48:0679(70)AR - - Navy, Navy Public Works Center, San Diego, CA and NAGE, Local R12-35 - - 1993 FLRAdec AR - - v48 p679

[ v48 p679 ]
The decision of the Authority follows:

48 FLRA No. 70










LOCAL R12-35





October 14, 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 Samuel A. Vitaro 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 did not file an opposition to the Agency's exceptions.

The Union filed a grievance alleging that the Agency violated the parties' collective bargaining agreement by failing to offer the grievant, the Union President, the opportunity to perform overtime work. The Arbitrator sustained the grievance in part and denied the grievance in part.

For the following reasons, we conclude that the Agency's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

On August 31, 1989, the parties' collective bargaining agreement took effect. Since August 31, 1989, and at all times relevant to this case, the grievant: (1) was the Union President;(1) (2) was granted 100 percent official time by the Agency to perform representational duties; (3) received a performance rating of "satisfactory (presumptive)"; (4) with one exception, was not requested to perform the duties of his position or assigned to perform those duties; and (5) was not assigned overtime work(2) or paid any wages for overtime. Award at 5. Since the grievant's election as Union President, the grievant from time to time assigned other employees to act as president in his absence. During such times, while serving as acting president, these employees were eligible for and were offered overtime.

On October 9, 1991, the Union filed a grievance contending that the Agency had violated the parties' collective bargaining agreement by failing to offer the grievant the opportunity to perform overtime work during fiscal year 1991. As a remedy, the Union requested that the grievant be granted overtime pay for the period in dispute in an amount equal to that earned by the employee in his department working the most overtime, plus interest. The grievance was not resolved and was submitted to arbitration.

The issues before the Arbitrator were:

(1) Did the Employer violate the collective bargaining agreement, effective August 31, 1989, by failing to offer [the grievant] overtime during fiscal year 1991?

(2) If the answer to (1) above is yes, what is the appropriate remedy?

Award at 6. The Arbitrator found that the dispute concerned the following three provisions of the parties' agreement: (1) Article 7, which provides for 100 percent official time for the Union President to perform representational activities; (2) Article 14, which concerns overtime; and (3) Appendix C, which excludes certain employees from eligibility for overtime assignment.(3)

Before the Arbitrator, the Union argued that the language of Article 14 of the parties' contract was clear and unambiguous. The Union asserted that Article 14 required the Agency to distribute overtime to all employees and that none of the exceptions contained in Article 14 or Appendix C applied in the instant case. The Union further argued that the failure of the grievant to file the grievance earlier could not be construed as a waiver of the grievant's overtime rights, but was instead a reasonable oversight.

The Agency argued that Article 14 was not plain and unambiguous. The Agency contended that Article 14, Section 14.02 is applicable only to employees performing at the minimally successful level or above and that this provision suggested that a Union President who was on 100 percent official time and whom the Agency had not appraised as minimally satisfactory is not covered by that section. The Agency also claimed that ambiguity existed in the exceptions to the assignment of overtime to employees contained in Article 14 and Appendix C. The Agency further claimed that the Union's interpretation of Article 14 conflicted with the term "fair and equitable manner" contained in that Article. The Agency asserted that it would not be "fair" to deny other employees overtime assignments in preference to the Union President, who performs no work in his assigned department. The Agency next argued that because the agreement is ambiguous, the conduct of the parties "must lead to a resolution in favor" of the Agency. Id. at 7. The Agency argued that its "practice of not offering overtime for 2 years [to the grievant] . . . constitutes a binding condition of employment that . . . can be changed only through negotiated bargaining." Id. The Agency also asserted that if a remedy was ordered, it should be limited to the period 15 days prior to the Union's filing of the grievance because the Union had "unreasonably slept on its rights." Id.

After considering the parties' positions and the evidence, the Arbitrator rejected the Agency's contentions and found that Article 14 of the parties' agreement "is clear and unambiguous in requiring that 'all employees[,]' including elected Union presidents, must be offered overtime." Id. at 9. Specifically, the Arbitrator found that: (1) the Union President is included in the meaning of "all employees" referred to in Article 14; (2) the evidence showed that the grievant was performing at the minimally successful level or above; and (3) the exceptions to overtime referred to in Article 14 and Appendix C did not apply to the instant case. The Arbitrator further found that there was no evidence in the record to support the Agency's contention that the "fair and equitable" requirement in Article 14 raised an ambiguity because other employees would be upset.

The Arbitrator further disagreed with the Agency to the extent that the Agency was arguing that "despite clear and unambiguous language, the negotiated agreement has been modified due to the parties['] post[-]agreement conduct[.]" Id. at 9. In this regard, the Arbitrator stated:

It is my view that custom and past practice is useful principally in interpreting agreements. It is sometimes also useful in providing new rules not addressed in a collective bargaining agreement. However, it is not useful, in this instance, in amending a contract which is otherwise plain and unambiguous on its face. Accordingly, I do not find that the 2-year post[-]agreement conduct of the parties is sufficient to serve as an amendment to the negotiated agreement.


As to the remedy, the Arbitrator concluded that the Union had failed to prove that its requested remedy was appropriate because of the delay in the filing of the grievance. Consequently, the Arbitrator limited backpay to the period 15 days prior to the filing of the grievance and up to the Agency's compliance with the award. Also, the Arbitrator ordered that the grievant's backpay be determined based on the average overtime worked in the grievant's department adjusted by the grievant's leave usage.

Accordingly, the Arbitrator sustained the grievance in part and denied it in part.

III. The Agency's Exceptions

The Agency contends that the award is contrary to law. Specifically, the Agency asserts that the award is contrary to established Authority precedent that holds that parties may, by practice, alter or modify the terms of a collective bargaining agreement, and if such practice has altered the agreement it may be changed only through bilateral collective bargaining. In support, the Agency cites U.S. Department of the Navy, Naval Avionics Center, Indianapolis, Indiana, 36 FLRA 567 (1990) (Naval Avionics), among other cases. The Agency contends that the record establishes that the Agency has had a practice for over 2 years of not assigning overtime work to the grievant. The Agency asserts that the Arbitrator erred as a matter of law in failing to recognize the binding effect of the past practice. The Agency argues that under Naval Avionics, a condition of employment established through a past practice may not be unilaterally changed even in cases where the practice does not comply with a specific provision of a collective bargaining agreement.

The Agency contends that the Arbitrator effectively ignored its argument that its past practice had ripened into a binding condition of employment and determined that the grievant should have been offered overtime work based "only" on his interpretation of the language in the agreement. Exceptions at 3. The Agency states that the Arbitrator did not base "his award on a factual finding involving the parties' past practice," but instead "ruled . . . that while past practice may be useful in interpreting agreements and providing new rules not addressed in the agreement, 'it is not useful in this instance, in amending a contract which is otherwise plain and unambiguous on its face.'" Id. at 7 (quoting award at 9). The Agency contends that the Arbitrator's finding is "clearly in conflict" with Authority precedent. Id. The Agency also asserts that this case is distinguishable from U.S. Department of the Treasury, U.S. Customs Service, Region IV, Miami District and National Treasury Employees Uni