40:1099(97)AR - - DOD, Army and Air Force Exchange Service, Dallas, TX and NFFE Local 977 - - 1991 FLRAdec AR - - v40 p1099



[ v40 p1099 ]
40:1099(97)AR
The decision of the Authority follows:


40 FLRA No. 97

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF DEFENSE

ARMY AND AIR FORCE EXCHANGE SERVICE

DALLAS, TEXAS

(Agency)

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 977

(Union)

0-AR-1979

DECISION

May 30, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to awards of Arbitrator Donald A. Anderson 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.

In the award on the merits (initial award), the Arbitrator ruled that the Agency had violated the parties' collective bargaining agreement and, as a result, the grievant suffered a loss of overtime pay. The Arbitrator retained jurisdiction for 60 days to give the parties an opportunity to reach a settlement agreement on the appropriate remedy. When the parties were unable to agree on a remedy, the Arbitrator accepted briefs from the parties and issued an award providing a remedy for the violation (remedy award). As the remedy, the Arbitrator ordered that the grievant be paid backpay for lost overtime in the amount of $7,200 and backpay for lost commission wages in the amount of $7,560.

The Agency contends that the initial and remedy awards are deficient because they are contrary to regulation and because they are contrary to the Back Pay Act, 5 U.S.C. § 5596. For the following reasons, we deny the Agency's exceptions.

II. Background and Arbitrator's Awards

The grievant is an automotive worker (mechanic) who has been employed at the George Air Force Base (Activity) service station since 1981. Mechanics are paid a combination of hourly rate and commission wages and receive overtime pay for hours worked in excess of 40 hours per week or 8 hours per day. In 1983, the Activity eliminated the position of auto worker supervisor and the grievant subsequently was called upon to perform certain supervisory duties in addition to his regular duties.

In 1988, the Union filed a grievance on behalf of the grievant. The grievance alleged that the Activity violated the parties' collective bargaining agreement by failing to notify the Union of the change in working conditions caused by elimination of the supervisor position and also alleged that the grievant lost overtime wages as the result of assuming the supervisory duties. The Union maintained that the Activity failed to properly document work hours and overtime for the grievant and other employees.

The grievance was submitted to arbitration. The Arbitrator framed the following issues:

1.Did the Activity violate . . . the parties['] Collective Bargaining Agreement when it failed to notify the Union that it had decided to terminate the Auto Worker Supervisor in 1983?

2.Did the Activity violate . . . the parties['] Collective Bargaining Agreement when it did not notify the Union of a proposed change affecting Grievant's conditions of employment relative to the termination of the Auto Worker Supervisor position in 1983?

3.Was Grievant's claim of a class action case in this arbitration valid?

4.Was Grievant's claim of improper overtime payment to him by the Activity valid?

5.If the answer to [any of these issues is] affirmative, what is the appropriate remedy?

Initial Award at 2.

The Arbitrator heard testimony concerning the duties performed by the grievant and the recording of work hours and overtime at the service station. The Arbitrator stated that "the preponderance of the evidence compelled [him] to finally conclude that [the] Grievant's mechanic duties were modified after the termination of the automotive supervisor." Id. at 11. He found that the change in the grievant's duties affected the grievant's income and therefore affected his conditions of employment.

The Arbitrator concluded that the Activity did not violate the collective bargaining agreement by failing to notify the Union of the termination of the automotive worker supervisor position, but that the Activity did violate the agreement by failing to notify the Union of the grievant's "changed employment conditions in the years 1983 to 1988, relative to the termination of the Automotive Worker Supervisor position." Id. at 14. The Arbitrator also found that the grievance was an individual one, not a class action grievance.

As his initial award, the Arbitrator found that the grievant "was denied certain income for overtime worked in the years 1983 to 1988." Id. The Arbitrator stated that the evidence was insufficient for him to provide a remedy and allowed the parties 60 days in which to reach an agreement on an appropriate remedy. He retained jurisdiction over the remedy issue in the event the parties were unable to reach agreement.

The parties were unable to reach a settlement agreement and returned to the Arbitrator in January 1990 for a decision on the remedy. The Union contended that the Arbitrator had authority under the Back Pay Act to award the grievant backpay for the lost overtime pay. The Agency argued that there was no basis for an award of backpay because there were insufficient records of the times the grievant had worked overtime and also argued that the grievant was responsible for maintaining such records.

The Arbitrator noted that the Agency had not directed the mechanics to maintain records of time worked and he found that the Agency was responsible for maintaining those records. He observed, however, that if the grievant had maintained records of overtime worked, "there would be no need for this report." Remedy Award at 3. The Arbitrator also found that the Agency was responsible for allowing the situation of nonpayment of overtime to the grievant to occur and ruled that "there was but minimal evidence in this case to show that the employer should not be held responsible for the circumstances leading to this dispute." Id.

The Arbitrator found that all the requirements of the Back Pay Act had been met for an award of backpay to the grievant and concluded that the grievant would have received overtime pay if there had been no unjustified or unwarranted personnel action by the Agency. The Arbitrator noted that the Agency "stipulated to the fact and management personnel testified that Grievant had in fact worked overtime from August 1, 1983, and [sic] August 1, 1987, and was not compensated via overtime pay." Id. at 4. The Arbitrator noted further that "other witnesses also testified that they had observed Grievant in such overtime situations on a continuing though perhaps not regular basis." Id.

In determining the amount of backpay to be awarded to the grievant, the Arbitrator stated that he was "compelled to accept" the records of overtime worked presented by the Union. Id. However, the Arbitrator stated that "[b]ased on the Grievant's something less than cooperative attitude in apparently not always signing the overtime records, his request for overtime pay is reduced one half." Id. The Arbitrator awarded the grievant $7,200 in overtime for the years 1983-1987 and also awarded him $7,560 in lost commissions.

III. Positions of the Parties

A. The Agency

The Agency contends that the Arbitrator's initial and remedy awards are contrary to a joint Army/Air Force regulation, AR 60-21/AFR 147-15, paragraph 2-22, which provides that overtime will be paid "for work performed in excess of 8 hours a day or 40 hours during an administrative workweek." Exceptions at 4. The Agency maintains that there is no evidence in the record to show that the grievant worked overtime and argues that the testimony of witnesses that the grievant worked overtime was based on the witnesses' observations that the grievant had worked late. The Agency denies that any witnesses who testified were actually present at the time the grievant was allegedly working overtime and points out that the grievant admitted "that he was not present during times when he was 'on call.'" Id. at 5. The Agency also denies that there was any stipulation by management or any testimony by a management witness that the grievant worked overtime during the period in question.

The Agency also asserts that the Arbitrator's award of compensation for lost commission wages is contrary to the Back Pay Act. The Agency maintains that, under the Federal Wage System, the grievant "is only entitled to pay at a straight time rate for noncommission work[,]" and is "not entitled to additional pay for loss of commission earnings as a result of doing work which would have entitled him only to straight time pay." Id. at 6. The Agency also contends that damages cannot be awarded to the grievant for a breach of the collective bargaining agreement because the duty to bargain over changes in working conditions is a duty owed the Union, not the grievant.

B. The Union

The Union asserts that the Agency's filing of exceptions to the initial award is untimely and the Arbitrator's findings of facts and award on the merits should be sustained. The Union disputes the Agency's claim that there was no evidence of overtime worked by the grievant and points out that the grievant's supervisor testified that the grievant had worked overtime. The Union contends that the Agency is denying its own stipulations and sworn testimony of management officials that the grievant worked overtime. The Union denies that the award is contrary to law and maintains that the Arbitrator made the required findings for an award of backpay.

The Union states that even if there had been a tacit agreement with employees not to pay overtime, such an agreement would be contrary to Federal wage system law and to the parties' collective bargaining agreement. The Union also denies that the employees were responsible for maintaining records of overtime worked and points out that the parties' agreement provides that records of overtime will be maintained by the Agency. The Union contends that the Arbitrator properly awarded backpay for the entire period claimed and states that the Agency had stipulated that the grievance was a continuing grievance and not subject to the time limit for filing.

IV. Analysis and Conclusions

We conclude that the Arbitrator's award is not contrary to Agency regulation or to the Back Pay Act and we will deny the Agency's exceptions.

As a preliminary matter we reject the Union's contention that the Agency's exceptions are untimely. The Agency filed exceptions to the initial award in Case No. 0-AR-1831. Those exceptions were dismissed as interlocutory in 38 FLRA 587 (1990). The Agency then filed timely exceptions following the issuance of the remedy award. Accordingly, the Union's objection as to timeliness is denied.

Where an arbitration award conflicts with agency rules or regulations, that conflict will provide a basis for finding the award deficient under section 7122(a)(1) of the Statute when the rules or regulations govern the disposition of the matter resolved by the arbitration award and the rules or regulations do not conflict with provisions of an applicable collective bargaining agreement. U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186 (1990). In this case, the Agency asserts that the Arbitrator's award is contrary to the Agency regulation governing the payment of overtime and limiting such payment to hours worked in excess of 40 hours per week or 8 hours per day. The Agency argues in support of its exception that the Arbitrator based his award of overtime on an erroneous finding that the grievant had actually worked the overtime hours claimed in the grievance. The Agency claims that the Arbitrator's finding is not supported by the evidence in the record.

We find no merit in the Agency's argument that the Arbitrator's award is contrary to an Agency regulation because the award is not supported by the evidence in the record. The Agency has not shown that the award of backpay for overtime worked conflicts with the requirement of the regulation that overtime is to be paid for hours worked in excess of 40 hours per week or 8 hours per day. Rather, we find that the Agency's argument is an attempt to relitigate the merits of the grievance before the Authority and constitutes mere disagreement with the Arbitrator's findings. Disagreement with an arbitrator's evaluation of the evidence and findings and conclusions based thereon provides no basis for finding an award deficient. See U.S. Department of the Army, Army Aviation Center, Fort Rucker, Alabama and American Federation of Government Employees, Local 1815, 40 FLRA 94, 97 (1991).

We also find no merit in the Agency's contention that the award is contrary to the Back Pay Act. For an award of backpay to be authorized under the Back Pay Act, an 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 Federal Employees Metal Trades Council and U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 39 FLRA 3, 7 (1991). The failure of an agency to pay employees monies to which they are entitled constitutes an unwarranted personnel action within the meaning of the Back Pay Act. Id. Moreover, the violation of a collective bargaining agreement constitutes an unjustified and unwarranted personnel action under the Act. See U.S. Department of Veterans Affairs, Medical Center, Marion, Illinois and American Federation of Government Employees, Local 2483, 38 FLRA 270, 274 (1990).

The Arbitrator found that the grievant had worked overtime during the time in question and found that had it not been for the Agency's unjustified and unwarranted personnel action changing the grievant's working conditions in violation of the collective bargaining agreement, the grievant would have been paid for that overtime work. The Arbitrator found further that, as a result of the grievant's performing duties previously performed by the automotive supervisor, the grievant had been denied the commissions he otherwise would have received. The Arbitrator found that the grievant was entitled to be paid for that work and accepted the grievant's claim for commission work he would have performed from 1983 to 1987 as "reasonable." Remedy Award at 5. We reject the Agency's argument that the grievant was not entitled to backpay for the lost commission work. In our view, that work was app