United States, Department of Defense, Texas National Guard, Austin, Texas (Agency) and American Federation of Government Employees, Council 141 (Union)

[ v59 p437 ]

59 FLRA No. 65

UNITED STATES
DEPARTMENT OF DEFENSE
TEXAS NATIONAL GUARD,
AUSTIN, TEXAS
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
COUNCIL 141
(Union)

0-AR-3669

_____

DECISION

November 6, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Leonard C. Bajork 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 did not file an opposition to the Agency's exceptions.

      As relevant here, the Arbitrator ordered the Agency to pay the grievant, a civilian technician, compensation for the Agency's violation of the collective bargaining agreement. For the reasons that follow, we find that this part of the award is deficient as contrary to law and set it aside.

II.     Background and Arbitrator's Award

      The grievant is an Aircraft Maintenance Technician at the Texas Air National Guard facility. Technician employees routinely work a 4-day week of 9 hours per day with 3 weekend days off, followed by a 5-day week of 9 hours per day with 2 days off.

      On June 7, 2002, at 3:00 p.m., the grievant's supervisor met with employees and told them that they were to report to work at 2:00 a.m. on Sunday, June 9 in order to assist with a launch of aircraft for an overseas assignment. The grievant testified that he was working elsewhere at the time of the meeting and was unaware of the June 9 work assignment. The grievant did not report to work on Sunday, June 9, which would normally have been an off day for him. Instead, he reported to work on Monday, June 10. The grievant testified that he performed "administrative work" because no other employees reported for work that day. Award at 5. As a result of the grievant's failure to report to work on June 9, the Agency determined that he was absent without leave on June 9 and, "[a]s [a] consequence," the Agency withheld one day of pay from the grievant. Id. at 2.

      A grievance was filed alleging that the Agency failed to provide proper notice of a schedule change. The grievance was not resolved and was submitted to arbitration on the following stipulated issue:

Did the Employer violate Article 4, Section 1.b. of the [agreement] by withholding 1 day pay from the [g]rievant on or about June 10, 2002? If so, what is the proper remedy?

Award at 3. [n2]           

      The Arbitrator found that the Agency "failed to properly give the [g]rievant the requisite 2-day advance notice for the 2:00 a.m. overtime reporting time on Sunday, June 9 consistent with its obligation under Article 11, Section 2." Id. at 7. [n3]  The Arbitrator further found that as a result of the Agency's failure to properly notify the grievant of his overtime assignment, the Agency improperly exercised its right to assign work, in violation of Article 4, Section 1(b). As a remedy, the Arbitrator ordered the Agency to make the grievant whole "for the 9 hours pay withheld for work which the [g]rievant performed on June 10" and that compensation would be "at the overtime rate . . . for the June 9 overtime assignment." Id. The Arbitrator also directed the [ v59 p438 ] Agency to "purge from the [g]rievant's file all record of this case." Id.

III.     Agency's Exceptions

      The Agency asserts that the award is contrary to law and the Arbitrator exceeded his authority as the grievant is not entitled to overtime pay. The Agency also asserts that the award excessively interferes with management rights and is based on a non-fact. Finally, the Agency asserts that the award is contrary to the Back Pay Act.

      More specifically, the Agency argues that the award is contrary to law because the grievant is a National Guard technician, and National Guard technicians are precluded by 32 U.S.C. § 709(h) from receiving overtime pay. [n4]  In support of this contention, the Agency cites NFFE, Local 1655, 26 FLRA 654, 665 (1987) (NFFE). The Agency further asserts that the Arbitrator exceeded his authority by ordering overtime compensation as the issue of overtime was not presented to the Arbitrator.

      The Agency contends that the portion of the award directing the Agency to compensate the grievant for work performed on Monday, June 10 excessively interferes with management's right to assign work "by ratifying the grievant's self-assignment of work[.]" Exceptions at 5. In this regard, the Agency claims that it did not assign work to anyone in the grievant's work unit on June 10, including the grievant, and that it was the grievant's decision to work that day.

      In addition, the Agency claims that the award is based on a non-fact. According to the Agency, "the award is premised upon the [A]rbitrator's finding that management must have failed to properly notify the grievant of the assignment of work on June 9th because the employee would not forego overtime compensation if he was aware of the opportunity." Id. at 8. The Agency states that "but for the [A]rbitrator's finding as to the grievant's desire to be compensated for overtime the [A]rbitrator would not have found that management had somehow failed to properly notify the grievant that he had to report to work on June 9th . . . ." Id. at 8.

      Finally, the Agency claims that the award of overtime pay is contrary to the Back Pay Act.

IV.     Analysis and Conclusions

      As stated above, the Arbitrator ordered that the Agency make the grievant whole by paying him for the work he performed on Monday, June 10, and that such payment be made at the overtime rate for the June 9 assignment. In addition, the Arbitrator ordered the Agency to purge the grievant's personnel file of all record of the case. We first address the Agency's exceptions as they relate to the overtime portion of the award.

A.     The Award of Overtime Compensation is Contrary to the National Guard Technicians Act

      When an exception involves an award's consistency with law, the Authority reviews any question of law raised by the exception and the award 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 the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See United States Dep't of Def., Dep'ts of the Army & the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998) (Alabama National Guard). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

      The Agency is correct in asserting that 32 U.S.C. § 709(h) prohibits overtime pay for National Guard technicians. In this regard, the Authority has previously held that payment of overtime to National Guard technicians is contrary to law because "National Guard technicians cannot, consistent with law, receive overtime compensation." NFFE, 26 FLRA at 665. See also Illinois National Guard v. FLRA, 854 F.2d 1396, 1402 (D.C. Cir. 1988), citing H.R. Rep. No. 1823, 90th Cong., 2d Sess. 13, reprinted in 1968 U.S. Code Cong. & Admin. News 3318, 3336 ("the irregular hours of work to which technicians are subjected on frequent occasions make it impractical . . . to be limited to the normal provisions regarding a straight 40-hour week with overtime or differential pay for additional hours of work").

      By directing the Agency to pay the grievant--a National Guard technician--overtime compensation, we find this portion of the award deficient as contrary to 32 U.S.C. § 709(h). [n5]  [ v59 p439 ]

B.      The Award Violates Management's Right to Assign Work under § 7106(a)(2)(B)

      In addition to arguing that the award of overtime pay is improper, the Agency argues that the award interferes with management's right to assign work by compensating the grievant for duties that he assigned to himself on Monday, June 10.

      When resolving an exception alleging that an award violates management's rights under § 7106 of the Statute, the Authority first determines whether the award affects a management right under § 7106(a). See United States Small Bus. Admin., 55 FLRA 179, 184 (1999). If it does, then the Authority applies the framework established in United States Dep't of the Treasury, Bureau of Engraving & Printing, Wash., D.C., 53 FLRA 146 (1997) (BEP). Under prong I of the BEP framework, the Authority examines whether an award provides a remedy for a violation of either an applicable law, within the meaning of § 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to § 7106(b) of the Statute. Id. at 153-54. Under prong II, the Authority considers whether the award reflects a reconstruction of what management would have done if management had not violated the contractual provision at issue. Id. at 154.

      The right to assign work under § 7106(a)(2)(B) of the Statute encompasses the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what positions the duties will be assigned. See AFGE, Local 1985, 55 FLRA 1145, 1148 (1999). The award here requires the Agency to compensate the grievant for "administrative work" that the grievant performed on June 10. These duties were not assigned by management but, rather, were self-assigned by the grievant. By directing the Agency to pay the grievant for work that the Agency did not assign to him, the award affects management's right to assign work under § 7106(a)(2)(B) of the Statute. As such, it is necessary to apply the two-prong test established in BEP.

      We find that the Arbitrator was enforcing a contract provision that was negotiated consistent with § 7106(b)(2) of the Statute. The Arbitrator found that by failing to provide the grievant with notice of the Sunday work assignment, the Agency violated Article 11, Section 2. That provision requires advance notice to employees of at least two days of an assignment falling outside of the employees' workweek. The Authority has previously found provisions requiring advance notice of work assignments to be procedures under § 7106(b)(2) of the Statute. See, AFGE, Local 1658, 44 FLRA 1375, 1383 (1992); AFGE, Local 85, 30 FLRA 400, 402-03 (1987). Accordingly, we find that the award satisfies prong I of BEP.

      We further find that the award fails to satisfy prong II because it does not reflect a reconstruction of what the Agency would have done had it not violated the parties' agreement. Had the Agency properly notified the grievant of the work assignment that was scheduled for Sunday, June 9, the grievant would have reported to work on that day and would have performed the duties attendant to that particular work assignment. As such, the grievant would have been compensated for the work he was assigned to do by the Agency on Sunday, June 9. The grievant would not have been compensated for the self-assigned "administrative work" that he performed on June 10. Accordingly, we find the award is deficient insofar as it directs the Agency to compensate the grievant for work performed on Monday, June 10. See, Social Security Admin., 58 FLRA 739, 743 (2003); Alabama National Guard, 55 FLRA at 41-42.

C.      The Award Is Not Based on a Non-fact

      To establish that an award is based on a non-fact, 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. United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593 (1993). 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)).

      The Agency's non-fact assertion is based on the Arbitrator's views concerning the reasons for the grievant's failure to report for duty on June 9. However, the sufficiency of the notice of the change in work schedule given to the grievant was disputed at the hearing. As such, the Arbitrator's finding cannot be challenged as a nonfact. See, e.g., United States Dep't of the Air Force, Warner Robins Air Logistics Ctr., Robins Air Force Base, Ga., 56 FLRA 498, 502 (2000).

V.     Decision

      We set aside the portion of the award ordering the Agency to make the grievant whole "for the 9 hours pay withheld for work which the Grievant performed on June 10" and ordering that compensation be "at the overtime rate . . . for the June 9 overtime assignment." Award at 7. We leave undisturbed the portion of the award requiring the Agency to purge all record of this case from the grievant's file. [ v59 p440 ]


Opinion of Member Carol Waller Pope, dissenting in part:

      I agree that the rate at which the Arbitrator ordered compensation -- the overtime rate -- is contrary to the National Guard Technicians Act. However, for the following reasons, I do not agree that the award of compensation itself is deficient. In this regard, I would find, for the reasons stated by the majority, that the award affects the Agency's right to assign work and enforces a procedure negotiated under § 7106(b)(2) of the Statute. I would also find, in disagreement with the majority, that the award properly reconstructs what the Agency would have done if it had not violated the agreement.

      It is undisputed that the grievant was scheduled by the Agency to work on Monday, June 10. It is also undisputed that the parties' agreement requires the Agency to provide employees with 2 days' notice of changes in work schedules. The Arbitrator found -- and the majority agrees -- that the Agency failed to provide the grievant any notice that his work schedule had been changed to require him to work on Sunday June 9 instead of Monday June 10. As a result, the grievant worked as scheduled on Monday.

      Consistent with the Arbitrator's finding that the Agency failed to notify the grievant of a change in his work schedule, the Agency must be required to compensate the grievant for the work he performed on his regularly scheduled workday. In my view, the majority's finding that the award of compensation for the grievant's work on Monday does not reconstruct the violation is deficient in both logic and law.

      With regard to logic, the majority reasons that, if the Agency had not violated the agreement, then the Agency would have provided the grievant with notice of the change in his work schedule and, as a result, the grievant would have worked on Sunday, not Monday. This reasoning ignores what the Agency actually did in this case. In particular, the Agency provided the grievant with no notice of a schedule change and, in response to the grievant's working his regular -- not revised -- schedule, the Agency not only charged the employee with AWOL for failing to report for work on Sunday but also refused to provide the grievant with pay for his work on Monday. That is, the Agency tried to have it both ways -- refusing to pay the grievant for both: (1) the work that the Arbitrator found he would have performed on Sunday if he had been provided notice; and (2) the work he actually performed on Monday because he received no notice. This is illogical because, if the Agency had not violated the parties' agreement -- either by providing notice of the schedule change or by refusing to change the schedule without adequate notice -- the grievant would have worked a full week. As such, awarding the grievant a full week's pay by compensating him for the work he performed on Monday clearly reconstructs what would have happened if there had been no violation.

      With regard to law, Authority precedent supports a conclusion that the award constitutes a proper reconstruction. Specifically, in the award reviewed by the Authority in United States Dep't of the Air Force, Seymour Johnson Air Force Base, N.C., 55 FLRA 163 (1999) (Air Force), the arbitrator found that the agency violated the parties' agreement by reducing certain employees' hours without first taking other actions required by the agreement. See id. at 163. As a remedy, the arbitrator ordered the agency to rescind the reduction in hours and awarded backpay. See id. Like the Agency in this case, the agency in Air Force could have taken, but did not take, actions to effect the disputed reduction in employees' hours in compliance with the requirements of the parties' agreement. However, the Authority found the award of backpay to be a proper reconstruction. See id. at 167. Similarly, here, it was proper for the Arbitrator to award backpay where the Agency failed to take the contractually-mandated steps prior to changing the grievant's schedule. Like the agency in Air Force, it is irrelevant that the Agency could have avoided liability for backpay by taking contractually-mandated actions that it never took.

      Based on the foregoing, I would find that the award of compensation for work the grievant performed on Monday June 10 constitutes a proper reconstruction of what management would have done if it had complied with the parties' agreement. Accordingly, I would simply modify the award to eliminate the requirement that compensation be at the overtime rate.



Footnote # 1 for 59 FLRA No. 65 - Authority's Decision

   Member Pope's opinion, dissenting in part, is set forth at the end of the decision.


Footnote # 2 for 59 FLRA No. 65 - Authority's Decision

   Article 4, Section 1(b) states:

In accordance with applicable laws, [management retains the right] to hire, assign, direct, lay off, and retain employees in the agency, or to suspend, remove, reduce in grade or pay, or other disciplinary action against such employees[.]

Award at 3-4.