American Federation of Government Employees, Local 2408 (Union) and United States, Department of Veterans Affairs, Medical Center, San Juan, Puerto Rico (Agency)

[ v58 p608 ]

58 FLRA No. 154

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2408
(Union)

and

UNITED STATES
DEPARTMENT OF VETERANS AFFAIRS
MEDICAL CENTER
SAN JUAN, PUERTO RICO
(Agency)

0-AR-3643

_____

DECISION

July 1, 2003

_____

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 Smedley filed by the Union under § 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.

      For the following reasons, we deny the Union's exceptions.

II.     Background and Arbitrator's Award  [n1] 

      In the award the Arbitrator concluded that for a number of years prior to filing this grievance, several chaplains volunteered to be on-call on a rotating basis to respond to emergencies while off-duty. The Arbitrator noted that the chaplains had never expressed any desire to be paid prior to this grievance and that by the nature of their calling they had chosen to attend to "the needs of their parishioners regardless of the time of day." Award at 14. Accordingly, the Arbitrator found that on-call pay was not warranted for any time prior to filing the grievance under the parties' agreement because the chaplains had opted out of being in a paid status by volunteering. [n2]  Award at 14 (citing Article 20(5)(F)).

      Based on the above, the Arbitrator determined that the chaplains were not entitled to any relief under the contract because they were nonpaid volunteers. Additionally, the Arbitrator determined that the Agency had not committed an unjustified or unwarranted personnel action by "[f]ailing to seek out and pay volunteers . . . ." Award at 14-15. Accordingly, the Arbitrator did not award any back pay for this period.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union argues that the Arbitrator's award is based on nonfact. [n3]  In this regard, the Union argues that the Arbitrator erred in determining that the chaplains were volunteers under Article 20(5)(F) of the parties' contract. [n4]  The Union alleges that the Arbitrator discriminated against the chaplains by finding that they were volunteers because they were educated, competent professionals. Exceptions at 3.

      Moreover, the Union claims that the Arbitrator's award is contrary to United States Dep't. of Veterans Affairs, Medical Ctr., St. Louis. Mo., 57 FLRA 296 (2001) (Medical Center) (Chairman Cabaniss dissenting); and United States Dep't of the Navy v. FLRA, 962 F.2d 1066 (D.C. Cir. 1992) (Dep't of the Navy) and VA policy. Exceptions at 2-3. In this regard, the Union claims that based on the Authority's decision in Medical Center, Section 5(E) of the parties' agreement requires employees to be paid where they are required to wear or respond to beepers. [n5]  Exceptions at 3. Put another way, the Union contends that the Agency was barred from requiring employees to carry or respond to beepers "unless they are in a duty and pay status." Id. at 2 (citing Dep't of the Navy). Finally, with respect to VA policy, the Union argues that the on-call chaplains were required to carry a beeper, were restricted in movement and could be contacted for immediate return to duty, and as such, they should have received a 10% overtime rate of pay consistent with VA policy. [ v58 p609 ]

B.     Agency's Opposition

      The Agency argues that the Arbitrator's determination that the chaplains volunteered to be on-call is supported by the record. In so arguing, the Agency notes, "[t]he chaplains' voluntary on-call status was further evidenced by their failure [to] complain or inquire with management as to their entitlement to on-call pay, [their accommodation of] after hour services with absolutely no problem and their on-call schedules were not prepared by their supervisors." Opposition at 9.

      Moreover, the Agency argues that authorization for this type of pay may come from either 5 C.F.R. § 551.431 or 38 U.S.C. § 7457. It argues, however, that § 551.431 only applies to Fair Labor Standards Act (FLSA) employees and that the chaplains are FLSA exempt. [n6]  Moreover, under 38 U.S.C. § 7457 the Agency argues that the chaplains were entitled to on-call pay only after the Agency designated the chaplains' work unit as authorized for this type of pay. The Agency states that it did this only after the grievance was filed. See 38 U.S.C. § 7457(b)(2).

      Additionally, the Agency argues that the Union's reliance on Dep't of the Navy is erroneous as that case dealt only with the negotiability of a proposal. Opposition at 8. Finally, the Agency argues that just because an employee is on-call under its policies, the employee is not necessarily entitled to pay. In this regard it notes that under its policy, staffing coverage for chaplains in off-duty hours has been met by "rotating a voluntary on-call status among the staff chaplains." Id. at 7. As such, it contends that the Arbitrator's award is not contrary to law or policy.

IV.     Analysis and Conclusions

A.     The Award Is Not Based on Nonfact

      To establish that an award is deficient as based on a nonfact, the appealing party must demonstrate 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). Moreover, 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. United States Dep't of Health and Human Serv., Denver, Colo., 56 FLRA 133, 135 (2000).

      Here, the Arbitrator determined that the chaplains were volunteers and rejected the testimony of the chaplains in which they contended that they were not volunteers because they were ignorant of the fact that they could be paid for being on-call. Accordingly, as the chaplains' status as volunteers had been disputed at the hearing, it cannot now be challenged as a nonfact. See, e.g., United States Dep't of the Treasury, IRS, New Carrollton, Md., 57 FLRA 942, 946 (2002) (New Carrollton).

B.     The Award Draws Its Essence From the Contract

      In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Statute provides that the Authority apply the deferential standard of review that Federal courts use in reviewing arbitration awards in the private sector. See 5 U.S.C. § 7122(a)(2). Under this standard, 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 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 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 New Carrollton, 57 FLRA at 946; United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990). The Authority and the courts defer to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. at 576.

      Here, the Arbitrator's interpretation of the parties' collective bargaining agreement led to his determination that under the circumstances the chaplains were serving as "volunteers" under Article 20(5)(F). Therefore, the Arbitrator found that the chaplains were serving in a nonpaid status and, therefore, were not eligible for on-call pay under the parties' agreement. The Union has not shown how the Arbitrator's determination that under the terms of the contract these chaplains were volunteers serving in a nonpaid status was based upon either an implausible or irrational interpretation of the parties' agreement. Accordingly, we reject the Union's argument that the award does not draw its essence from the parties' agreement.

C.     The Award Is Not Contrary to Law

      Finally, when a party's exception challenges an arbitration award's consistency with law, rule, or regulation, the Authority reviews the questions of law raised [ v58 p610 ] in the exception and the arbitrator's award de novo. See NFFE, Local 1437, 53 FLRA 1703, 1709 (1998). When applying a de novo standard of review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. Id. at 1710. In making that assessment, the Authority defers to the arbitrator's factual findings. See NTEU, Chapter 50, 54 FLRA 250, 253 (1998).

      The case relied upon by the Union, Medical Center, involves FLSA employees and a provision, 5 C.F.R. § 551.431, which is applicable only to FLSA employees. As such, the Authority's determination in Medical Center which addressed an award's consistency with 5 C.F.R. § 551.431 is not applicable to the present matter as these chaplains are FLSA-exempt employees.

      On point, however, is the Authority's recent decision in United States Dep't of the Army, Evans Army Community Hospital, Fort Carson, Colo., 58 FLRA 244 (2002) (Fort Carson) where we noted that 5 C.F.R. § 550.141 is the regulation applicable to paying FLSA exempt employees engaged in standby work. Under its terms, employees who are not restricted to either their duty station or living quarters are not considered to be eligible for standby pay. Moreover, the Authority noted that employees who can leave their living quarters but remain within telephone contact are not eligible for this pay. Fort Carson, 58 FLRA at 245. Here, the record does not show that the chaplains were restricted to either a duty station or living quarters while on-call. As such, the award is not contrary to the relevant pay regulations.

      Moreover, while the Union makes no assertion under Title 38 U.S.C., it does assert that the Arbitrator's determination is deficient because the chaplains were eligible for pay under VA policy pertaining to on-call employees. Dep't of VA Human Resources Management Letter 05-96-7; VA Manual Letter. However, we note that the parties' collective bargaining agreement takes precedence over an Agency policy where both govern the disposition of this matter. See United States Dep't of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine, 51 FLRA 1210, 1216 (1996) (determining that collective bargaining agreements, and not agency regulations, govern the disposition of matters to which they both apply.) Here, while Agency policy does address employee eligibility for on-call pay, so does Article 20, Section 5 of the parties' agreement. Therefore, in this situation the parties' agreement is controlling and not VA policy letters. Accordingly, given the Arbitrator's findings of fact along with his interpretation of the agreement, which supports the Arbitrator's determination that on-call volunteers are not eligible for pay under Article 20(5)(F), we find no basis for upholding the Union's assertion that the award is inconsistent with VA policy.

      Finally, with respect to the Union's remaining argument, i.e., that the award is contrary to Dep't of the Navy, we note that Dep't of the Navy dealt with the negotiability of a proposal. It did not, as the Union alludes, establish that any employee required to carry a beeper in an on-call status must be placed in a paid status. Accordingly, the Union has failed to show that the Arbitrator's determination that these chaplains were not entitled to on-call pay is deficient as a matter of law, rule or regulation.

V.     Decision

      We deny the Union's exceptions.



Footnote # 1 for 58 FLRA No. 154 - Authority's Decision

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