B-163422, APR 8, 1971, 50 COMP GEN 708

B-163422: Apr 8, 1971

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OFFICERS AND EMPLOYEES - HOURS OF WORK - ADMINISTRATIVE DETERMINATION - UNCOMMON TOURS OF DUTY THE ESTABLISHMENT OF THE FIRST 40 HOURS OF DUTY AS THE BASIC WORKWEEK OF GOVERNMENT QUALITY CONTROL INSPECTORS DUE TO THE RELEASE FROM WORK OF CONTRACTOR EMPLOYEES WHEN UNPREDICTABLE INTERRUPTIONS AND DELAYS OCCUR IN THE CHECKOUT OF MISSILES PRIOR TO LAUNCH - COUNTDOWN - WAS IN ACCORD WITH 5 U.S.C. 6101 AND CIVIL SERVICE REGULATION 610.111. THE DETERMINATION OF AN ARBITRATION BOARD UNDER EXECUTIVE ORDER NO. 10988 PROCEDURES THAT THE NEW WORK SCHEDULE WAS IN VIOLATION OF THE COLLECTIVE BARGAINING CONTRACT. THE INFORMATION FURNISHED SHOWS THAT THE SITUATION INVOLVED IN THE ARBITRATION AWARD IS PECULIAR TO THE MISSION OF THE PATRICK AIR FORCE BASE TEST SITE OFFICE WHICH IS RESPONSIBLE FOR QUALITY CONTROL OF MISSILE LAUNCHES AT THE AIR FORCE AND NATIONAL AERONAUTICS AND SPACE ADMINISTRATION IN THE CAPE KENNEDY AREA.

B-163422, APR 8, 1971, 50 COMP GEN 708

OFFICERS AND EMPLOYEES - HOURS OF WORK - ADMINISTRATIVE DETERMINATION - UNCOMMON TOURS OF DUTY THE ESTABLISHMENT OF THE FIRST 40 HOURS OF DUTY AS THE BASIC WORKWEEK OF GOVERNMENT QUALITY CONTROL INSPECTORS DUE TO THE RELEASE FROM WORK OF CONTRACTOR EMPLOYEES WHEN UNPREDICTABLE INTERRUPTIONS AND DELAYS OCCUR IN THE CHECKOUT OF MISSILES PRIOR TO LAUNCH - COUNTDOWN - WAS IN ACCORD WITH 5 U.S.C. 6101 AND CIVIL SERVICE REGULATION 610.111, WHICH AUTHORIZE UNCOMMON TOURS OF DUTY TO MAINTAIN EFFICIENT OPERATIONS AND PREVENT COST INCREASES. THEREFORE, THE DETERMINATION OF AN ARBITRATION BOARD UNDER EXECUTIVE ORDER NO. 10988 PROCEDURES THAT THE NEW WORK SCHEDULE WAS IN VIOLATION OF THE COLLECTIVE BARGAINING CONTRACT, REQUIRES NO COMPENSATION AND LEAVE ADJUSTMENTS. MOREOVER, THE EXECUTIVE ORDER PROVIDES THAT ARBITRATION "SHALL BE ADVISORY IN NATURE WITH ANY DECISION OR RECOMMENDATION SUBJECT TO THE APPROVAL OF THE AGENCY HEAD."

TO THE SECRETARY OF THE AIR FORCE, APRIL 8, 1971:

THIS REFERS TO LETTER OF FEBRUARY 5, 1971, FROM THE ACTING ASSISTANT SECRETARY, MANPOWER AND RESERVE AFFAIRS, REQUESTING A DECISION CONCERNING THE EFFECT OF AN ARBITRATION AWARD UNDER THE PROVISIONS OF EXECUTIVE ORDER NO. 10988, DATED JANUARY 17, 1962, WHEN IT CONFLICTS WITH ACTION TAKEN BY THE HEAD OF A FEDERAL AGENCY UNDER STATUTORY AUTHORITY.

THE INFORMATION FURNISHED SHOWS THAT THE SITUATION INVOLVED IN THE ARBITRATION AWARD IS PECULIAR TO THE MISSION OF THE PATRICK AIR FORCE BASE TEST SITE OFFICE WHICH IS RESPONSIBLE FOR QUALITY CONTROL OF MISSILE LAUNCHES AT THE AIR FORCE AND NATIONAL AERONAUTICS AND SPACE ADMINISTRATION IN THE CAPE KENNEDY AREA. THE QUALITY CONTROL STANDARDS ARE DEVELOPED AND APPLIED BY CONTRACTOR EMPLOYEES UNDER THE REVIEW OF GOVERNMENT SPACE SYSTEMS QUALITY CONTROL REPRESENTATIVES USUALLY CALLED QUALITY CONTROL INSPECTORS. THE MISSILE CONTRACTOR ESTABLISHED A TIMETABLE FOR THE CHECKOUT OF MISSILES PRIOR TO LAUNCH - THE COUNTDOWN. THE COMPLEX MAKEUP OF MISSILE COMPONENTS AND THE EXPERIMENTAL NATURE OF LAUNCHES FREQUENTLY RESULT IN MALFUNCTIONS WHICH CAUSE DOWNTIME; I.E., UNPREDICTABLE INTERRUPTIONS AND DELAYS. AS THESE OCCUR, THE COUNTDOWN STOPS, AND THE CONTRACTOR RESPONSIBLE FOR THE COUNTDOWN RELEASES HIS EMPLOYEES.

IT IS STATED THAT UNTIL THE MALFUNCTION IS CORRECTED, NEITHER CONTRACTOR EMPLOYEES NOR GOVERNMENT INSPECTORS WHO OVERSEE THEIR WORK ARE NEEDED. WHEN THE COUNTDOWN RESUMES, IT MAY BE NECESSARY TO RESCHEDULE WORK FOR PERIODS OF 8 TO 12 OR MORE HOURS WITHIN THE SAME 24 HOUR PERIOD, SOMETIMES FOR SEVERAL CONSECUTIVE DAYS, SOMETIMES ON ALTERNATE DAYS. UNDER REGULARLY SCHEDULED TOURS OF DUTY EMPLOYEES NOT NEEDED DURING COUNTDOWN TIME STILL MUST BE GAINFULLY EMPLOYED FOR 8 CONSECUTIVE HOURS; E.G., 8 A.M. - 4:30 P.M., REGARDLESS OF ANY ADDITIONAL WORK THEY MAY BE REQUIRED TO PERFORM LATER ON DURING THE SAME 24-HOUR PERIOD WHEN LAUNCH ACTIVITIES ARE RESUMED. EMPLOYEES WORKING UNDER SUCH CONDITIONS WILL BE FORCED EVENTUALLY BY SHEER FATIGUE TO TAKE TIME OFF. FOR THIS REASON, THE COMMANDER, PATRICK AIR FORCE BASE TEST SITE, DETERMINED HE COULD BEST ACCOMPLISH HIS MISSION AND MORE EFFECTIVELY UTILIZE HIS WORK FORCE BY THE ESTABLISHMENT OF TOURS OF DUTY CONSISTING OF THE FIRST 40 HOURS OF WORK PERFORMED WITHIN THE ADMINISTRATIVE WORKWEEK.

UNDER THE AUTHORITY OF 5 U.S.C. 6101 AND CIVIL SERVICE REGULATION 610.111, FIRST 40-HOUR TOURS OF DUTY WERE DULY SCHEDULED FOR QUALITY CONTROL INSPECTORS EFFECTIVE DECEMBER 2, 1968. THE EMPLOYEES WERE PAID OVERTIME COMPENSATION FOR WORK PERFORMED IN EXCESS OF 40 HOURS A WEEK, NIGHT DIFFERENTIAL FOR WORK SCHEDULED IN ADVANCE AND PERFORMED ON SUCCESSIVE NIGHTS BETWEEN THE HOURS OF 6 P.M. AND 6 A.M., AND THEY EARNED AND WERE CHARGED LEAVE UNDER APPROPRIATE REGULATIONS.

ONE OF THE EMPLOYEES SO SCHEDULED FILED A GRIEVANCE AGAINST THE COMMANDER, PATRICK AIR FORCE BASE TEST SITE, PROTESTING THE NEW WORK SCHEDULE AND IN ACCORDANCE WITH THE PATRICK AIR FORCE BASE - LODGE 2480 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES AGREEMENT, AN ARBITRATOR WAS DESIGNATED TO RESOLVE THE MATTER. A HEARING WAS HELD IN JUNE 1969 AT WHICH TIME REPRESENTATIVES OF BOTH UNION AND MANAGEMENT WERE HEARD. THE ARBITRATOR'S ADVISORY AWARD RENDERED NOVEMBER 7, 1969, CONCLUDED THAT ALTHOUGH THERE WAS NO EVIDENCE THAT EMPLOYEES HAD NOT BEEN PAID PROPERLY, FIRST 40-HOUR TOURS OF DUTY WERE IN VIOLATION OF THE COLLECTIVE BARGAINING CONTRACT IN THAT THE WORK SCHEDULE WAS NOT DISCUSSED WITH THE UNION BEFORE IT WAS IMPLEMENTED; AND MANAGEMENT HAD FAILED TO SHOW IN THE HEARING THAT THE WORK REQUIREMENTS OF THE MISSILE LAUNCH ACTIVITY WERE MET MORE EFFICIENTLY BY THE USE OF THE NEW WORK SCHEDULE.

THE ARBITRATION AWARD IS QUOTED IN THE LETTER AS FOLLOWS:

THE ARBITRATOR FINDS THAT THE ESTABLISHMENT AND APPLICATION OF THE FIRST FORTY HOUR SCHEDULE WAS IN VIOLATION OF THE COLLECTIVE BARGAINING CONTRACT BETWEEN PARTIES. THE GRIEVANT, AND ALL OTHER QUALITY ASSURANCE INSPECTORS SIMILARLY SITUATED HAVING JOINED IN THE GRIEVANCE, ARE THEREFORE TO BE MADE WHOLE FOR ANY LOSSES SUFFERED AS A CONSEQUENCE OF THE APPLICATION OF THE FIRST FORTY HOUR SCHEDULE INCLUDING OVERTIME, PREMIUM PAY, NIGHT DIFFERENTIAL AS WELL AS ADJUSTMENTS TO ANNUAL AND SICK LEAVE.

IT IS STATED THAT THE ARBITRATION WAS BASED ON THE FOLLOWING GOVERNING DIRECTIVES:

EXECUTIVE ORDER 10988, SECTION 8(B). PROCEDURES ESTABLISHED BY AN AGREEMENT WHICH ARE OTHERWISE IN CONFORMITY WITH THIS SECTION MAY INCLUDE PROVISIONS FOR THE ARBITRATION OF GRIEVANCES. SUCH ARBITRATION SHALL BE ADVISORY IN NATURE WITH ANY DECISIONS OR RECOMMENDATIONS SUBJECT TO THE APPROVAL OF THE AGENCY HEAD. AIR FORCE REGULATION 40 702, PARAGRAPH 10 (AIR FORCE IMPLEMENTATION OF EXECUTIVE ORDER 10988). THE ARBITRATOR IS AN IMPARTIAL THIRD PARTY FROM OUTSIDE THE AIR FORCE. THE ARBITRATOR INVESTIGATES THE FACTS, CONDUCTS A HEARING, IF NECESSARY, AND RENDERS AN ADVISORY DECISION TO THE SECRETARY OF THE AIR FORCE.

MEMORANDUM OF AGREEMENT, PATRICK AIR FORCE BASE, FLORIDA, AND LODGE NO. 2480 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO: ARTICLE IV, SECTION 1. "IT IS AGREED THAT MATTERS APPROPRIATE FOR CONSULTATION AND NEGOTIATION BETWEEN THE PARTIES SHALL INCLUDE PERSONNEL POLICIES AND PRACTICES AND WORKING CONDITIONS, INCLUDING BUT NOT LIMITED TO SUCH MATTERS AS SAFETY, TRAINING, LABOR-MANAGEMENT COOPERATION, EMPLOYEE SERVICES, METHODS OF ADJUSTING GRIEVANCES AND APPEALS, GRANTING LEAVE, PROMOTION PLANS, DEMOTION PRACTICES, PAY PRACTICES, REDUCTION-IN-FORCE PRACTICES AND HOURS OF WORK WHICH ARE WITHIN THE DISCRETION OF THE BASE COMMANDER." ARTICLE XI, SECTION 2. "UNCOMMON TOURS OF DUTY MAY BE ESTABLISHED WHEN NECESSARY FOR EFFICIENT OPERATIONS WHEN THE COST OF OPERATIONS CAN THUS BE REDUCED WITHOUT IMPOSING UNDUE HARDSHIPS ON EMPLOYEES."

IT IS STATED THAT THE ACCEPTANCE OF THE ARBITRATOR'S AWARD RAISES THE QUESTION WHETHER WORK SCHEDULES PROPERLY ESTABLISHED BY MANAGEMENT UNDER APPLICABLE REGULATIONS AND UNDER WHICH WORK WAS PERFORMED BY EMPLOYEES DURING TOURS OF DUTY CONSISTING OF THE FIRST 40 HOURS OF WORK PERFORMED IN THE ADMINISTRATIVE WORKWEEK, CAN LEGALLY BE SET ASIDE AS AN ARTIFICIAL REGULAR 8-HOUR DAILY WORK SCHEDULE CONSTRUCTED AND USED AS A BASIS TO RECOMPUTE RETROACTIVELY EMPLOYEES' PAY AND LEAVE ACCOUNTS.

THE FOLLOWING QUESTIONS ARE SUBMITTED:

IS THERE ANY AUTHORITY WHICH WILL PERMIT THE AIR FORCE TO COMPLY WITH THE ARBITRATION AWARD MADE UNDER THE PROVISIONS OF EXECUTIVE ORDER 10988 BY SETTING ASIDE A TOUR OF DUTY ESTABLISHED UNDER STATUTORY AND REGULATORY AUTHORITIES AND ESTABLISHING AN ARTIFICIAL TOUR OF DUTY RETROACTIVELY FOR THE SAME PERIOD FOR THE PURPOSE OF ADJUSTING EMPLOYEES' PAY AND LEAVE?

IF THERE IS SUCH AUTHORITY, WHAT PROCEDURE MAY BE USED TO RECOMPUTE AN EMPLOYEE'S PAY AND LEAVE ON THE BASIS OF A REGULAR 8-HOUR DAILY TOUR OF DUTY WHEN HE ACTUALLY WORKED AND WAS PAID ON THE BASIS OF A FIRST 40 HOUR TOUR OF DUTY?

SECTION 8 OF EXECUTIVE ORDER NO. 10988, EFFECTIVE DURING THE PERIOD HERE INVOLVED, AUTHORIZES PROCEDURES TO BE ESTABLISHED BY AGREEMENT WHICH MAY INCLUDE PROVISIONS FOR THE ARBITRATION OF GRIEVANCES. SUCH ARBITRATION "SHALL BE ADVISORY IN NATURE WITH ANY DECISIONS OR RECOMMENDATIONS SUBJECT TO THE APPROVAL OF THE AGENCY HEAD." ALSO, SECTION 10 OF AFR 40-702, IN EFFECT AT THE TIME, PROVIDED THAT ANY DECISION RENDERED BY AN ARBITRATOR IS AN ADVISORY DECISION TO THE SECRETARY OF THE AIR FORCE. BLACK'S LAW DICTIONARY, FOURTH EDITION, DEFINES ADVISORY AS "COUNSELLING, SUGGESTING, OR ADVISING, BUT NOT IMPERATIVE OR CONCLUSIVE." THUS, ANY ADVISORY OPINION RENDERED BY A DULY APPOINTED ARBITRATOR UNDER PROCEDURE PROVIDED FOR IN EXECUTIVE ORDER NO. 10988 MUST NECESSARILY BE VIEWED AS MERELY AN OPINION OF THE ARBITRATOR AND NOT BINDING ON THE AGENCY EXCEPT WHEN APPROVED BY THE HEAD THEREOF.

HOWEVER, IT APPEARS QUESTIONABLE WHETHER THE MATTER WAS PROPER IN THE FIRST INSTANCE FOR ARBITRATION.

SECTION 7 OF EXECUTIVE ORDER NO. 10988 PROVIDES AS FOLLOWS:

SEC. 7. ANY BASIC OR INITIAL AGREEMENT ENTERED INTO WITH AN EMPLOYEE ORGANIZATION AS THE EXCLUSIVE REPRESENTATIVE OF EMPLOYEES IN A UNIT MUST BE APPROVED BY THE HEAD OF THE AGENCY OR AN OFFICIAL DESIGNATED BY HIM. ALL AGREEMENTS WITH SUCH EMPLOYEE ORGANIZATIONS SHALL ALSO BE SUBJECT TO THE FOLLOWING REQUIREMENTS, WHICH SHALL BE EXPRESSLY STATED IN THE INITIAL OR BASIC AGREEMENT AND SHALL BE APPLICABLE TO ALL SUPPLEMENTAL, IMPLEMENTING, SUBSIDIARY OR INFORMAL AGREEMENTS BETWEEN THE AGENCY AND THE ORGANIZATION:

(1)IN THE ADMINISTRATION OF ALL MATTERS COVERED BY THE AGREEMENT OFFICIALS AND EMPLOYEES ARE GOVERNED BY THE PROVISIONS OF ANY EXISTING OR FUTURE LAWS AND REGULATIONS, INCLUDING POLICIES SET FORTH IN THE FEDERAL PERSONNEL MANUAL AND AGENCY REGULATIONS, WHICH MAY BE APPLICABLE, AND THE AGREEMENT SHALL AT ALL TIMES BE APPLIED SUBJECT TO SUCH LAWS, REGULATIONS AND POLICIES;

(2) MANAGEMENT OFFICIALS OF THE AGENCY RETAIN THE RIGHT, IN ACCORDANCE WITH APPLICABLE LAWS AND REGULATIONS, (A) TO DIRECT EMPLOYEES OF THE AGENCY, (B) TO HIRE, PROMOTE, TRANSFER, ASSIGN, AND RETAIN EMPLOYEES IN POSITIONS WITHIN THE AGENCY, AND TO SUSPEND, DEMOTE, DISCHARGE, OR TAKE OTHER DISCIPLINARY ACTION AGAINST EMPLOYEES, (C) TO RELIEVE EMPLOYEES FROM DUTIES BECAUSE OF LACK OF WORK OR FOR OTHER LEGITIMATE REASONS, (D) TO MAINTAIN THE EFFICIENCY OF THE GOVERNMENT OPERATIONS ENTRUSTED TO THEM, (E) TO DETERMINE THE METHODS, MEANS AND PERSONNEL BY WHICH SUCH OPERATIONS ARE TO BE CONDUCTED; AND (F) TO TAKE WHATEVER ACTIONS MAY BE NECESSARY TO CARRY OUT THE MISSION OF THE AGENCY IN SITUATIONS OF EMERGENCY.

THE ABOVE-QUOTED SECTION PROVIDES AMONG OTHER THINGS THAT ANY AGREEMENT ENTERED INTO WITH AN EMPLOYEE ORGANIZATION SHALL BE GOVERNED BY THE PROVISIONS OF ANY EXISTING OR FUTURE LAWS OR REGULATIONS. UNDER 5 U.S.C. 6101(A)(3) THE FIRST 40 HOURS OF DUTY PERFORMED WITHIN A PERIOD OF NOT MORE THAN 6 DAYS OF THE ADMINISTRATIVE WORKWEEK MAY BE ESTABLISHED AS THE BASIC WORKWEEK WHEN IT IS DETERMINED THAT THE ORGANIZATION WOULD BE SERIOUSLY HANDICAPPED IN CARRYING OUT ITS FUNCTIONS OR THAT COSTS WOULD BE SUBSTANTIALLY INCREASED. ALSO, SEE PARAGRAPH 610.111(B) OF THE CIVIL SERVICE COMMISSION'S REGULATIONS CONTAINED IN TITLE 5, CODE OF FEDERAL REGULATIONS. MOREOVER, UNDER ARTICLE XI, SECTION 2, OF THE MEMORANDUM OF AGREEMENT, MANAGEMENT SPECIFICALLY RETAINED AUTHORITY TO ESTABLISH UNCOMMON TOURS OF DUTY WHEN NECESSARY FOR EFFICIENT OPERATIONS WHEN THE COST OF OPERATIONS CAN THUS BE REDUCED WITHOUT IMPOSING UNDUE HARDSHIPS ON EMPLOYEES.

SINCE, AS ABOVE INDICATED, THE MANAGEMENT OFFICIALS OF THE AGENCY RETAINED THE RIGHT IN ACCORDANCE WITH APPLICABLE LAWS AND REGULATIONS TO MAINTAIN THE EFFICIENCY OF THE GOVERNMENT OPERATIONS ENTRUSTED TO THEM AND TO DETERMINE THE METHODS AND MEANS BY WHICH SUCH OPERATIONS ARE TO BE CONDUCTED, IT DOES NOT APPEAR THAT THE MATTER OF THE WORKWEEK WHICH WAS ADMINISTRATIVELY ESTABLISHED IN ACCORDANCE WITH EXISTING LAW AND REGULATIONS IN ORDER TO EFFICIENTLY ACCOMPLISH THE ORGANIZATION'S MISSION WOULD BE SUBJECT TO ARBITRATION.

THE FIRST QUESTION IS THEREFORE ANSWERED IN THE NEGATIVE WHICH RENDERS UNNECESSARY ANY ANSWER TO QUESTION TWO.