Veterans Administration Regional Office and American Federation of Government Employees, Local 1765 (Authority decision, November 10, 1987)

Final FLRA decision. The Authority sets aside an arbitration award that required the agency to restore two employees' prior weekly hours and pay. Under 5 U.S.C. § 7123(a)(1), an order involving an arbitral award is generally excluded from judicial review unless it involves an unfair labor practice under 5 U.S.C. § 7116. This decision does not decide an unfair labor practice.

Plain-English summary

A Veterans Administration regional office changed two part-time employees' schedules from 24 hours over three days to 20 hours over five days. An arbitrator ordered the office to restore their former schedules and pay the difference. The Authority held that management's statutory right to assign work includes deciding how many hours to assign part-time employees. Because the award compelled 24 hours of work despite management's decision to assign 20, the Authority set it aside. It also rejected the union's argument that the change in hours prevented review of the agency's arbitration exceptions.

Decision snapshot

• Authority: Management's right to assign work under 5 U.S.C. § 7106(a)(2)(B).
• Outcome: Arbitration award restoring the prior schedules and backpay set aside.
• Key point: An arbitration award could not compel management to assign more weekly hours to the part-time employees.

Full text (FLRA public release)

[ v30 p3 ]

30:0003(1)AR

The decision of the Authority follows:

30 FLRA NO. 1
30 FLRA 3

10 NOV 1987

VETERANS ADMINISTRATION
REGIONAL OFFICE

Activity

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 1765

Union

Case No. 0-AR-1272

DECISION

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Lamont E. Stallworth 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.

For the reasons which follow, we find that the award is deficient.

II. Background and Arbitrator's Award

A grievance was filed and submitted to arbitration on the issue of whether the Activity acted properly when it changed the tours of duty of the grievants, two permanent, part-time career employees. In 1982, each grievant became a permanent, part-time career employee and each grievant was assigned a tour of duty of 8 hours a day, 3 days a week. On February 13, 1986, the grievants were notified that as a result of a management decision to reduce salary costs, effective March 3, their hours of work would be reduced from 24 to 20 and their tours of duty would be changed to 4 hours a day, 5 days a week. It was this work schedule that resulted in the grievance.

The Arbitrator concluded that under civil service laws and regulations pertaining to part-time career employment, the Activity was not authorized to reduce unilaterally the grievants' hours of work. In addition, the Arbitrator concluded [PAGE] that even if the Activity were authorized to reduce the hours of work of a part-time career employee, there must be notice to the employees of this possibility on appointment or conversion to part-time career employment. In this case, the Arbitrator found no such notification to the grievants. Accordingly, the Arbitrator, as his award, determined that the Activity had not acted fairly and properly. He ordered that the grievants be restored to their previous schedules and that they not be required to work the disputed tour of duty without their consent. He also awarded them backpay for the reduction in their pay as a result of the change in their tours of duty.

III. Exceptions

As one of its exceptions, the Agency contends that the award is contrary to management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency argues that the award essentially mandates that the grievants be assigned 24 hours of work per week contrary to management's determination to assign them only 20 hours of work per week.

IV. Analysis and Conclusions

A. Do we have jurisdiction to resolve the exceptions?

The Union has contended that the reduction in hours of work of the grievants is a reduction-in-pay under 5 U.S.C. 7512 and, as a matter described in section 7121(f) of the Statute, exceptions cannot be filed to the award under section 7122(a). We reject the Union's contention and confirm our jurisdiction to resolve the Agency's exceptions. We find that for section 7512 to be applicable there must be a reduction in the basic pay for the position held by the employee. 5 U.S.C. 7511(a) (4). The reduction in the hours of work of grievants did not result in a reduction in the basic pay for their positions because the rate of pay for their positions remained the same. See, for example, Burkwist v. Department of Transportation, 27 MSPR 419 (1985).

B. Is the award deficient?

We conclude that the award is contrary to section 7106(a)(2)(B). The Authority has specifically held that proposals which restrict management's determination on the duration of work assignments conflict with management's right to assign work. American Federation of Government Employees, AFL - CIO, Local 3804 and Federal Deposit Insurance Corporation, Madison Region, 21 FLRA 870 (1986) (Proposal 13 and cases cited in the decision).

In our view, management's determination as to the number of hours of work which will be scheduled and assigned to a part-time career employee is similar to management's determination of the duration of work assignments and is encompassed by management's right to assign work. Consequently, we find that by rejecting management's determination to schedule and assign the grievants 20 hours of work per week and by instead compelling the Activity to schedule and assign them 24 hours of work per week, the award restricts management's right to determine the number of hours of work the grievants will be assigned and is contrary to section 7106(a)(2)(B).

V. Decision

Accordingly, the award is set aside. 1

Issued, Washington, D.C., November 10,1987

Jerry L. Calhoun, Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY

FOOTNOTES

Footnote 1 In view of this decision, it is not necessary to address the Agency's other exceptions to the award. However, we note that there is no basis in law or regulation for the Arbitrator's conclusion that there must be notice to part-time career employees on appointment or conversion that management can reduce their hours of work.