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49 FLRA No. 42

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF THE NAVY

MARE ISLAND NAVAL SHIPYARD

VALLEJO, CALIFORNIA

(Agency)

and

INTERNATIONAL FEDERATION OF PROFESSIONAL

AND TECHNICAL ENGINEERS, LOCAL 11

(Union)

0-AR-2517

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DECISION

March 11, 1994

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Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Charles A. Askin filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exceptions.

The Arbitrator sustained grievances alleging that the Agency violated the parties' collective bargaining agreement when it required employees to use annual leave and denied Union representatives official time during a temporary shutdown of its operations. The award provided, among other things, for restoration of annual leave to affected employees. For the following reasons, we conclude that the Agency's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The Agency ordered a shutdown of its nonessential operations from June 29 through July 4, 1992. Employees were required to use annual leave for the days they did not work during that period. Also, Union officials were denied the use of official time during that period. The Union filed grievances alleging that the Agency's actions concerning the required use of annual leave and denial of official time violated the parties' collective bargaining agreement. When the grievances were not resolved, they were submitted to arbitration on the following issues:

(1) Is the Union's grievance concerning forced annual leave during the 1992 summer shutdown arbitrable?

(2) Did the [Agency] violate the Collective Bargaining Agreement when it effected the shutdown effective June 29, 1992? If so, what is the appropriate remedy?

(3) Did the [Agency] violate the Collective Bargaining Agreement when it effected the shutdown of June 29, 1992 and required [U]nion officials to take annual leave? If so, what is the appropriate remedy?

Award at 2.

The Arbitrator noted that the shutdown was first proposed by the Agency in February 1992, and that the parties had attempted unsuccessfully to negotiate over the shutdown. He also noted that, although at first the Agency had asserted that the reason for the shutdown was an anticipated reduction in the workload, the workload reduction never materialized. The Arbitrator found that the shutdown was implemented by the Agency in order to achieve savings in "indirect labor costs" and to make the Agency "more 'productive' in view of the base closure proceedings which threatened the continued existence of the Shipyard." Id. at 5.

According to the Arbitrator, following the parties' unsuccessful negotiations over the shutdown, the Union filed an unfair labor practice (ULP) charge against the Agency, claiming that the Agency had failed to bargain in good faith over the shutdown. The Union also submitted a request to the Federal Service Impasses Panel (Panel) for assistance in resolving the bargaining impasse over the shutdown. The ULP charge was dismissed by the Authority and the Panel "directed the Union to withdraw its proposals and submit the issue to the parties' grievance procedure." Id. The Union then filed the grievances in this case.

The Agency contended before the Arbitrator that the grievances were barred from arbitration under section 7116(d) of the Statute because of the previously-filed ULP charge. The Agency also contended that the grievances were untimely filed under the parties' collective bargaining agreement. The Arbitrator rejected the Agency's arguments and ruled that the grievances were arbitrable and timely.

On the merits of the grievances, the Agency contended before the Arbitrator that it had complied with the requirements of the parties' agreement when it ordered the shutdown and that it had properly notified the Union in advance of the shutdown in accordance with Article 10, Section 6 of the agreement.⁽¹⁾ The Agency also maintained that it had complied with Article 10, Section 9 of the agreement by allowing employees to accumulate compensatory time for use during the shutdown. With respect to the denial of official time to Union officials, the Agency argued that there was no requirement to provide official time to Union officials while they were on annual leave. 

The Union contended before the Arbitrator that the Agency had violated the parties' collective bargaining agreement because "there is no language in the [a]greement which permits the [Agency] to force employees to take annual leave." Id. at 8. Further, the Union contended that there was no real shutdown, as that term is used in the collective bargaining agreement, because "up to ten percent of the work force continued to work, including many non-essential workers." Id. The Union maintained that there is no provision in the agreement that allows the Agency to use annual leave "to manipulate budget figures to make the Shipyard look more 'competitive.'" Id.

The Arbitrator noted that the Agency's requirement that employees use annual leave during this shutdown had been rejected by two arbitrators resolving grievances by employees in other bargaining units and he found that there was "even less contractual support" for the Agency's action in this case. Id. at 11.⁽²⁾ He noted that the parties had never addressed the matter of forced annual leave in their collective bargaining agreement and he also noted that there was no evidence of any past practice in that respect. He found that the parties had agreed that annual leave was to be used for annual vacations and to provide time off for personal and emergency purposes, both of which are for the benefit of the employees, not the Agency.

The Arbitrator concluded that "the [Agency's] decision to unilaterally force employees to take annual leave was inconsistent with the parties' general intent that such leave was to be taken for the purposes enunciated in the contract, and that the parties did not authorize the [Agency] to unilaterally reduce employees' leave balances for its own purposes." Id. at 13. He further found that the Agency had specifically violated Article 10, Sections 6 and 9 of the agreement by failing to make efforts to provide work for employees with no annual leave credits and to provide the opportunity to accumulate compensatory time prior to the shutdown.

Additionally, the Arbitrator rejected the Agency's contention that it had the authority to require employees to use annual leave pursuant to an Agency civilian personnel instruction (CPI). In this regard, he stated:

[T]he [Agency's] reliance upon the language in CPI 630, sub-chapter 3 . . . is misplaced based in the facts in this case. It is clear that the 1992 summer shutdown was neither a holiday close-down nor a brief interruption in work, but rather was a planned shutdown to reduce employees['] annual leave balances and thereby create an appearance that the [Agency] was productive.

Id. at 15 n.3.

The Arbitrator made the following award:

1. The forced leave grievance is timely and arbitrable.

2. The [Agency] violated the Agreement by forcing the use of annual leave when it effected the shutdown effective June 29, 1992. To remedy the violation, the [Agency] shall make whole all unit employees who were forced to use annual leave during the shutdown by restoring their annual leave.

3. The [Agency] violated the Agreement by denying official time to Union officials . . . during the 1992 summer shutdown. The [Agency] shall grant 32 hours of official time to each of those officials.

Id. at 16.⁽³⁾

III. First Exception

A. Positions of the Parties

1. The Agency

The Agency contends that the award is deficient because it is inconsistent with CPI 630. The Agency maintains that it argued before the Arbitrator that CPI 630 authorized the Agency to compel employees to use annual leave during the shutdown.⁽⁴⁾ The Agency asserts that the Arbitrator erroneously rejected that argument and ruled that the Agency "did not prove a reserved right to force the use of annual leave in the circumstances presented in the record." Exceptions at 3. The Agency contends that the examples mentioned in CPI 630, Subchapter S3-4.b.(6)(a) are not the only situations in which the use of forced leave can be required.

According to the Agency, CPI 630, Subchapter S3-4.b.(6)(b)1 "specifically requires that forced annual leave be imposed" in certain circumstances. Id. at 4. The Agency maintains that normal work operations were suspended during the shutdown and the employees were notified of the proposed shutdown more than 2 months in advance in accordance with the regulation and, consequently, the requirements of the regulation were met. Further, the Agency asserts that the regulation is controlling in this situation because the parties' collective bargaining agreement is silent concerning forced annual leave. The Agency maintains that "there can be no conflict between the provisions of CPI 630 relating to forced annual leave and the contract and no such conflict was found by the Arbitrator." Id. at 5.

2. The Union

The Union denies that the Arbitrator's award is contrary to CPI 630. The Union asserts that there is no provision of law or Government-wide regulation that authorizes agencies to force employees to take annual leave and contends that the Agency is erroneously interpreting CPI 630. The Union maintains that CPI 630 permits the forced use of annual leave only in situations which cannot be reasonably foreseen and argues that budgetary reasons do not fall into that category. The Union contends that the Arbitrator properly found that the reason for the shutdown "was to reduce annual leave accumulations for budgetary reasons." Opposition at 7 (citation omitted).

B. Analysis and Conclusions

We find that the Agency has failed to establish that the award is deficient on the ground that it conflicts with an Agency regulation. In U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186, 195 (1990), we stated that "[a] conflict with agency rules and regulations will provide a basis for finding an award deficient under section 7122(a)(1) when such rules or regulations govern the disposition of the matter resolved by the arbitration award." A rule or regulation governs the matter in dispute when it "applies to the matter in dispute and does not conflict with similarly applicable provisions of the collective bargaining agreement." Id. at 190.

In this case, the Agency has not shown that CPI 630, the regulation on which it relies, is applicable to the issue before the Arbitrator or that the Arbitrator's award conflicts with that regulation. In resolving the issue before him, the Arbitrator addressed whether the Agency violated the parties' collective bargaining agreement by requiring employees to take annual leave during the shutdown of June 29 through July 4, 1992. The Arbitrator found that the parties had negotiated provisions relating to the administration of annual leave in their agreement and he found that nothing in those negotiated provisions allowed the Agency to require the use of annual leave during the shutdown. He also found no past practice that would permit the Agency to require employees to use annual leave during that time. The Arbitrator rejected the Agency's argument that CPI 630 was applicable. Rather, he found that the shutdown of the Agency did not fit into the categories of circumstances justifying forced annual leave set forth in CPI 630. In sum, the Arbitrator found that the parties' collective bargaining agreement and not the regulation controlled the outcome in this case.

We also conclude that the Agency has not demonstrated that the Arbitrator erred by interpreting the regulation in a manner different from that urged by the Agency. The Arbitrator found that the Agency's intention in ordering the shutdown was to achieve savings in "indirect labor costs" and to make the Agency "more 'productive' in view of the base closure proceedings which threatened the continued existence of the Shipyard[]" and that the shutdown was not a holiday shutdown covered by CPI 630. Award at 5. The Agency concedes that "the term 'holiday close-down' is not defined in CPI 630 or the parties['] negotiated agreement." Exceptions at 7. The Arbitrator merely exercised his authority to interpret the Agency's regulation and to make the factual determination that the shutdown in this case was not covered under CPI 630 and that the Agency had no right to require employees to use annual leave. See U.S. Department of Justice, Immigration and Naturalization Service, Washington, D.C. and National Immigration and Naturalization Service Council, Local 46, American Federation of Government Employees, AFL-CIO, 48 FLRA 1269, 1274-76 (1993) (agency failed to establish that arbitrator's interpretation of agency regulation was erroneous). The Agency's exception constitutes nothing more than an attempt to relitigate the merits of the grievance and disagreement with the Arbitrator's interpretation of CPI 630 and the parties' collective bargaining agreement. As such, the exception provides no basis for finding the award deficient. See National Association of Government Employees, Local R5-188 and U.S. Department of the Air Force, Seymour Johnson Air Force Base, North Carolina, 48 FLRA 110, 113-14 (1993).

IV. Second Exception

A. Positions of the Parties

1. The Agency

The Agency contends that the award is deficient because it is based on a nonfact. The Agency asserts that the Arbitrator found that CPI 630 was not applicable because of his erroneous opinion that the shutdown was not a holiday shutdown. The Agency maintains that the shutdown in this case was covered by the regulation because the shutdown occurred in a time period which included the Fourth of July Federal holiday. The Agency argues that "the term 'holiday close-down' was not intended to have any special meaning other than a close-down of operations before and/or after a holiday." Exceptions at 7.

2. The Union

The Union maintains that the Arbitrator did not err in his factual finding that the shutdown was not a holiday close-down covered by CPI 630. The Union contends that the award "is not based upon whether or not a 'holiday' was involved." Opposition at 8.

B. Analysis and Conclusions

To establish that an award is deficient because it is based on a nonfact, the party making the allegation must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. See, for example, U.S. Department of the Army, Headquarters III Corps and Fort Hood, Fort Hood, Texas and American Federation of Government Employees, Local 1920, 48 FLRA 724, 728 (1993).

The Agency's exception fails to establish that the award is deficient on this basis. The Arbitrator found, as a factual matter, that the shutdown was not implemented as a holiday close-down under CPI 630 but, rather, was done as a means of reducing annual leave balances in order to make the Agency "more 'productive' . . . ." Award at 5. The Agency has not established that the Arbitrator's award in this regard is clearly erroneous. Rather, the Agency is merely disagreeing with the Arbitrator's factual finding as to the nature of the shutdown. As such, the exception provides no basis for finding the award deficient. See id.

V. Decision

The Agency's exceptions are denied.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Article 10 of the collective bargaining agreement provides, in relevant part:

Section 6. If the Employer schedules or effects a shutdown of activities, every effort will be made by the Employer to provide work for employees who do not have annual leave credits. If work cannot be provided for such employees, annual leave may be advanced upon request, to the extent permitted by applicable regulations. The Union will be advised of any scheduled shutdown of activities prior to the shutdown, time permitting.

. . . .

Section 9. If closure of the Shipyard is anticipated and planned during a period, eligible Unit employees will be given the opportunity to work and accumulate compensatory time, which may be saved, for use during the closure period.

Award at 5.

2. The Authority denied exceptions to one of the other two arbitration awards in U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California and International Federation of Professional and Technical Engineers, Planners, Estimators, Progressmen & Schedulers Association, Local 5, 48 FLRA 1372 (1994). Exceptions to the remaining award, docketed as U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California and Federal Employees Metal Trades Council, Case No. 0-AR-2496, are pending.

3. Following the issuance of the award, the parties negotiated for official time on a full-time basis for the Union officials involved in this case. Pursuant to mutual agreement between the parties, the Arbitrator deleted the last sentence of the third paragraph of the award. See Exceptions, Attachment 2.

4. Relevant portions of CPI 630, Subchapter S3-4.b. provide:

(6) Requiring annual leave to be taken

(a) Although employees normally request annual leave, there are certain situations in which management may direct the taking of annual leave, such as holiday close-downs and brief periods of work interruptions. Such situations require advance notice, as described below. 

(b) Advance notice requirements

1. In cases of interrupted or suspended operations, employees who cannot be assigned to other work will be required to use annual leave in all cases where 24 hours advance notice can be given.

Exceptions, Attachment 3.

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