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Title: National Labor Relations Board and National Labor Relations Board Union
Date: April 7, 1999
Arbitrator: Perry Zirkel
Citation: 1999 NAC 112

   *   *   *   *   *   *   *   *   *   *   *   *   *

           NATIONAL LABOR RELATIONS BOARD                     *

                                                                                                                        *   AWARD

                        - and -                                     *

                                                                                                                        *   OF THE


                                                                                                                        * ARBITRATOR

FMCS Case No. 98-11291                                                             *

   *   *   *   *   *   *   *   *   *   *   *   *   *











            The Employer's refusal to change the starting time of

            the short day of Teresa Lai was a violation of the CBA.


            Her grievance is upheld.  The Employer shall promptly

            reassess her request in light of current operating needs.




















          _____________________                 ____________

             Perry A. Zirkel                        Date


            The hearing in this matter was held in Philadelphia, Pennsylvania, on October 30, 1998 and December 17, 1998.  The Employer was represented by attorney Jennifer Kovachich.  The Union's spokesperson was attorney Bert Dyce-Goldberg.  The witnesses for the Union were field attorney Richard Wainstein and grievant Teresa Lai. Testifying for the Employer were regional director Dorothy Moore-Duncan, office manager Christine Berry-Brennan, and compliance supervisor James Burkholder.  The joint exhibits were the 2/27/88 collective bargaining agreement (J-1) the 2/27/92 agreement (J-2),the 2/29/00 agreement, and the grievance packet (J-4).  The Employer's ten exhibits included the  support staff schedule for the week of 12/17/97 (GC-1),the 1/15/98 Murray request (GC-3), the 11/13/97 Lai request (GC-4), the 11/24/97 staffing chart (GC-8A), and Memorandum OM 85-2 (GC-10).  The Union's fourteen exhibits included the 2/23/98 secretarial reassignments (U-2), the 10/26/98 office schedule (U-5), the 10/26/98 support staff schedule (U-7), the intake for 1997-98 (U-13), and the 6/14/85 Hirsch memo re: implementation of compressed hours (U-14).  The parties mailed posthearing briefs by their mutually agreed upon deadline of 3/1/99.





            The Employer, the National Labor Relations Board, administers the National Labor Relations Act.  It has 33 regional offices.  The two principal activities of the Regional Offices are compliance, i.e., investigating and prosecuting unfair labor practices, and representation, i.e., conducting employee elections.

            Each regional office has, in addition to managers and supervisors, two categories of employees: clerical/support staff and agents, or professional staff.  The agents are field examiners (who are not attorneys) and field attorneys. 

            The Philadelphia Regional Office, which fluctuates between second and third highest of the 33 regional offices in terms of workload, currently has approximately 16 clerical/support staff, including an office manager and assistant office manager,[1] and approximately 40 agents, supervisors, and managers.  Since FY 1997, the peak year in terms of case-intake volume, the office has lost 13 employees, including 5 clerical/support staff.

            During the past decade, automation, in the form of computers, has changed the work of both categories of employees.  Every agent has a personal computer and printer.  Many do their own word processing, leaving only the mailing and, to a lesser extent, the editing to the clerical/support staff.

            Moreover, in the past five years, computerized forms and labels as well as computer networking has reduced the typing workload of the clerical/support staff and the consequent end-of-the-day, -week, and -month pressure to prepare and issue complaint and representation forms "from scratch."

            As a result, starting in approximately October 1997, the Employer has raised various proposals at the monthly Union-Management relations to transfer certain work, such as filing, scheduling appointments, and extensive copying, from the agents to the clerical/support staff.

            The time-sensitive pressure is most pronounced at the end of each month due to the end-of-month goals by, and monthly status reports to, headquarters in Washington.  This end-of-the-month pressure has also been reduced by two other changes, one attributable to the new regional director and the second attributable to headquarters.

            The present director, who assumed her position in the Philadelphia Regional Office in May 1997, effectuated more efficient case processing.  The various Board-agent documents[2] continue to be reviewed by supervisors and sent to her office for signature and final revisions, which are completed at the agent or clerical/support level, but she processes them so as to avoid the end-of-the-month bottleneck.

            Starting in approximately 1996, headquarters changed compliance procedures by establishing, via impact analysis, three priority categories of cases.  The result has been longer and more flexible deadlines for the bottom two categories.[3]  

            Nevertheless, the office continues to have a backlog.[4] Despite various steps, such as inter-office cooperation to distribute overload to less busy regions and Union-Management meetings to reallocate more of the task to secretarial/support staff, the backlog is due to more work received than employees to do it. 

            The regional director perceives the work flow in the office as increasing toward the end of the week toward a high point on Friday, but the pertinent evidence is mixed.  To the extent that her finalization of Board documents flows toward Fridays, the secretaries, not the agents, are directly affected.[5]  It is undisputed that volume of case intake is heaviest on Thursdays and Fridays.[6]  Contrary to the director's perception, mailing is not heaviest on Friday, at least for the relevant period.[7]  Similarly, action dispositions are not the heaviest on Friday for the pertinent period.[8]  Finally, it is undisputed that Fridays, along with Mondays, are the lowest days in terms of availability of both professional and secretarial staff.[9]  However, to the extent that secretarial work is a function of the professionals,' as compared with the director's and supervisors', work, the problem is abated.[10]

            The collective bargaining agreement (CBA), as excerpted infra, contains provisions for two alternate work schedules: flexitime and compressed hours.[11]  The regular office hours are from 8:30 am to 5:00 pm.

            Within the contractual limits, the office manager prepares work schedules for each two-week pay period.  The clerical/support staff is organized into four departments (front office - 4, secretarial pool - 6, elections - 1, and docket - 2), with limited inter- and intra-departmental coverage.[12]  Most members of the secretarial pool have specializations, such as elections or compliance.

            Having started in 7/8/91 as a docket clerk and having been promoted soon thereafter, Teresa Lai is the compliance member of the secretarial pool.   Assigned as assistant to the compliance supervisor for the past five years, she does the general secretarial work for three agents and the particular secretarial work for the compliance supervisor and his team of 2-4 agents.  The bulk (approximately 75%) of her workload is for the compliance supervisor, for which she is her back-up.

            Since approximately 1997,[13]  Lai has been on a compressed, or 5-4-9, schedule.[14]  Her "long," or 9-hour days, are 7:30 until 5:00, and her "short" day is 8:30 to 5:00. Her short day is on the first Friday of each two-week pay period.

            On 11/13/97, she made a written request to the office manager to change the starting time of her short day from 8:30 (ending at 5:00) to 7:30 am. (ending at 4:00).

            Later that day, the office manager denied her request based on operating needs, which primarily concerns staff coverage for the work flow, including the impact on other employees.  Specifically, the office  manager relied on the purported need to have sufficient clerical/support coverage for the last hour on Fridays.[15]  She offered Lai an earlier start time if she would switch to her short day to a different day of the work week.  Having been responsible for administering this provision of three successive CBAs since 1985,[16] the office manager has granted most requests for alternate schedules.  Only one employee, Angela Murray, has previously filed a grievance based on a denial[17]; after a meeting with the Union, the Employer informally settled it in August 1997 by granting her request to change her start time on her short day, the first Friday of each pay period, from 8:30 to 8:00.[18]  Fridays are, by far, the most favored day for short days.[19]

            On 12/5/97, after the regional director concurred in, and confirmed, the denial, the Union filed a grievance representing Lai.  The matter was processed through the contractually prescribed steps to the present arbitration.     








Section 7.  Employees will not be subject to arbitrary or unreasonable acts by ... management which would be otherwise be grievable....[20]




Section 2. Flexitime. (a) General. Subject to the other terms of the Article, and in accordance with 5 U.S.C. §6101 employees may work a flexitime tour of duty as described below.


(b) Definitions.


 (1) Core Hours-- ... 1 and 1/2 hours after the time the Regional Office normally opens for business to 1 hour before the time the Regional Office normally closes for business.


(2) Flexible Band-- ... the 2 and 1/2 hour periods immediately preceding and following the core periods in each Regional Office.....


(c) Limitations.


(1) Employees working a 5-4-9 schedule under Section 3 of this Article are not eligible to work a flexitime tour of duty.


(2) A flexitime tour of duty will not be available to part-time employees ....


(d) Employee Requests.


(1) Each employee may request a specific flexitime tour of duty.  Absent special circumstances, such request must include the same starting time 4 out of the 5 days of each week....


(3) ... Employee requests for a flexitime tour of duty will  be granted to the maximum extent consistent with the operating needs of the Regional Office. However, no more than 25 percent of the total number of [eligible] employees may commence a flexitime tour of duty during any 1/2 hour segment within the morning flexible band....


Section 3.  Compressed Hours. (a) General. Subject to the other terms of this Article and consistent with applicable law and government-wide rule and regulations, employees may work a compressed schedule of 8 nine-hour days and 1 eight-hour days in each pay period (5-4-9 schedule).


(b) Limitations. 


(1) A 5-4-9 schedule will not be available to employees working a flexitime tour of duty ....


(2) A 5-4-9 schedule will not be available to part-time employees....


(c) Employee Requests.


(1) Management will, in consultation with the Local Union, determine the maximum number of employees which may be off on each particular day of the pay period as part of a 5-4-9 schedule, provided that such number is no lower than 10 percent and no higher than 25 percent of the total number of [eligible] employees. ....

(2)       (A) Employees may request a specific 5-4-9 schedule,   including a starting time for their 9-hour days, what is

            their desired 8-hour day, and a specific day off....


            (C) Employee requests will be approved consistent with

            operating needs up to the number available....


(d) Starting Time.


(1) Employees will begin their 8-hour day either at the beginning of the normal office hours or at their 9-hour starting time.[21]

(2) Employees will begin each of their 9-hour days at the same starting time.... either the beginning of the normal office hours, 1/2 hour before ... or 1 hour before the beginning of the normal office hours.


Section 4. Modification of Alternate Work Schedules. (a) Employees may request a modification of their flexitime tour or 5-4-9 schedules to become effective at the beginning of any pay period after they have worked 4 pay periods on their existing schedule or sooner where there is a compelling personal hardship....





            Whether the Employer's refusal to change the starting time of the short day of the grievant was a violation of the CBA?  If so, what shall the remedy be?






            A pair of threshold matters--the first in the form of an observation and the second in the nature of a conclusion-- warrant brief discussion.

            First, the arbitrator cannot help but urge the parties to remember that arbitration was and is supposed to be expedited and economical.  This relatively limited issue did not necessitate two attorneys on each side, a stenographer, two sessions, voluminous exhibits, and posthearing briefs.[24]  Much as the arbitrator appreciated a courtroom-like setting and being addressed as "Your Honor," he would have welcomed a much more streamlined procedure, where the excess resources that were spend in the preparation and implementation of this case could have been redirected to reducing the perennial office backlog and, perhaps at the same time, providing coverage during the last hour on Friday afternoons.  In any event, effective mutual efforts to return closer to the original purpose of arbitration would appear to be of potential benefit to the parties and their constituents.  

            Second, operating needs is a valid contractual consideration in approving, or denying, employee requests to have or modify[25] a compressed schedule.  The Union argues that the CBA only provides three elements for the Employer's consideration, the start time for the 9-hour days, the desired 8-hour day, and the day off.  To the contrary, expressly using the term "including," the CBA lists these three variables as illustrative, not exclusive.[26]  Moreover, the subsequent reference to "operating needs" appears in relation to employee "requests" generically, not three limited elements or aspects of such requests.  Appearing in subsection (2) no less than three times and similarly repeated in the accompanying contractual language for flexitime and in the predecessor CBAs, "operating needs" reflects the obvious mission and raison d'ętre of the Employer.  Relinquishing this key consideration to the requesting employee's choice of the starting time of his/her short day, such that the ending time is earlier than that of regular office hours, would have required a clear express elimination.  Finally, although definitely not extending to an automatic bar for Friday afternoons,[27] the Employer's past practice of relatively consistent use of this consideration in responding to such employee requests since the contractual change in 1988[28] confirms, rather than contradicts, this interpretation.

            The application of the operating-needs consideration to the grievant's request in this case is no easy matter.  Contrary to management's assertion, there is nothing sacrosanct about Friday.  Yet, contrary to the Union's assertion, the evidence reveals that it is not, in relevant respect, just like any other day.  Although the Union is correct that the monthly tide is not relevant, because the month could equally end on any day, Fridays, along with Thursdays, the high point for case intake.  Moreover, Friday is the most popular day for short days, and the scheduled and unscheduled leave is most pronounced on Fridays along with Monday.  This relatively low staffing level likely explains Friday's more intermediate position with regard to action dispositions and mailings.[29]

            Thus, although the evidence does not support a cross-the-board denial for initial or modification requests for an earlier short day on Friday, it does support the Employer according close scrutiny of such requests on a case-by-case basis.  "Close scrutiny" here means that the Employer must conduct a particularized assessment of early Friday requests but that the benefit of the doubt for close cases is on the side of operational needs.[30]

            Here, the office manager's decision, which was confirmed by the regional director, does not, on balance, seem to have been particularized.  The office manager simply made a generalized justification about the last hour on Fridays, and the regional director's Step Two Answer appeared to be ultimately based on an



absolutist position.[31]          

            Thus, the arbitrator upholds the grievance to the extent of  finding that the Employer's action was a violation of the CBA.  However, because the Employer obviously acted in good faith and, even more importantly, that reconstructing such a particularized assessment does not necessarily lead to granting the grievant's request,[32] the remedy is limited to ordering the Employer to promptly reassess, this time on an ad hoc rather than absolute basis, the grievant's early-Friday request based on current operational needs.










                [1] At the time of the grievance, the office had 17 clerical/support staff and another on long-term leave awaiting approval of disability status.

                [2] These documents are in the "issued" category, as compared to, "internal" documents, which are signed by the agents.

                [3] Representation cases, which comprise approximately two-thirds of the office's workload, have the highest priority along with picketing or jurisdictional disputes.

                [4] To the extent that the backlog has changed, it has gotten worse due to staffing restrictions.

                [5] The supervisors, but not the agents, are also notably affected at this final step.  The record contains no empirical measure of the scope and strength of this factor.  However, the regional director's testimony that Monday is her second busiest day of the week at least partially contradicts the increasing flow toward the end of the week.

                [6]  However, between these two days, Friday is not predominantly heavier


                [7]  For example, during October-December 1997, Friday's rank for each of the 12 work weeks that included a Friday was as follows: 4, 1, 2 (of 4), 1, 1, 4, 2 (of 4), 1, 4 (of 4), 1, 2, and 5 (U-11).  Its mean, or average, ranking  for this period was approximately 2.4.

                [8] For example, during August-December 1997, Friday's rank for each of the work weeks that included a Friday was as follows: 2, 1.5, 1, 5, 4, 2 (of 4), 1.5, 3, 5, 3 (of 4), 4.5, 1, 2.5, 2, 2, 1.5, 2,  and 1.5 (U-12).  Its mean rank was approximately 2.5.

                [9] Fridays and Mondays are the most frequent days for scheduled and unscheduled leave.  Due to the intra-office work flow, this final factor has a mixed effect on clerical/support staff.  The lower number of agents generally means less work for them, but the lower number of clerical/support staff means less availability to do the final-step work flow from the director.

                [10] Again, the evidence is more impressionistic than empirical as to the extent of this abating factor.

                [11] These provisions apparently are based upon the Flexible and Compressed Work Schedules Act of 1982 (GC-10).

                [12] For example, some of the secretarial pool fill in at the front desk and in docketing.  Yet, those at "key" desks, such as compliance and elections, are not assigned to back-up but each have a back-up (GC-2).

                [13] Previously, she was on a flexitime schedule.

                [14] The "5" refers to a 5-day week; the "4" refers to the alternating 4-day week; and the "9" refers to the 9-hour, or long, days that are all of the work days except one during each two-week pay period.

                [15]  Although Lai's assigned agents have varied notably (U-2), the majority (3 of 5) of them at the time were scheduled until 5:00 on Fridays (U-5).  The applicable work schedule (GC-1) reveals that if her request had been granted, there would have been three pool secretaries, including her back-up, there until 5:00 on her short day.  The average was 3.4 (or 3.3 if her request had been granted).  On the second Friday, there were three pool secretaries scheduled at the time, including Lai and without any back-up for Lai.  Such data, however, does not include the undisputed gravitation of unscheduled and schedule leave of both agents and clerical/support staff toward (and on both sides of) the weekends.

                [16]  Although fine-tuned to a limited extent during this period, the relevant provisions had not changed to any determinative way.

                [17] The Union asserted in its brief that it had grieved the 1989 denial of the similar request by former compliance assistant Bernice Lane's similar request, but the evidence (J-4; Tr 243-44) is not preponderant in support of this assertion.

                [18] After the Lai grievance, specifically on 1/14/98, Murray attempted to change her start time to 7:30.  On 1/15/98, after  the office manager denied her request based on "clerical shortages on Friday afternoons," she requested based on the same reason to change her short day to the second Thursday at the earlier time, 7:30 to 4:00, and her request was granted (GC-3). 

                [19] Mondays are second.  As a result, both of these days are, in the officer manager's administration of the CBA's compressed-day provision, "filled."  She has never granted more than the CBA minimum of 10% for Fridays and Mondays (see "Contractual Provisions" infra), although she has granted up to 20% for the other weekdays.   The Friday clerical/support staff coverage problem dates back at least 10 years (GC-6).

                [20] There was no dispute about grievability (or arbitrability) in this case.

                [21] The predecessor CBAs (e.g., J-1) did not have any alternative to the beginning of normal office hours until the one that started at or about 1988 (J-2).   In its posthearing brief, the Employer characterizes said CBA as taking effect in 1989, but, in any event, said date does not effect the decision in this case.

                [22] The predecessor CBAs (J-1 and J-2) only contained the alternative of beginning 1/2 hour, not 1 hour, before the regular start time in the office.

                [23] The parties mutually agreed that the resolution of the Issue would include a determination as to whether operating needs is an applicable criterion in acting upon an employee request to change his or her short day.

                [24] For example, the requests for information were more akin to corporate or criminal litigation than the typical arbitration case.  Similarly, the posthearing briefs did not address much of the bulky posthearing briefs.  As a result, the arbitrator found himself taking much more time, at the expense of the parties and press, than customary to review and decide this case.

                [25] Although the grievant's request was for a modification of an already approved 5-4-9 schedule, the Union does not argue, and in any event the arbitrator does not make, any distinction here between initial and modification requests.

                [26] Article 21, Sec. 3(c)(2)(a).  As a Union witness clarified, the normal practice is for the employee to also include the requested starting (and ending) time for his or her short day in the request (Tr 95.)

                [27] Similarly, the preponderance of the evidence in this record does not support there being any locally negotiated supplemental agreement to this effect.

                [28] See supra note 21 and accompanying text.

                [29] See supra notes 7-8.

                [30] The converse conclusion, which is that the arbitrator will provide reasonable latitude to such good faith, ad hoc assessments squares with not only  the CBA's proscription again "arbitrary and unreasonable" managerial actions, but also  the arbitral understanding regarding burden of persuasion in contract interpretation cases.  See, e.g., OWEN FAIRWEATHER, PRACTICE AND PROCEDURE IN LABOR ARBITRATION 253 (1983).

                [31] For example, she stated: "I have concluded that I improvidently granted the requested change [of Angela Murray. "  She continued by relying on "the  longstanding agreed-upon practice," referencing the Murray grievance answer, which relied on a purported supplemental local agreement.

                [32] The evidence particular to the specific situation at the time of the grievant's request is insufficient in this otherwise voluminous record.  For example, the Union relied on a generic, undated support staff schedule (U-1), which was apparently effective approximately year after the grievant's request (U-7).  Similarly, neither the regional director's nor attorney Wainstein's perceptions were specific to the grievant's workload or that of her immediately interrelated co-workers.  Her supervisor testified credibly that routinely gives her work in the late afternoons that he expects to go out the same day, but he was not her supervisor at the time of her request.  Her own testimony was not particularly persuasive, and the impact of her proposed upgrade and various other staffing changes makes the arbitrator's consideration of operational needs a futile task.

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