Atlanta Region AWS
FLRA AFFIRMS NTEU AWS WIN

The FLRA's 19 Dec 2003 decision in the case of the FDA Atlanta Region v. NTEU Chapter can be found in its entirety at 59 FLRA No. 87. What follows here is a shorter version:

BACKGROUND
As relevant herein, the Union filed a grievance alleging that the Agency violated Article 25, Alternative Work Schedules, of the parties' collective bargaining agreement by requiring employees on flexible schedules to establish estimated times of arrival and to call in to their supervisors if they were going to vary from those times.

With respect to the question of whether the Agency had the right to require employees to estimate their time of arrival at work, the Arbitrator found that, under Article 25, the Agency "may condition approval" of an employee' request for an alternative work schedule (AWS) "on the employee's providing the times at which she/he expects to arrive for and leave work." The Arbitrator also found that Article 25 authorized employees electing to work an AWS "to list arrival and departure times as bands of time." However, the Arbitrator found that, with certain specified exceptions, Article 25 prohibited the Agency "from insisting or requiring employees to call in if they expect to arrive at work more than one hour after the time shown on their AWS schedule." Specifically, the Arbitrator cited Section 9.E. of Article 25, which provides that an employee is not tardy until the beginning of the core hours.

Consequently, the Arbitrator concluded that, by requiring employees to state specific hours of arrival and departure and to call in if they would arrive more than an hour after the stated time, the Agency violated Article 25. As a remedy, the Arbitrator ordered the Agency to apply Article 25 in a manner consistent with the interpretation of that provision set forth in his award and to cease and desist from acting in a manner that is inconsistent with that interpretation.

ANALYSIS
The Agency claims that the award violates management's right to assign work under 7106(a)(2)(B) of the Statute. Because the Agency's exception challenges the award's consistency with law, the Authority reviews the questions of law raised in the exception and the arbitrator's award de novo. See, e.g., NFFE, Local 1437, 53 FLRA 1703, 1709 (1998). When the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. Id. at 1710. In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See NTEU, Chapter 50, 54 FLRA 250, 253 (1998).

An arbitrator's award enforcing a contractual provision pertaining to the implementation or administration of an AWS program is enforceable under the Statute, notwithstanding an exception claiming that the award violates management's rights under 7106 of the Statute. See United States Dep't of Labor, Washington, D.C., 59 FLRA 131, 135 (2003) (Dep't of Labor) (Chairman Cabaniss concurring as to result). Citing NTEU, Atlanta, Ga., 32 FLRA 879 (1988), the Agency argues that this principle does not apply to the instant case because the award does not concern the implementation or administration of an AWS program. The Agency's argument is not convincing.

The Arbitrator found that the Agency's call-in requirement was inconsistent with the flexible bands and the tardiness policies established in the parties' collective bargaining agreement for employees on alternate work schedules. Clearly, therefore, the award enforces a contractual provision that concerns the implementation and administration of the parties' AWS program. As such, the award is enforceable notwithstanding management's right to assign work under 7106(a)(2)(B) of the Statute. See Dep't of Labor, 59 FLRA at 135. Having reached this result, it is unnecessary to address the parties' contentions regarding management's right to assign work.

Posted: 01 Aug 04