54:0121(16)AR - - AFGE Local 1557 & VA Regional Office, Denver, CO - - 1998 FLRAdec AR - - v54 p121

[ v54 p121 ]
The decision of the Authority follows:

54 FLRA No. 16





LOCAL 1557










April 30, 1998


Before the Authority: Phyllis N. Segal, Chair; Donald S.

Wasserman and Dale Cabaniss, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Carol J. Zamperini 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 Regulations. The Agency filed an opposition to the Union's exceptions.

The Arbitrator denied a grievance alleging that the Agency violated the parties' local supplemental agreement when it failed to implement compressed work schedules. For the reasons set forth below, we deny the Union's exceptions.

II. Background and Arbitrator's Award

The American Federation of Government Employees (AFGE) and the Department of Veterans Affairs (VA) have a master agreement that provides that local supplemental agreements may "include provisions on all negotiable matters . . . as long as[] the provisions d[o] not conflict with the [m]aster [a]greement." Award at 3. Consistent with the master agreement, the Union, an AFGE Local, and the Agency, a VA Regional Office, have a local supplemental agreement.

This supplemental agreement contains a provision permitting the implementation of flexible and compressed work schedules.(1) However, in 1985, pursuant to negotiations with AFGE and a decision of the Federal Service Impasses Panel (FSIP), VA issued a nation-wide policy prohibiting the use of compressed work schedules (CWS). VA Personnel Policy Manual (Policy Manual), Chapter 610; Award at 6.(2)

In 1994, the Union and the Agency entered into a partnership agreement pursuant to Executive Order 12871. Subsequently, the regional Partnership Council set up under that agreement determined that the parties would experiment with CWS. It submitted a CWS plan to VA's Under Secretary for Benefits, who denied the request, referring the parties to the earlier FSIP decision. In May, 1995, the Partnership Council again submitted a CWS plan and requested that the Under Secretary reconsider his denial. After several months, the Union was advised that the plan would not be implemented and it filed the instant grievance.

The Arbitrator stated the issue as follows:

In January, 1996, did the [Regional Office] Director and [the Union], have the authority to implement an experimental compressed work schedule, developed by the partnership council; if so, what should be the remedy?

Id. at 3. The Arbitrator found that "Article 4, Section 4 of the Master agreement restricts bargaining at the local level [where] the Agency has met its bargaining obligations at the national level." Id. at 12. The Arbitrator found that the VA's 1984 termination of compressed work schedules, which included bargaining with AFGE and referring the matter to the FSIP, provided such a restriction. The Arbitrator found that this policy change precluded further use of CWS within VA and overrode any supplemental agreement to the contrary. According to the Arbitrator, "[c]learly, Article 4, Section 4, of the National Agreement exercises the control over the local contract anticipated in Section 7114(c)(4) of the [Statute]."(3)

Id. at 13. The Arbitrator also found that there was nothing in Executive Order 12871 that required bargaining on issues that had been bargained or that permitted local unions to circumvent national agreements. The Arbitrator concluded, therefore, that the Agency and the Union did not have the authority to implement the CWS agreement.

III. Positions of the Parties

A. Union's Exception

According to the Union, Article 13, Section 3 of the local supplemental agreement permitted the local parties to experiment with flexible and compressed work schedules during the life of the local agreement. The Union contends that the award is contrary to the Federal Employees Flexible and Compressed Work Schedules Act of 1982, Pub. L. No. 97-221, 96 Stat 227 (codified at 5 U.S.C. §§ 6101 note, 6106, 6120-6133) (the Work Schedules Act), because the Agency never "reopened" the local supplemental agreement to discontinue compressed work schedules. Exceptions at 2.

The Union next contends that the award is contrary to section 7114(c) of the Statute. The Union asserts that VA did not reject the May, 1995, partnership agreement on CWS until January 1996. According to the Union, the Agency did not comply with the section 7114(c) requirement that an agency head disapprove an agreement within 30 days and, therefore, the CWS agreement became valid.

B. Agency Opposition

The Agency asserts that the Regional Office Director did not have the authority to agree to the implementation of compressed work schedules at the local level. The Agency asserts that the exceptions should be denied because the Master agreement, the VA Policy Manual, and specific written denial by the Under Secretary establish that the Regional Office Director and the Union did not have the authority in January, 1996 to implement an experimental compressed work schedule.

IV. Analysis and Conclusions

A. The Award Is Not Contrary to the Work Schedules Act

The Union argues that the award is contrary to the Work Schedules Act, because the Agency never reopened the supplemental agreement to cancel its provision for compressed work schedules. Where a party's exceptions involve an award's consistency with law, the Authority must review the questions of law raised by the Arbitrator's award and th