53:0517(57)AR - - DOD, Defense Commissary Agency, Langley AFB, Virginia - - 1997 FLRAdec AR - - v53 p517



[ v53 p517 ]
53:0517(57)AR
The decision of the Authority follows:


53 FLRA No. 57

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R4-45

(Union)

and

U.S. DEPARTMENT OF DEFENSE

DEFENSE COMMISSARY AGENCY

LANGLEY AIR FORCE BASE

LANGLEY, VIRGINIA

(Agency)

0-AR-2800

_____

DECISION

September 30, 1997

_____

Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member.

Decision by Chair Segal for the

Authority

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator William P. 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 Regulations. The Agency filed an opposition to the Union's exceptions.

The Arbitrator denied a grievance claiming that the Agency was required to reclassify part-time employees as full-time employees and to pay them benefits--the Agency's contribution to the employees' health insurance premiums and annual and sick leave--as though they were full-time employees.

For the reasons explained below, we conclude that the Union's exceptions fail to establish that the portion of the award concerning the reclassification of the employees is deficient under section 7122(a) of the Statute. We also conclude that the Union's exceptions fail to establish that the portion of the award concerning the Agency's contribution to the employees' health insurance premiums is deficient under section 7122(a) of the Statute. Accordingly, we deny these exceptions. With respect to the Union's exception concerning annual and sick leave, we conclude that the award must be remanded to the parties. On remand, absent settlement, the parties may submit the issue of entitlement to additional annual and sick leave to arbitration for action consistent with this decision.

II. Background and Arbitrator's Award

The Union filed a grievance claiming that part-time career employees who worked more than 32 hours a week had been paid certain benefits, such as the Agency's contribution to the employees' health insurance premiums and annual and sick leave, based on only 32 hours a week.(1) The Union requested that the Agency convert the employees to full-time status and pay them past and future benefits on the basis of the number of hours they worked. The Agency denied the request and the Union invoked arbitration.

The Arbitrator framed the following two issues:

(1) is the grievance arbitrable[;] and (2) if so, is the Agency obligated to pay certain benefits to classified part-time employees at the [commissary], and to reclassify them as full-time employees?

Award at 1. The Arbitrator determined that the grievance was arbitrable.(2)

The Arbitrator found that the Agency was not obligated to reclassify the employees as full-time employees. He stated that the parties' collective bargaining agreement contained no provision dealing with the hours or compensation of part-time employees. He found that two documents relied on by the Union--Federal Personnel Manual (FPM) Letter 340-2, and a letter from the Defense Logistics Agency (DLA letter)--were not binding on the Agency because the FPM Letter had been abolished and the DLA letter was not applicable to the Agency. The Arbitrator also noted uncontradicted testimony from a representative of the Agency that since the abolishment of the FPM Letter, "there have been no [F]ederal documents dealing with the hours or benefits of part-time employees . . . ." Id. at 6-7. He rejected the Union's argument that the Agency's practice was contrary to the spirit and intent of 5 U.S.C. § 3401(2), noting that the statutory definition of "part-time career employment" was not "sufficient to justify a contractual arbitral award."(3) Id. at 7. Having found that the Agency had no legal obligation to change its practice, the Arbitrator denied the grievance.

III. Procedural Issues

The Union and the Agency each object to documents submitted by the other. Neither party requests that the Authority take official notice of the disputed documents.

Section 2429.5 of the Authority's Regulations provides in pertinent part:

The Authority will not consider evidence offered by a party, or any issue, which was not presented in the proceedings before the . . . arbitrator. The Authority may, however, take official notice of such matters as would be proper.

Arbitration awards "are not subject to review on the basis of . . . evidence that comes into existence after the arbitration." U.S. Small Business Administration, Washington, D.C. and American Federation of Government Employees, Local 2532, 42 FLRA 890, 895 (1991). See also Veterans Administration, Regional Office and Service Employees International Union, Local 556, AFL-CIO, 5 FLRA 463, 470-71 (1981) (Veterans Administration). Even when new evidence or testimony is discovered which would have resulted in a different award if it had been presented at the arbitration hearing, it has been expressly held that this is not a sufficient ground for "vitiating the required finality of the original award." Id. at 471 (citations omitted). Compare National Treasury Employees Union, Chapter 45 and U.S. Department of the Treasury, Internal Revenue Service, Tulsa, Oklahoma, 52 FLRA 1458, 1460-61 (1997) (Authority considered documents created after the arbitration proceeding as arguments in support of exceptions, not as evidence).

A. Union's Objection to Two Documents Attached to the Agency's Opposition

The Union objects to two documents (Exhibits 2 and 3) attached to the Agency's opposition because the documents were not submitted at the arbitration hearing. It is undisputed that both documents were in existence at the time of the arbitration hearing but were not presented to the Arbitrator. Consideration of the documents is precluded by section 2429.5. See U.S. Agency for International Development and American Federation of Government Employees, Local 1534, 53 FLRA 187, 188 n.2 (1997); Veterans Administration, 5 FLRA at 471. Accordingly, we have not considered these documents.

B. Agency's Objection to the Union's Supplemental Submission

The Union's supplemental submission encloses an Agency memorandum concerning the status of part-time employees. The Union requests that the Authority accept the memorandum "as new and material evidence which was only recently discovered and which is material to the instant exception" in that it "is in direct contradiction to the evidence and testimony offered by the [A]gency at the hearing." Supplemental Submission at 1. The Agency asserts that the Authority disregard the supplemental submission because it is "immaterial to the arbitration." Agency's letter of April 9, 1996.

It is undisputed that the memorandum did not exist at the time of the hearing. Nevertheless, consistent with Authority precedent, such evidence may not be introduced to refute material on the record. See Veterans Administration, 5 FLRA at 471. Accordingly, we have not considered the supplemental submission.

IV. The Portions of the Award Concerning Health Insurance Contributions and Conversion of the Employees Are Not Contrary to Law

A. Positions of the Parties

1. Union's Exception

The Union argues that the Agency is obligated to provide benefits to part-time employees based on the number of hours they actually work. According to the Union, 5 U.S.C. § 8906 requires agencies to make contributions for health insurance premiums based on the number of hours worked.(4)

The Union also contends that employees routinely work more than the part-time hours that they were originally hired to perform, and now work full-time. Relying on 5 U.S.C. § 3401(2), FPM Letter 340-2, and the DLA letter, the Union requests that the Authority order the Agency to convert the part-time employees to full-time status.

2. Agency's Opposition

According to the Agency, under 5 U.S.C. § 8906, an employee's "regularly scheduled" hours form the basis for determining the Government's share of health insurance premiums. The Agency argues that the number of hours employees actually work, either as full-time or part-time employees, is irrelevant in determining the Government's contribution to the employees' health insurance premium. The Agency further asserts that there is no basis to convert the part-time employees to full-time.

B. Analysis and Conclusions

The Union excepts to the award on the basis that it is inconsistent with law. In circumstances where a party's exceptions involve an award's consistency with law, we review the questions of law raised by the arbitrator's award and the party's exceptions de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In doing so, our resolution of a dispute over the meaning of a statutory provision "begins where all such inquiries must begin: with the language of the statute itself." National Air Traffic Controllers Association, MEBA, AFL-CIO and U.S. Department of Transportation, Federal Aviation Administration, 51 FLRA 204, 207 (1995) (quoting United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241 (1989) (citation omitted)).

1. Health Insurance

As set forth at note 4, supra, 5 U.S.C. § 8906(b)(3) specifies that the Government's contribution to an employee's health insurance is based on an employee's regularly scheduled workweek. For a part-time employee, "regularly scheduled" administrative workweek is defined as "the officially prescribed days and hours within an administrative workweek during which the employee is regularly scheduled to work." 5 C.F.R. § 610.102.(5) The Union's contention that the Agency is required to base its contribution on the number of hours actually worked is inconsistent with the plain wording of 5 U.S.C. § 8906(b)(3), which provides that the contribution be based on the employee's regularly scheduled workweek.

The Union cites no authority to support its contention, and none is apparent to us. In essence, the Union is arguing that an employee's "regularly scheduled" workweek for purposes of 5 U.S.C. § 8906(b)(3) should be construed as the number of hours that an employee actually works, not the number of hours that the employee is scheduled to work. Because the Union acknowledges that 5 U.S.C. § 8906(b)(3) bases the Agency's contribution to an employee's health insurance premium on the employee's regularly scheduled workweek, the Union's argument effectively constitutes a claim that the Agency has failed to modify an employee's regularly scheduled workweek to reflect actual practice. However, the argument does not establish that the Agency is required under statute to base its contribution to an employee's health insurance premium on some basis other than regularly scheduled workweek as specified in 5 U.S.C. § 8906(b)(3).

Accordingly, the Union's exception provides no basis to find the award deficient.

2. Conversion to Full-time Employment

The Union, relying on 5 U.S.C. § 3401(2), argues that if part-time employees work more than 32 hours in a week or more than 64 hours in a pay period, then, by definition, they become full-time employees. As set forth at note 3, supra, section 3401(2) defines part-time career employment. It does not provide any procedure for the conversion of a part-time employee to full-time status. As the Arbitrator correctly determined, the statutory definition does not require the Agency to convert a part-time employee to full-time if the employee works more than 32 hours a week or 64 hours a pay period. Moreover, the Union has not cited any law or regulation that requires the Agency to do so. In the absence of any such law or regulation, the Union has not demonstrated that the Agency is required to convert the part-time employees to full-time employees.

The Union's reliance on FPM Letter 340-2 and the DLA letter is misplaced. The Arbitrator properly concluded that the FPM Letter was not binding on the Agency because the FPM Letter was abolished.(6) The Arbitrator also did not err in finding that the DLA letter was not applicable to the Agency, because the DLA and the Defense Commissary Agency are separate, distinct organizations. The Union has not provided any other support for its contention. Accordingly, we deny the Union's exception.

V. The Portion of the Award Concerning Annual and Sick Leave Is Remanded

A. Positions of the Parties

The Union contends that annual and sick leave must be based on hours that employees actually worked, not hours that they were hired to work. Citing 5 C.F.R. §§ 630.303 and 630.406, the Union asserts that the employees were entitled to additional annual and sick leave benefits based on the additional hours that they worked.(7)

The Agency did not address this contention in its opposition.

B. Analysis and Conclusions

Annual and sick leave for part-time employees is addressed in 5 C.F.R. §§ 630.303 and 630.406, respectively. Section 630.303 provides a three-tiered scale under which part-time employees accrue annual leave based on their hours "in a pay status." Under section 630.406, part-time employees earn 1 hour of sick leave for each 20 hours "in a pay status." Hours "in a pay status" include time that the employee actually performs work as well as time on paid leave. Cf. U.S. Department of Veterans Affairs and American Federation of Government Employees, 43 FLRA 207, 214 (1991) (employees entitled to environmental differential pay receive that pay for all time in a pay status, including time spent on paid leave).

The Arbitrator did not address these regulations in his award and, thus, did not determine whether the grievants are entitled to additional leave under the regulations based on hours in a pay status. Because the Arbitrator did not address these regulations, we remand this issue to the parties to establish whether the grievants are entitled to additional annual and/or sick leave, consistent with 5 C.F.R. §§ 630.303 and 630.406. Absent settlement, on remand, the parties may resubmit the award to arbitration to establish whether the grievants are entitled to any additional annual and/or sick leave pursuant to 5 C.F.R. §§ 630.303 and 630.406.(8) Cf. U.S. Department of Health and Human Services, Public Health Service, Navajo Area Indian Health Service, Window Rock, Arizona and Laborers' International Union of North America, Navajo Nation Health Care Employees, Local 1376, 52 FLRA 909 (1997) (award remanded to parties for resubmission to