38:0099(14)CA - - Air Force, Carswell AFB, TX and AFGE Local 1364 - - 1990 FLRAdec CA - - v38 p99



[ v38 p99 ]
38:0099(14)CA
The decision of the Authority follows:


38 FLRA No. 14

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE AIR FORCE

CARSWELL AIR FORCE BASE, TEXAS

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1364

(Charging Party)

6-CA-80583

DECISION

November 13, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority in accordance with part 2429.1 of the Authority's Rules and Regulations, based on the parties' stipulation of facts. The General Counsel and the Respondent filed briefs with the Authority.

The complaint alleged that the Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to comply with an arbitrator's award and clarification requiring the Respondent to convert certain employees from intermittent status to part-time status and to provide those employees with retroactive benefits.

For the following reasons, we find that the Respondent violated section 7116(a)(1) and (8) of the Statute by failing and refusing to take actions required by the Arbitrator's award and clarification and, thus, failing to comply with section 7122(b) of the Statute.

II. Facts

The Union is the exclusive representative for a unit of nonsupervisory, nonprofessional appropriated fund Air Force employees serviced by the Central Civilian Personnel Office, Carswell Air Force Base.

On November 19, 1986, the Union filed a grievance on behalf of all bargaining unit intermittent employees working for the Carswell Air Force Base Commissary. The grievance requested that the Agency recognize those employees as regularly scheduled employees from the effective date of their employment and restore their benefits to them retroactively. On September 2, 1987, Arbitrator Donald P. Goodman issued an award directing the Respondent to convert certain regularly scheduled employees from intermittent status to part-time status. The Arbitrator found that the Respondent "did violate the Collective Bargaining Agreement, Law, Rules or Regulation when Kathy K. Burchard, Earl Edwards and certain other employees were hired to replace full-time and part-time employees and [the Respondent] worked them under regular tours of duty." Stipulation, Exhibit 4 at 8. As to these "certain other employees," the Arbitrator noted, in part, that "[i]f an employee has worked the same number of hours per pay period over a substantial number of pay periods[,] it can not be said that the work is unpredictable" and that "employees so situated should not be classed as intermittent." Stipulation, Exhibit 4 at 7. The Arbitrator further noted that "[s]ubstantial for this purpose is defined as six or more." Id.

Between September 2, 1987 and January 31, 1988, the Respondent converted four intermittent employees to part-time status and retroactively restored their sick and annual leave. These four employees had worked the same number of hours each week for 6 pay periods. The Respondent refused to convert employees who did not work the same number of hours each week for 6 pay periods. Stipulation at 3.

In a letter dated October 1, 1987, the Union requested that the Arbitrator clarify his decision. On November 10, 1987, the Arbitrator refused to clarify his decision. On March 16, 1988, through a different Union president, the Union renewed its request to the Arbitrator for a clarification. In a letter to the Union dated March 24, 1988, the Arbitrator stated that, according to the Respondent's agent, "[the agent] has complied with my award as she interprets it" and that the Union "apparently believes that the interpretation of [the agent] is incorrect." Stipulation, Exhibit 8. Accordingly, the Arbitrator "requested that the Union specify the reasons for its request for a clarification of the decision." Stipulation at 4.

On March 28, 1988, the Union responded to the Arbitrator's request for more specificity. The Union stated, in part, that the Respondent's "test is not a fair one as they have stated a part-time employee works week to week 24 or more hours per week, but not necessarily the exact same number each week" and that, therefore, "it is unfair to apply such a rigid test as the exact same number of hours each week for 12 weeks straight to the Intermittents to determine if they qualify to be converted to part-time." Stipulation, Exhibit 9 at 2.

On July 28, 1988, the Arbitrator clarified his decision by stating, in part, that the "'certain other employees' identified in the Award are those who were regularly scheduled to work more than 24 hours per week over a period of six or more pay periods." Stipulation, Exhibit 10 at 2. No exceptions to the original award or to the clarification of the award were filed with the Authority. Stipulation at 4.

Since on or about January 31, 1988, the Respondent has not converted any other intermittent employees to part-time status nor restored retroactively any of those employees' sick and annual leave benefits. Stipulation at 4. At the time the September 2, 1987 arbitration award and the July 28, 1988 clarification were issued, "there were intermittent employees of the Carswell Air Force Base Commissary who had worked more than 24 hours a week for six pay periods or more during the time-frame specified in the award." Id.

The Respondent's position is that it complied with the award "when it converted the four intermittent employees to non-competitive part-time employee status as the decision only required it to convert those employees who worked the same number of hours a week for six pay periods or more." Id. at 5. The Respondent has failed and refused, and continues to fail and refuse, to convert intermittent employees to part-time status even though the employees have worked 24 hours or more a week for 6 pay periods, but not the same number of hours each week. Id. The Union's position is that the Arbitrator's original award and its clarification required the Respondent "to convert all these intermittent employees to non-competitive part-time employee status, who work 24 hours or more a week for six pay periods, regardless of whether the employees worked the same number of hours each week." Id.

III. Positions of the Parties

A. The General Counsel

The General Counsel argues that the Respondent has failed to comply with the Arbitrator's award by converting to part-time status only those intermittent employees who worked the same number of hours a week for 6 pay periods or more. As to which intermittent employees should be converted, the General Counsel asserts that the "language of the award and clarification are clear." General Counsel's Brief at 6. Citing the clarification of the award, the General Counsel contends that the Arbitrator required the Respondent to convert intermittent employees who "have regularly worked over 24 hours each week for six pay periods" and that "[n]owhere in the clarified award does the [A]rbitrator indicate that the employees must have worked precisely the same number of hours each week[.]" Id. at 7, citing to Stipulation, Exhibit 10 at 2. For example, the General Counsel states that

under the clear and unambiguous language of the award, it would not matter if an employee worked 33 hours for 11 weeks straight and then on the 12th week worked 28 hours, for that employee, having worked over 24 hours for six pay periods in a row, would be entitled to conversion to part-time status.

Id.

The General Counsel also argues that "the [A]rbitrator rejected [the] Respondent's interpretation of his original award merely from the fact that he clarified the original award." Id. Further, the General Counsel contends that "had [the] Respondent believed the award and the clarification so incomplete, ambiguous, or contradictory so as [to] make implementation of the award impossible[,] it should have filed exceptions to the award and the clarification." Id. at 8. As the award is clear, the General Counsel argues that the Respondent's argument that "it's [sic] interpretation of the award is a reasonable one in view of applicable rules and regulations . . . is inappropriate[.]" Id. at 9.

The General Counsel asserts that, even if the award is unclear, the Union's interpretation of the award "is just as reasonable in view of applicable rules and regulations as [the] Respondent's" and "is supported by the [A]rbitrator's own references and interpretations of applicable rules and regulations in the award and clarification, such as the Federal Personnel Manual [FPM]." Id. Further, if the award is ambiguous, the General Counsel states that, according to Department of the Navy v. FLRA, 815 F.2d 797 (1st Cir. 1987), decision on remand, 28 FLRA 209 (1987), "the Authority . . . should not have the discretion to interpret an award, but rather should require the parties to resort to further clarification." Id.

For the foregoing reasons, the General Counsel contends that by failing and refusing to comply with the Arbitrator's award and thereby failing to comply with section 7122(b) of the Statute, the Respondent violated section 7116(a)(1) and (8) of the Statute. As a remedy, the General Counsel requests that the Authority not only issue a cease and desist order and a notice posting, but also order the Respondent to comply with the award and its clarification.

B. The Respondent

The Respondent maintains that "[a]n assortment of [F]ederal regulations and case law uphold the Respondent's position" that "it complied with the arbitration award and the subsequent clarification." Respondent's Brief at 8.

As to its compliance with the Arbitrator's award, the Respondent argues that "the adequacy of compliance with an arbitration award as a general rule will be determined by whether the Respondent's construction of the award is reasonable" and "consistent with applicable rules and regulations." Id. at 10, citing United States Department of the Treasury, Internal Revenue Service and United States Department of the Treasury, Internal Revenue Service, Austin Service Center, Austin, Texas, 25 FLRA 71 (1987) (Internal Revenue Service); and Tidewater Virginia Federal Employees Metal Trades Council, AFL-CIO, 15 FLRA 296 (1984). In this regard, the Respondent cites several provisions of the FPM, Code of Federal Regulations (C.F.R.), and title 5, United States Code and contends that its construction of the Arbitrator's award is consistent with those provisions of law, rule, and regulation.

Moreover, the Respondent states that in Internal Revenue Service, the Authority dismissed the unfair labor practice complaint and held that "the employer's interpretation of the arbitrator's direction was reasonable" and that "the union's claim . . . was not reasonable and was contrary to government-wide regulations." Respondent's Brief at 10-11. Applying Internal Revenue Service to this case, the Respondent contends that "[t]his is exactly the case here where the arbitration award and clarification were complied with by the Respondent within the applicable law, rules and regulations." Id. at 11. The Respondent notes that the Arbitrator's award stated, in part, that "an employee who worked the same number of hours per pay period was entitled to backpay benefits retroactively if this occurred over a substantial number of pay periods" and that the clarification defined "certain other employees" as "those who were regularly scheduled to work more than 24 hours per week over a period of six or more pay periods." Id. at 9-10 (emphasis in original). As "only four employees met the criteria of being regularly scheduled employees[,]" the Respondent maintains that in converting only those four employees, it "followed the award and clarification." Id. at 11.

Accordingly, the Respondent asserts that the General Counsel "failed to prove a violation of the [] Statute by a preponderance of the evidence" and that "[t]here is absolutely nothing to show the Respondent did not comply with the arbitration award and the clarification[.]" Id., citing Department of the Air Force, 410th Combat Support Group, K.I. Sawyer Air Force Base, Michigan, 33 FLRA 352 (1988).

IV. Analysis and Conclusions

For the following reasons, we find that by failing and refusing to convert to regular part-time status intermittent employees who were regularly scheduled to work more than 24 hours a week for 6 pay periods during the timeframe specified in the Arbitrator's award, the Respondent failed to comply with the Arbitrator's award and clarification within the meaning of section 7122(b) of the Statute. Consequently, we conclude that the Respondent violated section 7116(a)(1) and (8) of the Statute.

Under section 7122(b) of the Statute, an agency must take the action required by an arbitrator's award when that award becomes "final and binding." The award becomes "final and binding" when there are no timely exceptions filed to the award under section 7122(a) of the Statute or when timely filed exceptions are denied by the Authority. U.S. Department of Health and Human Services, Health Care Financing Administration, 35 FLRA 491, 494-95 (1990) (Health Care Financing Administration). The parties stipulate that no exceptions were filed to the Arbitrator's September 2, 1987 award or to his July 28, 1988 clarification. Consequently, we conclude that the award as clarified was final and binding and that the Respondent was obligated under the Statute to comply with the award and clarification.

Where an agency disregards portions of an arbitrator's award or otherwise changes an award, the agency fails to comply with the award within the meaning of section 7122(b) of the Statute. See, for example, Department of the Interior, Bureau of Reclamation, Upper Colorado River Storage Project, Salt Lake City, Utah, 28 FLRA 596, 605 (1987) (Department of the Interior) (the Authority adopted the administrative law judge's finding that the agency failed to comply with the arbitrator's award because the agency's construction was not consistent with the award and "ignore[d] the central holding of the Authority in denying [the agency]'s exceptions"); U.S. Department of Justice and Department of Justice Bureau of Prisons (Washington, D.C.) and Federal Correctional Institution (Danbury, Connecticut), 20 FLRA 39, 43 (1985) (Bureau of Prisons), enforced sub nom. U.S. Department of Justice and Department of Justice, Bureau of Prisons v. FLRA, 792 F.2d 25 (2d Cir. 1986) (the agency failed to comply with the arbitrator's award when it imposed a precondition for compliance that the award did not require); and Department of Justice, U.S. Immigration and Naturalization Service, Washington, D.C., 16 FLRA 840, 842 (1984) (INS) (the agency failed to comply with the arbitrator's award by giving the employee 2 days' backpay when the award required the agency to provide the employee with 4 days' backpay). An agency that fails to comply with an arbitrator's award under section 7122(b) of the Statute violates section 7116(a)(1) and (8) of the Statute. Health Care Financing Administration; Bureau of Prisons; Department of the Interior; and INS.

The General Counsel argues that the Respondent has failed to comply with the Arbitrator's award because the Respondent has converted to regular part-time status only those intermittent employees who worked the same number of hours a week for 6 pay periods or more. The Respondent contends that it has complied with the award and the clarification because its construction is reasonable and consistent with applicable rules and regulations. Respondent's Brief at 10. As the clarification requires the Respondent to convert intermittent employees "who were regularly scheduled to work more than 24 hours per week over a period of six or more pay periods[,]" we conclude that the Respondent construed the Arbitrator's award as clarified in a manner inconsistent with the plain meaning of the award and clarification and, therefore, failed to comply with the award and clarification. Stipulation, Exhibit 10 at 2. See Bureau of Prisons; Department of the Interior; and INS.

We reject the Respondent's argument that it complied with the award and clarification because converting only those employees who worked the same number of hours each week for 6 pay periods or more was reasonable. The award as clarified does not require employees to have worked the same number of hours a week or pay period for 6 pay periods or more to be considered regularly scheduled and, therefore, converted from intermittent status. Rather, as noted previously, the award as clarified states that employees "who were regularly scheduled to work more than 24 hours per week" for 6 pay periods (12 weeks) or more are not to be considered intermittent. Stipulation, Exhibit 10 at 2; Exhibit 4 at 7. As noted by the General Counsel, the difference between the Respondent's construction and the wording of the award and clarification may be illustrated by the following example. Under the award and clarification, an employee who worked 33 hours a week for 11 straight weeks and 28 hours on the 12th week would be converted from intermittent to regular part-time status because the employee worked more than 24 hours a week for 6 pay periods. However, that employee would not be converted using the Respondent's analysis because he or she worked a different number of hours in the 12th week. General Counsel's Brief at 7. Consequently, the Respondent's interpretation is inconsistent with the award and clarification.

We note the Respondent's contention that "only four employees met the [Arbitrator's] criteria of being regularly scheduled employees[,]" and, therefore, in converting only those four employees, it "followed the award and clarification." Respondent's Brief at 11. The Arbitrator stated in his award that under 5 C.F.R. 340.401(c), intermittent employment is "that without a regularly scheduled tour of duty." Stipulation, Exhibit 4 at 5. As noted previously, the Respondent's determination of which employees should no longer be classified as intermittent is inconsistent with the criteria set forth in the Arbitrator's award and clarification. As the Respondent failed to apply the proper criteria for converting intermittent employees, we reject the Respondent's contention that only four employees met the criteria for being regularly scheduled employees.

We also note that the Respondent cites several provisions of the C.F.R., the FPM, and title 5, United States Code and, applying Internal Revenue Service to this case, argues that its interpretation of the Arbitrator's award and clarification is consistent with applicable law, rules and regulations. Respondent's Brief at 11. This case is distinguishable from Internal Revenue Service because the award as clarified is not ambiguous but clearly states that employees who worked more than 24 hours a week for 6 pay periods or more should be converted from intermittent status. Stipulation, Exhibit 10 at 2. To the extent that the Respondent argues that the clear wording of the award as clarified is inconsistent with applicable law, rules, or regulations, we reject that argument because it should have been raised as an exception to the Arbitrator's award or clarification. As noted previously, no exceptions were filed to the award or clarification and, therefore, the Respondent must comply with the award and clarification. See, for example, Department of the Air Force, Headquarters 832d Combat Support Group, DPCE, Luke Air Force Base, Arizona, 24 FLRA 1021, 1026-27 (1986); United States Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 15 FLRA 151 (1981), affirmed sub nom. Department of the Air Force v. FLRA, 775 F.2d 727 (6th Cir. 1985).

Accordingly, we conclude that the Respondent failed to comply with the award and clarification under section 7122(b) of the Statute and, therefore, violated section 7116(a)(1) and (8) of the Statute.

To remedy the unfair labor practice in this case, we will order the Respondent to cease and desist from failing to comply with section 7122(b) of the Statute and from in any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Statute. We will also order the Respondent to comply fully with the Arbitrator's September 2, 1987 award and July 28, 1988 clarification ordering that the Respondent convert from intermittent status employees regularly scheduled to work more than 24 hours per week over a period of 6 or more pay periods during the timeframe specified in the September 2, 1987 award. Finally, the Respondent will be required to post a notice to employees that it will take these actions as ordered by the Authority. See Health Care Financing Administration, 35 FLRA at 497.

V. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the United States Department of Defense, Department of the Air Force, Carswell Air Force Base, Texas shall:

1. Cease and desist from:

(a) Failing to comply with the provisions of section 7122(b) of the Statute by failing and refusing to implement Arbitrator Donald P. Goodman's September 2, 1987 award and July 28, 1988 clarification.

(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Comply fully with the September 2, 1987 award and July 28, 1988 clarification of Arbitrator Goodman, ordering that it convert from intermittent status employees regularly scheduled to work more than 24 hours per week over a period of 6 or more pay periods during the timeframe specified in the September 2, 1987 award.

(b) Post at its facilities at Carswell Air Force Base, Texas, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commanding Officer of Carswell Air Force Base, and shall be posted in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted, and shall be maintained for 60 consecutive days thereafter. Reasonable steps shall be taken to ensure that the Notices are not altered, defaced, or covered by any other material.

(c) Pursuant to section 2423.20 of the Authority's Rules and Regulations, notify the Regional Director, Region VI, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail to comply with the provisions of section 7122(b) of the Statute by failing and refusing to implement Arbitrator Donald P. Goodman's September 2, 1987 award and July 28, 1988 clarification.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Statute.

WE WILL comply fully with the September 2, 1987 award and July 28, 1988 clarification of Arbitrator Goodman, ordering that we convert from intermittent sta