54:0213(29)AR - - Marine Corps Air Station, Cherry Point, NC & National Air Traffic Controllers Association - - 1998 FLRAdec AR - - v54 p213

[ v54 p213 ]
The decision of the Authority follows:

54 FLRA No. 29















May 28, 1998


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

Wasserman and Dale Cabaniss, Members.

Decision by Member Cabaniss for the Authority

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator Jack Clarke 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 Regulations. The Union filed an opposition to the Agency's exception.

The Arbitrator sustained in part and denied in part a grievance seeking compensation for employees who had to attend 15-minute preshift briefing sessions.

For the following reasons, we conclude that the Agency has failed to establish that the award is deficient. Accordingly, we deny the Agency's exception.

II. Background and Arbitrator's Award

The grievants are Air Traffic Controllers who were required for many years by the Agency to attend daily 15-minute preshift briefings. The Union filed a complaint with the Office of Personnel Management (OPM) claiming that the grievants were entitled to overtime compensation for these briefings under the Fair Labor Standards Act (FLSA). OPM responded that compensation was not required because the Agency provided a bona fide meal period of at least 15 minutes and that period can be used to offset the 15-minute preshift briefings. Thereafter, the grievants filed suit against the Agency, claiming a violation of the FLSA. Subsequently, a United States District Court ordered the parties to resolve the bona fide meal period issue through arbitration.

At arbitration, the parties stipulated to the following issue:

[W]hether the meal periods available to [the grievants] were bona fide[?]

Award at 15.

The Arbitrator stated that "[f]rom time to time the Agency changed its policy with respect to [the grievants'] meal periods, and the facilities wherein they could eat were modified. Some attention must therefore be paid to dates." Id. at 6-7. The Arbitrator found that the grievants' meal periods were no longer than 15 minutes while a directive issued by Major Wasek (the Major) was in effect. The Arbitrator stated that although the period during which the Major's directive was in effect "does not appear clearly in the evidence presented[,]" the evidence before the Arbitrator was "sufficient to persuade" him that the Major's directive was in effect from November 13, 1992, until January 21, 1994. Id. at 19. In setting the effective date of the Major's directive, the Arbitrator credited the testimony of a supervisor that he (the supervisor) communicated the Major's directive to the controllers in his section "possibly during November of [19]92." Id.

In considering the Agency's argument that the Major's directive was superseded by a May 1991 memorandum of understanding (MOU), the Arbitrator noted that the supervisor's testimony might be interpreted as supporting such MOU if the MOU had not already been in existence in November 1992. In support of the termination date of the Major's directive, the Arbitrator also quoted, as persuasive, the testimony of that same supervisor that the length of meal periods was set by the Major "because he [the Major] put out a directive indicating a specific meal break" and that "subsequent to that time we . . . crafted language to indicate that an employee will get a reasonable amount of time for a meal break." Id. at 19-20. The Arbitrator found that the "crafted language" the supervisor referred to, a "reasonable amount of time[,]" first appeared in the 1994 Agreement. Id. at 20.

The Arbitrator also found that 15 minutes were not adequate for a meal period, and, therefore, that the meal periods provided for the grievants from November 13, 1992, until January 21, 1994, were not bona fide.

III. Positions of the Parties

A. Agency's Exception

The Agency states that it does not take exception to the Arbitrator's determination that bona fide meal periods were not provided while the Major's directive was in effect. However, the Agency does except to the Arbitrator's finding that the Major's directive was in effect from November 13, 1992 to January 21, 1994. The Agency contends that the Arbitrator's finding is a nonfact because it is based on an incorrect interpretation of a document and testimony provided to the Arbitrator during the hearing. The Agency argues that the supervisor on whose testimony the Arbitrator relied did not remember when the order was given.

According to the Agency, the November 13, 1992 date set forth by the Arbitrator as the effective date of the Major's directive is erroneous because the Major who issued the directive was not in command of the facility at such time. The Agency asserts that the Major was transferred from the facility in June 1992. In support of this contention, the Agency submitted as Enclosure 1, a copy of a page of the Major's personnel file, as an attachment to its Exception.

Additionally, the Agency states that "there is an absence of any direct testimony in the record regarding the timing of [the] . . . initial policy directive." Exception at 7. However, the Agency asserts that both Union and Agency witnesses referred to a March 1991 directive from the Major, and the March 1991 date is the correct date of the directive in question. The Agency argues that this factual error prevented the Arbitrator from giving due consideration to the Agency's argument that a MOU entered into by the parties in May 1991 reversed the Major's directive. Therefore, according to the Agency, the Arbitrator's finding that the Major's directive was in effect until January 21, 1994, is erroneous, because the Major's directive was rescinded by the May 1991 MOU.

B. Union's Opposition

The Union asserts that the Agency "is only now raising for the first time the issue of when" the Major's directive was given, and that the Agency "should, therefore, be deemed to have forfeited its right to contest the matter at this point due to its negligence in raising the issue at an earlier point in the case." Opposition at 11 n.3.

The Union also contends that the Agency's argument regarding the effective dates of the Major's directive is without merit. According to the Union, the Agency's argument that the Major's directive was given in March 1991 and rescinded by the May 1991 MOU is "expressly contradicted by" a sentence in its post-hearing brief to the Arbitrator that "clearly states" that the Major's directive was given in 1992. Id. at 9.

IV. Analysis and Conclusions

A. Preliminary Matter

Arbitration awards are not subject to review on the basis of evidence in existence at the time of the arbitration, but not presented to the arbitrator. See, e.g., National Association of Government Employees, Local R4-45 and U.S. Department of Defense, Defense Commissary Agency, Langley Air Force Base, Langley, Virginia, 53 FLRA 517, 519-20 (1997); American Federation of Government Employees, Local 3295 and U.S. Department of the Treasury, Office of Thrift Supervision, Washington, D.C., 51 FLRA 27, 32 (1995). This precedent is consistent with section 2429.5 of the Authority's Regulations, which 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.

In the instant case, the attachment is a copy of a page of the Major's personnel record and relates to the Agency's contention concerning the effective date of the Major's directive. The attachment was available to the Agency before the arbitration hearing, and could have been, but was not, presented to the Arbitrator. The Agency has not demonstrated why, in light of the clear terms of section 2429.5, we should consider this attachment in these circumstances.

Accordingly, we have not considered the Agency's attachment, Enclosure 1, in reviewing the Arbitrator's award.

B. The Agency Has Not Demonstrated that the Award Is Based on a Nonfact

To establish that an award is based on a nonfact, the appealing party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993). However, the Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties disputed at arbitration. Id. at 594 (citing Mailhandlers v. U.S. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)). The mere fact that the appealing party disputes an arbitral finding of fact does not provide a basis for concluding that an award is based on a nonfact. Social Security Administration, Mid-Atlantic Program Service Center and American Federation of Government Employees, Local 1923, 53 FLRA 956, 959 (1997).

In the instant case, the issue before the Arbitrator was whether meal periods over a number of years were bona fide. Resolution of this issue necessarily involved consideration of the periods of time during which meal periods of differing lengths were in effect. The Arbitrator's award references record evidence demonstrating that the duration of the policy established by the Major's directive setting forth the 15-minute meal period was disputed by the parties before the Arbitrator. Specifically, the award references testimony of a supervisor that the effective date of the Major's directive was possibly November 1992, and that the Major's directive was in effect until the January 1994 Agreement. Additionally, the award references the Agency's argument that the Major's directive was superseded by the May 1991 MOU. Thus, it is apparent that the duration of the Major's directive was a factual matter that was disputed at arbitration. Consequently, as the Agency is attempting to argue a factual matter that was disputed before the Arbitrator, the Agency has not demonstrated that the award is based on a nonfact. Accordingly, we deny the exception.

V. Decision

The Agency's exception is denied.