[ v38 p369 ]
38:0369(40)AR
The decision of the Authority follows:
38 FLRA No. 40
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
NATIONAL WEATHER SERVICE EMPLOYEES ORGANIZATION
(Union)
and
U.S. DEPARTMENT OF COMMERCE
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION
NATIONAL WEATHER SERVICE
(Agency)
0-AR-1735
DECISION
November 27, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator James T. Youngblood filed by the Agency under section 7122(a) of the Federal Service Labor-Managment Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exceptions and a supplemental statement (Statement). The Agency filed a response (Response) to the Union's statement.
A grievance was filed alleging that the Agency was: (1) applying the incorrect effective date of the Master Labor Agreement (MLA or national agreement); and (2) implementing Article 20 of the MLA in a manner inconsistent with law. Based on a stipulated record, the Arbitrator determined that: (1) the grievance was arbitrable; (2) the effective date of the MLA was July 12, 1988; and (3) the Agency was implementing Article 20 in a manner inconsistent with law, namely 5 U.S.C. § 6101. The Agency excepts only to the Arbitrator's determination concerning Article 20.
For the following reasons, we conclude that the Agency's exceptions fail to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
On August 8, 1988, the Union filed the grievance mentioned above. The parties failed to resolve the grievance and the dispute was submitted to the Arbitrator on a stipulated record. The issues were:
1. What is the effective date of the MLA negotiated between the [Agency] and the [Union][?]
2. Whether Article 20, Section 6(a) of the collective bargaining agreement, which provides that the work schedules of rotating shift workers are to be "fixed" by 1:00 pm on the Thursday immediately preceding the beginning of the administrative workweek, is consistent with 5 U.S.C. § 6101 and 5 C.F.R. § 610, or whether it must be revised because of case law decided after that section was negotiated.
3. Whether the above issues are arbitrable.
Award at 9.(1)
The Union was originally certified as the exclusive representative of employees of the Agency on a regional basis. The parties negotiated agreements for each regional unit. In 1981, as a result of a consolidation of these units, the Union was certified as the exclusive representative for a nationwide unit of employees of the Agency.
Subsequently, the parties commenced negotiations on a national agreement. The negotiations occurred between 1982 and 1986 and were the subject of extensive litigation, including proceedings before the Federal Service Impasses Panel, the Authority, the General Counsel of the Authority and the Federal Mediation and Conciliation Service. There was also a proceeding before an arbitrator which resulted in an award that determined the Union's rights with respect to matters relating to the national agreement negotiations. After that arbitrator's award, management instructed its supervisors to implement the national agreement and on July 26, 1988, notified the Union that the agreement "is in effect." Id. at 7. The Union then filed the grievance involved here.
The Arbitrator determined that the grievance was arbitrable and that the effective date of the MLA was July 12, 1988.(2) No exceptions have been filed to these determinations. As to Article 20, the Arbitrator noted that the parties had negotiated provisions for the regional agreements which covered advance scheduling of work and the Union had proposed similar provisions for the national agreement. However, the Arbitrator stated that the Authority's ruling in American Federation of Government Employees, AFL-CIO, Local 2484 and U.S. Army, Fort Detrick, Maryland, 17 FLRA 769 (1985) (Fort Detrick) "made such provisions dealing with rotating shift workers non-negotiable." Award at 8. Thereafter, on June 3, 1985, the parties agreed to the work scheduling provisions of Article 20. However, that provision could not be put into effect because the national agreement "had not been fully negotiated." Id. at 10. Section 6 of Article 20 provides:
(a.) By 1:00 p.m. on Thursday of each administrative work week the scheduler shall post the work schedule for the immediately following three administrative workweeks. The scheduler shall indicate each basic workweek of each rotating shift worker and any scheduled overtime. Except as otherwise provided for in this Article, the first week of each three posted schedules shall . . . become "fixed" or effective schedule.
(b.) Until "fixed", whether posted or not, administrative work week schedules are subject to revision. Thereafter, changes in a fixed workweek schedule are subject to the provisions of Sections 7 and 8 of this Article. This section does not preclude the continuation of any current schedule which does not violate this Article, the provisions of this agreement or any statute, rule or regulation.
Id. at 8.
The Arbitrator further found that management, relying on 5 C.F.R. § 610.121, implemented a new work scheduling policy effective February 2, 1986. Id. and Agency Exhibit 4 at 2. This policy incorporated the scheduling provisions negotiated by the parties in June 1985. Id. The Union filed unfair labor practice charges against the Agency based upon this action but withdrew the charges when informed that the General Counsel of the Authority would not issue a complaint. Id. Subsequently, in National Association of Government Employees, Local R7-23 and Department of the Air Force, Scott Air Force Base, Illinois, 23 FLRA 753, 754-57 (1986) (Scott Air Force Base), the Authority reconsidered its decision in Fort Detrick and concluded that it would no longer follow that decision as it pertained to advance scheduling. In interpreting 5 C.F.R. § 610.121(b) consistent with 5 U.S.C. § 6101(a)(3)(A) and 5 C.F.R. 610.121(a), the Authority concluded that employees must have a minimum of 7 days' advance notice of a change in work schedules unless the change is being made for the reasons set forth in 5 U.S.C. § 6101. Scott Air Force Base, 23 FLRA at 756.
The Arbitrator noted that Article 20 and the policy implemented by the Agency in February 1986 permit changes in work schedules to be made with less than 7 days' notice and up to 2 days prior to the start of the workweek. He concluded that both Article 20 and the scheduling policy, "if not illegal are . . . inconsistent with [5 U.S.C. § 6101(a)(3)(A)] and OPM [Office of Personnel Management] regulations and should not be further implemented." Award at 13.
Next, the Arbitrator considered the Agency's argument that the work schedules issue was not negotiable, notwithstanding the Authority's decision in Scott Air Force Base, because the Agency had made a lawful policy determination pursuant to 5 U.S.C. § 6101(a)(3)(A) that a 7-day advance work schedule "is not workable for [the] Agency." Id. The Agency contended that it had determined that its mission would be seriously handicapped or its costs substantially increased if original work schedules were retained in all cases.
The Arbitrator rejected this argument. In interpreting 5 U.S.C. § 6101(a)(3)(A), the Arbitrator stated that "contingencies [requiring a change in work schedules] will occur on a case-by-case basis whenever the [A]gency is required to bypass the [C]ode and regulation for legitimate reasons." Id. at 14. In his view, this section does not "giv[e] an agency the right to determine in advance that in all situations a seven (7) days['] advance notice is unworkable[.]" Id. The Arbitrator also found the Agency's argument to be "frivolous" because the parties had negotiated scheduling articles in the regional agreements similar to that proposed by the Union during the negotiations for the MLA, and "[t]here [was] no evidence that the Agency was sever[e]ly handicapped during that period." Id. The Arbitrator concluded, therefore, that work schedules provisions "are negotiable" and ordered the parties to "begin negotiations forthwith over the terms of a new scheduling article to replace" Article 20. Id.
III. First and Second Exceptions
A. Positions of the Parties
1. Agency
The Agency contends that the Arbitrator erred in finding Article 20 of the MLA to be "inconsistent with 5 U.S.C. § 6101, 5 C.F.R. § 610.121 and other applicable law and legal decisions." Exceptions at 1. The Agency maintains that "Article 20 either in substance or in 'application' is by no means illegal," but rather "is a lawful and intended exercise of discretion given to agencies" under 5 U.S.C. § 6101. Id. at 9.
According to the Agency, as a result of determining an immediate need to decrease costs, the head of the Agency "exercised his discretion under 5 U.S.C. § 6101" and issued the work scheduling policy, which is embodied in Article 20. This policy made "all scheduling articles" contained in the regional agreements a "nullity." Id. at 8. The Agency contends that the "statutory right of the Agency head to determine that compliance with a seven day advanced scheduling requirement would seriously handicap the Agency's function or would substantially increase costs is exclusive," and "[i]nterference with the Agency head's discretion [would violate] 5 U.S.C. § 6101 and 5 C.F.R. § 610.121(a) and (b)." Id. at 9. The Agency asserts that this discretionary power is "not subject to regulatory appeal" or "to collective bargaining." Id. at 10. The Agency states that while the Arbitrator's award "recognizes" the Agency's discretionary power under 5 U.S.C. § 6101 "to determine whether a seven day advance schedule will seriously handicap the Agency," the award "ignores the exclusivity of that determination." Id. at 11. Citing American Federation of Government Employees, AFL-CIO, Local 2024 and Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 32 FLRA 404 (1988) (Portsmouth Naval Shipyard), the Agency maintains that the award is "defective" under 5 U.S.C. § 6101 because the "Agency head is deprived of [the right to] mak[e] an administrative determination" on an Agency-wide basis and is required to make "separate" scheduling determinations for each employee. Id. at 10 and 15.
The Agency also contends that the award "is arbitrary and capricious" in requiring the Agency head to make a "separate scheduling" decision or a case-by case scheduling determination for each employee. Id. at 13. The Agency contends that this requirement is "impractical, unrealistic and impedes on [sic] effective and efficient Government" because the Agency employs over 5,000 employees in more than 300 locations and is "besieged by budget cuts and constraints." Id. at 13-14.
The Agency also asserts that the position taken by the Union in its supplemental statement "is untenable." Response at 1. The Agency argues that the decision of the United States Claims Court in Gahagan v. U.S., 19 Cl. Ct. 168 (1989) (Gahagan) does not support the Arbitrator's decision concerning 5 U.S.C. § 6101. The Agency states that the "core" of its exceptions is that the Arbitrator "applied a novel and unworkable interpretation of the statutory exception contained in 5 U.S.C. § 6101(a)(3)(A) when he "held that management must make the § 6101(a)(3)(A) determination on a case-by-case (employee-by-employee) basis and not as an agency-wide determination." Id. at 2.
According to the Agency, the Arbitrator's interpretation of the statutory exception is "diametrically opposite to the analysis" employed by the court in Gahagan. Id. The Agency states that the "Gahagan analysis requires a national determination by the agency-head and thus reaffirms that [the Arbitrator's] analysis was faulty." Id. The Agency asserts, as noted above, that in the 1986 "National Scheduling Policy," the head of the Agency made a determination that scheduling shift workers 7 days in advance would seriously handicap the Agency's mission and would substantially increase its costs. Id. The Agency contends that the "Gahagan decision does not, as the [U]nion suggests, undermine this § 6101(a)(3)(A) determination." Id.
The Agency notes that the issue decided in Gahagan concerned "whether the Director of NWS [National Weather Service] made sufficient factual findings to support a policy determination under Section 6101(a)(3)(E) for so-called 'holiday conscious' scheduling." Id. The Agency states that the court concluded that "on the record . . . there was insufficient evidence to support that a specific § 6101(a)(3)(E) determination with respect to 'holiday conscious' scheduling had been made by the Director of NWS." Id. Therefore, according to the Agency, the court's findings "do not support a case-by-case approach," but are rather "an open invitation to NWS management to develop the evidence necessary to support an agency-wide holiday conscious scheduling determination under subpart [6101(a)](3)(E)." Id. at 3.
2. Union
The Union asserts that the provisions of Article 20, Section 6 of the MLA were "consistent with [applicable] law as it was interpreted by the [Authority] at the time they were negotiated," but the provisions "conflict with 5 U.S.C. § 6101(a) and 5 C.F.R. Part 610.121(a) as it has been more recently interpreted." Opposition at 7-8. The Union contends that Article 20, Section 6 is inconsistent with 5 U.S.C. § 6101(a) because subpart (a) permits management to fix employees' work schedules less than the week in advance which is required by 5 U.S.C. § 6101(a), and subpart (b) permits management to change an employee's fixed schedule regardless of whether the Agency would be "seriously handicapped" in carrying out its mission or whether its costs would be "substantially increased." Id. at 11.
The Union asserts that the Agency's argument "that it is entitled to make an omnibus determination that it would be seriously handicapped in carrying out its mission or that its costs would be 'substantially increased' if employees' work schedules are fixed a week in advance has no support in [Authority] or any other case law." Id. The Union maintains that the Arbitrator "correctly concluded, [pursuant to 5 U.S.C. § 6101], that the decision whether a particular scheduling practice or event would substantially increase costs or handicap the [A]gency must be made on a case-by-case basis in individual circumstances and not as an [A]gency-wide blanket determination[.]" Id.
The Union denies that such case-by-case schedule changes "would usurp" all of the Agency head's time. Id. According to the Union, under Department of Commerce Administrative Order 202-610, § 8.03, the Agency head may redelegate, without limitation, to any Agency official the establishment of basic workweeks in field offices. The Union also contends that the Agency has incorrectly relied upon Portsmouth Naval Shipyard, where the proposal did not contain language allowing the agency to change work schedules consistent with the statutory exceptions. In this case, the Union states that any renegotiation of Article 20 must include a provision which permits the statutory exceptions to the notice requirement under 5 U.S.C. § 6101.
In its supplemental statement, the Union requests the Authority to take notice of the court's decision in Gahagan because the decision "bears upon the disposition of the Agency's exceptions." Statement at 1. The Union states that in Gahagan, the U.S. Claims Court "analyzed § 6101 differently" than did the Arbitrator. Id. at 2. According to the Union, the court "concluded, in agreement with NWS management, that the decision whether the [A]gency would be seriously handicapped or its costs substantially increased by compliance with § 6101 was to be made as a before-the-fact, blanket, [A]gency-wide] determination." Id. The Union notes that this position was argued by management in the present arbitration. The Union states that although the court found in management's favor on this point, the court further concluded that the "January 1986 NWS scheduling policy issuance did not constitute the § 6101 determination required to excuse the [A]gency's compliance with 5 U.S.C. § 6101." Id. (emphasis in original). Therefore, according to the Union, the Arbitrator's conclusion that the scheduling article "is illegal was correct but for a different reason" and the Arbitrator's order requiring the parties to renegotiate the scheduling article "should not be disturbed." Id.
The Union also contends that the court's decision in Gahagan calls into question Authority precedent which holds that "fixed scheduling is in all circumstances nonnegotiable unless it allows management to make changes to work schedules on a case-by-case individual basis when its costs would be substantially increased or its mission handicapped without the change." Id.
B. Analysis and Conclusions
We conclude, for the following reasons, that the award is not contrary to 5 U.S.C. § 6101.
The Agency's central argument is that the award is deficient under 5 U.S.C. § 6101(a)(3)(A) because: (1) it requires the Agency to make its scheduling policy determination for employees on a case-by-case basis rather than on an Agency-wide basis; and (2) it deprives the Agency head of the right to make an administrative determination, under the exception clause of 5 U.S.C. § 6101, that compliance with a 7-day advance scheduling requirement would seriously handicap its functions and substantially increase the Agency's costs. The Agency contends that the court's decision in Gahagan supports its position.
Under 5 U.S.C. § 6101(a)(3)(A), an agency must schedule employees' tours of duty not less than 7 days in advance, except when the head of an agency determines that the Agency would be seriously handicapped in carrying out its functions or that costs would be substantially increased. 5 C.F.R. § 610.121(a)(1) implements that statutory provision. International Brotherhood of Electrical Workers, Local 2080 and Department of the Army, U.S. Army Engineer District, Nashville, Tennessee, 32 FLRA 347, 353 (1988) (U.S. Army Engineer District, Nashville, Tennessee). The regulation requires that management provide employees with at least 7 days' advance notice of any change in work schedules unless adherence to that requirement would seriously handicap the agency in performing its functions or would substantially increase costs.
In Gahagan, 19 Cl. Ct. 168, three employees brought suit against the NWS seeking recovery of holiday and night differential premiums lost due to the NWS's rescheduling practices. The court reviewed the NWS's 1986 national scheduling policy and the evidence and found that the NWS had not "satisfied the legal requirements to qualify for the § 6101 exception clause."(3) 19 Cl. Ct. at 180. The court found, therefore, that the NWS violated 5 U.S.C. § 6101 when it rescheduled the employees involved in the matter. In particular, the court held that the NWS could not reschedule its employees from premium pay shifts solely because of the occurrence of holidays where the NWS had not issued a policy determination that holiday sensitive scheduling was necessary to reduce substantial costs or preserve its mission.
In the instant case, the Arbitrator found that 5 U.S.C. § 6101(a)(3)(A) did not give the Agency "the right to determine in advance that in all situations a seven (7) day advance notice [of a change in employees' work schedules] is unworkable [and] therefore it need not comply or negotiate" over the notice requirement under 5 U.S.C. § 6101(a)(3)(A). Award at 14. In our view, the Arbitrator's interpretation is consistent with that section. The Arbitrator interpreted 5 U.S.C. § 6101 as it related to Article 20 of the MLA and found that the scheduling requirements contained in Article 20, which constituted the Agency's scheduling policy, could not apply to all situations because, in his view, 5 U.S.C. § 6101(a)(3)(A) requires a "case-by-case" determination as "contingencies occur" rather than a "one time determination" applicable to all future occurrences. Award at 13-14. Therefore, the Arbitrator determined that negotiations over a new scheduling article were warranted.
As noted above, under 5 U.S.C. § 6101(a)(3)(A), an agency may change employees' work schedules without providing employees with a 7-day advance notice "only" when it is necessary to prevent the agency from being handicapped in the execution of its functions or to forestall a substantial increase in operational costs. Scott Air Force Base, 23 FLRA at 755-56. Thus, an agency can determine that circumstances exist under 5 U.S.C. § 6101(a)(3)(A) which prevent the agency from providing employees with a 7-day notice. However, when these circumstances no longer exist, the agency is required to provide employees with the statutory notice of a change in work schedules. In this case, the Agency determined at the time it implemented its Agency-wide policy that circumstances existed which necessitated a shorter notice to employees than the statutory requirement. That determination was based on situations affecting the Agency at that time and was not based on future occurrences.
The Agency claims that a need to decrease costs at the time necessitated the implementation of the scheduling policy. Circumstances which would seriously handicap an agency in accomplishing its functions or would substantially increase costs at one particular time could change during the duration of a contract. Article 20 of the MLA provides employees with a shorter notice than the statutory requirement. Thus, this article would permit the Agency to give employees a shorter notice of a change in work schedules than the statutory requirement under 5 U.S.C. § 6101(a)(3)(A), even though the circumstances which necessitated the shorter notice requirement may no longer exist. Such action on the part of the Agency would not be consistent with 5 U.S.C. § 6101(a)(3)(A). The Arbitrator, in interpreting this section, determined that the Agency's one-time Agency-wide policy determination concerning employees' work schedules could not serve to cover all future situations because 5 U.S.C. § 6101(a)(3)(A) requires a "case-by-case" determination as "contingencies occur." Award at 14. Therefore, the Arbitrator directed the parties to negotiate "over the terms of a new scheduling article to replace the current Article 20[.]" Id. We conclude, in these circumstances, that the Arbitrator's interpretation of 5 U.S.C. § 6101(a)(3)(A) is consistent with that section. See U.S. Army Engineers District, Nashville, Tennessee, 32 FLRA 347, 353 (where the Authority stated that Scott Air Force Base "indicates that parties are free to negotiate over the timing of the prior notice required before management may change a work schedule, so long as management retains authority to make schedule changes upon shorter notice in circumstances where changes or short notice are authorized by law and regulation").
We further find that the court's decision in Gahagan does not require a different conclusion. In the case before us, the Arbitrator examined the scheduling policy as it pertained to Article 20 of the MLA and determined that the policy determination made by the Agency under one circumstance may not legitimately apply in advance to all situations that may occur in the future under the MLA. In Gahagan, the court examined the policy as it related to the employees involved in that case and determined that the Agency had not established that circumstances existed within the meaning of the exception clause of 5 U.S.C. § 6101 to support the Agency's rescheduling practices.
In our view, the Arbitrator's award is consistent with this determination. The Arbitrator read 5 U.S.C. § 6101(a)(3)(A) as requiring a "case-by-case" determination as "contingencies occur," and found no statutory basis for an agency to "determine in advance that in all situations a seven (7) day advance notice is unworkable." Award at 14. As we interpret the award, it does not, as the Agency argues, preclude the Agency from making an Agency-wide determination that circumstances exist within the meaning of the exception clause of 5 U.S.C. § 6101(a)(3)(A) which prevent it from giving employees the required statutory notice. That is, the award would not preclude the Agency from asserting on an Agency-wide basis, following the award, that circumstances exist within the meaning of 5 U.S.C. § 6101(a)(3)(A) which necessitate a shorter notice to employees of a change in their work schedules. Rather, the award simply stands for the proposition that the Agency could not apply such a determination made under circumstances existing at one time to all situations or contingencies that may occur in the future. Thus, we find that the court's decision provides no basis for us to conclude that the Arbitrator's interpretation of 5 U.S.C. § 6101 was incorrect.
Further, we disagree with the Union's contention that Gahagan calls into question certain Authority precedent which, in the Union's view, supports the Arbitrator's finding that a case-by-case approach rather than an agency-wide determination is appropriate. As we stated above, the Arbitrator's award is not inconsistent with Gahagan. Rather, the award concerns the Arbitrator's interpretation of Article 20 of the MLA and the Agency's obligation to negotiate a contractual provision concerning employees' work schedules that is consistent with 5 U.S.C. § 6101. Also, the cases cited by the Union do not preclude an agency from making a determination on an agency-wide basis that a shorter notice of a change in employees' work schedules is warranted. Rather, the cases stand for the proposition that an agency is required to comply with the notice requirement under 5 U.S.C. § 6101 except when it determines that circumstances exist within the meaning of the statutory exceptions under this section.
Additionally, for the reasons stated above, we reject the Agency's contention that the award, as it relates to the Arbitrator's case-by-case determination, is arbitrary and capricious. We find that the Agency's contention constitutes nothing more than disagreement with the Arbitrator's reasoning and conclusions and his interpretation and application of the parties' agreement. Such contentions provide no basis for finding an award deficient. See, for example, U.S. Army Transportation Center, Fort Eustis, Virginia 23604-5353 and Local R4-6, National Association of Government Employees, 32 FLRA 1250 (1988).
We next examine the Agency's contention that the Arbitrator erroneously determined that the Agency's national scheduling policy, as set out in Article 20 of the MLA, did not satisfy the requirements for the statutory exception under 5 U.S.C. § 6101(a)(3)(A). The Agency argued before the Arbitrator that the scheduling policy was based on the Agency head's determination that scheduling shift workers 7 days in advance would seriously handicap the Agency's functions and would substantially increase its costs. The Arbitrator rejected the Agency's argument and found that the record evidence did not support the Agency's contention. We note, in this regard, that the Arbitrator's finding is supported by the court's decision in Gahagan. In Gahagan, the court examined the NWS's 1986 national scheduling policy, as in this case, as the policy related to: (1) holiday scheduling; (2) the NWS's reasons for promulgation of the policy; and (3) the NWS's scheduling practices under the policy. The court found, based upon the record, that the Agency had not satisfied the legal requirements to qualify for the § 6101 exception clause. See Gahagan, 19 Cl. Ct. at 178-80.
We conclude, therefore, based on the above, that the Agency's exceptions concerning the Arbitrator's interpretation and application of 5 U.S.C. § 6101(a)(3)(A) and Article 20 of the MLA provide no basis for finding the award deficient under section 7122(a) of the Statute.
IV. Third Exception
A. Positions of the Parties
1. Agency
The Agency contends that the award does not "draw its essence from the MLA." Exceptions at 12. The Agency cites certain statements made by the Arbitrator concerning articles relating to scheduling contained in the regional agreements and contends that these statements show that the Arbitrator "determined the legality of the national scheduling article based on the terms of the expired regional agreements" rather than the provisions of Article 20 or other relevant provisions of the MLA. Id. at 12 (emphasis in original). The Agency claims that the Arbitrator "never considered the actual application of Article 20." Id. The Agency points out that the Arbitrator stated in his decision that "no evidence was presented as to the financial status of the Agency." Id. The Agency asserts that "[s]ince the right to determine or change schedules is exclusive in the Agency head, the Agency is not required to present evidence before the [A]rbitrator as to the wisdom of its determination." Id. The Agency submitted certain exhibits with its exceptions which it claims shows that the Agency is and has been in a period of severe budget constraints.
Finally, the Agency contends that the Arbitrator's "reliance on the terms of expired contracts" also contradicts prior decisions made in grievances brought under the regional contracts. Id. at 13.
2. Union
The Union did not specifically address this exception.
B. Analysis and Conclusions
For an award to be found deficient because it fails to draw its essence from a collective bargaining agreement, the party making the allegation must demonstrate that the award: (1) is so unfounded in reason and fact and so unconnected with the wording and the purposes of the 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 evidences a manifest disregard of the agreement. United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-76 (1990) (Department of Labor). The Agency has failed to demonstrate that the award is deficient under any of the tests outlined above.
We reject the Agency's contention that the Arbitrator did not consider the actual application of Article 20 but rather determined the legality of the national scheduling article based on the terms of the expired regional agreements. The record evidence shows that the Arbitrator considered Article 20 and the parties' bargaining history as it related to the negotiation of this article, including the regional agreements. The Arbitrator stated that he had "carefully read all of the arguments made by the Agency" in reaching his determination that the Agency's scheduling policy set forth in Article 20 was inconsistent with 5 U.S.C. § 6101. Award at 14. Moreover, an arbitrator need not specify particular items of evidence on which the award is based or discuss the specific provision involved in the case. American Federation of Government Employees, Local 2327 and Department of Health, Education, and Welfare, Social Security Administration, 5 FLRA 189 (1981). The Authority stated in that case that "[t]here is no rule of law which requires an arbitrator to write opinions with great specificity as a court of law." Id. at 192 (citations omitted).
We find, therefore, that the Agency has provided no basis for concluding that the Arbitrator's interpretation can not in any rational way be drawn from the agreement, is unfounded in reason and fact and unconnected to the wording of the agreement, or does not represent a plausible interpretation of the agreement. The Agency's contention merely constitutes disagreement with the Arbitrator's interpretation and application of the agreement. That contention provides no basis for finding the award deficient under section 7122(a) of the Statute. See, for example, id.
We further note the Agency's contention that the Arbitrator found no evidence in the record concerning the Agency's financial status. In this respect, the Agency asserts that "[s]ince the right to determine or change schedules is exclusive in the Agency head, the Agency is not required to present evidence before the Arbitrator as to the wisdom of its determination." Exceptions at 12. We note, consistent with Gahagan, that an agency's determination to change employees' work schedules under 5 U.S.C. § 6101 is clearly reviewable. The Agency also submitted certain exhibits with its exception that it contends show that "the Agency is and has been in a period of severe budget constraints." Id. However, we reject the Agency's attempt to present evidence to the Authority concerning the Agency's budget which was not presented to the Arbitrator. Arbitration awards are not subject to review on the basis either of evidence in existence at the time of the arbitration but not presented to the arbitrator or of evidence that has come into existence since the arbitration. See, for example, U.S. Small Business Administration, Atlanta, Georgia and American Federation of Government Employees, Local 3906, 37 FLRA 137, 142 (1990). We find, therefore, that this contention provides no basis for finding the award deficient.
Also, we reject the Agency's contention that the award directly contradicts prior decisions made in grievances brought under the regional contracts. First, the Agency did not provide any information concerning these decisions. Further, even if the award is inconsistent with prior awards, arbitration awards are not precedential and any inconsistency with these awards would provide no basis for finding the award deficient. See, for example, Adjutant General, State of Oklahoma, Air National Guard, Tulsa, Oklahoma and National Association of Government Employees, Local R8-17, 34 FLRA 691 (1990).
In view of the above, we find that the Agency's exception that the award does not draw its essence from the MLA provides no basis for finding the award deficient.
V. Decision
The Agency's exceptions are denied.
APPENDIX
The pertinent text of 5 U.S.C § 6101 and 5 C.F.R. § 610.121 is set forth below:
5 U.S.C. § 6101(a) provides, in relevant part, as follows:
§ 6101. Basic 40-hour workweek; work schedules; regulations
(a)(1) For the purpose of this subsection, "employee" includes an employee of the government of the District of Columbia and an employee whose pay is fixed and adjusted from time to time under section 5343 or 5349 of this title, or by a wage board or similar administrative authority serving the same purpose, but does not include an employee or individual excluded from the definition of employee in section 5541(2) of this title, except as specifically provided under this paragraph.
(2) The head of each Executive agency, military department, and of the government of the District of Columbia shall--
(A) establish a basic administrative workweek of 40 hours for each full-time employee in his organization[.]
. . . .
(3) Except when the head of an Executive Agency, . . . determines that his organization would be seriously handicapped in carrying out its function or that costs would be substantially increased, he shall provide, with respect to each employee in his organization, that--
(A) assignments to tours of duty are scheduled in advance over periods of not less than 1 week[.]
5 C.F.R. § 610.121(a) and (b) provides:
§ 610.121 Establishment of work schedules
(a) Except when the head of an agency determines that the agency would be seriously handicapped in carrying out its functions or that costs would be substantially increased, he or she shall provide that--
(1) Assignments to tours of duty are scheduled in advance of the administrative workweek over periods of not less than 1 week[.]
. . . .
(b)(1) The head of an agency shall schedule the work of his or her employees to accomplish the mission of the agency. The head of an agency shall schedule an employee's regularly scheduled administrative workweek so that it corresponds with the employee's actual work requirements.
(2) When the head of an agency knows in advance of an administrative workweek that the specific days and/or hours of a day actually required of an employee in that administrative workweek will differ from those required in the current administrative workweek, he or she shall reschedule the employee's regularly scheduled administrative workweek to correspond with those specific days and hours. The head of the agency shall inform the employee of the change, or he or she shall record the change on the employee's time card or other agency document for recording work.
(3) If it is determined that the head of an agency should have scheduled a period of work as part of the employee's regularly scheduled administrative workweek and failed to do so in accordance with paragraphs (b)(1) and (2) of this section, the employee shall be entitled to the payment of premium pay for that period of work as regularly scheduled work under Subpart A of Part 550 of this chapter. In this regard, it must be determined that the head of the agency: (i) Had knowledge of the specific days and hours of the work requirement in advance of the administrative workweek, and (ii) had the opportunity to determine which employee had to be scheduled, or rescheduled, to meet the specific days and hours of that work requirement.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. The pertinent text of 5 U.S.C. § 6101 and 5 C.F.R. § 610.12l is set forth in the Appendix to this decision.
2. At 14 of the award, the Arbitrator inadvertently referred to the effective date as July 12, 1888. The correct date is as stated.
3. The scheduling policy involved in Gahagan is a part of the same national scheduling policy involved in the instant dispute. See Exceptions at 5 n.1.