47:0427(34)AR - - IAM, Lodge 2261 and AFGE, Local 2185 - - 1993 FLRAdec AR - - v47 p427



[ v47 p427 ]
47:0427(34)AR
The decision of the Authority follows:


47 FLRA No. 34

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

INTERNATIONAL ASSOCIATION OF MACHINISTS AND

AEROSPACE WORKERS

LODGE 2261

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2185

(Unions)

and

U.S. DEPARTMENT OF THE ARMY

TOOELE ARMY DEPOT

TOOELE, UTAH

(Agency)

0-AR-2329

_____

DECISION

April 16, 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 William A. Lang 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 Unions jointly filed an opposition to the Agency's exceptions.

The grievances in this case alleged that the Agency violated the parties' collective bargaining agreement by failing to give the Unions the required advance notice of changes in tours of duty. The Arbitrator sustained the grievances and ordered that the Agency provide overtime pay and Sunday premium pay for the affected employees.

For the following reasons, we find that the portion of the award ordering payment of Sunday premium pay is inconsistent with law and regulation. Therefore, we will modify the award by striking that portion of the award. We conclude that the remainder of the Agency's exceptions provide no basis for finding the award deficient, and we will deny those exceptions.

II. Background and Arbitrator's Award

The dispute in this case concerns changes on two occasions in the tours of duty of employees in two bargaining units of the Agency. The International Association of Machinists, Lodge 2261 (IAM) represents employees in one of the bargaining units. The American Federation of Government Employees, Local 2185 (AFGE) represents employees in the other bargaining unit. The Unions and the Agency are parties to a collective bargaining agreement that was jointly negotiated with the Agency by the two unions.

The employees work a tour of duty of 10 hours on one of three shifts, Monday through Thursday, of each week. On one occasion, the Agency changed the tours of duty of employees on the evening and night shifts from Monday through Thursday to Sunday through Wednesday. The change was effective only for the week of April 28, 1991, so that evening and night shift employees could attend a party scheduled for Thursday, May 2, 1991, from 4:00 p.m. to 9:00 p.m. The party was designed to honor civilian employees who were returning from Saudia Arabia where they had been temporarily assigned.

On another occasion, the Agency changed the tours of duty of employees on the day shift from Monday through Thursday to Tuesday through Friday. The change was effective only for the week of May 6, 1991. Although Friday was not ordinarily a work day, the Agency changed the tours of duty because a visit by the Secretary of the Army was scheduled for Friday, May 10, 1991. The Agency expressed the view that it was important for the Secretary to see the facility in operation "because the U.S. Congress was considering a realignment of the military bases with closures." Award at 5. The Agency elected to change the employees' tours of duty to accommodate the visit rather than to pay overtime premiums to the employees.

Two grievances were filed alleging that the changes in the tours of duty violated the collective bargaining agreement. The first grievance was filed by the IAM and concerned the change in the tours of duty of employees on the evening and night shifts to accommodate the party honoring civilian employees. The second grievance was filed by both the IAM and AFGE and concerned the change in the tours of duty of employees on the day shift to accommodate the Secretary's visit. The grievances were not resolved and were submitted to arbitration on the following stipulated issue:

Did management violate Article VII, Section 3 of the contract when it changed tours of duty in order to accommodate a party for the employees returning from Saudi Arabia and to accommodate the visit of Secretary of the Army, the Honorable Michael P. W. Stone?(1)

If so, what is the remedy?

Id. at 1. The Arbitrator also noted that the Agency raised an issue concerning the negotiability and legality of Article VII. While the parties did not stipulate to this issue, the Arbitrator decided to consider it because it raised "a basic question on the conflict of law with the contract[.]" Id. at 2.

The Agency argued before the Arbitrator that Article VII, Section 3 of the parties' agreement was not enforceable because it did not allow for emergency changes in tours of duty and because it increased the minimum period of notice of schedule changes required by 5 U.S.C. § 6101 and 5 C.F.R. § 610.121 from 7 to 14 days. More particularly as to the Secretary's visit, the Agency argued that an Agency regulation permitted it to consider overtime costs in decisions to change tours of duty. The Agency maintained that it was not required to give the Unions 2 weeks notice of the change because the change was related to the mission of the Agency and would involve substantial costs. As to the change in tours of duty connected with the party honoring civilian employees, the Agency conceded that the exceptions to the notice requirement contained in Article VII, Section 3 did not apply. However, the Agency argued that shop stewards had signed off on the change and, further, that there was no evidence that any employee had suffered economic loss as a result of the change.

The Unions took the position that the parties bargained thoroughly over Article VII, Section 3 and that that section of the agreement is consistent with 5 U.S.C. § 6101 and 5 C.F.R. § 610.121. The Unions also argued, for a variety of reasons, that the notice provided concerning the changes in tours of duty was insufficient and that, as to the Secretary's visit, the Agency could have taken other actions to avoid increased costs. The Unions requested make-whole relief as a remedy for the violations of the agreement.

The Arbitrator concluded that the Agency violated the agreement by failing to provide the Unions with the required advance notice of the changes in tours of duty. In reaching this result, the Arbitrator rejected the Agency's argument that Article VII, Section 3 is contrary to 5 U.S.C. § 6101(a)(3)(A) and 5 C.F.R. § 610.121(b)(2) because the agreement provision does not contain express language excepting emergencies from the advance notice requirement. The Arbitrator noted that the parties had renegotiated Section 3, following Agency head disapproval of that provision, in order to incorporate the relevant statutory requirements. The Arbitrator also found that the question of whether Article VII, Section 3 should contain an emergency exception was not relevant since "[n]either the scheduling of a party nor the visit of [the] Secretary . . . constituted an emergency . . . ." Award at 11. Moreover, the Arbitrator found that Authority precedent did not support the Agency's view that Article VII, Section 3 is inconsistent with 5 C.F.R. § 610.121(b)(2).

The Arbitrator also rejected the Agency's argument that the change in tours of duty to accommodate the scheduling of the party was agreed to by the employees and their shop stewards. The Arbitrator concluded, for various reasons, that the argument was not persuasive. The Arbitrator also disagreed with the Agency's contentions that the change to accommodate the Secretary's visit was based on mission requirements and would avoid a substantial increase in costs. The Arbitrator found that there is "nothing in the [applicable] regulation[s] which authorizes an agency to change schedules to avoid overtime costs." Award at 15.

In sum, the Arbitrator concluded based on "the record as a whole" that the Agency violated the parties' agreement when it changed employees' tours of duty. Id. Therefore, the Arbitrator sustained the grievances.

To remedy the violations of the agreement, the Arbitrator noted the Unions' request for a make-whole remedy, which included overtime pay for employees "who worked the extra day in the work week," premium pay for employees who worked on Sunday, April 28, 1991, and reasonable employee expenses for such matters as child care and extra commuting costs. Id. at 16. The Arbitrator found, as to overtime pay and Sunday premium pay, that such a remedy was appropriate in this case and stated that "the award of overtime premium pay for the hours worked on a normal day off[]" is "[u]nquestionably the most frequently utilized remedy where an employee's contractual rights have been violated by changes in schedule . . . ." Id. In this connection, the Arbitrator rejected the Agency's assertion that the requested remedy was not appropriate in the absence of specific evidence that employees suffered any economic loss. Rather, the Arbitrator found that the Union was not required to "itemize individual economic loss." Id. Consequently, the Arbitrator ordered the following remedy:

1. Employees are to be paid overtime premium pay for each hour worked on Sunday, April 28, 1991, and Friday, May 10, 1991.

2. Employees are to be paid Sunday premium pay for each hour worked on Sunday, April 28, 1991.

3. Employees who took paid leave on either April 28, 1991, or May 10, 1991, in lieu of working on those days, shall have their leave accumulation credited for each hour of such leave.

Id. at 16-17. The Arbitrator rejected the Unions' request for reimbursement of employee expenses. The Arbitrator found that such expenses were personal and were not reimbursable by the Agency.

III. Positions of the Parties

A. Agency's Exceptions

The Agency does not except to the Arbitrator's conclusion that the Agency violated the agreement by failing to provide the Unions with the required advance notice of the changes in tours of duty. Rather, the Agency disputes the portion of the Arbitrator's award that directs the Agency to pay employees overtime pay and Sunday premium pay. According to the Agency, this remedy violates the Back Pay Act, 5 U.S.C. § 5596; 5 C.F.R. § 550.111; 5 C.F.R. § 551.501; and 5 C.F.R. § 550.171.

The Agency maintains that the award is contrary to the Back Pay Act because the Arbitrator did not find that "but for" the violation of the parties' collective bargaining agreement the employees would have been assigned overtime work. Exceptions at 3. According to the Agency, there were a number of alternatives available to it that would not have resulted in the assignment and payment of overtime. The Agency also asserts that the award here is similar to an award sustaining a grievance alleging an improper change in tours of duty and providing a remedy of overtime pay that the Authority found was contrary to the Back Pay Act. Citing Veterans Administration Medical Center, Sepulveda, California and American Federation of Government Employees, Local 1697, 15 FLRA 778 (1984) (Veterans Administration Medical Center), the Agency claims that the award of overtime pay similarly is not authorized in this case.

Alternatively, the Agency maintains that if the award of overtime pay is authorized, the added remedy of Sunday premium pay for employees who worked on Sunday, April 28, 1991, is inconsistent with 5 C.F.R. § 550.171. According to the Agency, employees can receive premium pay for work performed on Sunday only if that work is not also performed on an overtime basis. The Agency contends that because the Arbitrator ordered both overtime pay and premium pay for work performed on Sunday, the award is inconsistent with the cited regulation.

B. Unions' Opposition

Initially, the Unions "question the timeliness of the exceptions." Opposition at 2. The Unions note that the award was served on the parties on July 6, 1992, that the deadline for filing exceptions was August 4, 1992, and that the Agency's exceptions were filed with the Authority on August 10, 1992. The Unions acknowledge that the exceptions were filed in conformity with Authority regulations allowing additional time when a document is served by mail and when deadlines fall on weekends. However, the Unions request that the Authority "reconsider the application of these regulations" to exceptions to arbitral awards. Id. In this regard, the Unions assert that "[t]he deadline for such exceptions is set by statute, not by regulation, and is thus jurisdictional." Id. The Unions add that "we do not see how the Authority can by [r]egulation extend the date for filing when such date is prescribed by [s]tatute." Id. In support of its assertions, the Unions rely on Hilliard v. U.S. Postal Service, 814 F.2d 325 (6th Cir. 1987) (Hilliard).

The Unions further contend that the award is consistent with the Back Pay Act and that the Arbitrator appropriately determined that the employees were entitled to backpay. In this regard, the Unions state that as a result of the contract violation, "the employees are to be paid for the extra day that was added to their schedule and for the day they would have worked had the schedule not been changed." Opposition at 3. The Unions add that the award "implicitly carries a finding that these employees would have been required to work an extra day beyond their normal tour of duty had the tours of duty not been changed." Id. at 4. The Unions further argue that the Agency's reliance on Veterans Administration Medical Center is misplaced because the facts in that case are distinguishable from the facts here.

The Unions also contend that the award of Sunday premium pay is consistent with 5 C.F.R. § 550.172, which provides for Sunday premium pay in addition to premium pay for overtime work. According to the Unions, this regulatory authority "suggests that both may be paid at the same time." Opposition at 5.

IV. Analysis and Conclusions

A. Preliminary Matter

We reject the Unions' request that the Authority reconsider its regulations. The Authority consistently has rejected arguments, raised in similar factual settings, that the Authority's construction of its Rules and Regulations is improper or is contrary to the Statute. See, for example, U.S. Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah and American Federation of Government Employees , Local 1592, 46 FLRA 1297, 1301 (1993) (Hill Air Force Base) (5-day allowance for service by mail does not extend the prescribed period for filing documents but, rather, is an allowance for mail service); U.S. Department of Commerce, Patent and Trademark Office and Patent Office Professional Association, 37 FLRA 1204, 1205-06 (1990) (Authority's interpretation of its regulations regarding the timeliness of exceptions is well known to parties and is of long-standing duration). We also find that the Union's reliance on Hilliard is inapposite. In that case, the U.S. Court of Appeals for the Sixth Circuit upheld the dismissal of a suit seeking judicial review of a decision of the Merit Systems Protection Board. The court found that the 30-day period for seeking judicial review was jurisdictional and was not subject to enlargement on equitable grounds. That decision does not control the jurisdiction of the Authority with respect to matters arising under the Statute. Moreover, as we stated in Hill Air Force Base, the allowances provided for mail service do not extend the statutory period for the filing of exceptions.

B. The Award of Overtime Pay Is Not Contrary to the Back Pay Act

Under the Back Pay Act an award of backpay is authorized only when an arbitrator finds that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; (2) the personnel action directly resulted in the withdrawal or reduction of the employee's pay, allowances, or differentials; and (3) but for such action, the employee would not have suffered the withdrawal or reduction. See American Federation of Government Employees, Local 31 and U.S. Department of Veterans Affairs, Medical Center, Cleveland, Ohio, 41 FLRA 514, 517 (1991) (VA Cleveland). In our view, the Arbitrator's award of overtime pay satisfies these requirements.

As to the first requirement for an award of backpay, it is well established that a violation of a collective bargaining agreement constitutes an unjustified or unwarranted personnel action. See, for example, U.S. Department of the Treasury, Customs Service, South Central Region, New Orleans, Louisiana and National Treasury Employees Union, Chapter 168, 43 FLRA 337, 340 (1991). In this case, the Arbitrator concluded that the Agency violated the parties' agreement by failing to provide the Unions with the required advance notice of changes in tours of duty. Consequently, the Arbitrator's award satisfies the first requirement for an award of backpay.

As to the second and third requirements for an award of backpay, we also find that the award of overtime pay satisfies those requirements. In this connection, we reject the Agency's assertion that the Arbitrator did not find that but for the violation of the agreement, the employees would have been assigned overtime work. The Authority has held that the "but for" test does not require "a specific recitation of certain words and phrases, such as 'but for[,]'" but rather a finding of a direct connection between an unwarranted or unjustified personnel action and an employee's loss of pay, allowances, or differentials. See VA Cleveland, 41 FLRA at 518. In this regard, the finding of a direct causal connection may be "implicit from the record and the award." Id. at 519.

In this case, the Arbitrator found that an award of overtime pay was appropriate to remedy the violation of the parties' agreement. In reaching this result, the Arbitrator was persuaded by the Unions' argument that the employees would have worked the extra day of the week had the Agency not violated the agreement and, therefore, that compensation was warranted. The Arbitrator also rejected the Agency's argument that there was a requirement to set forth specific evidence of economic loss suffered by employees. The Arbitrator found that it was unnecessary for the Unions to itemize individual loss. In addition, the Arbitrator found nothing in applicable regulations that authorized the Agency to change schedules in order to avoid paying overtime. Therefore, implicit in the Arbitrator's award was a finding that, had the Agency not violated the parties' agreement, employees would have worked their normal tour of duty and would have been assigned an additional day on an overtime basis.

In our view, it is implicit from the record and the award that the Arbitrator found that but for the violation of the parties' agreement, the employees would have worked overtime. Consequently, the Arbitrator's award of overtime pay satisfies the requirements of the Back Pay Act. See, for example, U.S. Department of the Army, Anniston Army Depot, Anniston, Alabama and American Federation of Government Employees, Local 1945, 46 FLRA 974, 976 (1992) (award in which arbitrator implicitly rejected agency's argument that grievant would not have worked the disputed overtime and found that, but for the agency's violation of the agreement, the grievant would have received 16 hours of overtime pay held consistent with the requirements of the Back Pay Act).

The Agency's argument that the employees would not have worked overtime because there were alternatives available to the Agency does not warrant a different result. That argument constitutes mere disagreement with the Arbitrator's implicit finding that the employees would have worked overtime absent a violation of the parties' agreement. Such an assertion provides no basis for finding the award deficient.

In addition, the instant case is distinguishable from Veterans Administration Medical Center, on which the Agency relies. In that case, there was no finding that the employees would have worked overtime in addition to their normal tour of duty. The Authority stated that had such a finding been made, a remedy of backpay for the overtime that was denied each grievant would have been consistent with the Back Pay Act. By contrast, the record in this case contains the requisite findings that the employees would have worked overtime had the Agency not violated the parties' agreement.

C. The Award of Overtime Pay Is Consistent with 5 C.F.R. §§ 550.111 and 551.501

We reject the Agency's contention that the award is inconsistent with 5 C.F.R. §§ 550.111 and 551.501. Those regulatory provisions provide, in relevant part, that overtime is payable to employees working in excess of 40 hours in a workweek. The thrust of the Agency's contention is that the employees are not entitled to overtime compensation because there was no finding that the employees would have worked more than 40 hours in a workweek absent the agreement violation. We do not agree.

The Authority previously has addressed various statutory and regulatory provisions governing overtime and has found that awards of overtime compensation were warranted in cases where employees did not actually perform overtime work. See, for example, Federal Employees Metal Trades Council and U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 39 FLRA 3 (1991); Veterans Administration Medical Center, Palo Alto, California and American Federation of Government Employees, Local 2110, 36 FLRA 98 (1990); U.S. Army Aberdeen Proving Ground, Installation Support Activity and National Federation of Federal Employees, Local 2058, 28 FLRA 566 (1987); Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 13 FLRA 386 (1983). In each of those cases, the fact that employees did not actually work overtime did not render a remedy of overtime compensation unlawful. The Authority reached such a result because the employees would have worked the overtime had the agency not engaged in improper conduct and, therefore, the employees suffered a loss of pay because of that conduct.

In this case, the Arbitrator was persuaded by the Unions' argument that the employees would have worked overtime had the Agency fulfilled its obligations under the agreement. Consequently, the Arbitrator found that an award of overtime compensation was appropriate for the Agency's improper conduct in violating the agreement. We find no basis on which to conclude that the award of overtime pay is inconsistent with 5 C.F.R. §§ 550.111 and 551.501.

D. The Award of Sunday Premium Pay is Deficient

In addition to ordering the payment of overtime pay for the hours worked on Sunday, April 28, 1991, the Arbitrator also ordered the payment of Sunday premium pay for those same hours of work. For the following reasons, we find that the award of Sunday premium pay is inconsistent with 5 U.S.C. § 5546(a) and an implementing regulation set forth at 5 C.F.R. § 550.171. Accordingly, we will modify the award by striking that portion that orders the payment of Sunday premium pay.

The entitlement of an employee to Sunday premium pay is governed by 5 U.S.C. § 5546(a), which provides:

An employee who performs work during a regularly scheduled 8-hour period of service which is not overtime work as defined by section 5542(a) of this title a part of which is performed on Sunday is entitled to pay for the entire period of service at the rate of his basic pay, plus premium pay at a rate equal to 25 percent of his rate of basic pay.

The language of 5 U.S.C. § 5546(a) states that Sunday premium pay is payable only for that time which is part of an employee's regularly scheduled period of service and is not overtime. The record in this case establishes that, but for the violation of the parties' agreement, the hours of work performed by employees on Sunday, April 28 would have been performed on an overtime basis. Consequently, Sunday premium pay would not have been authorized for the hours of work that would have been performed on an overtime basis. See for example, Matter of James Barber, et al., 63 Comp. Gen. 316, 322 (1984) (under 5 U.S.C. § 5546(a), employees who performed work on Sundays in addition to their basic 40-hour workweek and who were paid overtime compensation for the work performed on Sunday were not entitled to Sunday premium pay). The regulatory authority relied on by the Agency, 5 C.F.R. § 550.171, likewise provides that an employee is entitled to Sunday premium pay "for each hour of Sunday work which is not overtime work and which is not in excess of 8 hours for each regularly scheduled tour of duty which begins or ends on Sunday." The Arbitrator's award ordering payment of both Sunday premium pay and overtime pay for Sunday, April 28, 1991, is, therefore, contrary to 5 U.S.C. § 5546(a) and 5 C.F.R. § 550.171.

The Unions fail to establish that under 5 C.F.R. § 550.172 both forms of compensation can be paid in this case. That provision explains the computation of Sunday premium pay in relation to overtime, night, and holiday pay and provides, in part, that "[p]remium pay for Sunday work is in addition to premium pay for . . . overtime pay[.]" See 5 C.F.R. § 550.172. Nothing contained in the language of that section authorizes Sunday premium pay in addition to overtime pay for the same hours worked. If we were to construe that section in the manner suggested by the Unions, the payment of Sunday premium pay in this case would be inconsistent with 5 U.S.C. § 5546(a). We are unwilling to read the regulatory provision in such a manner.

In accordance with the above discussion, we will modify the Arbitrator's award to strike the requirement that the Agency pay Sunday premium pay for each hour worked on Sunday, April 28, 1991.

V. Decision