U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia and Tidewater Virginia Federal Employees Metal Trades Council (Authority decision, October 9, 1991)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority concerning exceptions to an arbitral award under 5 U.S.C. § 7122. Judicial review under 5 U.S.C. § 7123(a) generally does not extend to such an order unless the order involves an unfair labor practice under 5 U.S.C. § 7116. This decision does not state that it involves an unfair labor practice.

Plain-English summary

Norfolk Naval Shipyard assigned employees to staggered weekend shifts for an asbestos removal project. The union claimed the schedule violated its agreement and sought additional overtime pay and administrative leave. An arbitrator found the schedule permissible under the agreement and denied the grievance. The Authority rejected the union's challenges to that finding, including its argument that the award conflicted with work scheduling regulations. It denied the exceptions, leaving the staggered shift ruling in place.

Decision snapshot

• Authority: Arbitration review under 5 U.S.C. § 7122(a); workweek scheduling under § 6101 and 5 C.F.R. § 610.121.
• Outcome: Union exceptions denied; grievance denial stands.
• Key point: The arbitrator found the temporary schedule reduced cost and disruption, and the union did not show the award violated the agreement or regulations.

Full text (FLRA public release)

[ v42 p804 ]

42:0804(53)AR

The decision of the Authority follows:

42 FLRA No. 53

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE NAVY

NORFOLK NAVAL SHIPYARD

PORTSMOUTH, VIRGINIA

(Agency)

and

TIDEWATER VIRGINIA FEDERAL EMPLOYEES

METAL TRADES COUNCIL

(Union)

0-AR-2091

DECISION

October 9, 1991

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 David A. Singer, Jr. filed by the Union
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 Agency did not file an
opposition.

The Union filed a grievance contesting the Agency's
decision to change the workweek of certain employees so that
they worked staggered shifts that extended over a weekend. The
work schedule change was made in order to accomplish an
asbestos removal project. The Arbitrator concluded that the
Agency did not violate the parties' collective bargaining
agreement when it made the change and he denied the grievance.
For the following reasons, we deny the Union's exceptions.

II. Background and Arbitrator's Award

The employees involved in this matter were assigned to
Shop 7 in the public works department of the Shipyard. In
order to perform an asbestos removal project over a weekend,
the Agency placed the employees on staggered shifts for a
2-week period. As a result of the change in schedule, the
employees took their days off during the week and worked
12-hour shifts on Saturday and Sunday, February 10 and 11,
1990. The employees were paid for 8 hours of regular time and
4 hours of overtime on those days.

The Union filed a grievance alleging that the change in
shifts was contrary to the parties' collective bargaining
agreement and that the employees were entitled to 12 hours of
overtime for the weekend shifts and to administrative leave for
the days that they were off during the week. The grievance was
not resolved and was submitted to arbitration on the following
issue:

Were the provisions of the agreement and
governing regulations violated by the changing
of the employees' regular workweek hours for the
replacement of asbestos ceiling tiles in
building 414, on February 10 and 11, 199[0]? If
so, what is the appropriate remedy?

Award at 1.

The Union maintained before the Arbitrator
that the Agency scheduled the staggered shifts
in an attempt to avoid the payment of overtime
and argued that it would have been possible to
accomplish the asbestos removal without changing
the employees' basic workweek. The Union
contended that the Agency violated Article 15 of
the collective bargaining agreement because
there was no showing that costs would have been
substantially increased without the change in
schedules and there was no showing that the
Agency's operations would have been seriously
handicapped.(*) The Union asked the Arbitrator
to award overtime pay for all the affected
employees for all the hours worked on February
10 and 11, 1990, and to award the employees
administrative leave for the weekdays that they
were required to take off.

The Agency maintained that it had used the
most logical and economical means to accomplish
the asbestos removal project and that it had notified the
Union well in advance of the schedule change.
The Agency asserted that the possibility of
unforeseen difficulties in the asbestos removal
project contributed to the need for additional
work and for overtime and that management could
not have accomplished the project otherwise
without relocating other employees performing
production duties. The Agency estimated that it
saved approximately $4,500 by using the
staggered shift schedule.

The Arbitrator rejected the Union's
contention that the staggered shift schedule was
improper because it was a personal inconvenience
to employees. He noted that although changes in
work schedules always create some personal
inconvenience for employees, the employees in
this case were advised well in advance of the
schedule changes and had an opportunity to
prepare for the changes. The Arbitrator also
rejected the Union's contention that the issue
in this case was controlled by three prior
arbitration awards.

The Arbitrator examined the Agency's action
in the context of Article 15 of the parties'
agreement and noted that Article 15 allowed
"scheduling latitude" to the Agency. Id. at 13.
He found that the Agency had given the Union
advance notice, as required by section 1 of
Article 15, that the staggered shift would be
implemented. He then ruled that the Agency did
not violate any regulation concerning the
establishment of basic workweeks when it
required the staggered shifts. Consequently,
the Arbitrator found that the Agency had not
violated Article 15, section 2.

In response to the Union's argument that the
Agency would not have been seriously handicapped
if the work schedule had not been changed, the
Arbitrator stated that "the staggered schedule
did serve to avoid disruption of regular
shipyard activity" and noted that the project of
asbestos removal was "unpredictable." Id. at

14. The Arbitrator stated that the employees
    involved in the schedule change "were not
    seriously adversely impacted by the staggered
    shift" and that the Agency "may not have been
    seriously handicapped had the staggered shift
    not been adopted, but there would have been
    considerable disruption at the workplace." Id.
    at 15 (emphasis deleted).

The Arbitrator rejected the Union's argument
that the Agency's costs would not have increased
significantly by using overtime for the asbestos
removal project and found that the Agency's
attempt to save money within the public works
department was appropriate. He stated that the
Union had failed to persuade him that the Agency
"had established a history of tampering with
work schedules in order to avoid payment of
legitimate overtime costs." Id. at 16. The
Arbitrator ruled that the Agency "appropriately
adopted a staggered schedule, with[in] the
provisions of Article 15, section 10, in order
to reduce overtime costs." Id. He noted that
the 16 employees affected "experienced little
monetary penalty as a result of the staggered
shift[,]" and denied the grievance. Id. at 17.

III. First Exception

A. Position of the Union

The Union asserts that the Arbitrator's award
is contrary to 5 C.F.R. § 610.121 and Federal
Personnel Manual (FPM) Supplement 990-2, chapter
610-5, which provide for a basic workweek
scheduled on 5 days, Monday through Friday, and
for 2 consecutive days off outside the workweek.
The Union claims that the Arbitrator violated
those regulatory provisions because the
provisions do not address "staggered shifts" and
because the Arbitrator found that it was not
possible to give some of the affected employees
2 consecutive days off because of "job
constraints." Exceptions at 1. The Union
maintains that the Arbitrator's statements
concerning the amount of disruption caused by
the change in schedules and management's
inability to provide consecutive days off "are a
total repudiation of Article 15, section 10 of
the negotiated agreement" and of the regulatory
provisions incorporated in the agreement. Id.
at 2.

The Union asserts that the Arbitrator changed
the applicable regulations by finding that the
change in schedules was necessary in order to
minimize costs to the Agency and that an
increase of costs for the public works
department would increase the costs of the
Agency. The Union argues that the grievance
does not concern the costs of the public works
department, but "was filed to prove that the
Agency's costs would not have been substantially
increased should the grievant(s) have been paid
the overtime in lieu of implementing the
staggered workweek." Id. The Union also
maintains that the award is contrary to the
parties' agreement because the Arbitrator has
improperly "modified the terms of laws, rules,
and regulations, not to mention the language of
the negotiated agreement." Id.

B. Analysis and Conclusions

We conclude that the Union has failed to
establish that the Arbitrator's award is
deficient on the bases alleged in its
exception. Under 5 U.S.C. § 6101, an agency is
required to schedule 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. The provisions of 5 U.S.C. § 6101
are implemented by 5 C.F.R. § 610.121. Under 5 U.S.C. § 6101, as implemented by 5
C.F.R. § 610.121, an agency is required to establish as a
basic workweek employee work schedules which
include Monday through Friday, when possible,
with 2 consecutive days off. The requirement to
schedule a workweek of Monday through Friday,
whenever possible, with Saturday and Sunday off,
is subject to two exceptions. An agency may
make changes in work schedules when that agency
determines that adherence to the existing
workweek would: (1) substantially increase
costs; or (2) seriously handicap the agency in
carrying out its functions. See National
Association of Government Employees, SEIU,
AFL-CIO and Veterans Administration, Veterans
Administration Medical Center, Department of
Memorial Affairs, 40 FLRA 657, 660-62 (1991).

The Arbitrator considered the Agency's
actions concerning the change of work schedules
in light of Article 15 of the agreement, which
incorporates the provisions of 5 C.F.R. § 610.121, and concluded that the Agency did not
violate those provisions. The Arbitrator found
that the Agency's action prevented disruption of
work and reduced costs. We find nothing in the
Arbitrator's award that is contrary to 5 C.F.R. § 610.121. The Union's contentions constitute
mere disagreement with the Arbitrator's
interpretation and application of the parties'
collective bargaining agreement and with his
conclusion that the Agency acted within its
authority. That disagreement provides no basis
for finding the award deficient. See, for
example, U.S. Department of Health and Human
Services, Social Security Administration and
American Federation of Government Employees,
Local 1923, 37 FLRA 1144, 1150 (1990).

IV. Second Exception

A. Position of the Union

The Union contends that the award is
deficient because it fails to draw its essence
from the parties' collective bargaining
agreement. The Union repeats its contention
that the Arbitrator improperly modified the
agreement by his statements concerning the
change in work schedules. The Union asserts
that it was possible to maintain the same basic
workweek and to perform the asbestos removal
project on the weekend without seriously
handicapping the Agency. The Union also
maintains that the Arbitrator erroneously
categorized the public works department, rather
than the shipyard, as the Agency and that he
erroneously found that saving money in the
public works department would help avoid
substantial increases in the Agency's overall
budget.

B. Analysis and Conclusions

To demonstrate that an award fails to draw
its essence from an agreement, a party must show
that the award: (1) cannot in any rational way
be derived from the agreement; or (2) is so
unfounded in reason and fact, and so unconnected
with the wording and the purpose of the
agreement as to manifest an infidelity to the
obligation of the arbitrator; or (3) evidences a
manifest disregard for the agreement; or (4)
does not represent a plausible interpretation of
the agreement. For example, American Federation
of Government Employees, Local 51, AFL-CIO and
United States Mint, Department of the Treasury,
41 FLRA 48, 51 (1991).

The Union has not demonstrated that the award
fails to draw its essence from the parties'
agreement under any of these tests. The
Arbitrator interpreted Article 15 of the
parties' collective bargaining agreement and
rejected the Union's allegations that the Agency
violated the agreement by changing the schedule
to provide staggered shifts. Nothing in the
Arbitrator's interpretation of the agreement
provisions is irrational or implausible or
otherwise deficient under the tests set forth
above. Accordingly, there is no basis on which
to conclude that the award fails to draw its
essence from the agreement.

V. Third Exception

A. Position of the Union

The Union contends that the award is
deficient because it is based on nonfacts. The
Union asserts that the Arbitrator erred in
stating that "[t]he Union accepts the fact that
staggered shifts may appropriately be scheduled
in order to curtail expenses when job
requirements were known in advance." Exceptions
at 3. The Union maintains that the Arbitrator's
statement is based on a nonfact because the
Union had contended that "the Agency did
manipulate the work schedule solely to avoid the
payment of overtime." Id. The Union also
refers to the Arbitrator's statement that the
Agency "may not" have been seriously handicapped
by performing the asbestos removal on overtime.
Id. at 4. The Union asserts that the
Arbitrator's statement shows that he did find a
violation of 5 C.F.R. § 610.121(a), which
requires that the Agency "must be seriously
handicapped to properly change the basic
workweek of its employees to accomplish its
mission." Id. Therefore, the Union argues, the
Arbitrator's ruling that no regulation had been
violated was based on a nonfact. The Union also
maintains that the Arbitrator did not address
the proper issue, which was whether the Agency
manipulated the work schedule in order to avoid
paying overtime.

The Union further contends that the
Arbitrator relied on a nonfact when he ruled
that the employees did not experience a
significant monetary penalty when they were not
paid overtime for performing the asbestos
removal work. The Union asserts that the loss
of "$1,065.00 split between sixteen employees .
. . is definitely a big monetary penalty[.]"
Id.

B. Analysis and Conclusions

We conclude that the Union fails to establish
that the award is based on a nonfact. In order
for an award to be found deficient because it is
based on a nonfact, the appealing party must
demonstrate that the central fact underlying the
award is clearly erroneous, but for which a
different result would have been reached. For
example, U.S. Department of the Air Force,
Griffiss Air Force Base, Rome, New York and
American Federation of Government Employees,
Local 2612, 39 FLRA 889, 893 (1991).

In this case, the Union fails to demonstrate
that the Arbitrator relied on a clearly
erroneous central fact in making his award. The
Arbitrator addressed the issue that was
stipulated by the parties--whether the Agency
violated the agreement and governing regulations
by changing the employees' regular workweek
hours on the days in question. As we have noted
previously, the Arbitrator applied the parties'
agreement and the incorporated regulations and
found that the Agency's changing of the work
schedule was consistent with both the agreement
and the regulations. The Union's third
exception constitutes mere disagreement with the
Arbitrator's overall findings and conclusions
and is an attempt to relitigate the merits of
the grievance. Such disagreement provides no
basis for finding the award deficient. See, for
example, U.S. Department of Defense, Dependents
Schools, Mediterranean Region and Overseas
Federation of Teachers, 36 FLRA 861, 867 (1990)
(claim that arbitrator's conclusions were not
supported by evidence did not concern a central
fact and constituted mere disagreement with the
arbitrator's conclusions). Accordingly, we find
that the Union's exception provides no basis for
finding the award deficient as based on a
nonfact.

VI. Decision

The Union's exceptions are denied.

APPENDIX

Article 15 of the parties' collective
bargaining agreement provides in relevant part:

ARTICLE 15

HOURS OF WORK

Section 1. When the Employer knows in advance
of an Administrative workweek that the specific
days and/or hours of the 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 Employer shall
inform the employee, as soon as practical, and
he or she will record the change on the
employee's time card or other Agency document
for recording work.

NOTE: The intent of the phrase "as soon as
practical" is to give the employee affected by
changes as much notice as the Employer can after
knowledge of the change necessary in work
schedule in order to lessen the adverse impact
and allow employees for use of their nonwork
time.

Section 2. The basic 40-hour workweek is
scheduled on 5 days, Monday through Friday when
possible. It is agreed and understood that,
when necessary, the Employer may establish basic
workweeks of other than Monday through Friday in
accordance with regulations. Changes in shifts,
will be in accordance with FPM 610, CPI 610, and
5 CFR Part 610.

. . . .

Section 10. Except when the Employer
determines that the Agency would be seriously
handicapped in carrying out its functions or
that costs would be substantially increased,
work schedules will be maintained as stable as
practical.

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

*/
Relevant provisions of Article 15 are set
forth in the Appendix to this decision.