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  • American Federation of Government Employees, Local 1709 (Union) and United States Department of the Air Force, Dover Air Force Base, Dover, Delaware (Agency)

American Federation of Government Employees, Local 1709 (Union) and United States Department of the Air Force, Dover Air Force Base, Dover, Delaware (Agency)

[ v57 p453 ]

57 FLRA No. 83

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1709
(Union)

and

UNITED STATES
DEPARTMENT OF THE AIR FORCE
DOVER AIR FORCE BASE
DOVER, DELAWARE
(Agency)

0-AR-3372

_____

DECISION

September 7, 2001

_____

Before the Authority: Dale Cabaniss, Chairman; Carol Waller Pope and Tony Armendariz, Members. [n1] 

Decision by Chairman Cabaniss for the Authority.

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Eric W. Lawson, Jr. filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

      The Arbitrator denied in part and granted in part grievances that alleged that the Agency violated 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, 6120-6133) ("Work Schedules Act" or "Act") and the parties' collective bargaining agreement (CBA) when it denied the grievants' applications for an "alternative work schedule" (AWS). Specifically, the Arbitrator found that the Agency did not violate the Work Schedules Act, but did violate the CBA.

      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 grievances in this case arose over the Agency's refusal to allow ten employees who work in the Aero Repair Shop at Dover Air Force Base to use AWSs. Each of the employees filed a grievance alleging a violation of Article 26 of the CBA and of § 6131 of the Work Schedules Act.

      The CBA provides that the "[e]mployers will work with employees (at their election), to accommodate and utilize alternate work schedules." Article 26, § 3(a).

      Three provisions of the Work Schedules Act are particularly pertinent to this case. Section 6130(a)(1) of the Act establishes the Act's broad coverage over "flexible" and "compressed" work schedules. It provides:

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.

5 U.S.C. § 6130(a)(1).

      Section 6130(a)(2) sets forth the conditions under which unit employees are included within a program under the Work Schedules Act, providing:

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.

5 U.S.C. § 6130(a)(2) (emphasis added).

      Finally, § 6131(a) of the Work Schedules Act, which the grievances claimed the Agency violated, introduces the "adverse agency impact" criteria employed by an agency when it determines not to establish, or to terminate "a particular flexible or compressed schedule" covered by the Act. Section 6131(a) provides in pertinent part:

[I]f 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.

5 U.S.C. § 6131(a). [ v57 p454 ]

      The Union claimed before the Arbitrator that the Agency violated its obligation under Article 26 to accommodate the grievants' AWS requests. The Union also alleged that establishing these AWSs would not create an "adverse agency impact" within the meaning of § 6131.

      In response, the Agency argued with regard to the Union's contract claim that its denial of the grievants' requests was sanctioned by Article 26 of the CBA. As to the Work Schedules Act, the Agency asserted that the Act does not apply to its AWS program and that, therefore, the Agency was not required to demonstrate an "adverse agency impact."

      The Arbitrator held that the Agency violated the collective bargaining agreement but not the Work Schedules Act. As to the statutory issue, relying on the "expressly provided" language of § 6130(a)(2), the Arbitrator rejected the Union's argument that the Work Schedules Act applied to the parties' AWS program. In reaching this conclusion, the Arbitrator noted that Article 26 was "barren of any statutory reference" to the Work Schedules Act, and that certain other contract provisions did not "overcome[] the `expressly provided' for mandate of 6130(a)(2)." Award at 10. As a remedy, the Arbitrator ordered the Agency to reconsider individually unit employees' applications for AWSs.

      The Union has excepted to the Arbitrator's finding that the Agency did not violate the Work Schedules Act. The Agency has not excepted to the Arbitrator's finding that the Agency violated the contract or the Arbitrator's remedy.

III.     Positions of the Parties

A.     The Union's Exceptions

      The Union argues that the award is contrary to law. Citing 5 U.S.C. § 6130(a)(1), set forth above, the Union asserts that the establishment and termination of an AWS for employees covered by a CBA must be in accordance with that statutory provision. Specifically, the Union relies on EPA Research Triangle Park, 43 FLRA 87, 93 (1991) (Research Triangle), in which the Authority held that the termination of an AWS must be in accordance with the Work Schedules Act, i.e., an agency must demonstrate that the AWS has an "adverse agency impact." Union Ex. at 2.

      The Union asserts that the Arbitrator improperly relied on the "expressly provided" language of § 6130(a)(2) to find that the AWS program is not covered by the Work Schedules Act. According to the Union, that section pertains only to the manner in which a CBA includes bargaining unit employees in or excludes employees from an AWS program. The Union states that the parties negotiated a CBA provision that did not exclude any unit employee from the AWS program, and that therefore all unit employees should be considered included. Union Ex. at 4.

      Citing § 6131 of the Work Schedules Act, the Union argues that the Agency neither demonstrated an adverse agency impact, as required by subsection (b), nor bargained with the Union concerning adverse agency impact, as required by subsection (c). Union Ex. at 4-5.

      In sum, the Union contends that the award is contrary to 5 U.S.C. §§ 6130 and 6131 because the award did not require the Agency to demonstrate an "adverse agency impact."

B.     The Agency's Opposition  [n2]                          

      With regard to the merits of the Union's exceptions, the Agency makes two arguments. First, the Agency contends that although the Union claims that the award is contrary to law, the Union is merely challenging the Arbitrator's construction of the contract. According to the Agency, the Union is simply disagreeing with the Arbitrator's "factual finding" that the Work Schedules Act does not apply to the AWS program that was the subject of the grievances. Citing United States Dep't of the Air Force, McClellan Air Force Base, Cal., 40 FLRA 968, 971 (1991), the Agency asserts that the Authority should not set aside an award because one party disagrees with an arbitrator's contract interpretation. Agency Opp. at 3-4.

      Second, the Agency argues that the award is not contrary to law because the Arbitrator correctly found that the Work Schedules Act does not apply to the Agency's AWS program. According to the Agency, "[m]erely permitting alternate work schedules does not automatically make an agency subject to the requirements of the Work Schedules Act, as not all alternate work schedules are bargained under the auspices of the Work Schedules Act." Agency Opp. at 5. Asserting that its AWS program was not bargained pursuant to the Work Schedules Act, the Agency states that its program [ v57 p455 ] is not subject to the Act's requirements, including § 6131's "adverse agency impact" requirement. Instead, the Agency posits, "bargaining unit employees and supervisors at Dover Air Force Base participate in an alternate work schedule program only under the terms provided in a negotiated agreement." Agency Opp. at 6.

      In support, the Agency notes that "last year, the FLRA refused to issue a complaint against Dover Air Force Base concerning a similar denial of alternate work schedules, and [sic] agreeing that the issue was `covered by' the Contract." Agency Opp. at 6. In that case, WA-CA-90383, the General Counsel refused to issue a complaint based on the Union's charge that the Agency was required to show an "adverse agency impact." [n3] 

      The Agency acknowledges that in prior cases, like Research Triangle, the Authority has applied the Work Schedules Act to AWS programs. However, the Agency asserts that those cases are distinguishable. In those cases, the Agency points out, there was "no question as to whether the provisions of the Work Schedules Act applied." Agency Opp. at 5.

      According to the Agency, this case is different. Here, the Agency argues, the Work Schedules Act does not apply to the Agency's AWS program because the Act "requires express incorporation of the [flexible or compressed] programs, and there is no express reference to the programs or to the Act anywhere in the contract." Agency Opp. at 7. The Agency notes that the CBA refers only to "alternate work schedules" and "flexible work schedules" but not "compressed work schedules." Agency Opp. at 6.

IV.     Analysis and Conclusions

A.     Standard of Review

      The Union argues that the award is contrary to §§ 6130 and 6131 of the Work Schedules Act. 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 the parties' exceptions de novo. NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.

B.     The Work Schedules Act Applies to the Parties' AWS Program.

      The threshold question raised by the Union's exceptions is whether the Work Schedules Act and its "adverse agency impact" requirement apply to the AWS program provided for in the CBA.

      As discussed below, the Arbitrator's award is premised on a misinterpretation of the Work Schedules Act. The Arbitrator held that the Work Schedules Act did not apply to the AWS program provided for in the parties' CBA. To support this determination, the Arbitrator made the following observations: § 6130(a)(2) "anticipates the utilization of the statute's provisions in a [CBA] but only where `expressly provided for'"; Article 26 of the CBA is "barren of any statutory reference"; and "statutory citations" found "elsewhere in the cba" do not "overcome[] the `expressly provided' for mandate of 6130(a)(2)." Award at 10. Thus, the Arbitrator ruled that, as a matter of law, the Work Schedules Act did not apply because the CBA did not expressly refer to the Act.

      The Arbitrator's ruling that the Work Schedules Act applies only where there is an express and specific reference to the Act in a CBA, is legally incorrect because the Act's coverage is not limited to CBAs that expressly incorporate the Act. On the contrary, § 6130(a)(1) provides that "[i]n 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." 5 U.S.C. § 6130(a)(1) (emphasis added). The Act's coverage is thus keyed to the type of work schedules involved, rather than any particular words or references in the contract.

      The "expressly provided" language of § 6130(a)(2) is not to the contrary. As quoted previously, that section provides that bargaining unit employees "shall not be included within any program under this subchapter except to the extent expressly provided under a collective bargaining agreement." 5 U.S.C. § 6130(a)(2). As the plain language of § 6130(a)(2) indicates, the phrase "expressly provided" pertains only to whether unit employees are "included within any program under this subchapter." The purpose of this section is to prohibit an agency from placing employees in a flexible or compressed work schedule without [ v57 p456 ] bargaining with a union; it is not to exempt parties from coverage of the Work Schedules Act. See OPM Handbook on Alternative Work Schedules, at 4 (1998) (stating that an agency may "unilaterally" install a flexible schedule in an "unorganized unit" but, pursuant to § 6130(a)(1) and (2), an agency must negotiate with the union to establish such a program for bargaining unit employees). As noted above, the Union states that all unit employees are included in the contractual AWS program. Union Ex. at 4. The Agency does not disagree.

C.     The Case Must Be Remanded

      Having found that the parties' AWS program is subject to the Work Schedules Act, we must next determine whether the award is inconsistent with § 6131 of that Act. Under 5 U.S.C. § 6131(a), an agency may refuse to establish or terminate an AWS established under a CBA "only upon finding that the work schedule has had or would have an `adverse agency impact.'" United States Dep't of Educ., 45 FLRA 1144, 1150 (1992) (Dep't of Educ.). Under 5 U.S.C. § 6131(b), "adverse agency impact" means: (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). Dep't of Educ., 45 FLRA at 1150.

      As we noted above, 5 U.S.C. § 6131(a) and (b) require that whenever an agency refuses to establish or terminates an AWS established under a CBA, the agency must demonstrate an adverse agency impact. There is no contention in this case that the grievance does not concern the establishment or termination of an AWS. Therefore, 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. The record does not reveal that the Arbitrator considered and applied the provisions of 5 U.S.C. § 6131 in reaching his decision. Accordingly, we remand the award to the parties for resubmission to the Arbitrator, absent settlement, to determine whether the Agency's action in denying the grievants' applications for AWSs was consistent with the Work Schedules Act, including in particular 5 U.S.C. § 6131(b). See Dep't of Educ., 45 FLRA at 1150 (remanding case to Arbitrator to determine whether the Agency satisfied its obligation of finding an "adverse agency impact" under 5 U.S.C. § 6131(b)).

V.     Decision

      The award is remanded to the parties for further proceedings consistent with this decision.

Footnote # 1 for 57 FLRA No. 83

   Member Armendariz did not participate in this decision.

Footnote # 2 for 57 FLRA No. 83

   As a preliminary matter, the Agency argues that the Union's exceptions were improperly filed and, therefore, should not be considered. Agency Opp. at 3. Because the Union corrected the deficiency by properly refiling the exceptions, we will not dismiss them on this ground. See United States Dep't of Health & Human Servs., Social Security Admin., Office of Hearings & Appeals, 48 FLRA 357, 357 n.1 (1993).

Footnote # 3 for 57 FLRA No. 83

   The General Counsel's refusal to issue a complaint is not Authority precedent. AFGE, Local 3529, 56 FLRA 1049, 1050 (2001). Accordingly, we will not discuss further the Agency's reliance, Agency Opp. at 6, on Case No. WA-CA-90383.