35:0206(24)AR - - NAGE Local R1-109 and VA Medical Center, Newington, CT - - 1990 FLRAdec AR - - v35 p206
[ v35 p206 ]
The decision of the Authority follows:
35 FLRA No. 24
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
VETERANS ADMINISTRATION MEDICAL CENTER
March 22, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Mark L. Irvings filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the exceptions.
The Arbitrator found that the Agency violated the parties' collective bargaining agreement by scheduling the grievant to work for more than 6 consecutive days. As a remedy, the Arbitrator awarded premium pay for 5 instances when the grievant worked 7 consecutive days. The Agency asserts that the award violates its right to assign work under section 7106(a)(2)(B) of the Statute, the Back Pay Act, and section 7103(a)(14)(C) of the Statute.
For the following reasons, we conclude that the Arbitrator's award violates the Back Pay Act. Therefore, the award is set aside.
II. Background and Arbitrator's Award
The grievant is a Medical Administration Assistant (MAA) at the Medical Center. The parties' supplemental collective bargaining agreement provides in article XXVI, section 3:
The normal basic workweek will consist of 40 hours, 5 days of 8 hours each with 2 days off. Consistent with necessary operation, employees will not be scheduled for more than six (6) consecutive days.
However, employees may request other work schedules to exceed six (6) consecutive days of work as long as the six (6) consecutive days do not fall within an administrative workweek. Employees may volunteer for other work schedules if they so desire.
Award at 1-2.
On June 29, 1981, all of the employees in the MAA classification signed agreements to work 7 consecutive days, with at least 2 consecutive days off. The schedules were arranged so that employees would not work more than 40 hours in each administrative workweek. Therefore, no overtime was paid.
The grievant began to work for the Agency in June 1986. In April 1987, the grievant became aware that other employees in the Medical Center were not required to work 7 consecutive days. When the grievant questioned the differences in work schedules, the assistant chief of the Medical Center circulated form letters to be signed by the MAAs requesting that the MAAs work 7 consecutive days. By signing the letters, the MAAs waived their right under the supplemental agreement to work no more than 6 consecutive days. Except for the grievant, all of the MAAs signed the letters.
Subsequently, the grievant filed a grievance in which he sought a change of schedule and overtime pay for all instances when he worked more than 6 consecutive days. The Director of the Medical Center sustained the grievance, holding that "in the absence of a valid waiver, no employee should be required to work a tour of duty extending more than six consecutive days." Award at 4. However, the grievant's request for overtime was denied because he never worked more than 40 hours in any administrative workweek. Overtime is defined in MP-5, Part I, Chapter 610 of the Agency's administrative manual as "each hour of work in excess of 40 hours in an administrative workweek or in excess of 8 hours in a day."
The grievance was submitted to arbitration on the following issue: "[h]as the Employer's scheduling of and payment to the grievant between June, 1986 and June, 1987 violated the collective bargaining agreement? If so, what shall be the remedy?" Award at 1.
The Arbitrator noted that "[t]he focus of this grievance is article XXVI, § 3 of the supplemental agreement." Id. at 6. According to the Arbitrator, this provision established that "employees will not be scheduled for more than six consecutive days." Id. The Arbitrator found that the fact that "[the grievant] worked seven consecutive days seventeen times between the time he was hired and April 23, 1987 created in the Medical Center a reasonable, good faith belief and expectation that he also consented to, requested, or volunteered for such a schedule." Id. at 7. However, the Arbitrator found that, once the grievance was filed, the Medical Center could no longer make that assumption. The Arbitrator found no evidence that the grievant agreed to work more than 6 consecutive days without overtime compensation.
The Arbitrator found that "[w]hile [the grievant] is not entitled to overtime pay simply because he was scheduled to work seven consecutive days against his will, this does not mean that he is not entitled to any compensation." Id. at 9. The Arbitrator found that "[the Agency] violated the contract and the employee has a right to a make whole remedy." Id. The Arbitrator noted that "[t]he issue, therefore, is what is the proper way to value the seventh day [the grievant] was compelled to work." Id. The Arbitrator found that "[p]remium pay, usually at the rate of time-and-one half, is the traditional way employees are compensated for working beyond their regular schedule[s]." Id. The Arbitrator concluded that "[the grievant] should be paid an additional one-half day's pay for each of the five instances between April 23, 1987 and June 3, 1987 when he was assigned to work seven consecutive days." Id.
III.Positions of the Parties
The Agency argues that the award violates management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency asserts that the arbitration award "interprets the collective bargaining agreement in a manner which prohibits management from scheduling its employees for more than 6 consecutive days." Exceptions at 6-7. According to the Agency, an arbitrator may not interpret and enforce a collective bargaining agreement in a manner which improperly interferes with management's right to assign employees. Id. at 7.
In addition, the Agency argues that the Arbitrator's award is contrary to the Back Pay Act, 5 U.S.C. § 5596. The Agency asserts that the Arbitrator did not find that the grievant was affected by an unwarranted or unjustified personnel action. According to the Agency, the arbitrator "could not make the requisite finding because there was no unjustified or unwarranted personnel action. The determination to schedule employees for seven consecutive days is not an unwarranted or unjustified personnel action." Id. at 9 (emphasis in original). The Agency cites Sanford v. Weinberger, 752 F.2d 636 (Fed. Cir. 1985), where, according to the Agency, the court held that work schedules in which employees worked 7 consecutive days did not violate any statute, or regulation because the schedules limited the hours of work within each administrative workweek to no more than 6 consecutive days.
The Agency also argues that "there was no withdrawal or reduction in the grievant's pay, allowances or differentials." Id. at 10. According to the Agency, "there is nothing in the award that indicates the grievant did not receive the appropriate pay, allowances or differentials for the period that he worked." Id. The Agency asserts that the grievant may not be awarded overtime pay because he did not work in excess of 8 hours in a day or 40 hours in an administrative pay period. The Agency asserts further that the grievant may not be awarded premium pay because he did not work on a night shift, Sunday or holiday without having received the appropriate premium rate specified in law. The Agency argues that because the employee worked only a regular work day, the Arbitrator could not award premium pay under the Back Pay Act.
The Agency argues further that the Arbitrator's remedy is inconsistent with section 7103(a)(14)(C) of the Statute, which excludes matters that are specifically provided for by law from the definition of conditions of employment. The Agency asserts that the Arbitrator "fashioned a make whole remedy which he called premium pay." Id. at 11. The Agency argues, however, that the Arbitrator "cannot fashion this remedy because . . . overtime and differential payments are specifically provided for by [5 U.S.C. §§] 5542, 5545, and 5546[.]" Id. The Agency claims that the Authority determined in Radio Officers Union and National Oceanic and Atmospheric Administration, 19 FLRA 632 (1985), that matters relating to premium and overtime rates were outside the duty to bargain because such matters were specifically provided for by law.
Finally, the Agency contends, without further explanation, that "the award is not consistent with sections 5542, 5545, and 5546 providing for when, and in what amount, overtime or premium pay is authorized, and therefore, equally violates those provisions." Id. at 13.
B. Union's Opposition
The Union argues that article XXVI, section 3 of the parties' agreement constitutes an enforceable appropriate arrangement under section 7106(b)(3) of the Statute. The Union also asserts that the remedy complies with the requirements of the Back Pay Act. According to the Union, "the Arbitrator did establish the required nexus between the Activity's violation of the contract provision and the denial of overtime premium pay[.]" Opposition at 3. The Union argues that the Agency's exceptions do not provide a basis for finding the award deficient because they constitute nothing more than disagreement with the Arbitrator's findings of fact and interpretation of the parties' collective bargaining agreement. Id.
IV.Analysis and Conclusion
For an award of backpay to be authorized under the Back Pay Act, an arbitrator must determine that: (1) an aggrieved employee was affected by an unjustified or unwarranted personnel action; (2) the personnel action directly resulted in the withdrawal of or reduction in the grievant's pay, allowances or differentials; and (3) but for such action the grievant would not have suffered the withdrawal or reduction. See U.S. Department of the Navy, Long Beach Naval Shipyard, Long Beach, California and Federal Employees Metal Trades Council, 34 FLRA 311 (1990).
The Arbitrator found that the grievant was scheduled to work 7 consecutive days, in violation of the parties' collective bargaining agreement. The Arbitrator, however, did not find that the violation of the collective bargaining agreement directly resulted in the withdrawal or reduction of the grievant's pay allowances or differentials. The Arbitrator made no finding that the grievant improperly was denied overtime pay or premium pay as a result of the Agency's violation of the parties' agreement. In fact, the Arbitrator stated that the grievant "is not entitled to overtime pay simply because he was scheduled to work seven consecutive days against his will[.]" Award at 9. The Arbitrator concluded only that because the Agency "violated the contract," the grievant was entitled to "a make whole remedy." Id.
In our view, the Arbitrator did not make the findings required by the Back Pay Act that the unwarranted personnel action directly resulted in a withdrawal of or reduction in the grievant's pay, allowances or differentials and that but for the action, the grievant would not have suffered the withdrawal or reduction. Therefore, the Arbitrator's award is contrary to the Back Pay Act. See Naval Air Rework Facility, Marine Corps Air Station, Cherry Point, North Carolina and International Association of Machinists and Aerospace Workers, 28 FLRA 255 (1987) (arbitrator's award ordering that grievant be paid overtime set aside because arbitrator did not find that the grievant would have worked the overtime but for violation of parties' agreement).
In view of our decision that the Arbitrator's award violates the Back Pay Act, it is unnecessary for us to address the Agency's additional exceptions to the award. Further, because w