Department of the Air Force, McGuire Air Force Base and American Federation of Government Employees, Local No. 1778 (Authority decision, November 29, 1979)

Final FLRA decision. This order resolves review of an arbitration award under the prior executive order program. Judicial review of final Authority orders is governed by 5 U.S.C. § 7123(a), subject to its statutory exceptions.

Plain-English summary

McGuire Air Force Base changed shifts and tours of duty during a temporary repair shop program. An arbitrator rejected the union's claim that the changes violated the parties' agreements or Executive Order 11491. The union petitioned for review, arguing that the agreements restricted management's ability to change staffing patterns. The Authority found that the petition mainly disputed the arbitrator's reading of the agreements and did not show that the award violated the order. It denied the petition under the rule governing acceptance of arbitration review.

Decision snapshot

• Authority: 5 U.S.C. § 7135(b); 5 C.F.R. § 2411.32 (1978).
• Outcome: Petition for arbitration award review denied.
• Key point: Disagreement with an arbitrator's contract interpretation did not establish a ground for review.

Full text (FLRA public release)

[ v02 p165 ]

02:0165(17)AR

The decision of the Authority follows:

2 FLRA No. 17

MS. MARY LYNN WALKER
ACTING DIRECTOR
CONTRACT AND APPEALS DIVISION
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
1325 MASSACHUSETTS AVENUE, NW.
WASHINGTON, D.C. 20005

RE: DEPARTMENT OF THE AIR FORCE, MCGUIRE AIR FORCE BASE
AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
NO. 1778 (DASH, ARBITRATOR), FLRC NO. 78A-173

DEAR MS. WALKER:

THE AUTHORITY HAS CAREFULLY CONSIDERED THE UNION'S PETITION FOR
REVIEW OF THE ARBITRATOR'S AWARD FILED IN THE ABOVE-ENTITLED CASE. /1/

ACCORDING TO THE ARBITRATOR'S AWARD, THE DISPUTE IN THIS MATTER AROSE
AS THE RESULT OF THE INITIATION IN LATE 1977 OF A TEMPORARY PROGRAM
TESTING A NEW ORGANIZATIONAL STRUCTURE AT MCGUIRE AIR FORCE BASE (THE
ACTIVITY). THIS PROGRAM MADE IT NECESSARY FOR THE ACTIVITY TO CHANGE
THE SHIFTS AND TOURS OF DUTY OF SOME OF THE EMPLOYEES IN THE AERO REPAIR
SHOP. AFTER DISCUSSING SHIFT AND TOUR OF DUTY PREFERENCES WITH THESE
EMPLOYEES, THE ACTIVITY POSTED A NOTICE OF RESCHEDULED WORK SHIFTS AND
TOURS OF DUTY. AS A RESULT OF THIS RESCHEDULING, SOME EMPLOYEES WERE
CHANGED FROM ONE TOUR OF DUTY TO ANOTHER, AND SOME EMPLOYEES CHANGED
SHIFTS. /2/ WHEN THE TEMPORARY PROGRAM ENDED IN 1978, ALL BUT TWO OF
THE EMPLOYEES WERE OFFERED THEIR PREVIOUS SHIFT AND TOUR OF DUTY
ASSIGNMENTS. THE OTHER TWO EMPLOYEES WERE OFFERED THEIR SAME SHIFT BUT
WITH A DIFFERENT TOUR OF DUTY.

THE UNION FILED A GRIEVANCE THAT WAS ULTIMATELY SUBMITTED TO
ARBITRATION. IN ITS GRIEVANCE THE UNION CLAIMED THAT MANAGEMENT'S
ACTIONS IN UNILATERALLY CHANGING THE SHIFTS AND TOURS OF DUTY OF SOME OF
THE EMPLOYEES IN THE REPAIR SHOP DURING THE PERIOD OF THE PROGRAM
VIOLATED AGREEMENTS OF THE PARTIES AND EXECUTIVE ORDER NO. 11491. AS A
REMEDY THE UNION REQUESTED THAT THE AFFECTED EMPLOYEES BE RETROACTIVELY
PLACED ON THE SHIFT OR TOUR OF DUTY THEY WERE ON PRIOR TO THE PROGRAM;
THAT ANYONE WHO LOST DIFFERENTIAL PAY BE COMPENSATED FOR THE LOSS; THAT
ANYONE WHO GAINED DIFFERENTIAL PAY BE ALLOWED TO RETAIN SUCH PAY; AND
THAT ANYONE WHO WORKED OUTSIDE OF ONE'S PREVIOUSLY SCHEDULED DAYS OFF BE
PAID OVERTIME FOR SUCH DAYS.

IN THE OPINION ACCOMPANYING HIS AWARD, THE ARBITRATOR FIRST OUTLINED
THE ACTIVITY'S SCHEDULE OF SHIFTS AND TOURS OF DUTY. HE OBSERVED THAT
THE ACTIVITY REQUIRED STAFFING IN THE REPAIR SHOP ON THREE SHIFTS, SEVEN
DAYS A WEEK. PREVIOUSLY, THE ACTIVITY HAD ONLY ONE TOUR OF DUTY. AT
THE UNION'S REQUEST, A SPECIAL AGREEMENT WAS NEGOTIATED BY THE PARTIES
IN DECEMBER 1976 AND RATIFIED BY THE UNION IN JANUARY 1977 THAT
ESTABLISHED THREE NEW TOURS OF DUTY IN ADDITION TO THE PREVIOUS TOUR OF
DUTY. THE PARTIES CONCOMITANTLY AGREED AS TO WHICH EMPLOYEES, BY NAME,
WOULD BE ASSIGNED TO EACH SHIFT AND TOUR OF DUTY. IN ADDITION TO THESE
AGREEMENTS, THE ACTIVITY AND THE UNION ARE PARTIES TO A "MEMORANDUM OF
AGREEMENT - 1977" COVERING THE REPAIR SHOP EMPLOYEES.

IN RESOLVING THE GRIEVANCE, THE ARBITRATOR NOTED THAT PURSUANT TO
SECTION 11(B) OF EXECUTIVE ORDER 11491, /3/ MANAGEMENT WAS NOT REQUIRED
TO NEGOTIATE WITH THE UNION REGARDING THE NUMBER, TYPES, AND GRADES OF
EMPLOYEES ASSIGNED TO AN ORGANIZATIONAL UNIT, WORK PROJECT, OR TOUR OF
DUTY. THE ARBITRATOR REVIEWED ALL THE PARTIES' AGREEMENTS AND, IN
INTERPRETING THOSE AGREEMENTS, DETERMINED THAT ACTIVITY MANAGEMENT WAS
FREE TO UNILATERALLY ESTABLISH STAFFING PATTERNS TO MEET THE WORK
REQUIREMENTS OF THE REPAIR SHOP. THE ARBITRATOR STATED THAT THE FACT
THAT IN DECEMBER 1976 THE PARTIES AGREED TO ENLARGE THE TOURS OF DUTY IN
THE REPAIR SHOP AND AGREED BY NAME AS TO WHICH PARTICULAR EMPLOYEES
WOULD BE ASSIGNED TO EACH SHIFT AND TOUR OF DUTY DID NOT REQUIRE
MANAGEMENT TO CONTINUE THOSE SPECIFIED SHIFT AND TOUR OF DUTY
ASSIGNMENTS OF REPAIR SHOP EMPLOYEES. RATHER, THE ARBITRATOR WAS OF THE
OPINION THAT MANAGEMENT WAS COMPLETELY FREE TO SHUFFLE THE NUMBERS,
TYPES, AND GRADES OF REPAIR SHOP EMPLOYEES SO LONG AS IT COMPLIED WITH,
AS THE PARTIES AGREED THAT IN THIS CASE MANAGEMENT DID, THE SENIORITY
PROVISION OF THE "MEMORANDUM OF AGREEMENT - 1977" IN ITS CHOICE OF
EMPLOYEES FOR MOVEMENT AMONG SHIFTS AND TOURS OF DUTY. THE ARBITRATOR
FOUND THAT IN SUCH SITUATIONS THE PLACEMENT BY MANAGEMENT OF AVAILABLE
EMPLOYEES BY NUMBERS, TYPES, AND GRADES IN THE THREE ESTABLISHED SHIFTS
AND THE FOUR ESTABLISHED TOURS OF DUTY WAS A STAFFING PATTERN DECISION
THAT UNDER THE PARTIES "MEMORANDUM OF AGREEMENT - 1977" AND UNDER THE
ORDER WAS TO BE UNILATERALLY DETERMINED BY MANAGEMENT. THEREFORE, THE
ARBITRATOR FOUND THAT NONE OF THE PARTIES' AGREEMENTS NOR THE ORDER WERE
VIOLATED BY THE REALIGNMENT OF EMPLOYEES.

AS HIS AWARD, THE ARBITRATOR DECIDED THAT THE ACTIVITY WAS NOT
OBLIGATED TO NEGOTIATE WITH THE UNION OVER THE CHANGING OF THE REPAIR
SHOP EMPLOYEES AMONG THE ESTABLISHED SHIFTS AND TOURS OF DUTY.
ACCORDINGLY, HE DENIED THE UNION'S CLAIM THAT SUCH CHANGES VIOLATED ANY
APPLICABLE AGREEMENTS OR EXECUTIVE ORDER 11491. /4/

THE UNION REQUESTS THAT THE AUTHORITY ACCEPT ITS PETITION FOR REVIEW
OF THE ARBITRATOR'S AWARD ON THE BASIS OF ITS ONE EXCEPTION WHICH IS
DISCUSSED BELOW.

IN ITS EXCEPTION TO THE AWARD, THE UNION CONTENDS THAT THE
ARBITRATOR'S AWARD VIOLATES SECTION 11(B) OF THE ORDER. IN SUPPORT OF
THIS EXCEPTION, THE UNION ARGUES THAT MANAGEMENT WAS ESTOPPED BY THE
AGREEMENT IT CONSUMMATED OVER STAFFING PATTERNS FROM ACTING UNILATERALLY
TO CHANGE EMPLOYEES' SHIFTS AND TOURS OF DUTY. THE UNION CLAIMS THAT
THE ARBITRATOR'S AWARD ALLOWING MANAGEMENT TO TERMINATE THAT AGREEMENT
WAS INCORRECT AND CONSEQUENTLY THE AWARD VIOLATES THE ORDER.

IN ACCORDANCE WITH SECTION 2400.5 OF THE TRANSITION RULES AND
REGULATIONS OF THE AUTHORITY (44 FED.REG. 44741) AND SECTION 7135(B) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215),
THE RULES OF PROCEDURE OF THE FEDERAL LABOR RELATIONS COUNCIL, 5 C.F.R.
PART 2411(1978), REMAIN OPERATIVE WITH RESPECT TO THE PRESENT CASE
EXCEPT THAT THE WORD "AUTHORITY" IS SUBSTITUTED, AS APPROPRIATE,
WHEREVER THE WORD "COUNCIL" APPEARS IN SUCH RULES. ACCORDINGLY,
PURSUANT TO SECTION 2411.32 OF THE RULES AS SO AMENDED, THE AUTHORITY
WILL GRANT A PETITION FOR REVIEW OF AN ARBITRATION AWARD WHERE IT
APPEARS, BASED ON THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION,
THAT AN EXCEPTION TO THE AWARD PRESENTS THE GROUND THAT THE AWARD
VIOLATES THE ORDER.

IN THIS CASE, HOWEVER, THE UNION'S PETITION FAILS TO DESCRIBE THE
NECESSARY FACTS AND CIRCUMSTANCES TO SUPPORT ITS EXCEPTION THAT THE
ARBITRATOR'S AWARD VIOLATES SECTION 11(B) OF THE ORDER. IN THIS RESPECT
THE AUTHORITY NOTES THAT THE GRIEVANCE SUBMITTED TO THE ARBITRATOR
QUESTIONED WHETHER MANAGEMENT'S ACTIONS IN REALIGNING EMPLOYEES AMONG
THE ESTABLISHED SHIFTS AND TOURS OF DUTY VIOLATED ANY AGREEMENTS OF THE
PARTIES OR THE ORDER. IN RESOLVING THIS GRIEVANCE, THE ARBITRATOR
SPECIFICALLY DETERMINED THAT, IN REALIGNING THE EMPLOYEES, "MANAGEMENT
WAS MAKING A '"STAFFING PATTERN"' DECISION, A "'RIGHT'" LIMITED TO ITS
UNILATERAL DETERMINATION (UNDER EXECUTIVE ORDER 11491 AND THE
"'MEMORANDUM OF AGREEMENT - 1977'"), AND ONE THAT WAS NOT TO BE
PARTICIPATED IN BY THE UNION."

THUS, AFTER REVIEWING SECTION 11(B) OF THE ORDER AND THE AGREEMENTS
OF THE PARTIES, THE ARBITRATOR HELD THAT MANAGEMENT "DID NOT VIOLATE THE
"'MEMORANDUM OF AGREEMENT," THE SPECIAL AGREEMENT OF JANUARY 6, 1977,
EXECUTIVE ORDER 11491, OR ANY SPECIAL AGREEMENT IN ITS ACTION OF
CHANGING STAFFING PATTERNS AS HERE PROTESTED BY THE UNION." THE UNION
HAS FAILED TO DEMONSTRATE IN WHAT MANNER THIS AWARD OF THE ARBITRATOR
VIOLATES SECTION 11(B) OF THE ORDER WHICH PRIMARILY ENUMERATES MATTERS
WHICH AN AGENCY MAY BUT IS NOT OBLIGATED TO NEGOTIATE. THE ESSENCE OF
THE UNION'S ARGUMENT APPEARS TO BE THAT THE ARBITRATOR MISINTERPRETED
THE PARTIES' AGREEMENTS WHEN HE FAILED TO FIND THAT THE ACTIVITY HAD
AGREED, AS PERMITTED BY SECTION 11(B), TO CERTAIN MATTERS REGARDING THE
STAFFING PATTERNS OF ITS OPERATIONS. HOWEVER, AS IS WELL ESTABLISHED
UNDER THE ORDER, ASSERTIONS THAT CHALLENGE THE ARBITRATOR'S
INTERPRETATION OF A NEGOTIATED AGREEMENT FAIL TO STATE A GROUND UPON
WHICH A PETITION FOR REVIEW OF AN ARBITRATOR'S AWARD MAY BE GRANTED
UNDER SECTION 2411.32 OF THE RULES. /5/

MOREOVER, IN TERMS OF THIS CASE, AS IS ALSO WELL ESTABLISHED UNDER
THE ORDER, NO NEGOTIATED OBLIGATION CONCERNING ANY MATTER ENUMERATED IN
SECTION 11(B) OF THE ORDER MAY BE INFERRED OR REQUIRED UNLESS AN AGENCY
CLEARLY HAS CHOSEN TO NEGOTIATE ON SUCH A MATTER. /6/ IN THIS CASE THE
ARBITRATOR CONSIDERED ALL THE AGREEMENTS OF THE PARTIES AND SPECIFICALLY
FOUND THAT "(M)ANAGEMENT WAS NOT OBLIGATED BY ANY PROVISION OF THE
"'MEMORANDUM OF AGREEMENT - 1977,'" EXECUTIVE ORDER 11491, . . . THE
JANUARY 6, 1977 SPECIAL AGREEMENT, . . . OR ANY OTHER SPECIAL AGREEMENT,
TO NEGOTIATE WITH THE UNION OVER THE CHANGING OF CERTAIN . . .
EMPLOYEES, BETWEEN ESTABLISHED TOURS OF DUTY AND SHIFTS . . . ." THUS,
THERE IS NO CLEAR INDICATION IN THE ARBITRATOR'S OPINION AND AWARD THAT
THE ACTIVITY HAD CHOSEN TO NEGOTIATE ABOUT A MATTER FALLING WITHIN
SECTION 11(B) WHICH COULD THEN BE ENFORCED THROUGH ARBITRATION AND THE
UNION FAILS TO PRESENT FACTS AND CIRCUMSTANCES TO DEMONSTRATE THAT THE
ARBITRATOR'S AWARD IN THIS CASE VIOLATES SECTION 11(B) OF THE ORDER.
ACCORDINGLY, THERE IS NO BASIS FOR ACCEPTANCE OF THE UNION'S PETITION
FOR REVIEW UNDER SECTION 2411.32 OF THE RULES OF PROCEDURE.

THEREFORE, THE UNION'S PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD
IS DENIED BECAUSE IT FAILS TO MEET THE REQUIREMENTS OF SECTION 2411.32
OF THE RULES FOR ACCEPTANCE BY THE AUTHORITY OF A PETITION FOR REVIEW OF
AN ARBITRATOR'S AWARD. /7/

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

CC: S. ALLOY

AIR FORCE

/1/ MEMBER LEON B. APPLEWHAITE DID NOT PARTICIPATE IN THE PRESENT
CASE, WHICH HAD BEEN PROCESSED PRIOR TO HIS CONFIRMATION BY THE UNITED
STATES SENATE AS A MEMBER OF THE AUTHORITY.

/2/ THE REPAIR SHOP HAD THREE SHIFTS: (1) DAY, (2) SWING, (3)
GRAVEYARD. THERE WERE FOUR TOURS OF DUTY: (1) SUNDAY THROUGH THURSDAY
WITH FRIDAY AND SATURDAY OFF, (2) MONDAY THROUGH FRIDAY WITH WEEKENDS
OFF, (3) TUESDAY THROUGH SATURDAY WITH SUNDAYS AND MONDAY OFF, (4)
ALTERNATE WEEKENDS OFF WITH TWO NONCONSECUTIVE DAYS OFF DURING THE WEEK
FOLLOWING THE WEEKEND DUTY.

/3/ SECTION 11(B) OF EXECUTIVE ORDER 11491 PROVIDES IN PART:

(T)HE OBLIGATION TO MEET AND CONFER DOES NOT INCLUDE MATTERS WITH
RESPECT TO . . . (AGENCY)

ORGANIZATION . . . AND THE NUMBERS, TYPES, AND GRADES OF POSITIONS OR
EMPLOYEES ASSIGNED TO AN

ORGANIZATIONAL UNIT, WORK PROJECT OR TOUR OF DUTY(.)

/4/ THE ARBITRATOR ALSO DETERMINED THAT THE ACTIVITY HAD NOT
CONFORMED WITH THE REQUIREMENTS OF THE "MEMORANDUM OF AGREEMENT - 1977"
WHEN IT FAILED TO HOLD A MEETING WITH THE UNION ON THEIR GRIEVANCES,
THEREBY DEFEATING ANY OPPORTUNITY TO CONFER AND DISCUSS ANY POSSIBLE
ADVERSE IMPACT OF THE CHANGED SCHEDULES ON THE AFFECTED EMPLOYEES.
HOWEVER, THE PORTION OF THE ARBITRATOR'S AWARD DEALING WITH THAT
DETERMINATION IS NOT BEFORE THE AUTHORITY IN THIS CASE.

/5/ E.G., AEROSPACE GUIDANCE AND METROLOGY CENTER, NEWARK AIR FORCE
STATION, OHIO AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
2221 (GROSS, ARBITRATOR), 5 FLRC 973 (FLRC NO. 77A-80 (DEC. 20, 1977),
REPORT NO. 140).

/6/ E.G., DEPARTMENT OF THE ARMY, U.S. ARMY, ABERDEEN PROVING GROUND,
MARYLAND AND INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE
WORKERS, AFL-CIO, LODGE 2424 (GOTTLIEB, ARBITRATOR), 5 FLRC 852 (FLRC
NO. 77A-27 (AUG. 31, 1977), REPORT NO. 137).

/7/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE
BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
APPLICATION OF RELATED PROVISIONS OF THE NEW STATUTE OR THE RESULT WHICH
WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
STATUTE RATHER THAN THE ORDER.