38:1291(102)AR - - Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Hyattsville, MD and NAAE - - 1991 FLRAdec AR - - v38 p1291



[ v38 p1291 ]
38:1291(102)AR
The decision of the Authority follows:


38 FLRA No. 102

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF AGRICULTURE

ANIMAL AND PLANT HEALTH INSPECTION SERVICE

PLANT PROTECTION AND QUARANTINE

HYATTSVILLE, MARYLAND

(Agency)

and

NATIONAL ASSOCIATION OF AGRICULTURE EMPLOYEES

(Union)

0-AR-1890

DECISION

January 4, 1991

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 Janet L. Gaunt 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 Agency's exceptions.

The grievant filed a grievance claiming that his 5-day suspension should be rescinded because he "was entitled to refuse to follow an order to perform government work on his own time without compensation." Award at 8. The Arbitrator sustained the grievance and awarded the grievant backpay, without interest, for the suspension.

For the following reasons we conclude that the Agency's exceptions provide no basis for finding the award deficient. However, we reverse that portion of the award pertaining to the denial of interest because it is contrary to law. Accordingly, we will modify the award to provide for the payment of interest on the backpay award.

II. Background and Arbitrator's Award

The grievant is a plant protection and quarantine (PPQ) officer whose duties are to perform inspections on aircraft, cargo, and luggage at the Seattle-Tacoma International Airport. Award at 3. The grievant split his duty time between the Federal Office Building in Seattle and the airport. Whenever an insect ("intercept") was discovered in a shipment, it was transported in a vial filled with alcohol to the Seattle office for identification. Id. Transporting vials was a standard duty assigned during regular hours. Id. If an intercept was discovered close to quitting time, "it was customary to ask an officer coming out of the airport from downtown to take the transport home overnight and bring it to the [Seattle office] in the morning." Id.

On June 29, 1988, the grievant, who was working an 8 a.m. to 4:30 p.m. shift at the Seattle office, was also scheduled to work an overtime assignment at the airport at 6:00 p.m. Id. at. 3-4. For his work at the airport, the grievant received overtime pay, as well as commuted travel time (CTT) pay, which covered the time spent travelling from the Seattle office to the airport, and from the airport to home. Id. at 6. At the end of the shift, the grievant declined to transport an intercept home overnight and to the Seattle office in the morning, "because he was being asked to do so on his own time without compensation." Id. at 5. He was given a 5-day suspension for insubordination. Id. at 8.

The grievant grieved his suspension, arguing that he was not required to obey an order to perform unpaid work on his own time. When the grievance was not resolved, it was submitted to arbitration on the following issue:

Given the circumstances, did [the grievant's] refusal to transport an interception [sic] from Sea Tac Airport to his home on June 29, 1988 and then to the Seattle FOB on the morning of June 30, 1988 justify disciplinary action?

Id. at 2.

The Arbitrator found that the Agency's order to transport and safeguard the intercept was improper. Id. at 12. The Arbitrator reasoned that the Agency's right to assign work under Article IV, Section 1 of the parties' collective bargaining agreement, which incorporates section 7106(a)(2)(B) of the Statute, was "conditioned by a statutory proviso that those rights be exercised 'in accordance with applicable law.'" Id. The Arbitrator decided that the Agency did not have "the authority to demand uncompensated work of an Agency employee." Id. Further, the Arbitrator concluded that the Agency's own policy and practice was to "request, but not require the transport of intercepts by off-duty PPQ officers." Id. at 15. The Arbitrator concluded that "[t]he Agency ha[d] not established any authority for requiring the Grievant to perform government work on his own time or any emergency conditions that would have justified the order given." Id. at 17. In addition, the Arbitrator rejected the Agency's argument that transporting the vial was work incidental to the grievant's CTT pay, because the grievant was not in CTT status during the time he was at home or during his commute to work the next morning. Id. at 16.

Next, the Arbitrator held that the "work now, grieve later" principle did not apply because the Agency had "no inherent authority to control what an employee does on his/her uncompensated, off-duty time[, or] . . . to require work while declaring it will not be compensated." Award at 22. The Arbitrator held that the facts of the case did not support a finding that management's statutory right to assign work extended to "an assignment while off[-]duty in a non-pay, non-standby, non-traveling status." Id. Because it had been the Agency's policy and practice to treat off-duty transport of intercepts as voluntary and not mandatory, the Arbitrator concluded that "the Grievant's refusal to comply with the instructions he received was not by itself a basis for discipline." Id. at 23. Consequently, the Arbitrator found that the grievant's suspension was "an unjustified and unwarranted personnel action[,]" and ordered the Agency to award the grievant backpay, without interest, for the 5-day suspension. Id.

III. Positions of the Parties

A. The Agency's Exceptions

The Agency argues that the Arbitrator's award is contrary to management's right to assign work under section 7106 of the Statute because the Arbitrator "concluded, contrary to the supervisor, that the task should have been assigned to another employee, and not performed by the Grievant" and, thereby, "inappropriately substituted her judgment for that reserved for the Agency." Exceptions at 2 (citation omitted).

In addition, the Agency claims that "[t]ravel outside regular duty hours is outside the scope of collective bargaining." Id. at 3. The Agency argues that management has the right to assign "a task involving travel outside regular duty hours" when such assignment during regular hours is not "practicable." Id. In this case, the Agency argues, the transport involved an "urgent" intercept and management had the right to assign it outside regular duty hours. Id.

The Agency also asserts that the Arbitrator erroneously considered the task assigned to the grievant to be work under 5 U.S.C. § 5542. Id. at 4. The Agency quotes the Comptroller General as holding that "'whether the transportation of equipment is merely incidental to the employee's travel, or is itself the employee's primary function is for the determination by the administrative agency.'" Id. (quoting 61 Comp. Gen. 626, 634 (1982)) (emphasis omitted).

Finally, the Agency claims that employees must follow instructions. The Agency maintains that the Arbitrator "is incorrect in 'allowing' the employee to refuse to perform" a task based on the understanding that he would not be compensated for it. Id. at 5. The Agency argues that even if the order to perform uncompensated work was incorrect, the grievant had "the obligation to obey the order" and then grieve either the order or "a denied claim for overtime compensation." Id. at 4.

B. The Union's Opposition

The Union maintains that the Agency's exceptions constitute mere "disagreement with the Arbitrator's findings and conclusions." Opposition at 2. The Union claims that the arguments presented by the Agency are the same the Agency presented in its post-hearing brief. The Union asserts that "the Agency attempts to frame its exceptions in terms of allegations of a violation of law" so as to bring the same arguments "within the ambit of section 2425.3 of FLRA's regulations[.]" Id. at 3.

IV. Analysis and Conclusions

A. The Award Does Not Interfere With Management's Right to Assign Work

In its first exception, the Agency asserts that the Arbitrator "inappropriately substituted her judgment" for management's exercise of its right to assign work, thereby directly interfering with that right under section 7106(a)(2)(B) of the Statute. Exceptions at 2. The Agency claims that "[t]he Arbitrator concluded, contrary to the supervisor, that the task should have been assigned to another employee, and not performed by the Grievant." Id. (citation omitted).

The Arbitrator did not require the Agency to assign the task of transporting the intercept to another employee. Rather, the Arbitrator discussed the availability of other employees to perform the task as part of her conclusion that "the Agency did not establish that it was not practicable to transport the intercept during regular duty hours." Award at 14. The pertinent section of the award reads:

The intercept was ready for transport from [the airport] to the [Seattle office] when there were three officers available at [the airport] and at least an hour left in the shift . . . . The Agency never asserted that other duties required all the officers to remain at [the airport].

Id. There is no indication in the record, nor is it apparent to us, that these statements constitute an assignment of work by the Arbitrator or that they interfere with management's right to assign work.

The Agency's exception is factually incorrect and constitutes a mischaracterization of the Arbitrator's findings. The Arbitrator did not require the Agency to assign the task to another employee. The award does not conflict with a management right under section 7106(a)(2)(B) of the Statute. Consequently, this exception does not provide a basis for finding the award deficient.

B. The Award Does Not Interfere With Management's Right to Schedule Travel Outside Regular Hours

In its second exception, the Agency states that "[t]ravel outside regular duty hours is outside the scope of collective bargaining." Exceptions at 3. In support of this statement, the Agency cites two Authority cases, which affirmed management's right to assign travel outside regular duty hours, when assigning it during regular hours is not practicable. The Agency argues that these negotiability cases are applicable because "the transport involved an urgent interception." Id.

The Agency has failed to state how this exception relates to the award. The Arbitrator did not require the Agency to schedule travel during specific hours. In fact, the Arbitrator found that the order given the grievant did not involve authorized travel. Award at 18. The Arbitrator also concluded that the CTT pay did not encompass the task of transporting the intercept because the CTT pay did not cover "the period of time [the grievant] was home . . . nor his commute to work the next [morning]." Id. at 16.

The Arbitrator also distinguished the cases cited by the Agency because they involved authorized travel in connection with temporary duty stations, whereas in this case, the order to transport the intercept involved the commute to the grievant's regular duty station. Id. at 18. Furthermore, the Arbitrator also reasoned that, although the intercept was labelled "urgent," the Agency had not established that emergency conditions existed which justified scheduling the transport after the regular work day. Id. at 17.

Because the Agency has not established that the Arbitrator in any way interfered with the Agency's right to schedule travel outside regular hours, we will dismiss this exception. In our view, this exception constitutes mere disagreement with the Arbitrator's reasoning and conclusion that the grievant was not in travel status. Disagreement with the Arbitrator's evaluation of evidence and findings and conclusions based thereon, provides no basis for finding an award deficient. U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, Local 1336 , 37 FLRA 766, 774 (1990) (Social Security Administration). Accordingly, the exception does not demonstrate that the award is deficient.

C. The Award Is Not Contrary to 5 U.S.C. § 5542

In its third exception, the Agency claims that the "Arbitrator erroneously considered [the] task to be work under 5 U.S.C. 5542." Exceptions at 4. The Agency asserts that under 5 U.S.C. § 5542(b)(2)(B), it is the Agency's right to determine whether the transport of an intercept is a PPQ officer's primary function or is merely incidental to the main purpose of his travel. Id. As evidence of the Arbitrator's allegedly erroneous determination, the Agency cites the Arbitrator's statement that:

What is at issue is whether the Agency can require the Grievant to perform off-duty work while announcing he is not going to be compensated.

Id. (citing Award at 12). To support this exception, the Agency cites two Comptroller General decisions which, it claims, affirm management's right to determine the nature of the work performed during travel under 5 U.S.C. § 5542(b)(2)(B). Id. at 4.

5 U.S.C. § 5542(b)(2)(B) provides for a Government employee's right to overtime pay for work performed during time spent in travel status away from the official duty station. There is no indication in the award, and the parties do not assert, that an overtime compensation claim was presented for arbitration as a part of this case. In fact, the Arbitrator specifically rejected the Agency's arguments that cases interpreting 5 U.S.C. § 5542(b)(2)(B) were analogous to the issues or the facts of this case. Award at 14, 18. As such, we have no basis on which to conclude that 5 U.S.C. § 5542(b)(2)(B) applies here.

Furthermore, there is no indication in the record that the Arbitrator's statement constitutes her determination of the nature of the task under 5 U.S.C. § 5542(b)(2)(B). Inasmuch as the Arbitrator's determination that 5 U.S.C. § 5542(b)(2)(B) did not apply to this case is correct, we find that the Agency has not shown that the award is deficient on this basis.

D. The Award Is Not Deficient Because the Arbitrator Declined to Apply the "Work First, Grieve Later" Rule

The Agency claims that "[e]mployees must follow instructions." Exceptions at 4. The Agency argues that the award is deficient because management's right to assign work under section 7106(a)(2)(B) "supersedes [the] theory" that an order for uncompensated work provides an exception to the work first, grieve later rule. Id. The Agency further maintains that even if "management errs" in assigning uncompensated work, the grievant had the obligation to obey, and then follow by "grieving the order, or grieving the denied claim for overtime compensation." Id. As support for this contention, the Agency cites Gragg v. United States Air Force, 13 M.S.P.R. 296, 299 (1982) (Gragg). In Gragg, the Merit Systems Protection Board held that an employee must obey an order even if based on an invalidly implemented policy, when the agency has a rational basis for that policy.

Arbitrators have recognized several exceptions to the duty to obey orders. The most important exception is where obedience to orders would involve an unusual health or safety hazard. See, F. Elkouri & E. Elkouri, How Arbitration Works 199 (4th ed.) 1985. "Some arbitrators have recognized other possible exceptions to the duty to obey orders . . . as where the order 'is quite clearly and indisputably beyond the authority of' the company." Id. at 199-200 (emphasis in original).

The Arbitrator found that the Agency's established practice and policy was to request transports of intercepts only on a voluntary basis and that the order given to the grievant was contrary to this policy. Id. at 21. Further, the Arbitrator found that "the Agency had announced no change in policy or authority [to] require[] such transports on a mandatory basis." Award at 15. The Arbitrator also determined that the Agency did not have "authority to demand uncompensated work of an Agency employee." Id. at 12.

In addition, the Arbitrator distinguished Gragg from this case on two grounds. First, the "supervisor lacked any authority to control what the Grievant did on his own personal, off-duty time." Award at 20. Second, there was no "rational basis for the order[,]" which was contrary to and "not based on any established Agency policy or practice." Id. at 21. Consequently, the Arbitrator "decline[d] to apply the 'work now - grieve later' rule" because the "supervisor had no authority to give" the order. Award at 23.

Contrary to the Agency's claim, the Agency has not demonstrated that the Arbitrator's use of an exception to the "work first, grieve later" rule interferes with management's right to assign work under the parties' agreement or the Statute, or is otherwise deficient under section 7122 of the Statute. Compare Textile Processors, Service Trades, Health Care, Professional and Technical Employees International Union Local 108 v. Morgan Systems, Inc., 583 F. Supp. 403, 405 (E.D.Mo. 1984) ("work now, grieve later" rule did not apply as employee was following general plant policy, and his refusal to comply with a work request was not insubordination).

Consequently, we find that the Agency's last exception constitutes mere disagreement with the Arbitrator's finding that there was an Agency practice and policy to request transports of intercepts only on a voluntary basis and with the Arbitrator's use of an exception to the "work first, grieve later" rule. Disagreement with the Arbitrator's evaluation of evidence and findings, and conclusions based thereon, provides no basis for finding an award deficient. See Social Security Administration, 37 FLRA at 774. Accordingly, the exception does not demonstrate that the award is deficient.

E. Denial of Interest on the Backpay Award Conflicts With Law

The Arbitrator denied the Union's request for interest "on the basis that the Arbitrator lacks authority to award it." Award at 23. However, under the Back Pay Act, 5 U.S.C. § 5596(b)(2)(A), as amended, Pub. L. No. 100-202 (1987), an employee who is found to have been subjected to an unjustified or unwarranted personnel action which has resulted in a withdrawal or reduction in compensation is entitled to interest on the backpay. See, for example, U.S. Department of Defense, Marine Corps Logistics Base, Barstow, California and American Federation of Government Employees, Local 1492, 37 FLRA 796 (1990) (Marine Corps Logistics Base); Allen Park Veterans Administration, Medical Center and American Federation of Government Employees, Local 933, 34 FLRA 1091, 1101-02 (1990).

No exceptions were filed to the Arbitrator's denial of interest on the backpay award. As the Authority held in Marine Corps Logistics Base, however, "interest must be paid" on backpay awards such as the one in this case. 37 FLRA at 797. Accordingly, to the extent that the award denied interest on the backpay resulting from rescission of the 5-day suspension, the award is deficient. We will, therefore, amend the award to include interest on the backpay awarded the grievant.

V. Decision

The Agency's exceptions are denied. The Arbitrator's award is modified to include the payment of interest on th