[ v58 p519 ]
58 FLRA No. 129
OF GOVERNMENT EMPLOYEES
DEPARTMENT OF DEFENSE
DEFENSE CONTRACT MANAGEMENT AGENCY
May 6, 2003
Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This case is before the Authority on exceptions to an award of Arbitrator Charles R. Greer filed by the Union and the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union and Agency also filed oppositions to each other's exceptions. [n1]
The Arbitrator found that the Agency violated law, regulation, and the parties' agreement by paying employees working on compressed schedules for only 8 hours of work on holidays. The Agency and the Union both except to the award on the ground that it is inconsistent with law. The Agency additionally excepts to the award on the ground that it is based on a nonfact and on the ground that the award is ambiguous. For the following reasons, we deny the Union's and the Agency's exceptions.
II. Background and Arbitrator's Award
The Union filed a grievance alleging that the Agency had misapplied laws and regulations affecting compensation, and violated the parties' collective bargaining agreement, by paying unit employees on compressed work schedules for only 8 hours of work on holidays. The Union stated that unit members are "`being denied Holiday hours equal to the number of hours worked on their Compressed Work Schedule for that day.'" Award at 2, quoting Union grievance. Specifically, the Union explained:
Bargaining Unit Members who have [been] scheduled to work four (4) ten (10) hour days, are allowed by the agency 8 hours for a holiday. The unit members have been and are charged two (2) hours of Annual Leave on the scheduled day off, in order to receive credit for eighty (80) hours for that particular pay period. Bargaining Unit members who schedule eight (8) nine-hour days and one (1) eight-hour day, are being denied a nine-hour holiday when the holiday falls on the scheduled nine-hour day.
Id. The parties were unable to resolve the grievance and the Union invoked arbitration.
B. Arbitrator's Award
The parties were unable to agree on a stipulated issue and the Arbitrator framed the issues as follows:
Did the Agency violate the Agreement that applies to the circumstances at issue by: (a) denying employees basic pay for holidays normally scheduled for duty that workday (9 or 10 [hours]), or (b) forcing employees to change their work schedules or to take leave due to the occurrence of holidays? If so, what should the remedy be?
Award at 13. [n2]
[ v58 p520 ] The Arbitrator noted that Defense Contract Management District West Supplement I (DCMDW Supplement) to Defense Logistics Agency Regulation (DLAR) 1422.1, "Hours of Duty," provided for the disestablishment of previously existing flexible and compressed work schedules and for their replacement by a comprehensive system allowing for credit hours. [n3] / He also noted that the DCMDW Supplement provided that holidays for full-time employees are to be counted as eight (8) hours of work, regardless of the employee's individual leave schedule. [n4] The Arbitrator found, however, citing 5 C.F.R. § 610.40, [n5] that "employees on compressed work schedules should receive basic pay for the number of hours that they would have worked on their compressed schedule if they had not been off for the holiday." Id. at 22. Thus, the Arbitrator explained, "when a holiday occurs during one of the regular workdays for an employee on a four ten-hour day schedule, the employee would receive full credit for the day." Id.
At the outset of his analysis of the evidence in the case, the Arbitrator stated that "[i]n order to rule on grievances arbitrators must routinely examine the parties' adherence to management policy statements, procedures, rules (both written and unwritten), and past practices that are not part of the written [collective bargaining agreement.]" Id. at 19. In this regard, the Arbitrator rejected the Agency's claim that the only alternative work schedule available to employees was a flexible schedule. The Arbitrator also rejected the Agency's claim that some employees used credit hours on their worksheets to meet the work requirements for a four-day week. According to the Arbitrator, if that had been the case, the worksheets would have shown that credit hours were being used, instead of ten-hour workdays. Although the Arbitrator acknowledged that some of the Union's alleged compressed work schedules included the use of credit hours, and thus constituted so-called "hybrid schedules," he found that "there were also clean applications of compressed work schedules[.]" [n6] Id. at 21.
Addressing the Agency's argument that the DCMDW Supplement disestablished compressed work schedules, the Arbitrator found that "Agency briefing documents explicitly" listed "the availability of compressed work schedules" and concluded that there was "sufficient evidence" on which he could "conclude that the Agency sanctioned the compressed work schedule thereby giving it the weight of past practice and coverage by the [collective bargaining agreement.]" Id. at 22. The Arbitrator also found that "[a]s a result of the actions of the Agency's supervisors, who routinely approved [timesheets displaying] such schedules over long periods of time, compressed work schedules became a past practice covered by the [collective bargaining agreement.]" Id. at 23.
Based on his finding that some Agency employees worked compressed schedules during weeks including holidays and that the Agency did not pay them full holiday pay as required by 5 C.F.R. § 610.406, the Arbitrator concluded that "the Agency violated the [collective bargaining agreement] because it did not adhere to the regulations in accordance with the language of" that agreement. [n7] Id. He also concluded that employees were entitled to holiday pay lost as a result of the Agency's violation of the collective bargaining agreement.
As his award, the Arbitrator directed the Agency "to provide a make whole remedy of back pay with interest" in accordance with the Back Pay Act. Id. at 24. He indicated that the award was "to apply to all employees" in the bargaining unit, "both current and former, who worked compressed work schedules[.]" Id. He further directed the Agency "to identify such adversely affected employees for the remedial time period beginning with the date in 1996" when DCMDW was established "until January 31, 1999." Id. However, he also specified that "for those bi-weekly pay periods in which employees worked hybrid schedules by either (1) earning or using credit hours or (2) engaging in flexible starting and quitting times, the Agency is not obligated to provide a make whole remedy." Id. [ v58 p521 ]
III. Positions of the Parties
A. Agency's Exceptions
The Agency contends that the Arbitrator's finding of a past practice allowing compressed work schedules is based on "several non-facts[.]" Agency Exceptions at 8. In this regard, the Agency argues, first, that the Arbitrator erred in basing his finding on "the fact that a small sampling of employee[s'] schedules showed no credit hours . . . ." Id. According to the Agency, the Arbitrator mistakenly concluded that a basic workweek of four ten-hour days could not include credit hours and erred by finding, therefore, that the absence of credit hours on an employee's timesheet meant that the employee was working a compressed schedule.
The Agency contends, secondly, that the Arbitrator's finding of a past practice allowing compressed work schedules based upon supervisory approval of such schedules is based on a nonfact. According to the Agency, "[s]pecific undisputed evidence shows that where employees tried to schedule more than 8 hours on a holiday, they were required to adjust their schedules accordingly, take leave or use credit hours to account for their basic 80 hour biweekly work requirement." Id. at 10. Thus, the Agency asserts, the Arbitrator erred by finding that supervisors routinely approved compressed schedules.
According to the Agency, in finding a past practice of compressed work schedules, the Arbitrator misapplied 5 U.S.C. §§ 6121 et seq., 5 C.F.R. Part 610, DLAR 1422.1, the DCMDW Supplement, and Article S-20 of the parties' collective bargaining agreement [n8] The Agency notes that, under 5 U.S.C. §§ 6121, 6122, and 6124, flexible work schedules, but not compressed work schedules, permit employees to earn credit hours and to vary their starting and quitting times, and that, under flexible schedules, employees are only entitled to 8 hours pay for a holiday. The Agency also notes that the DCMDW Supplement established a flexible work schedule. In this regard, the Agency cites evidence that the employees whose timesheets the Arbitrator used as a basis for his finding of a past practice of compressed schedules earned credit hours. The Agency asserts that the Arbitrator erred as a matter of law by finding that those work schedules, which included credit hours, constituted compressed schedules. The Agency claims that by thus creating hybrid work schedules the award is contrary to law.
The Agency also contends, citing 5 U.S.C. § 6130, that alternative work schedules can only exist in units of exclusive recognition to the extent that they have been bargained. According to the Agency, the parties' collective bargaining agreement provides that "alternative work schedules were to be negotiated in the form of a supplement" to the DCMDW Supplement and the DCMDW Supplement, as referenced in Article S-20, does not provide for compressed schedules. Specifically, the Agency states that "[c]ompressed work schedules were not an option available to the workforce" in this case. Agency Exceptions at 7 (emphasis in original).
Further, the Agency contends that the Arbitrator erred by misapplying the Authority's decision in United States Dep't of Defense, Defense Contract Audit Agency, Central Region, 35 FLRA 316 (1990) (DCAA) to find the existence of a past practice of compressed schedules in this case. According to the Agency, in DCAA the agency had allowed compressed work schedules "on a wholesale basis" and unilaterally changed its holiday pay practices with respect to such schedules by limiting employees to 8 hours of holiday pay. Agency Exceptions at 7-8 (emphasis in original). The Agency claims that, in this case, there is no evidence that compressed work schedules had been permitted on a wholesale basis or that employees had ever been paid holiday pay in excess of 8 hours.
Finally, the Agency contends that the Arbitrator's award is ambiguous because it "fails to provide adequate guidance" to permit implementation. Agency Exceptions at 10. Specifically, the Agency argues that it will be unable, given the wording of the award, to determine "whether an employee was working a compressed work schedule or a flexible work schedule during the bi-weekly pay periods where holidays occur[.]" Id.
B. Union's Opposition
The Union contends that the Agency's arguments clearly seek the reversal of the Arbitrator's factual findings. According to the Union, the Agency is attempting to convince the Authority that the Arbitrator "somehow created this inappropriate work schedule situation." Union Opposition at 2. Rather, the Union asserts, "[A]gency officials, managers and supervisors created this problem and authorized these mixed and blended work schedule entitlements." Id. The Union claims that the fact that some employees incorporated into their schedules entitlements of flexible work schedules does not preclude them from also working compressed work schedules. [ v58 p522 ]
The Union states that the Agency "refuses to acknowledge . . . the fact that [A]gency officials improperly implemented and encouraged employees to work . . . hybrid work schedules." Opposition at 2. According to the Union, this fact "convinced the [A]rbitrator that . . . employees were in fact working Compressed Work Schedules and enjoying a few Flexible Work Schedule entitlements." Id. (emphasis in original).
The Union also states that the Arbitrator found the DCMDW Supplement to be "vague and ambiguous" and argues that "local interpretation and implementation of it's [sic] terms was left open for the inappropriate blending and merging of entitlements specific to Flexible and Compressed Work Schedules." Id. The Union maintains, however, that the Agency's action in inappropriately confusing flexible and compressed schedules "does not preclude the fact that [employees] worked the statutory definition of a Compressed Work Schedule and it does not preclude them from enjoying all the benefits of working" such a schedule. Id. at 3.
C. Union's Exception
The Union excepts to the portion of the Arbitrator's remedy that precludes employees from receiving holiday pay in excess of 8 hours for weeks during which they worked a "hybrid" schedule. According to the Union, the Arbitrator cannot, consistent with law, deprive employees of holiday pay earned by working a compressed work schedule simply because Agency management improperly allowed employees working such schedules to also earn or use credit hours.
D. Agency's Opposition
The Agency notes that the Union acknowledges that "hybrid" schedules are precluded by law. The Agency also notes that the Union acknowledges that unit employees in this case worked "hybrid" schedules. The Agency argues that, because such schedules are prohibited by law, the Arbitrator could not have awarded holiday pay in excess of 8 hours to employees working those schedules. According to the Agency, "[w]here both the Union and the Arbitrator err is in their assumption that simply because an employee's individual schedule indicates a `straight' 5/4/9 or 4/10 work period it automatically constitutes a `compressed work schedule.'" Agency Opposition at 2.
IV. Analysis and Conclusions
A. The Award is not Deficient on the Ground of Nonfact
To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See United States Dep't of the Air Force, Lowry AFB, Denver, Colo., 48 FLRA 589, 593 (1993). The Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties disputed at hearing. Id. at 594 (citing Nat'l Post Office Mailhandlers v. United States Postal Serv., 751 F.2d 834, 843 (6th Cir. 1985)).
The Arbitrator based his finding that employees worked compressed work schedules on his review of employee timesheets for weeks that included holidays. He noted that many of those timesheets demonstrated that employees met their 80 hour bi-weekly work requirement by working 10 hour days and that there was no evidence that any portion of that work requirement was made up of credit hours. See, e.g., Award at 20-21. Moreover, the Arbitrator found, based on those timesheets, that supervisory signatures demonstrated that such schedules were routinely approved by Agency managers. Id. at 23. The parties contested the factual significance of those timesheets before the Arbitrator. Consequently, the Agency cannot challenge as a nonfact the Arbitrator's finding that some employees worked compressed work schedules during the period in question. [n9] See, e.g., United States Dep't of the Treasury, IRS, New Carrollton, Md., 57 FLRA 942, 946 (2002). [ v58 p523 ]
Accordingly, we deny the Agency's nonfact exception.
B. The Award is not Deficient on the Ground that it is Contrary to Law
When an exception involves the award's consistency with law, the Authority reviews any question of law raised by the exception and the award de novo. See NTEU, Chapter 24, 50 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994). In applying the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See United States Dep't of Defense, Dep'ts of the Army and the Air Force, Ala. National Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
With respect to the Agency's claim that the Arbitrator erred as a matter of law by finding that "hybrid" schedules were compressed schedules, the Agency appears to misunderstand the Arbitrator's finding. The Arbitrator acknowledged that some employees worked schedules that timesheets demonstrated either earned them credit hours or used credit hours, or involved variable starting or quitting times, and those employees were excluded from the remedy in his award. He also found, however, that other timesheets demonstrated that employees worked compressed schedules that were not accounted for by, or did not give rise to, credit hours, or did not involve the use of flexible starting and quitting times. The Agency has not demonstrated that such schedules, as a matter of law, constitute prohibited "hybrid" schedules.
We find the Agency's claim that, under 5 U.S.C. § 6130, compressed work schedules can only exist in collective bargaining units through negotiation to be unavailing. Where a past practice establishes a condition of employment, that condition of employment is incorporated into the parties' collective bargaining agreement. See United States Dep't of Health and Human Services, Nat'l Institute for Occupational Safety and Health, Cincinnati Operations, Cincinnati, Ohio, 52 FLRA 217, 223 (1996) (citing Letterkenny Army Depot, 5 FLRA 272 (1981)). Given the Arbitrator's finding that compressed work schedules had been established by past practice as a condition of employment for unit employees, consistent with Authority precedent, such schedules have been incorporated into the parties' collective bargaining agreement. Thus, there is no basis on which to find that the award is contrary to 5 U.S.C. § 6130.
Further, the Agency misconstrues the significance of DCAA with respect to this case. Although the cases are factually distinguishable, both cases nevertheless stand for the proposition that an agency's consistent practice of permitting employees to work compressed work schedules establishes that practice as a condition of employment. The Arbitrator in this case found, based on the record, that the Agency consistently allowed employees to work compressed work schedules and thereby created an enforceable past practice. The Arbitrator's finding is consistent with the holding of the Authority in DCAA.
Finally, the Union's exception does not provide a basis for finding the award deficient. The Union concedes that "hybrid" work schedules are contrary to law. Contrary to the Union's argument, the Arbitrator's finding of a past practice is not a sufficient basis for authorizing holiday pay for employees who worked such schedules during weeks that included holidays. See United States Dep't of the Army, HQ, United States Army Aviation Ctr., Ft. Rucker, Ala., 52 FLRA 89, 93 (1996) (award enforcing past practice deficient because it was contrary to Government-wide regulation). Consequently, to the extent the Arbitrator's award precludes holiday pay for employees who worked "hybrid" schedules, it is consistent with law.
Accordingly, we deny the Agency's and the Union's contrary to law exceptions.
C. The Award is not Deficient on the Ground that it Fails to Draw its Essence from the Agreement
The Agency's claim that the award is inconsistent with the DCMDW Supplement, as incorporated into the parties' agreement, does not provide a basis for finding the award deficient. It is well-settled that when a collective bargaining agreement incorporates the regulations with which an award allegedly conflicts, the matter becomes one of contract interpretation because the agreement, not the regulation, governs the matter in dispute. See, e.g., United States Dep't of Defense, Hale Koa Hotel, 55 FLRA 651, 652 (1999) (citing NAGE, Local R4-6, 52 FLRA 1522, 1526 (1997)). In this case, the Agency states that the DCMDW Supplement is incorporated in Article S-20 of the parties' agreement. Consequently, the issue before the Authority is whether the award is deficient as failing to draw its essence from the parties' agreement under § 7122(a)(2) of the Statute, and, accordingly, we will analyze this exception as a claim that the award fails to draw its essence from the parties' agreement.
To demonstrate that an award fails to draw its essence from a collective bargaining agreement, a party must show that the award: (1) is so unfounded in reason [ v58 p524 ] and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; or (2) does not represent a plausible interpretation of the agreement; or (3) cannot in any rational way be derived from the agreement; or (4) evidences a manifest disregard of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).
The Arbitrator found that the Agency's work schedule policies, as incorporated into the parties' agreement, had been modified by its practice of allowing employees to work compressed work schedules. The Agency has not demonstrated that the Arbitrator's interpretation and application of the agreement incorporating the regulation, as modified by past practice, was unfounded, implausible, or irrational. Consequently, we conclude that the award is not deficient because it fails to draw its essence from the parties' agreement.
Accordingly, we deny the Agency's exception.
D. The Award is not Deficient on the Grounds of Ambiguity
An award that is incomplete, ambiguous, or contradictory so as to make implementation impossible is deficient under the Statute. See, e.g., NATCA, 55 FLRA 1025, 1027 (1999). In order for an award to be found deficient on this ground, the appealing party must show that implementation of the award is impossible because the meaning and effect of the award is too unclear or uncertain.
The Arbitrator's award requires the Agency to provide employees holiday pay that they otherwise would have earned while working compressed work schedules but for the Agency's violation of 5 C.F.R. § 610.406. The award also directs the Agency not to pay the additional hours of holiday pay to any employee who in a bi-weekly pay period earned or used credit hours or utilized flexible starting or quitting times. Considering the award as a whole, therefore, it is clear that the Arbitrator ordered back holiday pay only for those bi-weekly pay periods in which the employee worked a compressed work schedule, and not a "hybrid" schedule. The Agency has failed to demonstrate that implementation of this award is impossible. See, e.g., United States Information Agency, Voice of America, 55 FLRA 197, 200 (1999); United States Dep't of Justice, INS, San Diego, Cal., 51 FLRA 1094, 1107 (1996).
Accordingly, we deny the Agency's exception.
The Agency's and the Union's exceptions are denied.
1. The Work Schedules Act, 5 U.S.C. §§ 6120 et seq., provides in relevant part as follows:
§ 6121. Definitions
For purposes of this subchapter--
(5) "compressed schedule" means--
(A) in the case of a full-time employee, an 80-hour biweekly basic work requirement which is scheduled for less than 10 workdays[.]
§ 6122. Flexible schedules; agencies authorized to use
(a) Notwithstanding § 6101 of this title, each agency may establish, 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.
2. The DCMDW Supplement provides, in relevant part, as follows:
HOURS OF DUTY
II. This supplement substantially changes the previous DCMDW policy. The two previous Alternative Work Schedules, identified as Flexitime and Compressed Work Schedule, are disestablished as currently known, and are replaced by a single more comprehensive system which allows for the use of credit hours.
. . . .
. . . . [ v58 p525 ]
E. Holidays and Leave.
1. Holidays for full-time employees are counted as eight (8) hours of work, regardless of the employee's individual schedule.
3. 5 C.F.R. § 610.111(d) provides, in relevant part, as follows:
§ 610.111 Establishment of workweeks.
(d) . . . A flexible or compressed work schedule is a scheduled tour of duty and all work performed by an employee within the basic work requirement is considered regularly scheduled work for premium pay and hours of duty purposes.
4. 5 C.F.R. § 610.406(a) provides as follows:
§ 610.406 Holiday for employees on compressed work schedules.
(a) If a full-time employee is relieved or prevented from working on a day designated as a holiday by Federal statute or Executive order, the employee is entitled to basic pay for the number of hours of the compressed work schedule on that day.
5. Article S-20, Section 5 provides, in relevant part, as follows:
HOURS OF DUTY
SECTION 5 - ALTERNATIVE WORK
The Employer and the Union agree that an Alternative Work Schedule (AWS) Program is of benefit to [t]he Employees. Therefore, such a program will be jointly developed and negotiated into the DCMDW Supplement to DLAR 1422.1, Hours of Duty. Provisions of the supplement to the DLAR will carry the same force and effect as if incorporated into this DCMDW Supplemental Agreement. Provisions of the supplement to the DLAR will not be changed prior to [t]he Union being notified and afforded an opportunity to negotiate any changes in working conditions impacting bargaining unit employees.
Footnote # 1 for 58 FLRA No. 129 - Authority's Decision
The Union submitted an addendum to its Opposition addressing evidence attached to the Agency's Exceptions. Under § 2429.26(a) of the Authority's Regulations the Authority has discretion to grant a party leave to file additional documents. The Authority has held, however, that it is incumbent on the moving party to demonstrate why the Authority should consider such a supplemental submission. See, e.g., United States Dep't of the Navy, Naval Sea Systems Command, 57 FLRA 543, 543 n.1 (2001). The Union has not shown that its submission, in which it further disputes the Agency's claim that compressed schedules did not exist in the unit, should be considered. Therefore, we do not consider it. The Agency's request that the Authority not consider the addendum or, alternatively, to file a response, is thereby rendered moot. Id.
Footnote # 2 for 58 FLRA No. 129 - Authority's Decision
The Arbitrator also resolved a threshold issue of arbitrability. The Arbitrator found that the grievance was an institutional grievance, instead of an individual grievance, and, therefore, that the grievance was timely filed. No exceptions were filed with respect to this part of the award and it will not be further considered herein.
Footnote # 3 for 58 FLRA No. 129 - Authority's Decision
The legal distinction between flexible and compressed work schedules is set forth in 5 U.S.C. §§ 6121 and 6122, the relevant text of which is set forth in the Appendix to this decision. The basic compressed schedules are: (1) the "4-10," in which employees complete their bi-weekly 80-hour work requirement by working four ten-hour days per week, with one day off each week; and (2) the "5-4/9," wherein the employee works eight nine-hour days and one eight hour day over the course of a bi-weekly pay period, with one day off every other week. Flexible work schedules are 8 hours per day, 5 days per week work schedules that allow employees to earn credit hours by working more than 8 hours on a work day and to vary their starting and quitting times on a daily basis.
Footnote # 4 for 58 FLRA No. 129 - Authority's Decision
Footnote # 5 for 58 FLRA No. 129 - Authority's Decision
Footnote # 6 for 58 FLRA No. 129 - Authority's Decision
"Hybrid" work schedules are work schedules that contain elements of both flexible and compressed schedules. See GSA, Washington, D.C., 50 FLRA 136, 139 (1995) (holding provision of contract creating "hybrid" work schedule is unenforceable as contrary to law).
Footnote # 7 for 58 FLRA No. 129 - Authority's Decision
Footnote # 8 for 58 FLRA No. 129 - Authority's Decision
Footnote # 9 for 58 FLRA No. 129 - Authority's Decision
Issues concerning past practice can arise in a variety of contexts. In an arbitration setting, where the issue is whether in fact a past practice exists, the Authority has treated that issue as one involving nonfact. See, e.g., PASS, 56 FLRA 124, 125 (2000). Where the issue concerns whether the arbitrator failed to consider the significance or meaning of a past practice in connection with a particular matter, the Authority considers the issue one of contract interpretation subject to the essence test. See, e.g., United States Dep't of Veterans Affairs, Medical and Regional Ctr., Togus, Me., 55 FLRA 1189, 1192-93 (1999) (arbitrator found past practice incorporated into parties' agreement and exception to arbitrator's interpretation of that practice raised essence issue); Defense Language Institute, Foreign Language Ctr., 7 FLRA 559, 561 (1982) (contention that arbitrator failed to give proper consideration to a past practice raises issues concerning the arbitrator's interpretation of parties' agreement). As the Agency herein questions the Arbitrator's finding that a past practice existed in the circumstances of this case, and not his findings as to significance of that practice, we treat the Agency's exception as raising an issue of nonfact.