Veterans Administration Medical Center, Leavenworth, Kansas and American Federation of Government Employees, Local 85 (Authority decision, November 30, 1987)

Final FLRA decision. The Authority modifies an arbitration award to remove a remedy requiring the medical center to give employees every other weekend off. 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

AFGE Local 85 grieved the Leavenworth VA Medical Center's departure from a past practice of giving employees every other weekend off. An arbitrator found the center had missed a contract deadline for answering the grievance and ordered it to restore that scheduling practice. The Authority held that the remedy would prevent management from assigning work on certain weekends, violating its statutory right to assign work. It struck the requested relief from the award. The decision did not revisit the arbitrator's finding that the grievance response was late.

Decision snapshot

• Authority: Management's right to assign work under 5 U.S.C. § 7106(a)(2)(B); arbitration review under § 7122(a).
• Outcome: Award modified to remove the every-other-weekend-off remedy.
• Key point: A past scheduling practice could not be enforced by a remedy that barred future weekend assignments.

Full text (FLRA public release)

[ v30 p386 ]

30:0386(49)AR

The decision of the Authority follows:

30 FLRA NO. 49
30 FLRA 386

30 NOV 1987

VETERANS ADMINISTRATION
MEDICAL CENTER, LEAVENWORTH,
KANSAS

Activity

and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 85

Union

Case No. 0-AR-1410

DECISION

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Thomas C. Hendrix 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 discussed below, we find that the award is deficient.

II. Background and Arbitrator's Award

A grievance was filed alleging that the Activity was not following past practice on weekend schedules. The remedy sought was for the Activity to revert to the past practice of granting employees every other weekend off. The grievance was not resolved and was submitted to arbitration on the issue of whether the Activity had complied with the time limits of the parties' collective bargaining agreement for rendering a decision at step 2 of the grievance procedure.

The Arbitrator ruled that the Activity had failed to comply with the time limits and acknowledged that the parties' agreement required that the grievance be resolved in favor of the grievant if the requested remedy is "legal and reasonable under the circumstances." Noting that both parties had declined to address the merits of the grievance, the Arbitrator determined that the remedy requested by the grievant "d(id) not appear to be illegal." Accordingly, the Arbitrator sustained the grievance and directed the Activity to "revert back to the past-practice of granting employees every other weekend off."

III. Exceptions

A. Contentions

The Agency contends that the Arbitrator's award is contrary to management's right to assign work under section 7106(a)(2)(B) of the Statute. Consequently, the Agency maintains that the requested remedy was not properly granted under the terms of the parties' collective bargaining agreement because it was not legal and reasonable under the circumstances. The Agency also contends that the award does not draw its essence from the parties' collective bargaining agreement. The agency further argues that the award is contrary to 5 C.F.R. 610.121, pertaining to the establishment of work schedules.

B. Analysis and Conclusions

We conclude that the award is contrary to section 7106(a)(2)(B).

This case is similar to National Association of Government Employees, Local R1-25 and Brockton/West Roxbury VA Medical Center, 21 FLRA 83 (1986), where the arbitrator found that the activity had failed to follow established past practice when it required employees to work midweek holidays. The arbitrator sustained the grievance and enforced the established practice by directing the activity to cease requiring employees to work midweek holidays. The Authority found that the award was contrary to management's right to assign work under section 7106(a)(2)(B). The Authority explained that section 7106(a)(2)(B) encompasses the right to determine when assigned work will be performed. The Authority has found that the manner in which management has assigned work in the past does not preclude management from assigning work in another manner in the future. 21 FLRA at 84. The Authority concluded that by prohibiting the assignment of work on midweek holidays, the award was deficient.

Like the award in Brockton/West Roxbury VA Medical Center, we find that the award in this case is deficient. The award requires the Activity to "gran(t) employees every other weekend off." As such, this award prohibits the assignment of work to employees on a weekend when the employees had worked the previous weekend. The award does not concern the Activity's tours of duty and administrative workweeks--which matters do not concern the assignment of work. For example, American Federation of State, County and Municipal Employees Local 2477 and Library of Congress, 14 FLRA 59 (1984). Instead, the award (1) is contrary to the Statute because it directly interferes with management's right to assign work and (2) cannot be granted under the terms of the parties' agreement in cases of untimeliness. Accordingly, the award must be modified.

IV. Decision

The Arbitrator's award is modified to strike the granting of the requested relief. 1

Issued, Washington, D.C. November 30, 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.