48:0841(87)AR - - National Gallery of Art, Washington, DC and AFGE, Local 1831 - - 1993 FLRAdec AR - - v48 p841



[ v48 p841 ]
48:0841(87)AR
The decision of the Authority follows:


48 FLRA No. 87

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL GALLERY OF ART

WASHINGTON, D.C.

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1831

(Union)

0-AR-2436

_____

DECISION

November 3, 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 James M. Harkless filed by both the Agency and 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 Union filed an opposition to the Agency's exception, and the Agency filed an opposition to the Union's exceptions. The Union also filed a response to the Agency's opposition.(1)

The Arbitrator denied in part and sustained in part a grievance alleging that the Agency violated law and regulation when it failed to pay premium pay to grievants who took annual or sick leave, or who were scheduled for jury duty or military leave, on regularly scheduled Sunday, holiday or overtime shifts. For the following reasons, we will deny the Union's exceptions and grant the Agency's exception. We will set aside the portion of the award granting premium pay for holidays on which employees did not work, and modify the award to recredit employees with any leave charged for those holidays.

II. Background and Arbitrator's Award

The Union filed a grievance on behalf of 59 employees alleging that since on or about January 1, 1985, the Agency violated law by: (1) failing to pay employees premium pay when they took annual or sick leave on regularly scheduled Sundays, holidays or overtime shifts; and (2) intentionally adjusting employees' scheduled non-work days when the employees were scheduled for military leave or jury duty in order to deprive the employees of premium pay.

When the grievance was not resolved, it was submitted to arbitration on the following issues, as framed by the Arbitrator:

1. Whether or not the [Agency] properly raised an objection to the timeliness of the grievance.

2. If so, whether the grievance is untimely with respect to some or all of the individual [g]rievants.

3. If the grievance is timely[:]

(a) whether or not the [Agency] complied with applicable law or regulations in compensating the [g]rievants for annual or sick leave taken when they were regularly scheduled to work on Sundays, holidays or overtime days[;]

(b) whether or not the [Agency] complied with applicable law or regulations in providing some of the [g]rievants military leave and court leave.

4. If the [Agency] did not comply with applicable law or regulations in compensating the [g]rievants for annual or sick leave or in providing military or court leave, what is the appropriate remedy?

Award at 5-6.

After finding that the timeliness of a grievance may be raised for the first time at an arbitration hearing, the Arbitrator considered the timeliness of each allegation contained in the grievance. In this connection, the Arbitrator acknowledged that the statutory time period for filing claims under the Federal Employee Pay Act is 6 years, but concluded that because Federal court decisions require that grievances be pursued under a negotiated grievance procedure, the "30-day time period" for filing grievances set forth in the parties' agreement "is applicable to these claims." Id. at 13.

Applying the 30-day filing requirement, the Arbitrator found that the grievants' overtime claims were not timely filed because regularly scheduled Sunday overtime was "discontinued several years prior to the hearing." Id. Similarly, the Arbitrator found that the grievants' claims regarding jury duty and military leave were not timely filed because they involved incidents which occurred long before the 30 days prior to the filing of the grievance and did "not appear to involve a 'continuing practice or condition.'" Id. at 14. Accordingly, the Arbitrator dismissed these claims.

As to the grievants' claims regarding regularly scheduled Sundays and holidays, the Arbitrator found that they were timely filed because they concerned "'a continuing practice or condition[,]'" which under the parties agreement may be filed "'at any time'." Id. at 13. However, the Arbitrator also found that "any remedy for such a violation necessarily is barred beyond 30 days prior to the filing of the grievance." Id.

On the merits of the Sunday and holiday claims, the Arbitrator found that where employees could not work on a regularly scheduled Sunday or holiday, leave was "deducted from their annual or sick leave balances and they received eight hours annual or sick leave pay at their basic pay rate[,]" rather than the holiday or Sunday premium pay rate. Id. at 10. The Arbitrator noted that because the Agency did not produce the grievants' time and attendance records or payroll records at the arbitration hearing, he was unable to decide which of the grievants took approved annual or sick leave on a regularly scheduled Sunday or holiday during the applicable 30-day period. Therefore, the Arbitrator directed the Agency to review its records within 30 days. The Arbitrator determined that to the extent such records showed that employees were charged with leave on Sundays or holidays on which they did not work, and were not compensated at the premium pay rate, the Agency committed "an unjustified and unwarranted personnel action[.]" Id. at 16. In this regard, the Arbitrator found that but for the Agency's action, the "[g]rievants would not have suffered such a reduction in pay." Id. at 16. The Arbitrator concluded that the grievants were entitled to backpay at the premium pay rate, plus interest, for leave charged for a Sunday or holiday shift on which they did not work during the 30 days prior to the filing of the grievance.

III. Union's Exceptions

A. Contentions

The Union claims that the Arbitrator's award is contrary to the FLSA, 29 U.S.C. § 255(a), the Back Pay Act, 5 U.S.C. § 5596, and the parties' collective bargaining agreement. The Union contends that the Arbitrator erred in applying the 30-day filing requirement contained in the parties' agreement to the grievants' pay claims. According to the Union, the appropriate time period for filing these grievances is contained in the FLSA, 29 U.S.C. § 255(a), which "[p]rovides that an employee may sue for a period of two years for a violation of the Act and three years if the violation is willful." Union Exceptions at 2 (emphasis omitted). The Union also contends that the award "is contrary to the clear language" of the agreement "which provide[s] for the filing of continuing condition grievances." Id. at 7.

The Union further contends that the Arbitrator erred in concluding that under the parties' agreement "only claims arising within thirty (30) days of the date of the grievance were . . . capable of a remedy." Id. at 6. According to the Union, the applicable statute of limitations for the grievants' claims is the 6-year statute of limitations provided by the Back Pay Act, 5 U.S.C. § 5596. The Union claims that the Arbitrator's failure to award the grievants backpay for the 6-year period is a violation of the Back Pay Act. Finally, the Union also requests attorney fees for the processing of it exceptions.(2)

B. Agency's Opposition

The Agency contends that the Union's exceptions do not establish that the award is deficient.

IV. Analysis and Conclusions

For the following reasons, we find that the Union's exceptions provide no basis for finding the award deficient.

We reject the Union's contention that the Arbitrator was required to apply the statute of limitations set forth in the FLSA, 29 U.S.C. § 255(a), rather than the 30-day time period provided for in the parties' agreement. The Authority recently determined that an arbitrator is not required to apply the statute of limitations set forth in 29 U.S.C. § 255 in resolving grievances under a negotiated grievance procedure. See U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, 47 FLRA 819, 828-29 (1993) (SSA). Moreover, the Union has not shown, and it is not otherwise apparent, that time periods applicable to lawsuits under the FLSA apply to the grievance in this case. See U.S. Department of the Army, Aviation Center, Fort Rucker, Alabama and American Federation of Government Employees, Local 1815, 39 FLRA 1113, 1115 (1991), See also Carter v. Gibbs, 909 F.2d 1452 (Fed. Cir. 1990), cert. denied sub nom. Carter v. Goldberg, 111 S.Ct. 46 (1990) (court held that under the Civil Service Reform Act and section 7121(a)(1) of the Statute, bargaining unit employees' claims to benefits under the FLSA must be resolved under the negotiated grievance procedure unless such matters are specifically excluded from the grievance procedure). Accordingly, we conclude that the Arbitrator's application of the 30-day filing period set forth in the parties' agreement is not contrary to law.

In our view, the Union's exception constitutes mere disagreement with the Arbitrator's findings and conclusions regarding the grievant's failure to comply with the procedural requirements of the agreement. Exceptions which disagree with arbitral determinations regarding the procedural arbitrability of a grievance generally provide no basis for finding an award deficient. For example, U.S. Department of Defense, Defense Finance and Accounting Service, Kansas City Center, Kansas City, Missouri and American Federation of Government Employees, Local 2904, 46 FLRA 440, 442 (1992). Accordingly, we will deny the exception.

We construe the Union's claim that the award is contrary to the parties' agreement as a contention 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. For example, SSA, 47 FLRA at 831.

We conclude that nothing in the Arbitrator's interpretation of the parties' agreement is irrational, implausible, unfounded, or in manifest disregard of the agreement. In this regard, the Arbitrator interpreted the agreement to require that grievances be filed within 30 days of the event leading to the grievance. In our view, the Union's exception constitutes mere disagreement with the Arbitrator's interpretation and application of the parties' agreement. As such, the exception provides no basis for finding the award deficient. See National Treasury Employees Union and Federal Deposit Insurance Corporation, Division of Liquidation, Orlando Consolidated Field Office, Orlando, Florida, 48 FLRA 462, 465 (1993).

Further, we find no merit to the Union's contention that the Arbitrator violated the Back Pay Act, 5 U.S.C. § 5596, by limiting the grievants' backpay award to 30 days prior to the filing of the grievance. The Union has not presented, and the Authority is not otherwise aware of, any law which prevents arbitrators from establishing the appropriate period for determining entitlement to backpay. See SSA, 47 FLRA at 829. In addition, it is well established that arbitrators have broad authority and discretion to fashion remedies. For example, U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 47 FLRA 98, 101 (1993). Accordingly, we will deny the exception.

In sum, we find that the Union has not demonstrated that the award is contrary to law, or inconsistent with the parties' agreement. Therefore, we will deny the Union's exceptions.

V. Agency's Exception

A. Contentions

The Agency claims that the award is inconsistent with law. The Agency contends that the Arbitrator erred in determining that the grievants were entitled to premium pay for holidays on which they did not work. The Agency concedes that if employees were charged leave for such holidays, this action is contrary to 5 U.S.C. § 5546(b) and 5 U.S.C. § 6302(a).(3) However, the Agency asserts that, rather than awarding holiday pay, "the appropriate remedy . . . is to correct the timecards to recredit [that] leave . . . and to reflect the basic rate of pay for the holiday not worked." Agency's Exception at 4.

B. Union's Opposition

The Union disputes the Agency's exception and contends that "the Agency [is] liable to pay the grievants the holiday premium pay for those holidays on which they were charged leave." Union's Opposition at 3.

VI. Analysis and Conclusions

The Arbitrator found that, to the extent Agency records established that employees were charged with leave for holida