FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between FMCS No. 09-02426

Union Grievance
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 31,
Union,

and

DEPT OF VETERANS AFFAIRS

CLEVELAND MEDICAL CENTER,
Agency.
________________________________/

OPINION OF THE ARBITRATOR

November 24, 2009

After a Hearing Held September 29 and November 12, 2009

On the 5th Floor of Building 1 of the Cleveland DVA Medical Center
At 10000 Brecksville Road, Brecksville, Ohio 44141

For the Union: For the Agency:

Melinda Morrow-Kitching Arlene T. Shively

Willie E. Haywood, Jr. Assistant Regional Counsel
AFGE Local 31 Office of Regional Counsel
10000 Brecksville Road 10000 Brecksville Road
Brecksville, Ohio 44141 Brecksville, Ohio 44141
 I. The Issue

The issue in this arbitration between the Department of Veterans

Affairs (“Agency”) and the American Federation of Government

Employees, Local 31 (“Union”) is whether the Agency may establish a 7-

day-on/7-day-off biweekly work schedule (“7/7”) for pharmacists and

pharmacy technicians in the inpatient pharmacy at the Cleveland DVA

Medical Center in Brecksville, Ohio, without negotiating with the Union,

which represents those employees.

II. According to the FLRA, the Answer Is a Resounding “No”

According to the Federal Labor Relations Authority, the answer is to

be found in the Work Schedules Act, 5 USC §§ 6101 et seq., of which §

6130, “Application of programs in the case of collective bargaining

agreements”, provides in pertinent part:

(a)
(1) In the case of employees in a unit represented by an exclusive
representative, any flexible or compressed work schedule, and the
establishment and termination of any such schedule, shall be subject
to the provisions of this subchapter and the terms of a collective
bargaining agreement between the agency and the exclusive
representative.
(2) Employees within a unit represented by an exclusive
representative shall not be included within any program under this
subchapter except to the extent expressly provided under a collective
bargaining agreement between the agency and the exclusive
representative.

The Union is the “exclusive representative” of pharmacy employees at the

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Cleveland DVA Medical Center. CBA1 Art 1, § 1.

As recently as 2004, the FLRA reiterated:

It is well-established that, under the Work Schedules Act, alternative

work schedules for bargaining unit employees are "fully negotiable"
subject only to the Work Schedules Act itself or other laws
superseding it. See AFGE, Local 1934, 23 FLRA 872, 873-74 (1986)
(Lowry), modified as to other matters, NTEU, Chapter 24, 50 FLRA
330, 333 n.2 (1995). As the Authority has explained, the Work
Schedules Act is intended to include within the collective bargaining
process "`the institution, implementation, administration and
termination of alternative work schedules[.]'" NTEU, 52 FLRA 1265,
1293 (1997) (quoting S. Rep. No. 365, 97th Cong., 2d Sess. 14-15
(1982), reprinted in 1982 U.S. Code Cong. & Admin. News at 565,
576-77) (Code). The Authority has consistently held since Lowry that
proposals seeking to negotiate alternative work schedules are within
the duty to bargain and enforceable under the Statute. See, e.g., United
States, Dep't of Labor, Washington, D.C., 59 FLRA 131, 135 (2003)
(Chairman Cabaniss concurring); AFGE, AFL-CIO, Local 2361,
57 FLRA 766, 767-68 (2002) (Local 2361) (Chairman Cabaniss
concurring as to other matters); NAGE, Local R1-109, 56 FLRA 1043,
1045 (2001) (NAGE); United States Environmental Protection
Agency, Research Triangle Park, N.C., 43 FLRA 87, 92-93 (1991)
(EPA); NTEU, 39 FLRA 27, 34 (1991) (NTEU). (Underlining
supplied.)

NFFG, Local 1998, IAM Federal District 1 and Dept of State Passport

Services, 60 FLRA 141, 143 (2004). See also Bureau of Land Management v

FLRA, 864 F2d 89 (9th Cir 1988); NAGE, SEIU and Conn Adjutant General

Office, 27 FLRA 801 (1987); and AFGE Local 2109 and Central Texas

Veterans Health Care System, DVA, 108 LRP 32700 (Halter Arb 2008)

1
The collective bargaining agreement (“CBA”) is the Master Agreement between the Department of
Veterans Affairs and the American Federation of Government Employees (1997), which extends for one-
year periods until renegotiated. Art 61, § 2. The CBA was introduced as the lone joint exhibit, Jx.

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(involving pharmacy employees and many of the issues relevant here).

Several witnesses testified that the Agency has established a compressed

work schedule,2 and the arbitrator so finds.

III. The CBA Unequivocally Calls for a CWS To Be Negotiated

Article 20, § 2.C.1, “Compressed Work Schedule (CWS)” states:

“Compressed Work Schedule” (CWS) means, in the case of a full

time employee, an eighty- (80) hour biweekly basic work requirement
that is scheduled for less than 10 workdays; and, in the case of a part
time employee, a biweekly basic work requirement of less than eighty
(80) hours that is scheduled for less than ten (10) workdays and that
may require the employee to work more than eight (8) hours in a day.
a. “5-4-9” is a work schedule that includes eight (8) workdays of
nine (9) hours each plus one (1) workday of eight (8) hours within the
biweekly pay period.
b. “4-10” is a work schedule that includes eight (8) workdays of
ten(10) hours in each biweekly pay period.
c. “6-12-8” is an eighty (80) hour bi-weekly basic work schedule
that includes six (6) twelve (12) hour workdays and one (1) eight (8)
workday.

The Agency argues that these three examples of CWS are merely

illustrative and not exclusive. It points out that the “6-12-8” schedule is a

type of 7-day-on/7-day-off schedule and that the 7/7 schedules being offered

to pharmacy employees differ only slightly from the “6-12-8” schedule.3

2
Chief of HR: TR 62, 80-82, 84; Chief, Pharmacy Service: TR 137; Inpatient Pharmacy Manager: TR
215-216, 217; 2nd Executive VP of National VA Council: TR 265; LR Specialist: TR 310-311. The LR
Specialist unconvincingly sought to recant: TR 315. His suggestion that a compressed work schedule may
be selected by active employees only is belied by the overwhelming testimony that the 7/7 CWS is a
valuable recruiting tool.
3
In the Position Announcement – Staff Pharmacist, pharmacists were offered a choice of (i) seven 10-hour
workdays, or (ii) five 12-hour days followed by two 10-hour ones. Ax 13 @ 1. The former schedule is part-
time (70 hours biweekly), and the latter is fulltime (80 hours biweekly). In the Position Announcement –
Pharmacy Technicians, the techs were offered only seven 10-hour workdays. Ax 13 @ 3, Ux M.

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There are several reasons why that argument is not persuasive:

(1) The author of this provision testified that the list was meant to be

exclusive. TR 236-237, 240, 244. A 7/7 schedule is simply not one of

those listed. TR 19-20 (Associate Medical Center Director).

(2) That conclusion is reached by applying the rule of contract

interpretation, expressio unius est exclusio alterius (“the expression of

one thing is the exclusion of another”):

Frequently, arbitrators apply the principle that “when parties list

specific items, without any more general or inclusive term, they
intend to exclude unlisted items, even though they are similar to
those listed.

Elkouri & Elkouri, How Arbitration Works (ABA/BNA 6th ed 2003)

@ 467-468; see also Hill & Sinicropi, Evidence in Arbitration (BNA

2nd ed 1987) @ 352-353.

(3) Treating AWS options listed in Art 20, including the CWS options in

§ 2.C.1, as merely illustrative would render superfluous the last

sentence of Art 20, § 2.A:

This section sets forth the procedures to be followed for

Alternative Work Schedules (AWS) including flextime,
compressed work schedules, and credit hours. This section also
provides a menu of options for local bargaining/partnership for
employees to participate in these plans. AWS means a schedule
other than the traditional eight (8) hours fixed shift. Flexible
work schedules and compressed work schedules are included
within the definition of an alternative work schedule. Other
variations of AWS may be negotiated locally to expand

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 opportunities for bargaining unit employees. (Underlining and
italics supplied.)

If at all possible, meaning should be given to each word of the

contract. An interpretation which rendered an entire sentence

superfluous would not be sound. Elkouri & Elkouri, How Arbitration

Works (ABA/BNA 6th ed 2003) @ 463-464; see also Hill & Sinicropi,

Evidence in Arbitration (BNA 2nd ed 1987) @ 354-355.

(4) The argument ignores Art 20, § 3.J, which places severe limitations on

consecutive days worked:

… Every effort will be made to assure that work schedules will

not be for more than six (6) consecutive days for eight hour
tours, three (3) consecutive days for twelve (12) hour tours, and
four (4) consecutive days for ten hour tours with no less than
two (2) consecutive days off. Changes in the above procedures
will not be made without consultation with the Union.

“[C]onsultation with the Union” has yet to transpire.

(5) The portions of Art 20, § 2.A italicized in (3) unmistakably call for

bargaining over CWS. See also Art 20, § 2.E.1:

The parties agree that there are situations that may not readily
accommodate a plan described in this section. Consideration
and disposition of such situations will be made on a case-by-
case basis, subject to partnership/local bargaining. (Emphasis
supplied.)

And see Art 20, §2.G.1:

If the Department proposes to make any change to the AWS

Plan (including the CWS Plan and Flextime Plan) or the Credit

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 Hour Plan of bargaining unit employees or to restrict the
application of the Plans to any new position, the Union will be
notified and given the opportunity to bargain. (Emphasis
supplied.)

A memorandum from the Chief, Pharmacy Service, to the Medical

Center Director, routed through the Acting Associate Medical Center

Director, dated November 4, 2008 and introduced as Ax 15, is a veritable

admission of the Agency’s duty to bargain; it is important to note that this

memo was signed by all three of these Medical Center executives and bears

the express approval of the Acting Associate Director and the express

concurrence of the Director:

Mr. Montague signed my memorandum of August 1, 2008 in which I

requested two pharmacists and two techs for “7 on, 7 off” on third
shift. Mr. Banko subsequently approved sign-on bonuses for the two
pharmacist positions. I am therefore presuming that the positions are
approved despite the lack of AD signature on the original memo. Now
that negotiations with AFGE are in hiatus, we would like to begin
recruiting to fill the pharmacist positions. I expect we will fill at least
one position internally, and that the current third shift pharmacist will
move into the vacancy created by the replacement. We desperately
need to effectively cover the third shift all the time because rotating
pharmacists to cover weekends is wreaking havoc on schedules during
the week. We will hold off on recruiting to fill the third shift
technician positions until after negotiations with AFGE are completed.

We are proposing a change in some work assignments as soon as

permanent third shift staffing permits. We plan to shift some cart
filling functions to third shift. This will free up more personnel time
during the day for restocking Pyxis machines and other functions
performed outside of the pharmacy.

Continued increase in workload supports need for the additional 3

7
 positions. ***

The parties offered no explanation as to why these 2008 negotiations

failed. The absence of any explanation virtually compels the conclusion that

the Agency, after failing to achieve its goal through negotiation, simply

decided to proceed unilaterally, in violation of the clear mandates of the

Work Schedules Act and the CBA. The Agency’s efforts in 2009 to find

support for its unilateral action buttress this conclusion. Axs 8 & 17.

IV. The Agency’s Other Defenses

The nature of the Union’s grievance was set forth in the president’s

step-III letter of March 17, 2009 (Ux A):

On March 16, 2009, (2) two announcements were posted for (3) three
positions within the Pharmacy department (2) two Pharmacy
Technician positions with 7 days on and 7 days off working 10 hour
tours and (1) one Staff Pharmacist position working the same time.

The letter went on to complain of violations of the collective bargaining

agreement and sought the following corrective action:

Rescind Memo for current positions in Memo dated March 16, 2009
Utilize current established shifts within the agency
Make staff whole

The Associate Medical Center Director responded to the Union in a

memorandum dated April 15, 2009 (Ux B, Ax 7), in which she wrote in

pertinent part:

Management has the right to establish a new tour of duty and is not

8
 obligated to negotiate with the union per section 7106 (b) of the
Federal Labor Relations Statute. In addition, the seven (7) days on,
seven (7) days off tour is not illegal and is utilized at numerous DVA
Medical Centers across the country.

In her testimony at the arbitration hearing on September 29, 2009, the

Associate Director appeared to be relying upon 5 USC § 7106(a)(1) instead

of § 7106(b). TR 20-21.

Section 7106, “Management rights”, provides the following:

(a) Subject to subsection (b) of this section, nothing in this chapter

shall affect the authority of any management official of any agency—
(1) to determine the mission, budget, organization, number of
employees, and internal security practices of the agency; and
(2) in accordance with applicable laws—
(A) to hire, assign, direct, layoff, and retain employees in the agency,
or to suspend, remove, reduce in grade or pay, or take other
disciplinary action against such employees;
(B) to assign work, to make determinations with respect to contracting
out, and to determine the personnel by which agency operations shall
be conducted;
(C) with respect to filling positions, to make selections for
appointments from—
(i) among properly ranked and certified candidates for promotion; or
(ii) any other appropriate source; and
(D) to take whatever actions may be necessary to carry out the agency
mission during emergencies.

(b) Nothing in this section shall preclude any agency and any labor
organization from negotiating—
(1) at the election of the agency, on the numbers, types, and grades of
employees or positions assigned to any organizational subdivision,
work project, or tour of duty, or on the technology, methods, and
means of performing work;
(2) procedures which management officials of the agency will observe
in exercising any authority under this section; or
(3) appropriate arrangements for employees adversely affected by the

9
 exercise of any authority under this section by such management
officials.

The FLRA has rejected both 5 USC §§ 7106(a) and (b)(1) as bases for

refusing to negotiate under § 6130 of the Work Schedules Act:

In reaching this result, we reject the Agency's contention that the

proposals are nonnegotiable because they are inconsistent with the
exercise of management's rights under § 7106(a) or are otherwise
encompassed within § 7106(b)(1) of the Statute. The Authority has
held that because alternative work schedules for bargaining unit
employees are fully negotiable within the limits set by the Work
Schedules Act, there are no issues pertaining to the negotiability of
those schedules that the Authority will consider under § 7117 of the
Statute, insofar as those issues concern an alleged conflict with the
Statute. See NTEU, 39 FLRA at 34. Therefore, the Agency's claim
that the proposals violate various provisions of § 7106 of the Statute
provides no basis for finding that the proposals, which concern the
establishment of alternative work schedules, are contrary to law. See,
e.g., NAGE, 56 FLRA at 1045; Space Systems Division, Los Angeles
Air Force Base, Los Angeles, California, 45 FLRA 899, 903 (1992);
NFFE, Local 642, 27 FLRA 862, 867 (1987), enforced sub nom.
Bureau of Land Management v. FLRA, 864 F.2d 89, 91-92 (9th Cir.
1988).

AFGE, Local 2361 and Dept of the Air Force, 57 FLRA 766, 767-768

(2002).

In a memorandum dated April 17, 2009 (Ux C, Ax 6), the Union

demanded arbitration and further stated:

This is not an established tour of duty within this facility and a

Demand to Bargain was sent out to Bargain over this new tour that
Pharmacy wanted to implement. No negotiations took place instead;
the jobs were posted outside as a creative way to get out of
negotiating this change in working conditions and this newly
established tour. …

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 On April 20, 2009, the Union sent a memo to the Agency (Ux D, Ax

5), again complaining of the failure to negotiate and demanding that the

Agency cease and desist all 7-on/7-off operations. The Agency responded

with its own memo of April 29, 2009 (Ux H, Ax 4), asserting inter alia:

Management maintains that the establishment of a new tour of duty is

an absolute right that is protected under Section 7106(b)(1) of the
Federal Statute. Pharmacy Service has made it abundantly clear that it
has no intention of reassigning current bargaining unit employees to
this tour of duty unless they voluntarily wish to do so. Accordingly,
there is no obligation to bargain over the matter or stop the hiring
process that is currently in progress. …

In an effort to avoid compulsory negotiation under 5 USC § 6130 and

the CBA, the Agency insists that it created a new “position” or “tour of

duty”. Ax 8, including Dept of the Air Force and NAGE Local R7-23, 33

FLRA 532 (1988). However, the Work Schedules Act makes no exception

for a CWS that may be worked in a new position or on a new tour of duty,

and the Agency cites no case law or other authority establishing such an

exception.

Whatever else the Agency may have created, it established a new

“compressed schedule” within the meaning of § 6121(5) of the Work

Schedules Act, where that term is defined to mean:

(A) in the case of a full-time employee, an 80-hour biweekly basic

work requirement which is scheduled for less than 10 workdays, and
(B) in the case of a part-time employee, a biweekly basic work

11
 requirement of less than 80 hours which is scheduled for less than 10
workdays.

Thus, regardless of whether a pharmacy employee works full- or part-time,

any employee on a 7/7 schedule works “for less than 10 workdays”

measured on a biweekly basis and so is on a “compressed schedule”.

There can be no doubt that this matter is covered by the Work

Schedules Act. The Agency is an “Executive agency” within the meaning of

§ 6121(1),4 and each pharmacist and pharmacy technician is an “employee”

within the meaning of § 6121(1) and 5 USC § 2105. TR 28-29, 34, 49-50,

53-54, 125, 181, 275, 303.

Although the Agency references CBA Art 20, § 1.A regarding “laws

and governmentwide regulations specific to certain groups of employees”,

the Agency points to nothing which would preclude the applicability of §

6130. DVA v FLRA, 9 F3d 123 (DC Cir 1993) [Ax 24 @ 3], repeatedly cited

by the Agency, has nothing to do with the Work Schedules Act and has not

been cited in any reported case involving that Act.5

4
http://www.usa.gov/Agencies/Federal/Executive.shtml
5
The DVA v FLRA case involved the negotiability of regulations governing promotions and advancement
of “hybrid” employees. The Chief of HR explained “hybrid” in these words: “The title 38 hybrid hiring
authority is one that combines the best features. A title 38 with title 5. That’s why it’s referred to as a
hybrid. Basically, hybrid employees are hired under title 38 hiring authorities, which are faster, easier and
they’re accepted service hiring authorities. Once they’re brought on board, they are then, essentially,
treated like title 5 employees. So they’re hired as 38s and then they have the rights and benefits of a title 5
employee generally after they come on board. Hence the name hybrid.” TR 50. The court in DVA v FLRA
explained that “Congress in 1983 created a new category of ‘hybrid’ VHA employees who are subject to
both title 38 and title 5.” 9 F3d @ 126. The important point here, of course, is that the employees at issue
are covered by title 5, in which the Work Schedules Act is codified. TR 275-276.

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 V. The Remedy

A remedy in arbitration must comport not only with legal principles

but also with common sense. In an email to the parties, dated June 17, 2009,

the arbitrator cautioned:

If this new 7-on-7-off schedule has not yet been implemented, it

would seem preferable to have the hearing prior to
implementation. After implementation, if the policy violates the
collective bargaining agreement, the situation may be painful to undo.

Instead of bargaining, the Agency unilaterally implemented the 7/7 CWS,

effective September 1, 2009.

The Union demanded bargaining over the 7/7 CWS, as called for in

the CBA, and that must be done. See Art 20, § 2.A (“Other variations of

AWS may be negotiated locally to expand opportunities for bargaining unit

employees.”) and § 2.E.1.6 Nevertheless, because the Cleveland DVA

Medical Center is a major installation with over 4,400 employees and the

pharmacy, a 24/365 continuous operation, is absolutely critical to the

Agency’s mission there, any change—either to implement 7/7 consensually

or to discontinue it altogether—must be orderly.

The Agency introduced the 7/7 CWS to address staffing and

6
The author of the CWS provisions of the CBA went on to give some confusing testimony which seems to
cast doubt about the parties’ authority to negotiate over 7/7 locally. TR 246-247, 249-250, 252, 269.
However, since AWS includes CWS, CBA Art 20, §§ 2.A & E.1 plainly authorize negotiation at the local
level. The parties chose not to file briefs. TR 10. In closing argument, the Union seemed to echo the
author’s sentiment. TR 472. That position is simply incorrect.

13
operational problems on the 3rd shift. There was extensive testimony about

the difficulties of working nights—everything from adjusting circadian

rhythms to coping with disruptions of personal and family life. Such

difficulties are discussed at length in AFGE Local 2109 and Central Texas

Veterans Health Care System, DVA, supra, and so need not be dwelt upon

here. It suffices to say that the Agency made a strong case for establishing a

7/7 schedule.

The parties shall have through January 31, 2010 to negotiate a

resolution of their dispute over the 7/7 CWS. The negotiations should

include discussions of a general rule under CBA Art 20, § 2.A and case-by-

case considerations under Art 20, § 2.E.1 for the employees who currently

are working 7/7.

During the negotiation period, no current or new employee who is not

already working 7/7 as of the date of this opinion shall be allowed to work

the disputed 7/7 schedule,7 unless the Union consents in writing. Inasmuch

as some Union employees find that schedule desirable and Medical Center

management considers it beneficial, it behooves the parties to come to a

swift agreement. If the parties have not reached agreement on or before

January 31, 2010, then use of the 7/7 CWS must cease effective February 1,

7
An employee not working 7/7 as of the date of this opinion may cover for one who was working that
schedule, in the event of the latter’s absence from work.

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2010, unless the Union consents in writing.

The Union’s request to “[m]ake staff whole” must be denied because

all affected employees who have been working the 7/7 CWS volunteered to

do so. It would be anomalous to award employees damages when they have

received precisely what they wanted. In particular, not a single employee

working 7/7 asked for damages at the hearing. In any event, 5 USC § 6128

exempts the hours within the parameters of a CWS from the Fair Labor

Standards Act and any other law relating to overtime. Blair v US, 15 Cl Ct

763, 769 (1988). The pharmacy employees have not been damaged; the

Union is simply miffed because the Agency refused to bargain.

VI. Award

For all the foregoing reasons, the grievance is SUSTAINED IN PART

and DENIED IN PART, as more particularly explained above.

A Cautionary Note

A 7/7 compressed work schedule is so clearly beneficial to the

mission of the Cleveland DVA Medical Center, to the patients whom it

serves, and to those Union employees who desire to work such a schedule8

that an obstinate refusal to agree on 7/7 might be considered a failure to

bargain in good faith.

8
A recently hired pharmacist testified that he turned down a higher paying position just so he could work
7/7 at the Cleveland Medical Center. He further testified that, if 7/7 were eliminated, he would look for
another job. TR 406-408.

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Dated November 24, 2009 ________________________________
E. Frank Cornelius, PhD, JD, Arbitrator

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