United States Department of the Navy, Supervisor of Shipbuilding Conversion, and Repair, Pascagoula, Mississippi, (Agency) and National Association of Government Employees, Local R5-125 (Union)

[ v57 p744 ]

57 FLRA No. 159

UNITED STATES DEPARTMENT OF THE NAVY
SUPERVISOR OF SHIPBUILDING CONVERSION
AND REPAIR, PASCAGOULA, MISSISSIPPI
(Agency)

and

NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R5-125
(Union)

0-AR-3454

_____

DECISION

April 18, 2002

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Robert G. Williams filed by the Agency under § 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 exceptions.

      The Arbitrator found that the Agency violated the parties' agreement in scheduling employees' travel. He awarded the employees overtime compensation for the hours they would have been compensated if the Agency had complied with the agreement.

      For the reasons that follow, we find that the Agency has not demonstrated that the award is deficient under § 7122(a) of the Statute. Therefore, we deny the exceptions.

II.     Background and Arbitrator's Award

      Several employees, who were assigned to Monday through Friday tours of duty, were assigned to travel. Before they departed, their supervisor told them that they would receive eight hours' overtime pay for their return trip. The Agency scheduled the employees for a return flight (the actual flight) during weekend hours. After the employees returned, the Agency, relying on 5 C.F.R. § 551.422(a) (§ 422), paid them overtime for the weekend hours of travel that corresponded to their regular weekday hours, which amounted to less than eight hours' overtime pay. [n1]  Subsequently, the employees discovered that, if they had been scheduled to return on an earlier flight (the desired flight), then they would have been entitled to eight hours' overtime pay.

      A grievance was filed alleging that the failure to schedule the grievants for the desired flight violated Article 26, Section 4 of the parties' agreement (Article 26). [n2]  When the grievance was unresolved, it was submitted to arbitration, where the Arbitrator framed the issue, in relevant part, as: "Did the Employer violate the Agreement and, if so, what shall be the remedy?" [n3]  Award at 2.

      The Arbitrator concluded that the Agency violated Article 26 by failing to schedule the grievants on the desired flight. [n4]  Specifically, he found that the employees' supervisor had authority to represent to the employees that Article 26 would be followed and that, as a result, they would receive eight hours' overtime for the return trip. The Arbitrator sustained the grievance and awarded the employees the overtime compensation they would have received if they had returned on the desired flight.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency argues that the award is contrary to 29 U.S.C. § 254 and 5 C.F.R. § 551. In this connection, the Agency asserts that the Arbitrator awarded the grievants "overtime pay for constructive travel" for a period of time that was "outside of their established regular [ v57 p745 ] duty hours." Exceptions at 1. The Agency further asserts that "travel during non-duty hours that does not correspond to regular duty hours is not considered hours of work and therefore not compensable." Id. To support its arguments, the Agency cites the Authority's decision in Air Force Logistics Command, Wright-Patterson Air Force Base, 15 FLRA 459 (1984), and the unpublished Comptroller General decision in Matter of John C. Dudkiewicz, et al., B-226191.2 (January 4, 1989).

      The Agency also argues that the award fails to draw its essence from the parties' agreement because: (1) the Arbitrator disregarded the language of Article 26 providing that it applies only to the "maximum extent practicable;" (2) Article 26 applies only to travel during regular duty hours and the desired flight was outside those hours; and (3) the Arbitrator erroneously found that the agreement provides entitlement to overtime pay. Exceptions at 2. In addition, the Agency contends that the Arbitrator exceeded his authority because he sustained the grievance based on the supervisor's representation to the employees, despite his acknowledgment that the supervisor had no authority to change the agreement or guarantee the promised hours.

      Finally, the Agency contends that the award is based on two nonfacts. First, the Agency states that the Arbitrator erred in concluding that the grievants were entitled to return on the desired flight because, according to the Agency, he did not find, and the record does not support, that the employees would have been able to reserve seats on that flight. Second, the Agency argues that the Arbitrator erred by confusing regular, weekday duty hours with hours on non-workdays that correspond to those hours, and that Article 26 of the agreement requires only that travel be scheduled during regular weekday duty hours.

B.     Union's Opposition

      The Union contends that the Agency should not be permitted to raise its essence arguments because they were not raised before the Arbitrator. Further, the Union asserts that the award is not contrary to law because it was permissible for the Arbitrator to award overtime pay for the overtime the grievants would have worked if the Agency had scheduled them for the desired flight. The Union also argues that the Arbitrator did not exceed his authority and that the award is not based on nonfacts.

IV.     Preliminary matter: the Agency's essence arguments are properly before the Authority.

      Under § 2429.5 of the Authority's Regulations, the Authority will not consider issues that could have been, but were "not presented in the proceedings before the . . . arbitrator." However, where an issue arises from the issuance of the award and could not have been presented to the arbitrator, it is not precluded by § 2429.5. See, e.g., United States Dep't of Agric., Animal & Plant Health Inspection Serv., Plant Prot. & Quarantine, 57 FLRA 4, 5 (2001).

      The Agency's essence arguments are based on the Arbitrator's interpretation of the parties' agreement. These arguments arise from the award itself and, thus, the Agency would have had no basis for raising these arguments prior to issuance of the award. Accordingly, § 2429.5 does not preclude the Agency from raising its essence arguments here, and we will address those arguments.

V.     Analysis and Conclusions

A.     The award draws its essence from the parties' agreement.

      An award is deficient as failing to draw its essence from a collective bargaining agreement if it is established 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 purposes of the agreement as to manifest an infidelity to the obligation of an arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).

      The Agency's argument that the Arbitrator disregarded the wording "maximum extent practicable" in Article 26 misconstrues the award because the Arbitrator expressly found that Article 26 applies only to the "maximum extent practicable." Award at 18. The Agency also does not demonstrate that it was irrational, unfounded, implausible, or in manifest disregard of the agreement for the Arbitrator to interpret Article 26 as requiring the Agency to schedule the grievants on the desired flight. We note that, before the Arbitrator, the Union asserted that the desired flight would have resulted in "eight (8) hours of the travel time during regular duty hours," and there is no evidence that the Agency disputed this assertion. Award at 7. Further, contrary to the Agency's contention, it is clear that the Arbitrator construed Article 26 only as requiring the Agency to schedule the grievants for the desired flight [ v57 p746 ] and that he awarded compensation to remedy the Agency's violation of the requirement. As that interpretation draws its essence from the parties' agreement, the Agency's contention does not demonstrate that the award is deficient.

      Accordingly, the Agency has not demonstrated that the award fails to draw its essence from the parties' agreement, and we deny the exception.

B.     The Arbitrator did not exceed his authority.

      Arbitrators exceed their authority by failing to resolve an issue submitted to arbitration, resolving an issue not submitted to arbitration, disregarding specific limitations on their authority, or awarding relief to persons who are not encompassed by a grievance. See United States Dep't of Defense, Army and Air Force Exch. Serv., 51 FLRA 1371, 1378 (1996).

      The Agency argues that the Arbitrator exceeded his authority because he sustained the grievance on the basis of the supervisor's representation. To the extent that the Agency is alleging that the Arbitrator disregarded a specific limitation on his authority, the Agency cites no such limitation. Further, the Agency does not assert that the Arbitrator failed to resolve an issue that was submitted to arbitration, resolved an issue that was not submitted to arbitration, or awarded relief to persons not encompassed by the grievance. Accordingly, the Agency has not demonstrated that the Arbitrator exceeded his authority, and we deny the exception.

C.     The award is not based on nonfacts.

      To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593 (1993) (Lowry Air Force Base). 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 hearing. Id. at 594 (citing Nat'l Post Office Mailhandlers v. United States Postal Serv., 751 F.2d 834, 843 (6th Cir. 1985)).

      As for the first alleged nonfact -- that the employees would have been able to reserve seating on the desired flight -- the record does not establish that, as the Union contends, this matter was disputed at hearing. However, it is clear that the Arbitrator did not explicitly find that the employees would have been able to reserve seats on the desired flight. Further, even if such a finding is implicit in the award, the Agency has provided no evidence that the finding is erroneous.

      As for the second alleged nonfact -- that the desired flight did not take place during "regular duty hours," as used in Article 26 of the parties' agreement -- this exception challenges the Arbitrator's interpretation of the term "regular duty hours" from Article 26 of the parties' agreement. The Authority has held that an interpretation of an agreement cannot be challenged as a nonfact. See United States Dep't of the Air Force, Warner Robins Air Logistics Ctr., Robins Air Force Base, Ga., 56 FLRA 498, 501 (2000).

      Accordingly, the Agency has not demonstrated that the award is based on a nonfact, and we deny the exception.

D.     The award is not contrary to law. [n5] 

      The Authority reviews questions of law de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.

      Although the Agency's contrary to law exception is not clear, we construe it as an claim that, under § 422 and 29 U.S.C. § 254, the grievants cannot be compensated for "constructive travel" - the desired flight - because they did not actually take that flight. [n6]  However, the Agency does not explain how § 422 and/or 29 U.S.C. § 254 permit compensation only for actual - not constructive - travel. In this regard, the Arbitrator found that the grievants' failure to take the desired flight resulted from the Agency's violation of Article 26, and it is well-settled that an employee may be awarded overtime [ v57 p747 ] compensation for overtime hours that were not worked because of a violation of a contract. See Soc. Sec. Admin., Balt., Md., 57 FLRA 538, 542 (2001); Bureau of Alcohol, Tobacco & Firearms, 12 FLRA 49, 50 (1983).

      The Agency's reliance on Air Force Logistics Command, Wright-Patterson Air Force Base, 15 FLRA 459 (1984) (Air Force Logistics Command), is misplaced. In that case, the arbitrator specifically found that the employee travel at issue was "administratively controllable." Id. at 459. Because 5 U.S.C. § 5542 provides that employee travel may not be compensated if it is administratively controllable, the Authority found that the award of compensation was contrary to § 5542. See id. at 460. By contrast, the Arbitrator in this case did not make any findings that render the award contrary to law. The Agency's reliance on the Comptroller General's decision in Matter of John C. Dudkiewicz, et al., B-226191.2 (January 4, 1989) (unpublished), is also misplaced because that case did not involve a contract provision that required the assignment of travel at a particular time.

      For the foregoing reasons, the Agency has not demonstrated that the award is contrary to law, and we deny the exception.

VI.     Decision

      The Agency's exceptions are denied.



Footnote # 1 for 57 FLRA No. 159

   5 C.F.R. § 551.422(a) provides, in pertinent part: "Time spent traveling shall be considered hours of work if: . . . (4) An employee is required to travel as a passenger on an overnight assignment away from the official duty station during hours on nonworkdays that correspond to the employee's regular working hours."


Footnote # 2 for 57 FLRA No. 159

   Article 26, Section 4 of the parties' agreement provides: "To the maximum extent practicable, TDY under the specific control and authority of the Employer shall be scheduled to provide for the employee to travel during the employee's regular duty hours." Award at 11.


Footnote # 3 for 57 FLRA No. 159

   The Arbitrator also resolved an arbitrability issue, which is not at issue here.


Footnote # 4 for 57 FLRA No. 159

   We note that aspects of the Arbitrator's reasoning are confusing. In this regard, the Arbitrator found that Article 26 is inconsistent with the Fair Labor Standards Act (FLSA) and § 422, but is permitted under a Portal-to-Portal Act exception (29 U.S.C. § 254(b)(1)) to the FLSA, although a different section of the Portal-to-Portal Act (29 U.S.C. § 254(c)) grants the Agency immunity from liability for breaching Article 26. Nevertheless, the Arbitrator enforced Article 26 because he found that failing to do so would "support bad faith contract administration." Award at 23.


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