American Federation of Government Employees, Council 214 (Union) and U.S. Department of the Air Force, Air Force Materiel Command, Wright-Patterson AFB, Ohio (Agency)

[ v56 p439 ]

56 FLRA No. 65

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL 214
(Union)

and

U.S. DEPARTMENT OF THE AIR FORCE
AIR FORCE MATERIEL COMMAND
WRIGHT-PATTERSON AFB, OHIO
(Agency)

0-AR-3263

_____

DECISION

June 19, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.

Decision by Chairman Wasserman for the Authority

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Charles A. Morgan, Jr. 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 sustained the Agency's grievance alleging that certain full-time Union representatives were self-verifying their time and attendance reports in violation of the parties' collective bargaining agreement. For the reasons that follow, we find that the Union's exceptions fail to establish that the award is deficient.

II.     Background and Arbitrator's Award

      The Agency is headquartered at Wright-Patterson Air Force Base, Dayton, Ohio, and encompasses thirteen separate facilities located throughout the country. The Union is the exclusive bargaining agent for a consolidated unit that is comprised of employees at eight of these facilities.

      In July 1998, the parties entered into their current collective bargaining agreement. Article 4, section 4.13(d) of that agreement provides, as relevant here, that employees who are on 100 percent official time "shall be provided forms to be annotated daily and maintained in the union offices. The form, along with verification of time, attendance, and leave usage must be signed by the union president or designee." Award at 4 (emphasis added). [n1] 

      Thereafter, it was determined that the time and attendance reports of full-time Union representatives were being signed and verified differently among the various Agency facilities. For example, at Local 1138, which represents employees at Agency Headquarters and at Local 916, which represents employees at Tinker Air Force Base, time and attendance reports were being verified by someone other than the full-time representative whose time was being approved. At Hill Air Force Base, however, as well as the remaining Agency locals, full-time representatives were permitted to self-verify their time and attendance reports. When the Agency's grievance concerning this practice could not be resolved, it was submitted to arbitration on the following issues, as set forth by the Arbitrator:

Issue 1: The timeliness of the grievance.
Issue 2: Whether or not employees who are on 100 percent official time violate the provisions of Article 4, [s]ection 4.13(d), when they self-verify their own time and attendance forms for payroll purposes.

Award at 6.

      With respect to its procedural claim that the grievance was not timely, the Union argued before the Arbitrator that under the parties' bargaining agreement, grievances at the "Command Level" of the Agency must be filed within 30 days of the event giving rise to the grievance. Id. at 10. According to the Union, the Agency's grievance was not filed within this period of time. Therefore, consistent with Authority precedent as set forth in General Services Administration, Region 4, Kennedy Space Center, Florida and American Federation of Government Employees, Council 236, 32 FLRA 1293 (1988) (GSA), the Union maintained that the grievance should be dismissed.

      With respect to the merits of the Agency's claim, the Union asserted that the language of Article 4, section 4.13(d) was the result of an agreement reached by the Agency and the Union and "approved by the mediator in its agreed-to revised form." Award at 7. The Union further claimed that the language of this provision does not [ v56 p440 ] prohibit self-verification and should be construed against the Agency since the Agency drafted it.

      Contrary to the Union, the Agency maintained that the grievance was filed timely because self-verification or self-certification is a continuing violation that occurs at the end of each pay period. In addition, the Agency claimed that under Article 6, section 6.10 of the parties' bargaining agreement, questions of grievability or arbitrability must be raised at the time of the respondent's answer. According to the Agency, as the Union failed to raise this issue at the appropriate time, it provides no basis for finding the award deficient. As concerns the merits of the grievance, the Agency maintained that permitting full-time representatives to certify their own time and attendance reports is a clear violation of the parties' bargaining agreement as well as Department of Defense (DoD) Financial Management Regulations.

      In his decision, the Arbitrator first rejected the Union's claim that the Agency's grievance was untimely. The Arbitrator noted that the parties did not dispute that the grievance to be arbitrated was a "Command Level" grievance. Award at 9. The Arbitrator also agreed with the Agency's contention that the issue addressed by the grievance was of a continuing nature. In the Arbitrator's view, the Union's reliance on GSA was misplaced because the matter grieved in that case did not constitute a continuing violation. The Arbitrator, therefore, concluded that the grievance was filed within the 30-day time period required by the bargaining agreement.

      As concerns the merits of the grievance, the Arbitrator first reviewed the provisions of Article 4, sections 4.13(c), 4.13(d) and 4.13(g). The Arbitrator noted, as relevant here, that pursuant to section 4.13(c), full-time representatives are employees of the organization to which they are assigned and are bound by the rules applicable to all Air Force civilian employees. The Arbitrator further noted that in referring to time and attendance reports, section 4.13(d) requires such reports to be signed by the union president or designee. Finally, pursuant to section 4.13(g), the Arbitrator observed that full-time representatives may, at any time, be replaced by the union president or designee.

      The Arbitrator next reviewed certain provisions of DoD's Financial Management Regulations set forth in Volume 8, Chapter 2, section 204. [n2]  According to the Arbitrator, section 20401 requires each employee's time and attendance report to be certified "by the employee's supervisor, acting supervisor, or other designated representative authorized to act as an alternate certifier at the end of the pay period." Award at 11-12. In addition, the Arbitrator noted that section 20404 prohibits employees from maintaining, certifying, or approving their own time and attendance reports except "when it is not practicable to do otherwise." Id. at 12.

      Applying the foregoing provisions to the issue before him, the Arbitrator found that other than as used in Article 4, the term "designee" is not defined by the parties' bargaining agreement. Therefore, as this term is used in section 4.13(g), the Arbitrator determined that it "clearly anticipates a designee other than the person to be replaced." Id. Similarly, as it is used in section 4.13(d), the Arbitrator determined that the term "designee" means a party other than the union representative.

      With respect to the DoD Financial Management Regulations, the Arbitrator found that "the purpose of requiring dual verification is to reduce the chance that fraudulent time sheets will be submitted." Id. Consistent with this purpose, the Arbitrator further found that self-verification of time and attendance reports would violate DoD's Financial Management Regulations.

      Based on the foregoing, the Arbitrator concluded that the time and attendance reports of full-time Union representatives must be verified by someone other than the reporting representative. Consequently, the Arbitrator sustained the grievance.

III.     Positions of the Parties

A.     Union's Exceptions

      In its exceptions, the Union asserts that the award is deficient because the Arbitrator applied "law and/or regulation . . . in a manner contrary to the intent of the law or regulation[.]" Exceptions at 1. The Union also asserts that the award "is in contravention of [Authority] case law," and fails to draw its essence from the parties' bargaining agreement. Id.

      In support of its exceptions, the Union contends that the Arbitrator incorrectly found that the Agency's grievance was timely filed. According to the Union, this finding is contrary to the Authority's decision in GSA, which discussed the obligation to timely file a grievance once a party becomes aware of the matter out of which the grievance arises. The Union asserts that at the hearing in the instant proceeding, the Agency's Chief of Labor Relations testified that he was aware that certain full-time Union representatives were self-verifying their time and attendance reports on or before [ v56 p441 ] December 1998. Nevertheless, the Union points out that the Agency's grievance was not filed until February 1999. As such, the Union submits that the Arbitrator's determination that the grievance was timely is inconsistent with GSA.

      In addition, the Union contends that the Arbitrator erroneously "use[d] various references" in Volume 8, Chapter 2 of the DoD Financial Management Regulations to conclude that time and attendance reports cannot be self-verified. Exceptions at 2. According to the Union, section 20404, on which the Arbitrator relied, does not pertain to verification but instead pertains to certification. The Union submits that pursuant to this section "[t]he certification of time and attendance is an authorization for the expenditure of Government funds." Id. The Union submits that at the hearing, no testimony was offered to establish that full-time Union representatives were authorized to expend such funds. The Union, accordingly, asserts that the Arbitrator's decision "is not supported by regulation." Id.  [n3] 

B.     Agency's Opposition

      The Agency maintains that the Union's exception pertaining to the timeliness of the grievance is a question of procedural arbitrability. As a party's disagreement with an arbitrator's determination as to the procedural arbitrability of a grievance provides no basis for finding an award deficient, the Agency submits that this exception must be denied.

      The Agency also disputes the Union's allegations that the award is contrary to law and regulation. According to the Agency, the Union has not established that the award is inconsistent with Volume 8, Chapter 2 of DoD's Financial Management Regulations. Nor, in the Agency's view, has the Union identified any Authority precedent with which the award conflicts.

      Finally, the Agency maintains that to the extent the Union claims that the award fails to draw its essence from the parties' bargaining agreement, the Union has failed to satisfy the test set forth in Pension Benefit Guaranty Corporation and National Treasury Employees Union, Chapter 211, 32 FLRA 141 (1988). As such, the Agency contends that the Union's exceptions should be denied.

IV.     Analysis and Conclusions

A.     The Agency's Grievance was Timely

      In its exceptions, the Union contends that the Arbitrator's award is deficient because the grievance that was submitted to arbitration was not timely filed. According to the Union, the Arbitrator's contrary determination is inconsistent with Authority case law as set forth in GSA. We find no merit in the Union's contention.

      It is well-settled that an arbitrator's determination as to procedural arbitrability may be found deficient only on grounds other than those that challenge the determination of procedural arbitrability itself. See American Federation of Government Employees, Local 2921 and U.S. Department of the Army, Army & Air Force Exchange Service, Dallas, Texas, 50 FLRA 184, 185-86 (1995). Moreover, in its decision in GSA, the Authority specifically applied this precedent when it denied a similar exception. See GSA, 32 FLRA at 1296 ("[a] party's disagreement with an arbitrator's determination as to the procedural arbitrability of a grievance provides no basis for finding an award deficient.").

      The Union's exception in this case directly challenges the Arbitrator's procedural arbitrability determination itself. We therefore find that this exception provides no basis for finding the award deficient. See U.S. Department of Veterans Affairs, Medical and Regional Center, Togus, Maine and American Federation of Government Employees, Local 2610, 55 FLRA, 1189, 1192 (1999) (rejecting claim that arbitrator's continuing violation analysis violated the time constraints set forth in the parties' agreement).

B.     The Award is Not Contrary to Regulation

      As an additional ground, the Union asserts that the award is deficient because the Arbitrator applied "law and/or regulation . . . in a manner contrary to the intent of the law or regulation[.]" Exceptions at 1. More specifically, the Union asserts that the Arbitrator predicated his decision to sustain the grievance on various provisions of Volume 8, Chapter 2, of the DoD Financial Management Regulations that pertain to certification. Nevertheless, the Union contends that the issue submitted to arbitration concerned verification and not certification. The Union consequently maintains that the Arbitrator's decision "is not supported by regulation." Id. at 2.

      Volume 8, Chapter 2, section 204 of the DoD Financial Management Regulations, entitled "Time and Attendance Certification," provides, as relevant here, [ v56 p442 ] that "[e]ach employee's time and attendance report shall be certified correct by the employee's supervisor, acting supervisor, or other designated representative authorized to act as an alternate certifier at the end of the pay period[.]" Award at 5 (emphasis added). However, in his decision, the Arbitrator uses the terms "certification" and "verification" interchangeably. We note that in Webster's II New Riverside University Dictionary (1984), each of these terms is similarly defined. Thus, the term "certify" is defined as "[t]o confirm formally as true, accurate, or genuine, esp. in writing." The term "verify" is defined as "[t]o prove the truth of by presenting evidence or testimony[.]" In our view, the Arbitrator's application of the DoD regulatory provision, as well as his use of the term "certification," was entirely appropriate. We, accordingly, find that the Union's exception, challenging the award as contrary to regulation, must be denied.

C.     The Award Draws its Essence from the Collective Bargaining Agreement

      As a final ground, the Union asserts that the Arbitrator's award fails to draw its essence from the parties' bargaining agreement. The Union does not, however, provide a specific explanation for this assertion. Nevertheless, as discussed in footnote 3, we construe this contention as a claim that the award fails to draw its essence from Article 4, section 4.13(d) of the parties' bargaining agreement.

      The Authority will find that an arbitration award is deficient as failing to draw its essence from the collective bargaining agreement when the appealing party establishes that the award: (1) cannot in any rationale way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See U.S. Department of the Air Force, Dover Air Force Base, 436th Air Lift Wing, Dover, Delaware and American Federation of Government Employees, Local 1709, 55 FLRA 935, 937 (1999) (citing United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573 (1990).

      In this case, the Arbitrator noted that Article 4, section 4.13(c) of the parties' bargaining agreement provides that full-time union representatives are bound by the rules applicable to all Air Force civilian employees. Pursuant to this contractual provision, the Arbitrator found that Volume 8, Chapter 2, section 204 of the DoD Financial Management Regulations -- which pertains to the certification of time and attendance reports -- was relevant to resolving the Agency's grievance. The Arbitrator's interpretation of section 4.13(c), in conformance with the DoD Financial Management Regulations, has not been shown to be implausible, irrational, or in manifest disregard of the parties' collective bargaining agreement. As such, we find that the Union has not demonstrated that the award fails to draw its essence from the parties' collective bargaining agreement.

V.     Decision

      The Union's exceptions are denied. [ v56 p443 ]


APPENDIX

Article 4, section 4.13 of the parties' collective bargaining agreement, entitled "Full-time Local Representatives," provides, as relevant here:

c.     Full-time representatives retain their officially assigned job title, grade, classification, and pay. These representatives are employees of the organization to which assigned and are bound by the rules applicable to all Air Force civilian employees.
d.     Employees who are on 100 percent official time shall be provided forms to be annotated daily and maintained in the union offices. The form, along with verification of time, attendance, and leave usage must be signed by the union president or designee. The above will be submitted to the supervisor on the last working day of the pay period, or as otherwise needed, consistent with applicable timekeeping procedures. This section is intended to record only the number of hours per pay period that an employee on 100% official time utilized for official time, annual leave, sick leave or other non-pay status.
. . . .
g.     Full-time representatives may be permanently replaced by the union president or designee at any time[.]

Volume 8, Chapter 2, section 204 of the Department of Defense Financial Management Regulations entitled "Time and Attendance Certification," provides, as relevant here:

020401,     The certification of time and attendance is an authorization for the expenditure of Government funds. Each employee's time and attendance report shall be certified correct by the employee's supervisor, acting supervisor, or other designated representative authorized to act as an alternate certifier at the end of the pay period.
020402.     All time and attendance reports and other supporting documents shall be reviewed and approved by the authorized official.
020404.     Employees may not maintain, certify, or approve their own time and attendance reports, except when it is not practicable to do otherwise. In such instances, the Component head or designee shall grant an official authorization in writing. The situations in which employees may maintain their own time and attendance recordings, when impractical to do otherwise, are as follows:
A.     The employee is the timekeeper;
B.     Employees work flexible hours outside the hours of the timekeeper and supervisor;
C.     An employee is working alone at a remote site; and
D.     Employees are based at, but are frequently away from, the location of