.C. § 6131(b). In view of our decision, we find it unnecessary to pass upon the Union's other exceptions.
The award is remanded to the parties for further proceedings consistent with this decision.
Article 35 (entitled "Flexitime"), Sections 35.01 and 35.06(b) of the parties' agreement, provide:
The Employer and the Union agree that flexible work scheduling can enhance the efficiency and the effectiveness with which the Employer and its employees fulfill the obligations of public service. The Parties also agree that employee participation in the setting of their individual work schedules consistent with work requirements can contribute to the improvement of employee morale, work performance, and productivity. These mutual benefits are contingent upon a shared sense of accountability and responsibility for the effective implementation and consistent administration of the following flexible work scheduling provisions according to their intent and their purpose. The Parties agree therefore, that these provisions shall apply to all bargaining unit employees and shall be administered and implemented consistently according to its terms and conditions.
Section 35.06 Changes in Schedules.
(b) Supervisor Initiated. A supervisor may change an employee's established work schedule by providing the employee with written notice no less than two (2) weeks before the effective date of the change. Reasons for the change must be specified and based upon work requirements. The written notice of change must be signed by the employee's second-level supervisor. If the employee believes that the change will cause a hardship, and after discussing this with his/her supervisor, the employee may request reconsideration in writing on ED Form LMR-1 by his/her second-level supervisor within three (3) work days following his/her receipt of the written notice for change. The second-level supervisor must respond within two (2) work days from receipt of the Form LMR-1. The decision will be considered a second[-]stage decision in the case of appeal to the Collective Bargaining Official. The employee will remain on the previously established schedule until the grievance is resolved or until the step 3 decision is issued, whichever is sooner.
5 U.S.C. §§ 6122(a) and (b), 6130(a)(1) and (2), 6131(a) and (b), and 6131(c)(3)(A) provide:
§ 6122. Flexible schedules; agencies authorized to use
(a) Notwithstanding Section 6101 of this title, each agency may established, in accordance with this subchapter, programs which allow the use of flexible schedules which include -
(1) designated hours and days during which an employee on such a schedule must be present for work; and
(2) designated hours during which an employee on such a schedule may elect the time of such employee's arrival at and departure from work, solely for such purpose or, if and to the extent permitted, for the purpose of accumulating credit hours to reduce the length of the workweek or another workday.
An election by an employee referred to in paragraph (2) shall be subject to limitations generally prescribed to ensure that the duties and requirements of the employee's position are fulfilled.
(b) Notwithstanding any other provision of this subchapter, but subject to the terms of any written agreement referred to in section 6130(a) of this title, if the head of an agency determines that any organization within the agency which is participating in a program, under subsection (a) is being substantially disrupted in carrying out its functions or is incurring additional costs because of such participation, such agency head may -
(1) restrict the employees' choice of arrival and departure time,
(2) restrict the use of credit hours, or
(3) exclude from such program any employee or group of employees.
§ 6130. Application of programs in the case of collective
(a)(1) In the case of employees in a unit represented by an exclusive representative, any flexible or compressed work schedule, and the establishment and termination of any such schedule, shall be subject to the provisions of this subchapter and the terms of a collective bargaining agreement between the agency and the exclusive representative.
(2) Employees within a unit represented by an exclusive representative shall not be included within any program under this subchapter except to the extent expressly provided under a collective bargaining agreement between the agency and the exclusive representative.
§ 6131. Criteria and review
(a) Notwithstanding the preceding provisions of this subchapter or any collective bargaining agreement and subject to subsection (c) of this section, if the head of an agency finds that a particular flexible or compressed schedule under this subchapter has had or would have an adverse agency impact, the agency shall promptly determine not to --
(1) establish such schedule; or
(2) continue such schedule, if the schedule has
already been established.
(b) For purposes of this section, "adverse agency impact" means --
(1) a reduction of the productivity of the agency;
(2) a diminished level of services furnished to
the public by the agency; or
(3) an increase in the cost of agency operations
(other than a reasonable administrative cost relating
to the process of establishing a flexible or compressed
. . . .
(c)(3)(A) If an agency and an exclusive representative have entered into a collective bargaining agreement providing for use of a flexible or compressed schedule under this subchapter and the head of the agency determines under subsection (a)(2) to terminate a flexible or compressed schedule, the agency may reopen the agreement to seek termination of the schedule involved.
(If blank, the decision does not have footnotes.)
1/ Federal Employees Flexible and Compressed Work Schedules Act of 1982, Pub. L. No. 97-221, 96 Stat. 227 (codified at 5 U.S.C. §§ 3401, 6101 and note, 6106, 6120-6133), which was made permanent in Pub. L. No. 99-196, 99 Stat. 1350 (1986).
2/ Relevant provisions of the parties' agreement and the Work Schedules Act are set forth in the Appendix to this decision.