Council of Prison Locals, AFGE Local 3546 and Department of Justice, National Institute of Corrections, Central Office (Authority decision, November 30, 1987)

Final FLRA decision. The Authority denies the agency's exceptions to an arbitration award restoring an employee's former work hours. 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

An employee at the National Institute of Corrections had worked from 8 a.m. to 4:30 p.m. before a supervisor changed the division's hours to 9 a.m. to 5:30 p.m. The supervisor later allowed a new employee an earlier schedule to accommodate a carpool but refused to restore the first employee's hours. An arbitrator found that refusal arbitrary and inconsistent with the labor agreement's fair treatment requirement, and ordered the original hours restored. The agency challenged the grievance's timeliness and argued that the remedy interfered with management rights. The Authority found no reviewable defect and denied the exceptions.

Decision snapshot

• Authority: Arbitration exceptions under 5 U.S.C. § 7122(a); management rights under § 7106(a).
• Outcome: Agency's exceptions denied; 8 a.m. to 4:30 p.m. schedule restored.
• Key point: The agency did not show that restoring these hours unlawfully restricted its ability to direct employees or assign work.

Full text (FLRA public release)

[ v30 p378 ]

30:0378(47)AR

The decision of the Authority follows:

30 FLRA NO. 47
30 FLRA 378

30 NOV 1987

COUNCIL OF PRISON LOCALS,
AFGE, LOCAL 3546

Union

and

DEPARTMENT OF JUSTICE,
NATIONAL INSTITUTE OF
CORRECTIONS, CENTRAL OFFICE

Activity

Case No. 0-AR-1432

DECISION

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Herbert Fishgold 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 deny the exceptions.

II. Background and Arbitrator's Award

This grievance concerns a change in the grievant's tour of duty. According to the Arbitrator, employees of the Activity have been permitted to work flexible work schedules with starting and quitting times arranged informally by supervisors and employees. From the beginning of his employment until August 1986, the grievant's hours of work were 8 a.m. to 4:30 p.m. in order to accommodate family needs and a carpool. In August 1986, the new division supervisor announced that the grievant and the other two employees in the division would work from 9 a.m. to 5:30 p.m.

In December 1986, the grievant's supervisor hired a new employee and permitted her to work a schedule of 7:15 a.m. to 3:45 p.m. in order to accommodate a carpool. Subsequently, the grievant requested reinstatement of his former schedule for personal reasons which he maintained were similar to those of the new employee. The grievant's supervisor refused to reinstate his original schedule and the grievant filed the grievance which was submitted to arbitration.

Before the Arbitrator, the Activity argued that the grievance was untimely because it was not filed within 30 days of the grievant's schedule change in August 1986. The Arbitrator agreed with the Activity to the extent the grievance claimed that the Activity failed to bargain with the Union when it changed the grievant's work hours. However, the Arbitrator found that the grievance was timely filed with respect to the grievant's claim that the Activity acted arbitrarily in denying reinstatement of his former schedule because that claim did not arise until after the approval of the new employee's work schedule.

On the merits of this claim, the Arbitrator concluded that the Activity had acted arbitrarily and inequitably. The Arbitrator found that the purpose of the Activity's flexible work schedule policy is to accommodate the personal needs of employees to the extent consistent with the operational needs of management. However, in the grievant's case, the Arbitrator found that the change in the division's work schedule to 9 a.m. to 5:30 p.m. was a punitive measure to make the grievant more accountable for his time. The Arbitrator further found that the use of work hours as a punitive measure was arbitrary and contrary to the parties' collective bargaining agreement which required fair and equitable treatment in work schedule changes. Consequently, the Arbitrator ruled that the Activity's refusal to reinstate the grievant's original schedule violated the agreement and was not encompassed by management's rights under section 7106(a) of the Statute. Accordingly, the Arbitrator sustained the grievance and directed the Activity to restore the grievant's work schedule of 8 a.m. to 4:30 p.m.

III. Discussion

The Agency contends that the award does not draw its essence from the collective bargaining agreement and is contrary to section 7106(a) of the Statute. Specifically, the Agency argues that the Arbitrator's determination that the grievance was timely filed is deficient under the express terms of parties' agreement. The Agency also argues that the Arbitrator's restoration of the grievant's original schedule is contrary to management's rights to assign work and direct employees.

We conclude that the Agency has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute: specifically, that the award is contrary to any law, rule, or regulation, or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor relations cases. See, for example, Headquarters, Fort Sam Houston, Department of the Army and Local 2145, American Federation of Government Employees, AFL - CIO, 15 FLRA 974 (1984) (exception which merely disagrees with the arbitrator's determination that the grievance was timely filed provides no basis for finding the award deficient); see also American Federation of Government Employees, AFL - CIO, International Council of U.S. Marshals Service Locals and Department of Justice, U.S. Marshals Service, 5 FLRA 542 (1981) (The agency contended that the award, which found that management violated the collective bargaining agreement when it instituted tours of duty starting at 7 a.m. and 9 a.m. and which ordered employees restored to the regularly scheduled tour of duty of 8:30 a.m. to 5 p.m., conflicted with management's rights to direct employees and assign work under section 7106(a). The Authority denied the exceptions finding that nothing in the award prevented management from directing employees and assigning work.).

Accordingly, the Agency's exceptions are denied.

Issued, Washington, D.C., November 30, 1987.

Jerry L. Calhoun, Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY