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  • United States, Department of Defense, Defense Contract Audit Agency, Irving, Texas (Agency) and American Federation of Government Employees, Local 3529 (Union)

United States, Department of Defense, Defense Contract Audit Agency, Irving, Texas (Agency) and American Federation of Government Employees, Local 3529 (Union)

[ v60 p296 ]

60 FLRA No. 64

UNITED STATES
DEPARTMENT OF DEFENSE
DEFENSE CONTRACT AUDIT AGENCY
IRVING, TEXAS
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 3529

(Union)

0-AR-3830

_____

DECISION

September 30, 2004

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator John B. Barnard filed by 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 filed an opposition to the Agency's exceptions.

      The Arbitrator sustained a grievance alleging that the Agency violated the parties' collective bargaining agreement by refusing to grant administrative leave to employees who were prevented from reporting to work because of a snowstorm.

      For the reasons that follow, we dismiss the Agency's management rights exceptions and deny the other exception.

II.     Background and Arbitrator's Award

      A major snowstorm hit Dallas, Texas, which caused the Agency's branch offices there to close on February 25, 2003. The offices re-opened on February 26 at 10:30 a.m. and employees reporting to work received administrative leave for the work time up to 10:30 a.m. The employees who did not report to work were charged with annual leave or credit hours for the entire day.

      The Union filed grievances asserting, as relevant here, [n1]  that the Agency violated Article 14, § 14.04(B) of the parties' agreement by denying administrative leave to employees unable to report to work on February 26. [n2]  The grievances were unresolved and submitted to arbitration, where, as relevant here, the Arbitrator framed the issues as follows:

Did the Agency act appropriately (i.e., follow the [agreement]) in starting work at approximately 10:30 AM?
If so, the Union requests that the people who do not come in should be granted administrative leave from their normal start times until 10:30 or otherwise be made whole.
If not, then the Union requests that the employees who did not come in will be given a maximum of 8 hours administrative leave or otherwise be made whole. Employees who came to work will receive $100.

Award at 2.

      The Arbitrator determined that the first sentence of Article 14, § 14.04(B) is "straightforward" and provides for administrative leave when an office is closed for inclement weather before the duty day begins. Id. at 19. The Arbitrator found that there was a delayed opening of the offices on February 26 and that, as a result, the offices were not open at the beginning of the duty day. Therefore, according to the Arbitrator, the grievants qualified under the first sentence in Article 14, § 14.04(B) for administrative leave for that day. As his award, the Arbitrator determined that the grievants were to be "credited for up to a total of eight hours administrative leave time for February 26, 2003." Id. at 22. [ v60 p297 ]

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency contends that the award fails to draw its essence from the parties' agreement. In this regard, the Agency asserts that the award does not permit it to delay opening the office because it must grant a full day of administrative leave to all employees in that circumstance. According to the Agency, the first sentence in Article 14, § 14.04(B)(B) does not provide that administrative leave must be granted for the entire day when the office is opened late, or that the office may not be opened after the regularly scheduled start. The Agency also argues that the agreement indicates that administrative leave is provided only to those employees who reported to work on the day of the emergency and not all employees.

      The Agency further contends that the award violates management's right to assign work under § 7106(a)(2)(B) of the Statute because "the office could never open late without being forced to be closed for an entire day and, in turn, grant [all employees] administrative leave." Exceptions at 5. The Agency also claims that the award violates its right to take whatever actions may be necessary during emergencies under § 7106(a)(2)(D) because it provides that the office could not be opened during a period of inclement weather or emergency.

B.     Union's Opposition

      The Union contends that the Arbitrator's award draws its essence from the parties' agreement. The Union also contends that the Agency's claim that the award violates its right to assign work is not properly before the Authority because it was not raised at the arbitration hearing. On the merits, the Union contends that this case involves the type of leave to be granted and not the assignment of work or emergency operations.

IV.     Preliminary Matter

      Under § 2429.5 of the Authority's Regulations, the Authority will not consider issues that could have been, but were not, presented to the arbitrator. See, e.g., United States Dep't of the Air Force, Air Force Materiel Command, Robins Air Force Base, Ga., 59 FLRA 542, 544 (2003).

      There is no indication in the record that the Agency raised below its arguments that Article 14, § 14.04(B), as interpreted and applied to require it to provide eight hours of administrative leave when it delayed opening a branch, violated its rights to assign work and to take action during emergencies under § 7106(a)(2)(B) and (D). [n3]  See Opposition at 3-4; Agency's Post-Hearing Brief at 9-10. Moreover, the Union's claim that Article 14, § 14.04(B) of the parties' agreement required the Agency to provide such administrative leave was presented to the Arbitrator. As it is this interpretation that the Arbitrator accepted and to which the Agency now objects, the Agency's § 7106(a) management rights arguments could and should have been presented to the Arbitrator. See Award at 18. Therefore, we dismiss these exceptions under § 2429.5. See SSA, Office of Hearings and Appeals, Falls Church, Va., 59 FLRA 507, 510 (2003).

V.     Discussion

A.     The award does not fail to draw its essence from the parties'      agreement.

      In order for an award to be found deficient as failing to draw its essence from the collective bargaining agreement, it must be established that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason 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; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See, e.g., United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).

      Article 14, § 14.04(B) of the parties' agreement provides, in pertinent part, that "[w]hen an office is closed for inclement weather or an emergency before the duty day begins, administrative leave will be granted." Award at 3. The Arbitrator found that if the opening is delayed, the office is closed at the beginning of the duty day for purposes of § 14.04(B). Accordingly, the Arbitrator concluded that the grievants were entitled to administrative leave for February 26. Nothing in the first sentence of Article 14, § 14.04(B) limits the amount of administrative leave that may be granted to an employee or establishes that only employees who [ v60 p298 ] report to work are entitled to administrative leave when the office is opened late. The Agency has failed to demonstrate that the award is implausible, irrational, unfounded in fact, or unconnected to the wording of the agreement. As such, we deny this exception.

VI.     Decision

      The Agency's management rights exceptions are dismissed. The Agency's other exception is denied.

Footnote # 1 for 60 FLRA No. 64 - Authority's Decision

   In addition to the grievance concerning the Dallas area, the Union filed a separate grievance concerning the Agency's branch office in Wichita, Kansas. The Arbitrator's determination concerning the Wichita grievance was not excepted to and it will not be addressed.

Footnote # 2 for 60 FLRA No. 64 - Authority's Decision

   Article 14, § 14.04(B) provides, in pertinent part:

When an office is closed for inclement weather or an emergency before the duty day begins, administrative leave will be granted. . . . [I]f an office is closed for an emergency after the duty day begins, only those in a duty status at the time of the closure announcement will be entitled to administrative leave. When the office is not closed, the [Agency] may grant up to two hours of administrative leave for tardiness to an employee who was delayed. Employees who do not choose to report to work due to inclement weather will be allowed to charge annual leave.

Award at 18.

Footnote # 3 for 60 FLRA No. 64 - Authority's Decision

   We note that, as set forth above, the Union makes a § 2429.5 claim only with respect to the Agency's argument regarding the right to assign work and that the Union's opposition addresses emergency situations only in connection with the right to assign work. See Opposition at 4 ("Nor is the [A]gency argument regarding assignment of work or operations during emergencies logical or rational."). However, the Authority is not precluded from applying § 2429.5 to both management rights claims. See, e.g., AFGE, Local 507, 58 FLRA 578, 579 (2003) (Chairman Cabaniss concurring as to other matters).