45:1014(104)AR - - AFGE Local 2501 and DOD, Defense Logistics Agency, Defense Depot Memphis, Memphis, TN - - 1992 FLRAdec AR - - v45 p1014
[ v45 p1014 ]
The decision of the Authority follows:
45 FLRA No. 104
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Jay W. Murphy 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 exceptions.
The Arbitrator denied a grievance alleging that the Agency failed to observe the parties' collective bargaining agreement provision on overtime when the Agency declared President's Day a regular workday in 1991. For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
On February 13, 1991, the Agency decided to declare the President's Day holiday (Monday, February 18, 1991) a regular workday in order to provide uninterrupted logistics support to deployed military forces. Employees whose regular workweek included Monday worked that day and received 1 day of basic pay as well as premium pay equal to 1 day of basic pay. On February 26, 1991, the Union filed a grievance contesting the Agency's decision. The Agency denied the grievance on the basis that the grievance did not comply with the parties' negotiated grievance procedure requirements that the grievance be signed by the grievants and include other pertinent information.
The Union requested that the Agency contact the Federal Mediation and Conciliation Service (FMCS) to obtain an arbitrator to resolve the following issue: "'Whether or not the Agency violated the Union's [c]ontract, [a]pplicable [l]aws, and Federal [s]tatu[t]e, when it mandated [e]mployee[s] to work on a legal holiday, without using'" the procedures for assigning overtime in Article 21 of the parties' agreement. Award at 10, quoting Union's Request.*/ Subsequently, the Agency requested a list of arbitrators from FMCS. In the request, the Agency included the issue presented by the Union and stated that the arbitrator should also determine whether the issue was arbitrable.
The Arbitrator first determined that the matter before him was arbitrable. The Arbitrator stated that the issue on the merits, as defined by the parties, was "[d]id the Depot Commander have the authority under the contract, rules, regulations, and laws to declare George Washington's Birthday [h]oliday a regular work day? If so, were the employees who worked properly paid in accordance with the existing contract, rules, regulations and laws?" Id. at 17. The Arbitrator found that the parties were also in dispute as to whether, under the agreement, the Depot Commander was required to offer the work on the holiday as an opportunity for overtime for employees whose regular workweek was Wednesday to Sunday.
Before the Arbitrator, the Union argued that because the parties' agreement discusses holiday work under Article 21, Overtime Assignments, all holiday work is overtime and the Agency must follow the overtime procedures established in Article 21 for assigning employees to work on holidays. The Union also relied on a previous arbitration award that held that the Agency violated the parties' agreement by scheduling some employees to work on Columbus Day without following the procedures in Article 21. The Union contended that, although the Agency has authority to require employees to work on holidays, the procedures in Article 21 must be observed. The Union asserted that all employees, including those whose regular workweek was Wednesday to Sunday, should have been given the opportunity to work overtime on the Monday holiday and that the Agency was attempting to save money by not offering the overtime opportunity to employees on other tours of duty.
The Agency argued before the Arbitrator that if holiday work is actually overtime for a selected group of employees, then the Agency will follow the general provisions of Article 21 for scheduling employees to work overtime. The Agency claimed that there is no way to follow the overtime procedures when all employees are required to work and that the grievance did not concern the equal distribution of overtime because all employees had to work on the holiday. The Agency asserted that under Federal Personnel Manual (FPM) 990, Book 610-52-3, it has the authority to require all employees to work on a holiday.
The Arbitrator stated that, in essence, the Union was "seeking to compel the Agency to pay overtime and provide overtime to employees where overtime was not mandated, not ordered, not required, not authorized, and was not worked." Award at 25. According to the Arbitrator, this
is a misunderstanding, and a misreading of [Article 21,] Section D. To adopt the Union's position it would immediately put an end to any effort on the part of the Agency to mandate that work be performed by the full work force on a holiday, for administrative reasons, and in this instance the reasons were to support the Desert Storm War Effort.
Id. The Arbitrator found that the Agency is authorized to require a full work force on a holiday and that the Agency alone can declare that overtime will be worked.
The Arbitrator determined that the purpose of Article 21 was to establish a way of equalizing overtime where overtime was required or where overtime was available, including equalizing overtime work on holidays. The Arbitrator concluded that Article 21 "has no application whatsoever . . . to the present situation where the whole work force, everybody, was working." Id. at 27. Similarly, the Arbitrator distinguished the previous arbitration award relied on by the Union, because that award involved equalizing overtime opportunities when the Agency was using a limited number of employees on an overtime assignment, rather than using the entire workforce to work a regular tour of duty on a holiday.
The Arbitrator concluded that "[t]here was no problem of equalizing [the opportunity to work overtime in this case] because there was nothing to equalize since everybody was working. One cannot both work mandatorily on the holiday in question, and at the same time work the same hours on "'overtime[.']" Id. The Arbitrator stated that because the employees who ordinarily work on Monday were required to work on that President's Day holiday, there was no overtime work opportunity available for other employees. Because no overtime was ordered by the Agency, the Arbitrator found that no overtime opportunity had to be offered to employees who worked the Wednesday to Sunday tour of duty. The Arbitrator also noted that "[t]here is no evidence presented in this arbitration that any of the employees who worked on the holiday were not properly paid." Id. Accordingly, the Arbitrator denied the grievance.
III. Positions of the Parties
The Union contends that the Arbitrator misinterpreted the issues presented and that he should have dealt directly with the issues submitted by both parties to FMCS.
The Union also contends that the Arbitrator erred regarding the applicability of Article 21 to the Agency's requirement that all employees work on the President's Day holiday. Citing U.S. Department of Defense, Defense Depot Memphis, Memphis, Tennessee and American Federation of Government Employees, Local 2501, 43 FLRA 228 (1991) (Defense Depot Memphis), the Union argues that a previous arbitration award regarding a similar matter has already decided the issue.
The Agency contends that the Union has failed to show that the award is contrary to law, rule, or regulation. The Agency asserts that the Union merely seeks to reargue the facts presented at the hearing.
IV. Analysis and Conclusions
We reject the Union's assertion that the Arbitrator misinterpreted the issues to be resolved in arbitration. In the absence of a stipulation by the parties, an arbitrator's formulation of the issues is accorded substantial deference. See, for example, U.S. Department of Transportation, Federal Aviation Administration, Decatur ATCT and National Air Traffic Controllers Association, 39 FLRA 1051, 1053 (1991). The record does not establish that the parties stipulated the issues to be resolved in arbitration. Rather, the Agency's letter to FMCS summarized the different issues each party believed were present in the case. The Agency had contended that the matter was not arbitrable because the grievance was procedurally deficient under the parties' agreement. The Union had contended that the Agency had violated the parties' agreement in scheduling the President's Day holiday as a regular workday without first observing the overtime procedures in Article 21. We find that the issues, as formulated and addressed by the Arbitrator, encompassed the concerns of both parties. See also U.S. Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina and American Federation of Government Employees, Local 1770, 41 FLRA 1149, 1152 (1991).
We construe the Union's exception that the Arbitrator erred in his determination regarding the applicability of Article 21 of the parties' agreement as an exception that the award fails to draw its essence from the agreement. To demonstrate that an award fails to draw its essence from an agreement, a party must show that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact, and so unconnected with the wording and the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See, for example, U.S. Department of Commerce, Patent and Trademark Office and Patent Office Professional Association, 41 FLRA 1042, 1048 (1991).
The Union has not demonstrated that the Arbitrator's interpretation of the parties' collective bargaining agreement renders the award deficient under any of the tests set forth above. Nothing in the Arbitrator's interpretation of Article 21 of the parties' agreement is irrational or implausible, or unconnected to the wording of the agreement. Consequently, the Union has not demonstrated that the award fails to draw its essence from the parties' agreement.
We also reject the Union's contention that the award is deficient because it is inconsistent with an arbitrator's decision in a similar case involving the 1990 Columbus Day holiday. See Defense Depot Memphis. The Authority has held repeatedly that awards are not deficient solely on the basis that they conflict with previous awards. For example, National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, 38 FLRA 369, 383 (1990). Moreover, we note that the Arbitrator distinguished the facts in this case from the facts involved in that arbitration award which involved the assignment of 37 employees to work overtime on a holiday.
In our view, the Union is merely disagreeing with the Arbitrator's interpretation of the parties' agreement and attempting to relitigate the issues presented to and resolved by the Arbitrator. This disagreement provides no basis for finding the award deficient. See Ogden Air Logistics Center, Hill Air Force Base, Utah and American Federation of Government Employees, AFL-CIO, Local 1592, 39 FLRA 1282, 1286 (1991). Accordingly, we will deny the Union's exceptions.
The Union's exceptions are denied.
SECTION 1 - GENERAL
A. The Agency and DLA Council agree that within the perimeters set forth in Sections 2 through 4, the establishment of procedures and the administration of this Article are matters for negotiation at the PLFA [Primary Level Field Activity].
B. Payment for overtime worked or granting compensatory time off, in lieu thereof, shall be in accordance with applicable laws and Government-wide regulations.
. . . .
Section A - General: The Employer reserves the right to determine overtime requirements. The assignment of overtime shall be based upon mission and workload requirements and on factors which are reasonable, equitable, and which do not discriminate against any employee or group of employees. Individual employees shall not be forced to work overtime or compensatory time against their expressed desires if full requirements can be met by other substantially equally qualified employees within the division willing to work. Employees should not work an amount of overtime which diminishes their alertness to a degree that the required work cannot be satisfactorily performed.
Section B - Selection of Employees to Work Overtime:
1. To assist in making overtime assignments, each supervisor shall maintain and use a register of regularly assigned employees by organization, section, job category, grade and service computation date. Overtime assignments shall be made on a rotational basis, except that a supervisor may temporarily pass over an individual if that overtime assignment would cause personal hardship. In
making overtime assignments, supervisors are not required to consider employees on leave and detailed to another section. Supervisors shall consider employees assigned to shifts not on duty at the time overtime is being scheduled, consistent with operational needs.
. . . .
4. When a supervisor knows what overtime will be required, employees will be notified as soon as possible.
. . . .
6. Once overtime work has been approved for various work units, the concerned supervisor shall first ask all assigned employees by job category, grade and service computation date to work before contacting any other organization. If the supervisor is still unable to consume all the overtime hours, he/she will contact the concerned branch for additional skilled employees to consume the remainder of the overtime hours.
. . . .
Section C - Mandatory Overtime: When the determination is made that all employees in one or more divisions are required to work overtime, the Employer shall notify the Union President or its designee.
Section D - Holiday Work:
1. The requirement of holiday work will be based upon mission and workload requirements.
2. To assist in the selection of emp