U.S. Department of Health and Human Services, Navajo Area Indian Health Service, Window Rock, Arizona (Agency) and Laborers International Union of North America, Navajo Nation Health Care Employees Union, Local 1376 (Union)

[ v56 p1035 ]

56 FLRA No. 182

U.S. DEPARTMENT OF HEALTH AND
HUMAN SERVICES, NAVAJO AREA
INDIAN HEALTH SERVICE
WINDOW ROCK, ARIZONA
(Agency)

and

LABORERS INTERNATIONAL
UNION OF NORTH AMERICA
NAVAJO NATION HEALTH CARE
EMPLOYEES UNION, LOCAL 1376
(Union)

0-AR-3286

_____

DECISION

December 29, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman; Dale Cabaniss and Carol Waller Pope, Members. [n1] 

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 Howard V. Finston 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. This award arises out of the remand ordered by the Authority in United States Dep't of Health and Human Services, Public Health Service, Navajo Area Indian Health Service, Window Rock, Arizona, 52 FLRA 909 (1997) (Navajo Area Indian Health Service). The Union did not file an opposition to the Agency's exceptions.

      For the following reasons, we conclude that the Agency has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the Agency's exceptions.

II.     Background, Arbitrator's Original and Clarification Awards and the Authority's Decision in 52 FLRA 909

      The grievants are nurses who have a regularly scheduled administrative workweek that includes time [ v56 p1036 ] in standby status. The grievants frequently work one 16-hour standby shift a week and one or two 48-hour weekend standby shifts a month. They receive their basic rate of pay and premium pay on an annual basis for regularly scheduled standby duty authorized by 5 U.S.C. § 5545(c)(1). [n2] 

      This case involves duties that were assigned to the grievants when they were in their regular work status and that continued into the standby portion of their daily tours of duty. The Union filed a grievance seeking additional compensation for the performance of those duties.

      In his original award, the Arbitrator found that because the assignments at issue were both "common and frequent[,]" they were outside the purpose of standby duty, as set forth in Article XII of the parties' agreement, which is to have employees readily available to respond to unforeseen emergencies. Navajo Area Indian Health Service, 52 FLRA at 910-11, citing Original Award at 13. Consequently, the Arbitrator ordered the Agency to provide the grievants backpay for performing duties that were assigned to them when they were in work status but that continued into the portion of their daily tours of duty when they were in standby status. He directed that the backpay encompass the difference between the overtime premium pay the employees otherwise would have received and the standby premium pay they had received. As neither party filed exceptions to this original award under section 7122(a) of the Statute, it became final and binding.

      The parties requested that the Arbitrator clarify the manner in which the backpay should be calculated. In his clarification of the earlier award, the Arbitrator directed that calculations be made for each daily tour of duty on which the grievants performed the assignments. The Agency filed exceptions to the clarification award based on: (1) a claimed inconsistency with 5 U.S.C. § 5545(c)(1) and its implementing regulations, 5 C.F.R. §§ 550.141-143 and 550.161, and (2) a claimed inconsistency with an Agency regulation, Health and Human Services Instruction (HHS) 550-1.

      In Navajo Area Indian Health Service, the Authority concluded that the clarification award was inconsistent with 5 C.F.R. § 550.142 and set it aside. The Authority found that the Arbitrator's methodology for calculating the difference between overtime premium pay and standby premium pay that did not take into account the time period set forth in 5 C.F.R. § 550.142. In this regard, the Authority noted that 5 C.F.R. § 550.142 permits premium pay for standby duty only after it is compared with other premium pay over a "full cycle of the employee's duties and the full range of conditions in his position." The Authority remanded the case because it was unable to determine on the record before it what that time period should be.

      On remanding the award, the Authority stated as follows:

On remand, absent settlement, the Arbitrator must determine the time period that reflects the "full cycle of the employee's duties and the full range of conditions in his position," within the meaning of 5 C.F.R. § 550.142. The Arbitrator should apply that time period to find the average amount of time per day the employees performed the disputed assignments. That figure is then adjusted for the average daily overtime premium pay the employees otherwise would have received so that a comparison can be made between the total of the overtime premium pay the employees otherwise would have received for the disputed time period and the standby amount they did receive for that period. The grievants are entitled to the difference, if any, between the overtime premium pay and the standby premium pay.

Navajo Area Indian Health Service, 52 FLRA at 915.

      Furthermore, in Navajo Area Indian Health Service, the Authority concluded that the clarification award was not inconsistent with 5 C.F.R. §§ 550.141, 550.143 and 550.161, nor with HHS Instruction 550-1. 52 FLRA at 914, 915. The Authority concluded that those regulations and the Agency Instruction address the authorization of standby premium pay, and have no application to the methodology the Agency must use to calculate the difference between the grievants' overtime premium pay and standby premium pay. Accordingly, the Authority found that they provided no basis for finding the clarification award deficient.

III.     Arbitrator's Most Recent Award

      On remand, the Arbitrator stated, in pertinent part, as follows:

1.     The time period that reflects the "full cycle of the employee's duties and full range of conditions in his position," within the meaning of 5 C.F.R. § 550.142 is determined to be one month. [ v56 p1037 ]
2.     The Agency is instructed to apply this time period to determine the average amount of time per month that the grieving nurses performed the disputed assignments involving shift extensions. This figure then is to be multiplied by the nurses' hourly overtime premium pay they otherwise would have received for the disputed time period. Finally, the incremental standby pay they theoretically did receive for these extended hours (i.e., the 25% hourly standby premium) should be subtracted from the overtime premium monthly total. The grievants shall be paid the difference between the overtime premium pay and the incremental standby premium pay for each of the months during the relevant period.
3.     The arbitrator will retain jurisdiction so as to assist in resolving any questions or disagreements between the parties regarding the implementation of this award.

Award at 4.

      The Arbitrator reached his determination that one month constitutes the time period that reflects the "full cycle of the employee's duties and the full range of conditions in his position," within the meaning of 5 C.F.R. § 550.142, based upon the "unrefuted testimony" of a grievant. Id. at 3. The Arbitrator rejected the Agency's arguments that 90 days constitutes that time period on the grounds that those arguments were "largely speculative and unsupported by definitive testimony or other evidence." Id.

IV.     Agency's Exceptions

      The agency contends that the award is contrary to 5 U.S.C. § 5545(c)(1) and its implementing regulations, 5 C.F.R. §§ 550.142-143. The Agency argues that the award is inconsistent with 5 C.F.R. §§ 550.142-143 because (1) it would require the Agency to calculate the difference between overtime premium pay and standby premium pay only over a period of one month and (2) only for the assignments at issue that extended into the standby shifts. Exceptions at 6, 7. The Agency asserts that 5 C.F.R. §§ 550.142-143 require that the difference between the two forms of premium pay be calculated over a greater period of time than one month. The Agency adds that 5 C.F.R. §§ 550.142-143 require that the difference be calculated "for all hours during a period of standby, not just selected periods of time." Id. at 12.

      Further, the Agency contends that the award is contrary to decisions of the Authority and Comptroller General that address the relationship between premium standby pay under 5 U.S.C. § 5545(c)(1) and overtime premium pay under 5 U.S.C. § 5542. In this connection, the Agency argues that, inconsistent with those decisions, the award would compensate the grievants overtime premium pay in addition to standby premium pay for the assignments at issue. The Agency cites, among other decisions, the Authority's decision in United States Dep't of the Army, Army Medical Activity, Fort Knox, Kentucky, 43 FLRA 102 (1991) (Fort Knox) and the Comptroller General's decision in Comp. Gen. No. B-213931 (June 21, 1984) (unpublished) (Comp. Gen. No. B-213931).

      In addition, the Agency contends that the award is inconsistent with an Agency Instruction, HHS Instruction 550-1. According to the Agency, HHS Instruction 550-1 governs this dispute and requires it to authorize standby pay by determining its comparative cost with overtime over a period of not less than ninety days. The Agency also states that its practice is to calculate such costs over a period of at least six months.

      The Agency requests that the Authority reconsider its determination in Navajo Area Indian Health Service that HHS Instruction 550-1 addresses the authorization of standby premium pay, and has no application to the methodology the Agency must use to calculate the difference between the grievants' overtime premium pay and standby premium pay. The Agency argues that HHS Instruction 550-1 is not limited to the authorization of standby premium pay. In this regard, the Agency asserts that the Agency instruction "provides the criteria that must be met before employees can be placed on standby, provides guidance as to how premium pay is to be calculated [and] discusses the relationship between standby premium pay and other pay." Exceptions at 8. The Agency adds that the Agency Instruction "is almost a direct restatement of the requirements provided for in 5 C.F.R. § 550.142." Id.

      Finally, the Agency contends that the award fails to draw its essence from the parties' collective bargaining agreement. The Agency argues that, since the award is inconsistent with HHS Instruction 550-1, the award also is inconsistent with various provisions of the collective bargaining agreement that require compliance with Agency rules and regulations. The Agency cites to Articles VI, XII and XXI of the collective bargaining agreement. [n3]  [ v56 p1038 ]

V.     Analysis and Conclusions

A.     The Award Is Not Contrary to Law, Rule or Regulation

      The Authority's role in reviewing arbitration awards depends on the nature of the exception raised by the appealing party. See United States Customs Service v. FLRA, 43 F.3d 682, 686 (D.C. Cir. 1994). In NTEU, Chapter 24, 50 FLRA 330, 332 (1995), the Authority stated that if an arbitrator's decision is challenged, as it is here, on the ground that it is contrary to any law, rule, or regulation, the Authority will review the legal question de novo. In applying a standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. In making that assessment, the Authority defers to an arbitrator's underlying factual findings.

1.     5 C.F.R. § 550.142

      We reject the Agency's argument that the award is inconsistent with 5 C.F.R. § 550.142. We find no merit to the Agency's assertion that 5 C.F.R. § 550.142 requires the Agency to calculate the difference between overtime premium pay and standby premium pay over a greater period of time than one month.

      5 C.F.R. § 550.142 limits the circumstances in which an agency may pay standby premium pay in lieu of other premium pay. 5 C.F.R. § 550.142 permits premium pay for standby duty only after it is compared with other premium pay over a "full cycle of the employee's duties and the full range of conditions in his position." As noted above, in Navajo Area Indian Health Service, the Authority directed the Arbitrator to determine the time period that reflects the "full cycle of the employee's duties and the full range of conditions in his position," within the meaning of 5 C.F.R. § 550.142.

      On remand, the Arbitrator determined that one month constitutes the time period that reflects the "full cycle of the employee's duties and the full range of conditions in his position," within the meaning of 5 C.F.R. 550.142. He reached this determination based upon the "unrefuted testimony" of a grievant. Award at 3. He rejected the Agency's arguments that 90 days constitutes that time period "as largely speculative and unsupported by definitive testimony or other evidence." Id. Consistent with the standard set forth above, we defer to the Arbitrator's factual finding as a sufficient basis for concluding that one month constitutes the time period that reflects the "full cycle of the employee's duties and the full range of conditions in his position," within the meaning of 5 C.F.R. § 550.142.

      Furthermore, we find no merit to the Agency's argument that 5 C.F.R. § 550.142 precludes calculation of the difference between the two forms of premium pay based on the assignments at issue that extended into the standby shifts. We reject this argument as an attempt to collaterally attack the Arbitrator's original award.

      In the original award, the Arbitrator found that because the assignments at issue were both "common and frequent[,]" they were outside the purpose of standby duty, as set forth in Article XII of the parties' agreement, which is to have employees readily available to respond to unforeseen emergencies. Navajo Area Indian Health Service, 52 FLRA at 910-11, citing Original Award at 13. As neither party filed exceptions to the original award under section 7122(a) of the Statute, it became final and binding and, thus, the Arbitrator's findings are not subject to collateral attack. E.g. United States Dep't of Defense, Defense Distribution Region East, New Cumberland, Pennsylvania, 51 FLRA 155, 159 (1995); Patent and Trademark Office, 22 FLRA 7, 10 (1986).

      Accordingly, the exception provides no basis for finding the award deficient.

2.     5 C.F.R. § 550.143

      We reject the Agency's contention that the award is inconsistent with 5 C.F.R. § 550.143. 5 C.F.R. § 550.143 relates to authorization for premium pay on an annual basis and the determination of positions eligible for such premium pay. As the Authority noted in Navajo Area Indian Health Service, this regulation has no application to the Arbitrator's order concerning the methodology the Agency must use to calculate the difference between overtime premium pay and standby premium pay in determining compensation for the contested period. Therefore, the award does not conflict [ v56 p1039 ] with this regulation and it provides no basis for finding the award deficient.

      Accordingly, the exception provides no basis for finding the award deficient.

3.     Authority and Comptroller General Decisions

      We reject the Agency's contention that the award is contrary to decisions of the Authority and Comptroller General that address the relationship between premium standby pay under 5 U.S.C. § 5545(c)(1) and overtime premium pay under 5 U.S.C. § 5542. This contention is based on a misinterpretation of the award. The Agency correctly notes that decisions of the Authority and Comptroller General provide that standby premium pay is allowed in lieu of, rather than in addition to, other premium pay. Fort Knox, 43 FLRA 102; Comp. Gen. No. B-213931. However, the award would not, as claimed by the Agency, compensate the grievants overtime premium pay in addition to standby premium pay for the assignments at issue. Rather, the award directs the Agency to do the calculations to determine if the assignments at issue entitle the grievants to overtime premium pay instead of standby premium pay.

      Contrary to the Agency's argument and proffered example of application of the Arbitrator's award found at Tab 15 of its exceptions, we do not view the Arbitrator's award as requiring a comparison of the overtime hourly rate with the pro-rated hourly rate of standby time for the same hours. Rather, we view the award as requiring a comparison of the overtime rate for the shift extension hours of work with the amount of standby premium paid for the entire 30 day period, pursuant to 5 C.F.R. § 550.142.

      Accordingly, the exception provides no basis for finding the award deficient.

B.     The Contention that the Award Is Not Inconsistent With the Agency Regulation Is Untimely

      We will not address the Agency's contention that the award conflicts with Agency Instruction HHS Instruction 550-1. The Authority stated in Navajo Area Indian Health Service, that the regulation has no application to the methodology the Agency must use to calculate the difference between the grievants' overtime premium pay and standby premium pay. We decline the Agency's request to reconsider that conclusion reached in Navajo Area Indian Health Service, as its request for reconsideration is untimely. See 5 C.F.R. § 2429.17 (motion for reconsideration due within 10 days of final decision). [n4] 

      Accordingly, the exception provides no basis for finding the award deficient.

C.     Essence

      We reject the Agency's contention that the award fails to draw its essence from the parties' collective bargaining agreement. The Agency bases this exception on a belief that the Arbitrator's interpretation of agreement provisions conflicts with Agency Instruction HHS Instruction 550-1. As such the Agency alleges that the award fails to conform with contractual language that require compliance with Agency regulations, rules and policies.

      However, as noted, the Authority's previous decision determined that Instruction HHS Instruction 550-1 has no application to the methodology the Agency must use to calculate the difference between the grievants' overtime premium pay and standby premium pay. Thus, as the Agency has not shown that the award conflicts with the Agency Instruction, it has provided no basis for finding that the Arbitrator's interpretation of the agreement provisions is implausible, irrational, or unconnected to the wording of the agreement. Accordingly, we find that the Agency has not demonstrated that the award fails to draw its essence from the collective bargaining agreement.

      Accordingly, the exception provides no basis for finding the award deficient.

VI.     Decision

      The Agency's exceptions are denied. [ v56 p1040 ]


APPENDIX

1.     5 U.S.C. § 5545 provides, in relevant part, as follows:

§ 5545.     Night, standby, irregular, and hazardous duty differential
(c)     The head of an agency, with the approval of the Office of Personnel Management, may provide that-
     (1)     an employee in a position requiring him regularly to remain at, or within the confines of, his station during longer than ordinary periods of duty, a substantial part of which consists of remaining in a standby status rather than performing work, shall receive premium pay for this duty on an annual basis instead of premium pay provided by other provisions of this subchapter, except for irregular, unscheduled overtime duty in excess of his regularly scheduled weekly tour. Premium pay under this paragraph is determined as an appropriate percentage, not in excess of 25 percent, of such part of the rate of basic pay for the position as does not exceed the minimum rate of basic pay for GS-10 (including any applicable locality-based comparability payment under section 5304 or similar provision of law and any applicable special rate of pay under section 5305 or similar provision of law) (or, for a position described in section 5542(a)(3) of this title, of the basic pay of the position), by taking into consideration the number of hours of actual work required in the position, the number of hours required in a standby status at or within the confines of the station, the extent to which the duties of the position are made more onerous by night, Sunday, or holiday work, or by being extended over periods of more than 40 hours a week, and other relevant factors.

2.     5 C.F.R. § 550.141 provides as follows:

§ 550.141     Authorization of premium pay on an annual basis.
An agency may pay premium pay on an annual basis, instead of the premium pay prescribed in this subpart for regularly scheduled overtime, night, holiday, and Sunday work, to an employee in a position requiring him or her regularly to remain at, or within the confines of, his or her station during longer than ordinary periods of duty, a substantial part of which consists of remaining in a standby status rather than performing work. Premium pay under this section is determined as an appropriate percentage, not in excess of 25 percent, of that part of the employee's rate of basic pay which does not exceed the minimum rate of basic pay for GS-10 (including any applicable locality-based comparability payment under 5 U.S.C. 5304 or special rate of pay under 5 U.S.C. 5305 or similar provision of law).

3.     5 C.F.R. § 550.142 provides as follows:

§ 550.142     General Restrictions.
An agency may pay premium pay under § 550.141 only if that premium pay, over a period appropriate to reflect the full cycle of the employee's duties and the full range of conditions in his position, would be:
     (a)     More than the premium pay which would otherwise be payable under this subpart for the hours of actual work customarily required in his position, excluding standby time during which he performs no work; and (b) Less than the premium pay which would otherwise be payable under this subpart for the hours of duty required in his position, including standby time during which he performs no work.



Footnote # 1 for 56 FLRA No. 182

   Member Pope did not participate in this decision.


Footnote # 2 for 56 FLRA No. 182

   The pertinent text of 5 U.S.C. § 5545(c)(1) and applicable regulations implementing that statutory provision is set forth in the appendix to this decision.


Footnote # 3 for 56 FLRA No. 182

   Article VI, Section 3 provides that "It is agreed and understood by the Employer and the Union that nothing in this Agreement shall conflict with any applicable or future law or regulation of the Federal Government, including, but not restricted to, Executive Orders and those rules and regulations issued by the Office of Personnel Management (OPM) and the Department of Health and Human Services (DHHS)." Exceptions at 4-5.

   Article XII, Section 2h provides, as pertinent here, that "EMPLOYEES will receive premium pay for STANDBY duty in accordance with applicable laws and regulations, including, but not limited to, 5 C.F.R. 551.431 (for FLSA non-exempt employees)." Id. at 4.

      Article XXI, Section 7 provides, as pertinent here, that, "The arbitrator shall have no authority to add to or modify any terms of this Agreement or Agency policy." Id.


Footnote # 4 for 56