18:0777(93)AR - Interior, Bureau of Indian Affairs and NFFE Council of Consolidated, Bureau of Indian Affairs Locals, Local 655 -- 1985 FLRAdec AR



[ v18 p777 ]
18:0777(93)AR
The decision of the Authority follows:


 18 FLRA No. 93
 
 DEPARTMENT OF THE INTERIOR, 
 BUREAU OF INDIAN AFFAIRS 
 Activity 
 
 and
 
 NATIONAL FEDERATION OF FEDERAL 
 EMPLOYEES COUNCIL OF CONSOLIDATED 
 BUREAU OF INDIAN AFFAIRS LOCALS, 
 LOCAL 655 
 Union
 
                                            Case No. 0-AR-456
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator John W. Kennedy filed by the Agency under section 7122(a) of
 the Federal Service Labor-Management Relations Statute and part 2425 of
 the Authority's Rules and Regulations.
 
    The parties submitted to arbitration the issue of whether the
 grievant, an industrial arts teacher and athletic coach, was entitled to
 337 hours of compensatory time which he had not used within 12 months of
 the time in which it had been granted.  The Arbitrator determined that
 in the circumstances presented the grievant was entitled to those hours
 of compensatory time.  The Arbitrator described the circumstances of
 this case as placing the grievant in a "Catch-22" situation.  By
 regulation, compensatory time generally had to be taken within 12 months
 of the time it was granted.  However, the Arbitrator noted testimony
 that the policy of agency management was that compensatory time was not
 to be taken during the school year because of the hardship and
 disruption caused by the absence of the regular teacher from the
 classroom.  Moreover, the Arbitrator specifically acknowledged that the
 testimony of the grievant's immediate supervisor was that, without
 advising the grievant, the supervisor was fully aware that the grievant
 was forfeiting accumulated compensatory time while at the same time the
 supervisor continued to approve for the grievant additional accumulation
 of compensatory time.  Thus, the Arbitrator awarded the grievant
 entitlement to the disputed 337 hours of compensatory time and further
 awarded attorney fees to be paid in accordance with the collective
 bargaining agreement.
 
    In its first exception the Agency contends that the award is contrary
 to management's right under section 7106(a)(2)(A) to direct employees.
 In particular, the Agency first notes that the Arbitrator attempts to
 justify the award of compensatory time on the basis that the Activity
 failed to properly direct employees when it failed to advise the
 grievant of his situation.  The Agency therefore argues that the award
 is contrary to section 7106(a) because the Arbitrator substituted his
 judgment on how employees ought to be directed for that of responsible
 management officials.
 
    The Authority concludes that this exception fails to establish in
 what manner the award to the grievant of the disputed compensatory time
 is contrary to management's right under section 7106(a)(2)(A) to direct
 employees.  Instead, the exception constitutes disagreement with the
 Arbitrator's reasoning in reaching the award, and it is well established
 that such disagreement provides no basis for finding the award
 deficient.  E.g., Internal Revenue Service, Jacksonville District and
 National Treasury Employees Union, Chapter 93, 15 FLRA No. 93 (1984).
 Accordingly, this exception is denied.
 
    In its second exception the Agency contends that the award is
 contrary to regulation.  Specifically, the Agency argues that under 5
 CFR 550.114(c), an employee forfeits compensatory time if it is not used
 within the time frame prescribed by the employing agency unless the
 failure to use the compensatory time is due to an exigency of the
 service beyond the employee's control.  In terms of this case, the
 Agency notes that the time frame prescribed by agency regulation is 12
 months and that it was not disputed that the 337 hours had not been used
 within the time required.  Contending that neither the Activity nor the
 Arbitrator had determined that there was "an exigency of the service" in
 this case, the Agency maintains that there is no legal basis for the
 award to the grievant of the disputed compensatory time.  The Agency
 argues that the sole basis for the award was equitable considerations
 and that decisions of the Comptroller General reject such consideration
 as a basis for precluding the forfeiture of compensatory time.
 
    Without deciding whether the agency regulation prescribing a 12-month
 time period for the use of compensatory time constitutes a "rule, or
 regulation" within the meaning of section 7122(a)(1) of the Statute, the
 Authority finds that in the circumstances of this case, the Agency has
 provided no basis for finding the award deficient.  As correctly stated
 by the Agency in its exception, an employee's entitlement to
 compensatory time not used within the prescribed period is forfeited
 unless the failure to use it was due to an exigency of the service
 beyond the employee's control.  5 CFR 550.114(c).  In this respect the
 more applicable decision of the Comptroller General than those cited by
 the Agency is the decision expressly ruling that an employee's
 simultaneous forfeiture and acquisition of compensatory time and
 inability to use compensatory time without seriously affecting agency
 work is sufficient evidence of exigency within the meaning of 5 CFR
 550.114(c) so as to preclude forfeiture.  B-183751, Oct. 19, 1976.
 Thus, in view of this interpretation and application of controlling
 regulation to preclude forfeiture of an employee's accumulated
 compensatory time in circumstances not materially different from those
 described by the Arbitrator as presented in this case, no basis for
 finding the award deficient is provided.  The Authority finds that the
 Agency's exception that there was no legal basis for the award because
 there was no determination of exigency by the Activity or the Arbitrator
 fails to establish that the award is contrary to 5 CFR 550.114(c) and
 agency regulation.  Accordingly, the exception is denied.
 
    In its final exception the Agency contends that the award of attorney
 fees is contrary to law.  In International Brotherhood of Electrical
 Workers and United States Army Support Command, Hawaii, 14 FLRA 680
 (1984), the Authority for the first time addressed in detail the
 statutory requirements regarding awards of attorney fees by arbitrators.
  The Authority held that under the applicable standards of the Back Pay
 Act, an arbitrator must provide a fully articulated, reasoned decision
 setting forth the specific findings supporting the determination on each
 pertinent statutory requirement, including the basis upon which the
 reasonableness of the amount was determined when fees are awarded.  In
 this case the Arb