44:1212(98)AR - - AFGE Local 2022 and Army, Fort Campbell, KY - - 1992 FLRAdec AR - - v44 p1212
[ v44 p1212 ]
The decision of the Authority follows:
44 FLRA No. 98
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE ARMY
FORT CAMPBELL, KENTUCKY
May 13, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator Linda S. Byars filed by the Union 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 Agency filed an opposition to the Union's exception.
The Arbitrator determined that the grievance was untimely filed under the parties' collective bargaining agreement and dismissed the grievance. For the following reasons, we conclude that the Union's exception provides no basis for finding the award deficient. Accordingly, we will deny the exception.
II. Background and Arbitrator's Award
The grievant is a Helicopter Flight Simulation Training Instructor (instructor). In April 1990, the grievant and other instructors were informed by the Agency that funds they had received for overtime work on weekends would no longer be available. However, because there was a continuing need for instructors to work on weekends, the Agency met with the instructors and the Union "to discuss the alternatives available for meeting the weekend training schedule without using overtime funds." Award at 2. After discussing several alternatives, the parties agreed to implement a compressed workweek upon the expiration of an agreement that the Agency had with a contractor. In the meantime, until the compressed workweek could be implemented the parties agreed to give the instructors "the option of volunteering for compensatory time off." Id.
From April 23, 1990 to July 9, 1990, the grievant signed five written statements volunteering for compensatory time in lieu of overtime payment for 72 hours of overtime that he worked. The statements provided that the compensatory time would be taken "'within thirteen (13) pay periods following the pay period in which this overtime was worked.'" Id. (quoting Agency's Exhibit No. 1). On July 26, 1990, the Agency informed the grievant that his accumulated hours of compensatory time must be taken within thirteen pay periods. The Agency requested that the grievant submit a schedule by August 3, 1990, for use of the compensatory time. The grievant did not respond to the Agency's request. On August 3, 1990, the Agency informed the grievant that it had established a schedule for the grievant's use of the accumulated compensatory time.
On August 4, 1990, the grievant filed a grievance alleging that "'Regular Scheduled Overtime Work has been misinterpreted as Irregular or Occasional Overtime Work.'" Id. at 4 (quoting Joint Exhibit No. 2 at 1; emphasis omitted). As a remedy, the grievance requested that the grievant be compensated at the overtime rate for unused compensatory time and at one-half times his regular rate for the hours that the grievant was off work on compensatory time.
On August 10, 1990, the grievant responded to the August 3, 1990, notice from the Agency concerning the grievant's use of compensatory time. The grievant stated that he did not wish to take the compensatory time as scheduled by the Agency. However, the grievant stated that he would comply with the Agency's instructions. On August 24, 1990, the Agency informed the grievant that he had 3 hours of compensatory time remaining. The Agency requested that the grievant submit a schedule for use of the remaining 3 hours. The Agency completed a request form which scheduled the grievant's compensatory time and presented the form to the grievant for his signature. The grievant refused to sign the form.
The Agency denied the grievant's claim for overtime pay and the grievance was submitted to arbitration. At the hearing before the Arbitrator, the Agency challenged the timeliness and arbitrability of the grievance. The Arbitrator noted that Article 40, Section 40-13 of the parties' collective bargaining agreement provides that a grievance must "'be taken up with the employee's immediate supervisor within 15 calendar days after the occurrence of the matter out of which the grievance arose, or within 15 days of the employee's first knowledge of the occurrence.'" Id. at 8 (quoting Joint Exhibit No. 1, Article 40, Section 40-13 of the agreement).
The Arbitrator stated that the grievant "signed five statements on April 23, May 19, June 1 and two on July 9, 1990[,] volunteering for compensatory time in lieu of overtime. It is these agreements which were challenged as improper on August 4, 1990, well beyond the contractual 15 day limitation for challenging a matter in dispute." Id. at 9. The Arbitrator found that, under the collective bargaining agreement, "[t]he grieving party is required to take up the matter with his supervisor within 15 days of the occurrence of the matter or within 15 days of the employee's first knowledge of the occurrence." Id. The Arbitrator also found that the collective bargaining agreement "does not allow for the filing of grievances within 15 days of when the employee decides that the occurrence was a violation." Id. The Arbitrator determined that "[a]lthough a challenge over an on[-]going matter may be filed within the contractual time limit of the last occurrence, the [g]rievant did not file his [g]rievance within 15 days of the last occurrence, July 9, 1990." Id. The Arbitrator noted the grievant's assertion that the grievance was not filed when the memorandums were signed because the grievant "was unaware of the definition of regular scheduled overtime when he entered into the agreement[s] . . . ." Id. However, the Arbitrator found that "[r]egardless of the reason, the [g]rievance was untimely, which according to Article 40, Section 40-12 automatically terminates the [g]rievance." Id. Further, the Arbitrator concluded that under the parties' collective bargaining agreement, she was "precluded from addressing the merits of the [g]rievance." Id. The Arbitrator, therefore, dismissed the grievance as "non-arbitrable due to untimeliness." Id. at 10.
III. Positions of the Parties
A. Union's Exception
The Union excepts to the Arbitrator's determination that the grievance was untimely filed. According to the Union, the Arbitrator "was not diligent in determining the issue of timeliness." Exception at 1. The Union asserts that "the occurrence of the matter out of which the grievance arose is nonpayment for Regularly-Scheduled Overtime." Id. The Union argues that the Arbitrator "[d]isregard[ed] the content of Article 40, Section 40-13" and "leapt to an erroneous conclusion that timeliness can be determined by the dates of Memorandums for Voluntary Compensatory Time in Lieu of Overtime [(Memorandums)]." Id. The Union states that the Memorandums "are merely an indication of intent for future action." Id. The Union argues that the grievant could file a grievance concerning the subject of the Memorandums "only after he has been grieved [sic]." Id. at 2. The Union asserts that the employee was aggrieved when he received his earnings and leave statement and discovered that the Agency had carried out its intention to provide compensatory time in lieu of overtime compensation. The Union asserts that the grievant "could not possibly determine he had been grieved [sic] until August 9, [1990,] at the earliest." Id. The Union also excepts to certain statements in the Agency's brief to the Arbitrator, which the Union asserts are "misrepresentations of fact." Id. The Union requests that "the Arbitrator's decision be overturned and that this case be decided on [its] merits." Id. at 3.
B. Agency's Opposition
The Agency states that "the [A]rbitrator determined that the grievance before her concerned the challenging of the agreements to work compensatory time in lieu of overtime." Opposition at 2. The Agency states that "'[i]n the absence of a stipulation of the issue to be resolved, an arbitrator's formulation of the issue is accorded substantial deference.'" Id. (quoting U.S. Department of the Army, Army Aviation Center, Fort Rucker, Alabama and American Federation of Government Employees, Local 1815, 40 F