American Federation of Government Employees, Local 2128 and U.S. Department of Defense, Defense Contract Management Agency, District West, Hurst, Texas, 0-AR-2003, May 6, 2003, 58 FLRA No. 129.

FLRA turned down exceptions to an award in which the arbitrator, after finding that the parties had established, by past practice, a compressed work schedule for unit employees, held that the agency violated law, regulation, and the parties' agreement by paying employees working on compressed schedules for only 8 hours of work on holidays. "We find the Agency's claim that, under 5 U.S.C. § 6130, compressed work schedules can only exist in collective bargaining units through negotiation to be unavailing."

The union had filed a grievance alleging the agency misapplied laws and regulations and violated the collective bargaining agreement by paying unit employees on compressed schedules for only 8 hours of work on holidays.

The matter went to arbitration where the arbitrator rejected, among other things, the agency's claim that the only alternative work schedule available to employees was a flexible schedule. He instead found that there was evidence that there was a past practice of permitting compressed schedules. "As a result of the actions of the Agency's supervisors, who routinely approved [timesheets displaying compressed] schedules over long periods of time, compressed work schedules became a past practice covered by the [collective bargaining agreement].

He also found that under 5 CFR 610.406 employees on compressed work schedules are entitled to basic pay for the number of hours they would have worked on their compressed schedule if they hadn't been off because it was a holiday.

He accordingly ordered that current and former unit employees who worked compressed work schedules during the period at issue (i.e., between the time when the Defense Contract Management Agency District West was established in 1996 until January 31, 1999) be identified and awarded backpay. The agency was not, however, obligated to provide a make-whole remedy for those pay periods in which employees worked "hybrid" schedules--i.e., a schedule that contains elements of both compressed and flexible schedules. (This latter finding was unsuccessfully excepted to by the union.) The agency filed exceptions.

FLRA rejected the agency's nonfact exception to the award, distinguishing, in footnote 9, between an arbitrator's finding that a past practice existed and an arbitrator's findings regarding the significance of that practice. FLRA treats the former as one involving a nonfact; the latter, as involving the issue of contract interpretation subject to the "essence" test. In rejecting the agency's nonfact assertion, FLRA said the following:

The Arbitrator based his finding that employees worked compressed work schedules on his review of employee timesheets for weeks that included holidays. . . . [T]he Arbitrator found, based on those timesheets, that supervisory signatures demonstrated that such schedules were routinely approved by Agency managers. The parties contested the factual significance of those timesheets before the Arbitrator. Consequently, the Agency cannot challenge as a nonfact the Arbitrator's finding that some employees worked compressed work schedules during the period in question.

FLRA rejected the agency's claim that the aware was inconsistent with 5 U.S.C. § 6130, subsection (a)(2) of which reads as follows:

(2) Employees within a unit represented by an exclusive representative shall not be included within any program under this subchapter [dealing with flexible and compressed work schedules] except to the extent expressly provided under a collective bargaining agreement between the agency and the exclusive representative. [Emphasis added.]

The Authority found "unavailing" the agency's claim that compressed work schedules can only exist in bargaining units through negotiation. "Given the Arbitrator's finding that compressed work schedules had been established by past practice as a condition of employment for unit employees, consistent with Authority precedent [FLRA cited 52 FLRA 217, 223 and 5 FLRA 272], such schedules have been incorporated into the parties' collective bargaining agreement. Thus, there is no basis on which to find that the award is contrary to 5 U.S.C. § 6130.

The agency's claim that the award was inconsistent with an agency regulation (which had disestablished the previous flexible and compressed schedules and replaced them with a comprehensive system allowing for credit hours) was denied because the regulation had been incorporated into the agreement. "[W]hen a collective bargaining agreement incorporates the regulations with which an award allegedly conflicts, the matter becomes one of contract interpretation because the agreement, not the regulation, governs the matter is dispute." FLRA therefore applied the "essence" test to the arbitrator's interpretation of the regulation (which had become a contract provision) and found that the agency failed to demonstrate that the interpretation was "unfounded, implausible, or irrational."

Finding that the arbitrator had ordered back holiday pay "only for those bi-weekly pay periods in which the employee worked a compressed work schedule, and not a 'hybrid' schedule[,]" FLRA denied the agency's claim that the award was ambiguous.

In its appendix, FLRA quoted from 5 U.S.C. §§ 6121 and 6122 but, oddly, not from 5 U.S.C. § 6130 (which we have quoted, in part, above).

Regardless, apparently FLRA believes that a past practice satisfies the "expressly provided" requirement of 5 U.S.C. § 6130(a)(2).

Incidentally, the 2nd definition of "express" in Webster's Third New International Dictionary (unabridged) is: "to represent in words[.]"