36:0098(12)AR - - VA, Medical Center, Palo Alto, CA and AFGE Local 2110 - - 1990 FLRAdec AR - - v36 p98



[ v36 p98 ]
36:0098(12)AR
The decision of the Authority follows:


36 FLRA No. 12

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

VETERANS ADMINISTRATION

MEDICAL CENTER

PALO ALTO, CALIFORNIA (1)

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2110

(Union)

0-AR-1681

DECISION

June 20, 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 Justin C. Smith. The Arbitrator sustained a grievance which claimed lost overtime for employees who were required to work outside their normally scheduled hours.

The Agency filed exceptions to the award 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.

For the following reasons, we find that the award is not contrary to law, rule, or regulation, and that the Agency failed to demonstrate that the award is based on a nonfact. Accordingly, we deny the exceptions.

II. Background and Arbitrator's Award

Noting that the parties were not in agreement as to the issue before the Arbitrator, the Arbitrator framed the issue in dispute as follows:

Did the Activity violate the national and local agreements by requiring the grievants to work outside the normally scheduled hours without paying them overtime?

Award at 1.

The eight grievants are motor vehicle operators who transport patients to and from various appointments and activities. From October 1985, to October 1987, changes were instituted in the employees' work schedules. One change, according to the Arbitrator, "resulted in an eight hour day being split into two segments for some Motor Vehicle Operators, or their services were not required at the start of their work day and were required to report back later to cover evening assignments." Award at 1. The Arbitrator noted the Agency's claims that: (1) this change was designed to maximize the efficiency of the work force; and (2) in many instances work schedules could not be prepared in advance because last-minute donations of tickets to various activities necessitated the services of motor vehicle operators to transport patients to and from those activities.

Another change in the employees' work schedules involved a shift in the workweek from Monday through Friday to Tuesday through Saturday. The Arbitrator noted the Union's claim that following the institution of this change, which could result in employees working split shifts, the employees received virtually no overtime, in contrast to other employees performing different duties who received overtime when they were required to work on weekends.

The Arbitrator examined the overtime provisions of the master and local agreements and the workweek provision in the local agreement. He found that the agreements "contemplate both regular tours of duty and that overtime shall be payable either when an employee is obligated to work more than 40 hours in a scheduled workweek or to work hours outside his normal daily tour of duty, such as being released and called back to work the same day." Id. at 4. The Arbitrator also found that regular split shifts could not be scheduled unless an employee requested split shifts and, further, that employees were assured "some regularity" in their daily tours of duty, except in cases of emergency, by a contractual posting requirement. Id. The Arbitrator questioned whether the Agency could, "on a more or less regular basis, schedule split shifts on the claim that an emergency exists?" Id. He then stated that "[a] review of the facts . . . would scarcely suggest that a true emergency existed every time one of the grievants was asked to work a split shift." Id. at 5.

The Arbitrator concluded that the grievants had received disparate treatment as compared with other employees in the scheduling of work and he sustained the grievance. The Arbitrator, however, rejected an assertion by the Union that the Agency's conduct in making the scheduling changes had been racially motivated.

As the remedy, the Arbitrator directed the parties to negotiate "a monetary settlement covering the lost overtime insofar as it is possible under applicable federal laws and regulations." Id. The Arbitrator retained jurisdiction for the purpose of interpretation or implementation of the award.

III. Positions of the Parties

A. Agency's Exceptions

The Agency requests a stay of the Arbitrator's award and claims that the award is deficient because it is: (1) based on a nonfact; and (2) inconsistent with various laws and regulations.

1. Nonfact

The Agency claims that the Arbitrator based his award on erroneous findings that: (1) the grievants worked a split shift or were asked to remain on standby during the workday; (2) the tour of duty was split because of a perceived emergency by Agency management; and (3) employees were due pay for overtime. Exceptions at 5-7.

First, the Agency argues that no employee was required to work a split shift. The Agency states that once or twice a month, employees were asked to work from 3:30 p.m. to 12:00 a.m., instead of their regular 8:00 a.m. to 4:30 p.m. tour of duty. The Agency maintains, however, that both the regular and the changed shifts were consecutive 8-hour tours of duty.

Second, the Agency asserts that it "has not claimed that the necessity for the operators to work the disputed tour of duty is dictated by emergency needs of the [Agency]." Id. at 7. The Agency claims that it scheduled the employees' tours of duty in advance and notified them of any changes in advance of the 7-day notice required by regulation.

Finally, the Agency claims that the Arbitrator's award of backpay was based on a "central finding" that the employees were entitled to overtime. Id. The Agency states that when the employees worked a different shift, it was in lieu of--not in addition to--their regular tour of duty, and that the employees did not work more than a regular 40-hour week. The Agency asserts that nothing in the parties' agreements requires overtime pay when employees work different hours.

2. Laws and Regulations

The Agency's second exception is that the award is inconsistent with Federal laws and regulations concerning the scheduling of workweeks and work schedules. The Agency claims that it is obligated by 5 U.S.C. § 6101(a)(2)(A) and 5 C.F.R. §§ 610.111 and 610.121 to (1) schedule work in order to accomplish the mission of the Agency, and (2) schedule an employee's regularly scheduled administrative workweek so that it corresponds with the actual work requirements when the Agency head knows in advance of the administrative workweek that a change in schedule is necessary. In support of its position, the Agency cites Department of Defense, Department of the Army, Headquarters XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 20 FLRA 811 (1985) (Fort Bragg).

The Agency states that the employees' work schedules were changed to comport with the hours when their services were required. The Agency argues that the Arbitrator's award "carries the implication that the [Agency] may not reschedule employees' tours of duty to conform with its work requirements, unless overtime is paid regardless of whether a basic [40-hour] workweek is performed." Exceptions at 9.

The Agency also claims that the award is inconsistent with Federal Personnel Manual (FPM), Chapter 550, subchapter 1-3. According to the Agency, it is obligated to pay overtime under that authority when employees work in excess of 40 hours in an administrative workweek. The Agency argues that the motor vehicle operators did not work in excess of 40 hours and, therefore, there is no entitlement to overtime compensation under the provisions of the FPM.

In further support of its claim that the award violates law, the Agency argues that the award is contrary to the decision of the United States Claims Court in Presser v. United States, 15 Cl. Ct. 672 (1988) (Presser). The Agency contends that in Presser, the court held that an employee is entitled to overtime only when (1) the employee works in excess of 40 hours, or (2) the employee is given insufficient notice of the requirement to work a different shift. The Agency argues that neither of those conditions existed here. The Agency contends that consistent with Presser, the grievants were not entitled to overtime.

The Agency further claims that the award is contrary to the Back Pay Act, 5 U.S.C. § 5596. According to the Agency, an award of backpay must be based on a finding that a personnel action violated a statute or regulation. The Agency states that because there has been no such showing in this case, the award of backpay is deficient.

B. Union's Opposition

The Union asserts that the Arbitrator's award is not based on a nonfact. The Union argues that there was a factual basis for the Arbitrator's ruling that employees sometimes worked split shifts. The Union also claims that the Arbitrator's award was based on a determination that the grievants worked outside their regularly scheduled tours of duty and that the award was not dependent on the finding that employees worked split shifts.

The Union also asserts that the award is not inconsistent with Federal law and regulation concerning the scheduling of overtime and the establishment of administrative workweeks. The Union states that the Arbitrator appropriately determined that the Agency was not justified in changing the employees' tour of duty under the parties' agreements and, further, that the Arbitrator's award is consistent with the Authority's decision in National Association of Government Employees, Local R7-23 and Department of the Air Force, Scott Air Force Base, Illinois, 23 FLRA 753 (1986) (Scott Air Force Base). The Union argues that the Agency's reliance on Presser is misplaced because the facts in this case are distinguishable from the facts in Presser.

Finally, the Union claims that the Arbitrator correctly ordered a monetary settlement based on the Agency's improper change in the employees' shifts. The Union states that "[t]he employees would have received overtime for the evening hours that they worked but for the agency's improper action in rescheduling their hours." Opposition at 8. Moreover, to the extent that the Arbitrator ordered the parties to negotiate a settlement under applicable laws and regulations, the Union acknowledges that whatever settlement is agreed to "will be cognizant of the requirements of federal law regarding advance scheduling of employees." Id. at 9.

IV. Analysis and Conclusions

For the following reasons, we conclude that the Agency has not established that the Arbitrator's award is deficient because it is based on a nonfact or because it is contrary to any law, rule, or regulation.

A. The Award is Not Based on a Nonfact

We will find an award deficient on the ground that it is based on a nonfact when it is demonstrated that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached. See, for example, Department of the Navy, Naval Surface Warfare Center, Dahlgren, Virginia and American Federation of Government Employees, Local 2096, 35 FLRA 809, 813 (1990). In order for an award to be found deficient on this ground, it must be established that the alleged "nonfact" was the central fact underlying the award, was erroneous, and that but for the arbitrator's erroneous finding, the arbitrator would have reached a different result. Id.

In this case, the Agency offers three arguments to support its claim that the Arbitrator's award is based on a nonfact. First, the Agency contends that the Arbitrator based his award on a finding that employees worked a split shift or were asked to remain on standby during the work- day. Second, the Agency argues that the Arbitrator erroneously presumed that the tour of duty was split because of a perceived emergency by Agency management. Finally, the Agency claims that the Arbitrator based his award on an erroneous finding that the employees were entitled to overtime.

As to the Agency's first argument, we conclude that the Agency has failed to demonstrate that the Arbitrator's finding that employees worked split shifts, even if clearly erroneous, was the central fact on which he based his award. We reach this result in light of the Arbitrator's formulation of the issue, the agreement provisions on which he relied, and a reading of the award in its entirety.

It is well-settled that an arbitrator may frame the issue in dispute when the parties have failed to do so or where, as here, the parties were not in agreement as to the issue. See, for example, U.S. Immigration and Naturalization Service and American Federation of Government Employees, Local 917, 34 FLRA 342 (1990). The Arbitrator framed the issue before him as whether there was a violation of the parties' agreements "by requiring the grievants to work outside the normally scheduled hours without paying them overtime[]." Award at 1. The Arbitrator concluded that the Agency had required employees to work outside their regularly scheduled tour of duty.

In reaching his conclusion, the Arbitrator examined the provisions of the parties' master and local agreements concerning overtime and workweeks. The Arbitrator found that the provisions "contemplate both regular tours of duty and that overtime shall be payable either when an employee is obligated to work more than 40 hours in a scheduled workweek or to work hours outside his normal daily tour of duty, such as being released and called back to work the same day." Id. at 4. One of the provisions cited by the Arbitrator, Section 4 of Article 39 of the local agreement, states that "[i]nsofar as it is administratively possible, the work hours in each day of the basic workweek will be the same." Id. The Arbitrator also referenced other provisions of the agreements and found that "'[r]egular scheduled split shifts will not be scheduled in a basic workday unless an employee requests it[,]'" and that "an employee [is assured] some regularity in terms of his daily tour of duty through a posting requirement except in the case of an emergency." Id.

Contrary to the Agency's contentions, the Arbitrator did not rely solely on a finding that employees worked a split shift. Instead, he found that the agreements contemplated regular tours of duty and assured employees regularity in their daily tour of duty. Although the Agency argues that employees did not work a split shift, the Agency does not controvert the Arbitrator's additional findings concerning regularity in employees' tours of duty. Moreover, the Agency accepted the Arbitrator's formulation of the issue, and concedes that the tour of duty for motor vehicle operators was changed.

In these circumstances, we are unable to conclude that the central fact underlying the Arbitrator's award was the Arbitrator's finding that employees worked a split shift. Consequently, even if that finding were clearly erroneous, the Agency has not established that the Arbitrator's award is deficient.

The Agency's second argument is that the Arbitrator erroneously attributed the Agency's conduct in splitting shifts to a perceived emergency by Agency management. Exceptions at 5-6. The Arbitrator's finding with regard to emergency scheduling related to a local agreement provision which, according to the Arbitrator, assured employees regularity in their daily tours of duty, except in cases of emergency. In describing the limited exception to the scheduling of regular tours of duty based on emergency situations, the Arbitrator outlined the types of occurrences which could give rise to an emergency. The Arbitrator noted, for example, that emergencies involve situations that are not predictable, cannot be avoided by adequate staffing, and call for quick action. Award at 5. The Arbitrator found that these factors were not present each time the Agency sought to act under the limited exception to the scheduling of regular tours of duty.

In our view, the Agency has failed to establish that the Arbitrator's finding as to emergency scheduling, even if clearly erroneous, was the central fact underlying the award but for which a different result would have been reached. Rather, the Agency is expressing disagreement with the Arbitrator's interpretation and application of an agreement provision relating to permissible scheduling on an emergency basis and, also, to his factual findings. The Agency's argument provides no basis for finding the award deficient. See, for example, U.S. Department of Transportation, Maritime Administration, James River Reserve Fleet and National Association of Government Employees, Local R4-7, 35 FLRA 1213 (1990).

The Agency's remaining contention is that the Arbitrator's award of backpay was based on an erroneous finding that employees were entitled to overtime and, therefore, was based on a nonfact. We find that the thrust of this argument is that the award of overtime is contrary to law and regulation, not that it is based on a nonfact. As set forth more fully below, we conclude that the award of overtime is not inconsistent with law and regulation.

In sum, we conclude that the Agency has not established that the Arbitrator's award is deficient because it was based on a nonfact.

B. The Award is Consistent with Law and Regulation

We will examine separately each of the Agency's contentions that the award violates law and regulation.

1. The award is consistent with 5 U.S.C. § 6101 and its implementing regulations

The Agency's central argument rests on 5 C.F.R. § 610.121(b) which, in relevant part, provides as follows: (1) § 610.121(b)(1) provides that the head of an agency is obligated to schedule the work of employees and their regularly scheduled administrative workweeks in order to accomplish the agency's mission and to correspond with the employees' actual work requirements; and (2) § 610.121(b)(2) requires an agency head to reschedule an employee's regularly scheduled workweek when the agency head knows in advance of the administrative workweek that the specific days and/or hours of a day actually required of the employee in that administrative workweek will differ from the days and/or hours required in the current administrative workweek.

As the Authority held in Scott Air Force Base, 23 FLRA 753, 754-756, section 610.121(b) must be interpreted in a manner consistent with 5 U.S.C. § 6101(a)(3) and 5 C.F.R. § 610.121(a). Those provisions permit an agency head to make changes in an employee's established workweek only when it is determined by the agency head that the agency would be seriously handicapped in carrying out its functions or that costs would be substantially increased.

The Agency has not claimed, or otherwise demonstrated, that it changed the work schedules of motor vehicle operators in order to prevent serious handicapping of the Agency's functions or to prevent substantially increased costs. The Agency states only that transporting patients on recreational outings furthers its mission and that budgetary limitations preclude regularly scheduled overtime. Moreover, the Agency has not shown in what manner the award violates the legal and regulatory requirements governing changes in work schedules. The Agency merely states that the award "carries the implication that the [Agency] may not reschedule employees' tours of duty to conform with its work requirements, unless overtime is paid regardless of whether a basic forty hour workweek is performed." Exceptions at 9. We find nothing in the award which would prevent the Agency from changing work schedules, as long as such changes were made in accordance with law and regulation.

Finally, the Agency's reliance on Fort Bragg is in error. In Scott Air Force Base, the Authority stated that it would no longer follow prior decisions interpreting 5 C.F.R. § 610.121(b). Id. at 756. In an appendix to its decision, the Authority listed Fort Bragg as one of the cases it would no longer follow.

The Agency has not established that the award violates 5 U.S.C. § 6101 or its implementing regulations. We conclude, therefore, that this exception provides no basis for finding the award deficient.

2. The award is not contrary to a Claims Court Decision

In Presser, the employee worked as a relief operator on one of three daily shifts, as needed, and was not assigned to a regularly scheduled 40-hour workweek. The employee's work schedule, instead, was established in accordance with 5 U.S.C. § 6101 and 5 C.F.R. § 610.111(b), which allow an agency, under prescribed conditions, to establish the first 40 hours of duty performed within an administrative workweek as the basic workweek. The Claims Court rejected the employee's assertion that he was entitled to overtime compensation for the hours of work performed outside of what he viewed to be his regularly scheduled workweek. The court found that for an employee whose workweek is determined in accordance with 5 C.F.R. § 610.111(b), there is an entitlement to overtime only when the employee works in excess of 40 hours in an administrative workweek, or is given insufficient notice of a scheduling of shifts.

The employees here are not subject to workweeks which are established under 5 C.F.R. § 610.111(b). Rather, they are assigned to regularly scheduled workweeks with the hours of 8:00 a.m. to 4:30 p.m. Exceptions at 8. As they are assigned to regularly scheduled 40-hour workweeks, decisions concerning overtime entitlement under 5 C.F.R. § 610.111(b), including Presser, are not applicable. Accordingly, the Agency's exception that the Arbitrator's award is inconsistent with the decision in Presser provides no basis for finding the award deficient.

3. The award is not contrary to the Back Pay Act

For an award of backpay to be authorized under the Back Pay Act, the arbitrator must determine that the aggrieved employee was affected by an unjustified or unwarranted personnel action, that the personnel action directly resulted in the withdrawal or reduction of the grievant's pay, allowances or differentials, and that but for such action, the grievant otherwise would not have suffered the withdrawal or reduction. See U.S. Department of Agriculture, Forest Service and National Federation of Federal Employees, Local 450, 35 FLRA 542, 548 (1990).

An agency's failure to abide by the terms of a collective bargaining agreement constitutes an unwarranted personnel action under the Back Pay Act. Id. Similarly, a failure to pay employees monies to which they were entitled constitutes an unwarranted personnel action within the meaning of the Back Pay Act. See Veterans Administration Medical Center, Leavenworth, Kansas and American Federation of Government Employees, Local 85, 24 FLRA 902, 904 (1986).

As noted above, the Agency's sole claim that the award violates the Back Pay Act is that there has been no unwarranted personnel action in this case. The Arbitrator found, however, that the Agency violated the terms of the parties' collective bargaining agreements. This finding satisfies the requirement that an award of backpay be based on an unjustified or unwarranted personnel action. Consequently, we reject the Agency's assertion that the award violates the Back Pay Act.

4. The award of overtime is not contrary to the FPM

The Agency argues that the award conflicts with FPM Chapter 550, subchapter 1-3, which provides, in part, that overtime is payable to employees working in excess of 40 hours in an administrative workweek. The Agency claims that the employees are not entitled to overtime compensation because the employees did not work more than 40 hours in a workweek. We do not agree.

The Authority previously has found awards of overtime compensation to be warranted in cases where employees did not actually perform overtime work. See, U.S. Army Aberdeen Proving Ground, Installation Support Activity and National Federation of Federal Employees, Local 2058, 28 FLRA 566 (1987); Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 13 FLRA 386 (1983); and Bureau of Alcohol, Tobacco, and Firearms and National Treasury Employees Union, 12 FLRA 49 (1983). In each of these cases, the fact that employees did not actually work overtime did not render a remedy of overtime compensation unlawful because the employees would have worked overtime had the agency not engaged in improper conduct and, therefore, they suffered the loss of pay because of that conduct. On the other hand, in cases where it was not established that employees would have worked any overtime or that their loss of pay directly resulted from an agency's unlawful conduct, an award of backpay is not appropriate. See, for example, Navy Public Works Center Norfolk, Virginia and Tidewater Virginia Federal Employees Metal Trades Council, 33 FLRA 592 (1988); U.S. Department of Labor, OIPA and American Federation of Government Employees, AFL-CIO, Local 12, 26 FLRA 368 (1987); and, Jefferson Barracks National Cemetery, St. Louis, Missouri and National Association of Government Employees, Local R14-116, 13 FLRA 703 (1984).

In this case, the Arbitrator found that employees were entitled to overtime compensation under the master and local agreements, that employees lost overtime, and that the Agency violated the master and local agreements by failing to make overtime payments. In directing that employees be given "a monetary payment for the lost overtime" the Arbitrator ordered the parties to negotiate "insofar as it is possible under applicable federal laws and regulations." Award at 5. Because the award, by its terms, requires the parties to negotiate overtime payment in accordance with applicable laws and regulations, and in light of the Arbitrator's finding that employees improperly lost overtime, the Agency's assertion that the award conflicts with provisions of the FPM cannot be sustained.

Accordingly, the Agency's exception is denied.

V. Order

The Agency's exceptions are denied.(2)




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. During the pendency of this case the Veterans Administration was reestablished as the Department of Veterans Affairs.

2. The Agency requested a stay of the Arbitrator's award when it filed its exceptions with the Authority on January 23, 1989. Effective December 31, 1986, the Authority's Rules and Regulations were revised to revoke those portions pertaini