American Federation of Government Employees, Local 1367 (Union) and United States, Department of the Air Force, Lackland Air Force Base, Texas (Agency)

[ v60 p187 ]

60 FLRA No. 42

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
LOCAL 1367
(Union)

and

UNITED STATES
DEPARTMENT OF THE AIR FORCE,
LACKLAND AIR FORCE BASE, TEXAS
(Agency)

0-AR-3783

_____

DECISION

August 25, 2004

_____

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 LeRoy R. Bartman 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 reasons that follow, we deny the Union's exceptions.

II.      Background and Arbitrator's Award

      In February and March 2002, four licensed vocational nurses filed grievances, which alleged that the Agency failed to pay them overtime for September 12, 2001. The Agency paid each of the grievants 1.5 hours of overtime pay in settlement of their claims. The grievants took no further action on their overtime claims.

      In August 2002, the Union filed a grievance on behalf of the same grievants and three additional nurses in which the Union alleged numerous violations of the parties' collective bargaining agreement (CBA) by the Agency. Some of the allegations were resolved with the Agency, and the remaining allegations were submitted to arbitration.

      Because the Arbitrator was unclear as to what allegations had been settled and what allegations remained, the Arbitrator requested that the Union clarify what matters had been submitted to arbitration. In particular, the Arbitrator noted that the Union alleged a violation of Article 2, Section 1 (Legal and Regulatory Requirements) in its post-hearing brief, but did not mention this provision in its original grievance. [n2] 

      In clarification, the Union alleged that actions by the Agency had violated Article 2, Section 1, Article 10 (Hours of Work), Article 11 (Overtime), and Article 17 (Position Classification, Descriptions, Details and Assignments) of the parties' collective bargaining agreement. With respect to the Arbitrator's question on Article 2, Section 1, the Union explained that although the provision was not mentioned in the grievance, the provision was mentioned at the arbitration hearing and that the issues raised in the grievance inferred violations of Article 2, Section 1. In the Union's view, "all violations of provisions of a Negotiated Agreement, such as alleged in the instant case, are violations of Article 2, Section 1 of such an Agreement, by inference, and it is not required to be specifically cited." Award at 22 (quoting the Union's clarification).

      More specifically, the Union alleged that the Agency violated Article 10 by failing to pay the grievants overtime when their meal period was interrupted and by failing to compensate the grievants from 1996 to 2002 for the time spent changing into and out of work scrubs outside of duty hours. The Union also alleged that the Agency violated Article 17, Section 1 of the agreement when it assigned the grievants to a GS-5 grade level rather than the GS-6 grade level assigned to their position. The Union further alleged that the original grievants were entitled to 2 hours of overtime pay rather than 1.5 hours under Article 11 and that nurses had been deprived of night differential pay.

      The Agency asserted that grievance, as it pertained to night pay differential and additional overtime for the original grievants, was not procedurally arbitrable. The Agency also asserted that the Union's remaining allegations should be denied. As to meal periods, the Agency argued that it had not violated the agreement because although meal periods are sometimes interrupted, nurses resume their meal period after the interruption and are provided a duty-free meal period that totals 30 minutes. As to work scrubs, the Agency argued that it had not [ v60 p188 ] violated the agreement because for the disputed period, nurses were permitted to wear their scrubs to and from work. Finally, the Agency claimed that the grievance, as it pertained to Article 17, was precluded by § 7121(c)(5) of the Statute.

      The Arbitrator agreed with the Agency that the threshold issue was whether the matters of night differential pay and overtime pay for the original grievants were properly before him. He framed the issue on the merits, as follows: "Did the Agency violate the CBA as alleged? If the answer is yes, what is the appropriate remedy?" Award at 4.

      The Arbitrator first ruled that the Union's claims for night differential pay and an additional half hour of overtime pay for the original grievants were not procedurally arbitrable. The Arbitrator noted that under Article 24 of the agreement, he was limited to deciding only the issues raised in the formal grievance. After reviewing the grievance filed by the Union in August 2002, he found no mention of night differential pay. Accordingly, he ruled that under the agreement, he was barred from addressing this claim.

      The Arbitrator found that the claim for additional overtime pay for the original grievants was not arbitrable because it was untimely. He noted that under Article 23 of the agreement, grievances must be filed within 15 workdays of the date of the act being grieved. He ruled that the Union's grievance claiming additional overtime pay was untimely because it was filed far beyond 15 workdays after September 12, 2001. He also ruled that he was barred from considering the claim for additional overtime because the original grievants never appealed the Agency's resolution of their grievances.

      On the merits issue, of whether the Agency violated the agreement, as alleged by the Union, the Arbitrator ruled that "the Union has failed to provide a preponderance of evidence needed to support the cited grievances" with the exception of Article 10 and meal periods. Id. at 27.

      With respect to the Union's claimed violation of Article 17 of the agreement, the Arbitrator examined the allegations of the Union in its grievance filed in August 2002 and the allegations presented by the Union in arbitration and found them to be "distinctly different." Id. at 26. Accordingly, the Arbitrator denied the grievance on the ground that it was not procedurally arbitrable. In particular, he found that because the arguments presented in arbitration were "decidedly different" from the allegations presented in the grievance, "the Union failed to properly file the Article 17, Section 1 grievance." Award at 27. In addition, the Arbitrator held that even if the grievance had been properly filed, the Agency's actions did not violate the agreement. Moreover, the Arbitrator stated that he agreed with the Agency's argument that matters concerning the classification of a position which do not result in a grade or pay reduction are barred by § 7121(c)(5) of the Statute. 

      The Arbitrator also denied the grievance, as it pertained to changing into and out of work scrubs. He found that changing into or out of a uniform is not compensable time under the parties' collective bargaining agreement.

      In sustaining the grievance, as it pertained to meal periods, the Arbitrator ruled that under Article 10, Section 4, nurses are entitled to an uninterrupted, duty-free meal period of 30 minutes. He determined that nurses are not being provided a meal period free of interruptions and ordered the Agency to comply with the agreement. However, he denied the Union's request for a monetary remedy because he found that despite interruptions, nurses are provided a total of 30 minutes duty free for meals.

III.      Positions of the Parties

A.     Union's Exceptions

      The Union contends that the award is deficient in numerous respects.

      In general, the Union reiterates its assertion to the Arbitrator that all violations of the agreement are violations of Article 2, Section 1. Accordingly, the Union states that it "will not dwell on this Article, as violation(s) of its provisions will be self-evident when [it] present[s] argument on the CBA Articles [it] will address." Exceptions at 3.

      More specifically, the Union asserts that the Arbitrator's ruling that the grievance, as it pertained to night differential pay, was not arbitrable is deficient because, contrary to the finding of the Arbitrator, the issue of night differential pay was included as part of the grievance. The Union also contends that the Arbitrator's ruling that the grievance, as it pertained to overtime pay, was not timely is deficient because the overtime pay issue relates to the Union's grievance filed on August 2, 2002, and because for many years, the Agency has wrongfully denied overtime.

      The Union also asserts that the Arbitrator's finding that the alleged violation of Article 17 was precluded by § 7121(c)(5) of the Statute is deficient because the allegation [ v60 p189 ] concerned position descriptions not classification.

      The Union further asserts that the award is deficient because the Arbitrator violated the requirement of neutrality by finding Agency testimony credible and unrefuted on the issue of the GS-6 job description and by his "apologetic manner for rendering his decision on the Agency's violation of [agreement]" on meal periods. Exceptions at 6. The Union also alleges that the award is limited to, and guided by, the Agency's post-hearing brief and that the Arbitrator failed to properly consider the Union's post-hearing brief.

      Finally, the Union asserts that the denial of the grievance, as it pertained to changing into and out of work scrubs, and the Arbitrator's failure to award a monetary remedy for the Agency's violation of the agreement on meal periods are deficient. The Union claims that the denial of the grievance, as it pertained to changing into and out of work scrubs, is deficient because such time is compensable under the Fair Labor Standards Act (FLSA), Agency policy, and Article 10, Section 6 of the agreement. The Union similarly claims that the failure to award a monetary remedy for the violation of the agreement on meal periods is deficient because such time is compensable under the FLSA and the collective bargaining agreement.

B.     Agency's Opposition

      The Agency contends that the Union's exceptions provide no support for finding the award deficient.

      The Agency asserts that the Arbitrator properly ruled that the grievance was not arbitrable, as it pertained to night differential pay and overtime pay for an additional half hour for the original grievants. The Agency maintains that the Arbitrator correctly refused to award monetary compensation for the violation of the agreement on uninterrupted meal periods because he specifically found that despite the interruptions, nurses are provided a duty-free, meal period that totals 30 minutes. The Agency also maintains that the Arbitrator correctly ruled that the changing into and out of work scrubs was not compensable time. The Agency further argues that the Arbitrator correctly found that § 7121(c)(5) barred the Union from raising the issue of the grievants' classification at arbitration. Finally, the Agency claims that the Union's assertions that the Arbitrator was not neutral should be denied because they are unsupported.

IV.      Analysis and Conclusions

A.      The award is not deficient, as it pertains to night pay differential, an additional half hour of overtime pay for the original grievants, and the alleged violation of Article 17, Section 1.

      The Authority will find an arbitrator's ruling on the procedural arbitrability of a grievance deficient only on grounds that do not challenge the procedural arbitrability ruling itself. See, e.g., NAGE Local R5-188, 59 FLRA 696, 697 (2004). The Union in its exceptions directly challenges the Arbitrator's rulings that the claims for night differential pay and an additional half hour of overtime pay for the original grievants were not procedurally arbitrable. Accordingly, the exceptions provide no basis for finding these rulings deficient. See id.

      Insofar as the grievance pertained to Article 17, Section 1 of the agreement, the Arbitrator ruled that the grievance was not procedurally arbitrable. In addition, the Arbitrator held that even if the grievance had been properly filed, the Agency's actions did not violate the agreement. Moreover, the Arbitrator stated that he agreed with the Agency's argument that matters concerning the classification of a position, which do not result in a grade or pay reduction are barred by § 7121(c)(5). The Union does not dispute the Arbitrator's procedural arbitrability ruling or the alternative finding that the Agency did not violate the agreement. Instead, the Union disputes the Arbitrator's agreement with the Agency's argument as to § 7121(c)(5) of the Statute. Because the Union fails to demonstrate that the Arbitrator's procedural arbitrability ruling and finding of no violation of the agreement are deficient, the Union's exception to the Arbitrator's agreement with the Agency's § 7121(c)(5) argument provides no basis for finding deficient the Arbitrator's denial of the grievance, as it pertained to Article 17, Section 1. See, e.g., Office and Prof'l Employees Int'l Union Local 268, 54 FLRA 1154, 1159 (1998) (when an arbitrator has based an award on separate and independent grounds, an appealing party must establish that all of the grounds are deficient to have the award found deficient).

      Accordingly, we deny these exceptions.

B.      The Union fails to establish that the award is deficient because the Arbitrator was not neutral.

      We construe the Union's exception as a claim that the Arbitrator was biased. [n3]  To demonstrate that the award is deficient because of bias, the Union must establish that the award was procured by improper [ v60 p190 ] means, that there was partiality or corruption on the part of the Arbitrator, or that the Arbitrator engaged in misconduct that prejudiced its rights. See, e.g., AFGE Local 1658, 57 FLRA 658, 661 (2001).

      The Union's allegations fail to establish bias on the part of the Arbitrator. Nothing in the Union's allegations demonstrates that the award was procured by improper means, that there was partiality on the part of the Arbitrator, or that the Arbitrator engaged in misconduct that prejudiced the Union's rights. See id. The Arbitrator's finding that Agency testimony was credible and the Arbitrator's agreement with the Agency's arguments in its post-hearing brief, rather than the Union's arguments in its post-hearing brief, do not establish bias. See NAGE Local R1-109, 58 FLRA 501, 504 (2003) (arbitrators will not be found to be biased solely on the basis that they made findings in favor of one party over the other).

      Accordingly, we deny this exception.

C.      The award is not deficient by denying the grievance, as it pertained to changing into and out of work scrubs, or by denying a monetary remedy for the Agency's violation of the agreement on uninterrupted meal periods.

      The Union essentially argues in its exceptions that these portions of the award are deficient because the changing into and out of scrubs and interrupted meal periods are compensable under the FLSA. [n4]  We deny this argument because the Union has misconstrued the award and provides no basis for finding the award deficient.

      In our view, by arguing that the disputed time is compensable under the FLSA, the Union essentially is asserting that the Arbitrator failed to resolve an issue submitted to arbitration and that as a result, the Arbitrator exceeded his authority. Arbitrators exceed their authority when, among other things, they fail to resolve an issue submitted to arbitration. See, e.g., United States Dep't of Labor, Washington, D.C., 59 FLRA 560, 563 (2004). For the following reasons, we conclude that the Union fails to establish that the Arbitrator failed to resolve an issue submitted.

      In absence of a stipulation by the parties of the issues submitted and after a requested clarification by the Union, the Arbitrator framed the merits issue as whether the Agency violated the agreement, as alleged by the Union. The award is precisely a resolution of this issue.

      In these circumstances, the Arbitrator properly confined himself to determining whether the Agency violated Article 10, as alleged, by failing to pay the grievants when their meal period was interrupted and when they changed into and out of work scrubs. In absence of a stipulation, the Arbitrator was not obligated to address and resolve whether the Agency's actions violated the FLSA. See, e.g., Bureau of Alcohol, Tobacco, and Firearms, San Juan, Puerto Rico, 13 FLRA 72, 73 (1983) (in absence of a stipulation, it was not improper for the arbitrator to confine himself to whether the agency violated the agreement and not address whether the agency violated the FLSA).

      In addition, in asserting that the Arbitrator erroneously determined that the disputed time was not compensable under the FLSA, the Union has misconstrued the award. The Arbitrator never addressed whether the disputed time was compensable under the FLSA.

      The Union also provides no basis for finding that the Arbitrator's interpretation and application of Article 10 is contrary to the FLSA. With respect to changing into and out of work scrubs, the Arbitrator ruled that such time was not compensable under Article 10, Section 6 and denied the grievance, as it pertained to this issue. Article 10, Section 6 addresses what duties are part of an employee's job and does not mention the FLSA. Accordingly, the Union fails to show how the Arbitrator's ruling that the Agency did not violate Article 10 is contrary to the FLSA.

      The Union likewise provides no basis for finding deficient the Arbitrator's failure to award a monetary remedy for the Agency's violation of Article 10, Section 4 on meal periods. The Authority has repeatedly held that arbitrators are accorded broad discretion in fashioning appropriate remedies and that not every violation of an agreement requires a remedy. See, e.g., United States [ v60 p191 ] Dep't of Veterans Affairs, Cleveland Reg'l Office, Cleveland, Ohio, 59 FLRA 248, 252 (2003) (Member Pope dissenting as to other matters). The Union fails to show how the Arbitrator's refusal to provide a monetary remedy for the violation of Article 10 is contrary to the FLSA. The Arbitrator solely addressed Article 10, Section 4 and found that no monetary remedy was warranted because despite interruptions, nurses are provided a total of 30 minutes duty free for meals.

      Accordingly, we deny these exceptions. [n5] 

V.      Decision

      The Union's exceptions are denied.


Dissenting Opinion of Chairman Cabaniss:

      I write separately to address a question raised by the Union's exceptions. Article 2, Section 1 of the parties' agreement provides that the administration of the agreement is covered by existing or future laws. As noted by the majority, the Union asserted that all the violations of the agreement it alleged were also violations of the provision. Several considerations are raised by this allegation.

      The first consideration is whether an "essence" analysis should be applied to determine whether this provision has been violated (even though the alleged contract violation would be based upon a violation of law), or whether such an analysis would actually require a de novo review of the underlying law to determine whether the provision itself has been violated. The impact of this consideration is substantial, since there is a substantial difference in a party's ability to challenge an arbitrator's actions based upon an alleged improper interpretation of an agreement (under the "essence" standard that is deferential to arbitrators) and an alleged violation of law (under a "contrary to law" analysis) which would permit a de novo review of the arbitrator's actions.

      Another consideration is the interplay between alleging a violation of law and alleging a violation of this provision. A more realistic approach would be to not expect an arbitrator to also infer a contract violation when a party alleges a violation of existing law, and as well as the other way around. To the extent that a party desires an arbitrator (and Authority) to treat an alleged contrary to law issue as separate and distinct from an alleged violation of Article 2, Section 1, or to even consider the contrary to law allegation at all, it would be best to affirmatively identify to the arbitrator the law alleged to have been violated.

      In the present case it appears that the Union did affirmatively argued a violation of the Fair Labor Standards Act (FLSA) to the Arbitrator. And, in resolving the Union's preliminary and postliminary FLSA claims the Arbitrator affirmatively cited to a Code of Federal Regulation (CFR) provision addressing the FLSA as well as a court case addressing, and resolving an FLSA issue. I am well aware that substantial deference is given to arbitrators in defining the issues before them. However, in light of the Union's specific allegations of a violation of the FLSA, the Arbitrator's reliance on a CFR provision addressing the FLSA and a court case addressing FLSA issues to resolve the Union's claims, and the Union's specific reliance on Article 2, Section 1 (which, in light of the Union's FLSA claim is not a bare assertion), which acknowledges that the agreement is subject to existing or future laws, I would affirmatively address the Union's FLSA claims.



Footnote # 1 for 60 FLRA No. 42 - Authority's Decision

   The dissenting opinion of Chairman Cabaniss is set forth at the end of this decision.


Footnote # 2 for 60 FLRA No. 42 - Authority's Decision

   Article 2, Section 1 provides, in pertinent part: "In the administration of all matters covered by the agreement, officials and employees are governed by existing or future laws[.]"


Footnote # 3 for 60 FLRA No. 42 - Authority's Decision

   With respect to a claim of personal bias of an arbitrator, the Authority has held that when possible, these claims must be raised to the arbitrator. See, e.g., United States Dep't of the Navy, Naval Surface Warfare Ctr., Indian Head Div., Indian Head, Md., 57 FLRA 417, 422 (2001). Because the Union's bias claims in this case rest on the Arbitrator's discussion in his award, we find that the claims could not have been raised to the Arbitrator during the hearing and that they are properly before us.


Footnote # 4 for 60 FLRA No. 42 - Authority's Decision

   The Union also claims that the denial of the grievance, as it pertained to changing into and out of work scrubs, is deficient because such time is compensable under agency policy and the collective bargaining agreement and that the failure to award a monetary remedy for the violation of the agreement on meal periods is deficient because such time is compensable under the agreement. The Union provides no support for these claims. Consequently, we deny these claims as bare assertions. See, e.g., NAGE Local R5-188, 59&n