47:0406(31)AR - - Bremerton Metals Trades Council and Navy, Puget Sound Naval Shipyard, Bremerton, WA - - 1993 FLRAdec AR - - v47 p406



[ v47 p406 ]
47:0406(31)AR
The decision of the Authority follows:


47 FLRA No. 31

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

BREMERTON METAL TRADES COUNCIL

(Union)

and

U.S. DEPARTMENT OF THE NAVY

PUGET SOUND NAVAL SHIPYARD

BREMERTON, WASHINGTON

(Agency)

0-AR-2363

_____

DECISION

April 15, 1993

_____

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 George M. Bell 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 did not file an opposition to the Union's exceptions.

The parties stipulated certain facts before the Arbitrator, including which employees would be entitled to relief under the grievance, and also stipulated that the issue for resolution by the Arbitrator was what was the proper time frame for backpay entitlement in this case. The Arbitrator determined that all currently employed guards and police officers who were so employed in the bargaining unit as of the date of his award should be paid backpay for the period from September 24, 1988, to October 30, 1990.

The Union excepts only to the portion of the Arbitrator's award in which he determined which employees were entitled to receive backpay. For the reasons stated below, we conclude that the Arbitrator exceeded his authority in this respect because this portion of the Arbitrator's award is inconsistent with the parties' stipulations. Accordingly, we will modify that portion of the award.

II. Background and Arbitrator's Award

The parties stipulated that during the period from September 24, 1988, to October 30, 1990, uniformed guards and police officers were routinely performing work prior to the start of their shift. The employees were not paid for this activity. On September 24, 1990, the Union filed a grievance over the unpaid overtime performed by the employees in this pre-shift activity. According to the Arbitrator, the parties stipulated that:

[o]nly those employees currently employed by the [Agency] as a Guard or a Police Officer and who are currently [included in] the unit represented by the [Union] shall be entitled to a back pay award.

Award at 1.

The parties stipulated the following issue to the Arbitrator: "[w]hat is the proper time frame for back pay entitlement in this grievance?" Id. at 3; Exceptions, Enclosure 4. Before the Arbitrator, the Union argued that the employees covered by the grievance were entitled to backpay for 2 years preceding the filing of the grievance, and the Agency argued that backpay was limited to a period covering 15 working days before the grievance was filed.

As his award, the Arbitrator stated:

All currently employed Guards and Police Officers who are so employed as of the date of this award and who are currently [included in] the unit represented by the [Union] shall be paid time and one-half for each day such Guards and Policemen worked during the period of September 24, 1988, to October 30, 1990. Such time and one-half shall be computed on the basis of .1 of an hour.

Award at 4.

III. The Union's Exceptions

According to the Union, the Arbitrator's award improperly limits the backpay entitlement to employees who are currently employed as guards and police officers. The Union argues that by this language, the Arbitrator's award excludes former guards and police officers who were affected by the pre-shift work practices and who would otherwise be eligible for backpay but for the fact that they changed occupations within the Agency while remaining within the bargaining unit.

The Union contends that the Arbitrator exceeded his authority by expanding the issue submitted to him for a decision. According to the Union, the only issue before the Arbitrator was the length of the period of backpay entitlement. The Union asserts that the matter of which employees would receive the backpay had been determined by the parties and contained within their stipulation of facts. The Union argues that the Arbitrator improperly expanded the issue submitted to him by directing that a differently defined group of employees was entitled to receive the backpay.

The Union also contends that the Arbitrator's award is based on a nonfact.

IV. Analysis and Conclusions

An arbitrator exceeds his or her authority when, among other things, the arbitrator decides an issue not included in the issue stipulated by the parties. See Veterans Administration Medical Center, Houston, Texas and American Federation of Government Employees, Local 1633, 36 FLRA 122, 127-28 (1990) (VAMC Houston) (arbitrator exceeded his authority by considering an issue not included in the narrow issue stipulated by the parties).

We find that the Arbitrator exceeded his authority by determining which employees were entitled to receive the backpay despite the fact that the parties had stipulated that a particular group of employees was entitled to the backpay. The Arbitrator's award defined the group of employees who were eligible to receive the backpay in a manner that was inconsistent with the express stipulation of the parties.

The record in this case shows that the parties clearly stipulated the issue for arbitration, namely, "[w]hat is the proper time frame for back pay entitlement in this grievance[.]" Award at 3; Exceptions, Enclosure 4. The record also shows that the parties clearly stipulated the group of employees who would be eligible to receive backpay for the pre-shift work. Specifically, the parties stipulated the following:

5. The parties have stipulated that any entitlement to back pay, based on this grievance, will be computed on the basis of .1 hour per work day per Guard or Police Officer, for the period of back pay entitlement adjudged by the Arbitrator during which that employee was employed by the Law Enforcement Branch as a Guard or Police Officer as further defined by Item 6.

6. Only those employees currently employed by the [Agency] and who are currently [included in] the unit represented by the [Union] shall be entitled to any back pay award.

Exceptions, Enclosure 1. The Arbitrator had no authority to ignore the stipulation when, in addition to resolving the specific issue stipulated to him, he addressed the issue of which employees were entitled to backpay. See VAMC Houston, 36 FLRA at 127-28.

Accordingly, the portion of the award that defines the group of employees who are entitled to backpay is inconsistent with the parties' stipulation and is beyond the stipulated issue submitted to the Arbitrator. We will modify the Arbitrator's award to strike the Arbitrator's identification of the group of employees entitled to receive the backpay and replace it with those employees identified in the parties' stipulation. See id. at 129 (Authority modified the remedies for two grievants in a nonselection for promotion case to correspond to case facts and effective date of promotion under applicable vacancy announcement). In view of our disposition, we do not address the Union's contention that the Arbitrator's award is based on a nonfact.

V.