United States, Department of the Air Force, Minot Air Force Base, North Dakota (Agency) and American Federation of Government Employees, Local 4046 (Union)

[ v61 p366 ]

61 FLRA No. 67

UNITED STATES
DEPARTMENT OF THE AIR FORCE
MINOT AIR FORCE BASE
NORTH DAKOTA
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 4046
(Union)

0-AR-3939

_____

DECISION

October 31, 2005

_____

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 Brenda P. Strashun 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' collective bargaining agreement when it failed to pay employees who were required to stay at the Agency's Missile Alert Facility (MAF) during inclement weather. For the following reasons, we grant the Agency's exceptions in part and deny them in part.

II.     Background and Arbitrator's Award

      On January 27, 2004, two teams of employees from Minot Air Force Base were directed to go to the Lima Flight Area (a location geographically separated from Minot Air Force Base) to perform routine maintenance. Upon arriving, the weather began to deteriorate with cold and snowy conditions, which prompted the production manager to close the site by noon. By 2:00 p.m., after preparing the site for closure, the teams were ready to return to the base. As such, the production manager and assistant team chief both called Minot Air Force Base to seek permission from the roadmaster to head back to the base. However, the roadmaster denied the request at that point even though road conditions were "`clear, [and] visibility was good[.]'" Award at 3.

      Two hours later, the assistant team chief again called the roadmaster to get permission to leave. The roadmaster again denied the request. Moreover, one of the Agency's supervisors indicated to the employees at Lima that if they left "their jobs would be in jeopardy." Id. The Arbitrator also noted that "[s]ome employees wanted to make arrangements to be picked up on the access road with their own vehicles, but were told by their supervisor that [the roadmaster] wanted them to stay there." Id.

      The employees were ultimately advised to seek shelter several miles away at the MAF, rather than stay at Lima or return to Minot Air Force Base. The employees arrived at the MAF at 6:00 p.m. and remained there until they could proceed back to Minot Air Force Base the following morning. Id.

      The Union filed a grievance that was not resolved and was submitted to arbitration. The parties stipulated to the following issue:

Did the Employer violate the collective bargaining agreement by failing to agree to pay overtime for the relevant hours commencing on January 27, 2004 and ending on January 28, 2004. If yes, what shall the remedy be?

Id.

      In resolving this issue, the Arbitrator relied upon Article 20, Section B.1.(c) which states:

During hazardous weather conditions employees will be encouraged to remain on base but cannot be forced to do so. Storm essential personnel will remain on duty and be paid overtime per applicable regulations, until properly relieved.

Id. at 4-5.

      The Arbitrator determined that at 2:00 p.m. on the date in question the road conditions were "still safe." Id. at 9. Moreover, the Arbitrator noted that the roadmaster did not testify, so it was unclear why he made the decision to deny the request to return to base. Id. Furthermore, the Arbitrator credited the testimony of several employees who stated that they were ordered to stay the night or be subject to termination. Id. at 10-11. The Arbitrator determined that by forcing the grievants to stay on base during inclement weather, the Agency violated [ v61 p367 ] Article 20, Section B (1)(c). In this respect, the Arbitrator also found that:

[g]uidance for determining the pay issue in this proceeding does not emanate from general Code of Federal Regulations "hours of work" provisions or from a Comptroller General decision dealing with a specific question of "standby time" defined in the regulations. Those regulations might have been relevant under a set of facts not requiring application of Article 20, Section B(1)(c) of the collective bargaining agreement where employees who were ready to travel home were "forced" to remain on site in violation of that contract provision prohibiting such force. Had Grievants not been "forced" to remain on base, the Regulations raised by the parties would have become more relevant to the overtime question in this case.

Id. at 11.

      Based on the above, the Arbitrator awarded the grievants pay from the time they reached the MAF until the time they left the next morning. However, noting that the "evidence does not indicate that employees were performing actual work" and that the Union failed to present a prima facie case that overtime should be awarded based on a "contractual entitlement[,]" the Arbitrator limited this pay to straight-time pay. Id. at 12.

III.      Preliminary Matter

A.      Positions of the Parties

      The Union argues that the Agency's exceptions were untimely filed. Specifically, it claims that the Agency's exceptions were untimely pursuant to 5 U.S.C. § 7122(b) and, by extension, the parties' agreement under Article 8, Section H. In this respect, it argues that the Arbitrator's decision was "recorded" on January 18, 2005, and that the exceptions were not filed with the Authority until February 22, 2005, more than 30 days after the exceptions were due. Opposition at 1.

      The Agency argues that it timely filed its exceptions and that it had 35 days in which to mail its exceptions to the Authority. Agency's Supplemental Submission at 2.

B.      The Agency's Exceptions Are Timely

      The Authority's Regulations do not provide for the filing of supplemental submissions. However, § 2429.26 of the Authority's Regulations provides that the Authority may, in its discretion, grant leave to file "other documents" as deemed appropriate. See, e.g., National Association of Government Employees, Local R3-77, 59 FLRA 937, 940 (2004); AFGE, Local 2004, 55 FLRA 6, 9 (1998). Here, the Agency's supplemental submission challenges an issue first raised in the opposition, namely whether its exceptions were timely filed. Accordingly, as this issue was first raised in the Union's opposition, the Agency has established sufficient reason for the Authority to consider the supplemental submission. See id.; Congressional Research Employees Association, IFPTE, 75, 59 FLRA 994, 999 (2004) (Authority considered the union's supplemental submission as the submission challenged claims that were first raised in the agency's opposition).

      The Union also filed a supplemental submission. In this submission, the Union reiterates its position that the Agency's submission is untimely and, for the first time, addresses issues raised in the Agency's exceptions. As the Union does not explain why the Authority should accept this supplemental submission that contains arguments already raised in the Union's opposition, or which could have been raised in the Union's opposition, the Union's supplemental submission will not be considered under § 2429.26. See, e.g., NTEU, Chapter 137, 60 FLRA 483, 483 n.2 (2004) (moving party needs to demonstrate why its supplemental submission should receive Authority review) (Chairman Cabaniss dissenting on other grounds).

      With respect to the merits of the Union's claim, there is no dispute that the Arbitrator mailed the award to the parties on January 18, 2005. Award at 12. Under § 2429.22 of the Authority's Regulations, a party has an additional 5 days to submit exceptions from the date an award is deposited in the U.S. mail. See also 5 C.F.R. § 2425.1 (30-day time limit begins on date party served.) Accordingly, the Agency's exceptions normally would have to be received by the Authority or postmarked no later than February 21, 2005. However, as that date was a Federal holiday the Agency's exceptions had to be received or postmarked no later than the following day, February 22. See 5 C.F.R. § 2429.21(a). As the exceptions were postmarked on February 22, they were timely filed.

IV.      Positions of the Parties

A.      Agency's Exceptions

      The Agency argues that the Arbitrator's interpretation of Article 20, Section (B)(1)(c) is "incompatible with the plain meaning of the [collective bargaining agreement]." Exceptions at 5 (citing United States Dep't of the Air Force, 42 Air Base Wing, Gunter [ v61 p368 ] Annex, Maxwell Air Force Base, Alabama, 51 FLRA 754 (1996)). The Agency argues that Article 20, Section (B)(1)(c) "involves employees working on base and able to return home in their POVs [privately owned vehicles]." Exceptions at 5 (emphasis in original). It contends that had the employees "been allowed to leave the MAF during the stormy weather, they would have been risking not only their own safety but the safety of Agency property as well. The CBA, which addresses employees leaving the Base in their own POVs, simply does not contemplate such a situation." Id.

      The Agency also argues that the Arbitrator exceeded her authority by "failing to resolve the issue submitted to arbitration, namely, whether the Agency wrongfully failed to pay overtime for the grievants' overnight stay at the MAF." Id. at 7.

      Moreover, the Agency argues that the Arbitrator's award impermissibly conflicts with its rights under § 7106(a) to determine its internal security practices and to carry out its mission in an emergency. Exceptions at 9. In this respect, the Agency argues that the award interferes with its ability to protect its employees and Agency property "by requiring employees to remain with their GOVs at MAF facilities during adverse weather conditions[.]" Id. at 8-9. It contends that a weather emergency existed and it took appropriate steps by requiring employees for their "personal safety and the safety of the Agency equipment and property, to proceed from their worksite to the MAF for the duration of the winter storm." Id. at 9. The Agency also points out those portions of an Agency Regulation, 91 SW OI 24-301, that the Agency asserts reflects its exercise of the noted management rights. Id.

      Additionally, the Agency challenges the remedy as not being consistent with law. It contends that the Arbitrator's decision is contrary to the Comptroller General's decision in Albert L. Spires, (B-187181) (1977) (Spires). Specifically, the Agency argues that like the Spires case, the employees here were required to stay due to inclement weather, but performed no work.

      Finally, the Agency argues that because the Arbitrator determined that the employees did no work while at the MAF, they were not entitled to payment under the Fair Labor Standards Act (FLSA). Exceptions at 7-8. It argues that in this respect, regardless of whether it violated the parties' agreement, the employees were not entitled to compensation under the FLSA. Id. at 8.

B.      Union's Opposition

      The Union does not specifically address any of these Agency exceptions. Rather, as noted earlier, it claims in its opposition that the Agency's exceptions were untimely filed.

V.      Analysis and Conclusions

A.      The Award Does Not Fail To Draw Its Essence From the Parties'
          Agreement

      In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Authority applies 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 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 Agency argues that the Arbitrator misapplied Article 20, Section (B)(1)(c) in two respects. First, it argues that Article 20 only applies to employees "on base." Second, it contends that the Article only applies to employees who use private vehicles, as opposed to government vehicles, to leave base. For the following reasons, we find that the Agency has not established that the Arbitrator's award fails to draw its essence from the contract.

      Under its terms, Article 20, Section (B)(1)(c) of the parties' agreement applies to inclement weather such as snow storms. In his award, the Arbitrator found that the Agency had "in effect `forced' Grievants to remain on base during inclement weather[.]" Award at 11. Implicit in this finding is a determination that the term "base," according to the Arbitrator, should be broadly interpreted to include an employee's duty station such as the MAF. In arguing that the finding fails to draw its essence from the parties' agreement, the Agency does not point to any language in the contract that otherwise defines "base" and offers no bargaining history that would preclude this determination by the [ v61 p369 ] Arbitrator. Accordingly, the Agency has failed to show that the Arbitrator's interpretation of the term "base" is irrational, implausible or is in manifest disregard of the parties' agreement.

      With respect to the Agency's contention concerning government vehicles, the Agency misunderstands the Arbitrator's decision. The Arbitrator determined not only that employees were precluded from using government vehicles to leave the MAF, but also that they were precluded from leaving in privately owned vehicles. Id. at 3, 10. As such, we find that the Agency has failed to establish that the Arbitrator's award fails to draw its essence from the parties' agreement.

B.      The Arbitrator Did Not Exceed Her Authority

      Under Authority precedent, arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority, or award relief to those not encompassed within the grievance. See AFGE, Local 1617, 51 FLRA 1645, 1647 (1996). Arbitrators do not exceed their authority by addressing any issue that is necessary to decide a stipulated issue, or by addressing any issue that necessarily arises from issues specifically included in a stipulation. See NATCA, MEBA/NMU, 51 FLRA 993, 996 (1996); United States Dep't of Justice, Immigration & Naturalization Serv., Honolulu Dist. Office, Honolulu, Haw., 43 FLRA 927, 935 (1992) (citing United States Dep't of Health & Human Servs., Austin, Tex., 40 FLRA 1035, 1041 (1991) (HHS)); Air Force Space Div., L.A. Air Force Station, Cal., 24 FLRA 516, 519 (1986). Moreover, the Authority grants an arbitrator broad discretion to fashion a remedy that the arbitrator considers to be appropriate. See United States Dep't of the Interior, United States Geological Survey, Nat'l Mapping Div., Mapping Applications Ctr., 55 FLRA 30, 33 (1998). Finally, the Authority accords an arbitrator's interpretation of a stipulated issue the same substantial deference accorded an arbitrator's interpretation of a collective bargaining agreement. See SSA, Balt., Md., 57 FLRA 181, 183 (2001).

      The parties' stipulated issue addressed whether the Agency "violate[d] the collective bargaining agreement by failing to agree to pay overtime[.]" Award at 4. In resolving this issue, the Arbitrator determined that the Agency had in fact violated the parties' agreement, specifically Article 20, Section B(1)(c), "by compelling Grievants under threat of termination to remain on base during the night of January 27, 2004" without compensation. Award at 12. Thereafter, based on this violation, the Arbitrator concluded that compensation was warranted, but limited that compensation to "straight time pay for the relevant hours[.]" Id.

      Upon review, given the deference provided the Arbitrator's interpretation of the issues before her, the Agency has not shown that the Arbitrator exceeded her Authority in resolving the stipulated issue. Accordingly, the Agency has not demonstrated that the award is deficient on this basis.

C.      The Agency's § 7106(a) Arguments are Barred by § 2429.5 of the
          Authority's Regulations

      Based upon our review of the record, we conclude that the Agency failed to raise before the Arbitrator any arguments regarding its rights under § 7106(a), or the Agency regulations reflecting the exercise of those rights. See, e.g., Award 6-9; Agency's Post-Arbitration Brief. Rather, the Agency asserted only in general terms that the action it took was to "ensure the safety of the crews and the protection of Air Force equipment." Award at 6. Because the Agency failed to raise these issues to the Arbitrator, they are dismissed pursuant to 5 C.F.R. § 2429.5. United States Dep't of Transportation, FAA, 61 FLRA 54, 56 (2005).

D.      The Remedy is Contrary to Law

      When a party's exception challenges an arbitration award's consistency with law, rule, or regulation, the Authority reviews the questions of law raised 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 underlying factual findings. See NTEU, Chapter 50, 54 FLRA 250, 253 (1998).

      The Agency argues that because the Arbitrator determined that the employees did no work while at the MAF, they were not entitled to payment under the FLSA. Exceptions at 7-8. A Federal agency will be subject to a monetary claim only if the statute on which the claim is based unambiguously establishes that the Government has waived its sovereign immunity to permit suit, and that the scope of that waiver extends to an award of money damages. The United States is immune from liability under the doctrine of sovereign immunity. Lane v. Pena, 518 U.S. 187 (1996). Sovereign immunity can be waived by statute, but a waiver will be found only if "unequivocally expressed in statutory text . . . and will not be implied[.]" Id. at 192. See also INS, Los Angeles Dist., Los Angeles, Cal., 52 FLRA 103 (1996). [ v61 p370 ] As such, an award by an arbitrator that an agency provide monetary damages to a union or employee must be supported by statutory authority to impose such a remedy. See United States Dep't of Health & Human Services, Food and Drug Admin., 60 FLRA 250, 252 (2004). In this regard, a collective bargaining agreement may require monetary payments to employees only where there is underlying statutory authority for the payment. See Association of Civilian Technicians, Puerto Rico Army Chapter, 60 FLRA 1000, 1006 (2005) (Puerto Rico Army Chapter).

      The Arbitrator found the sole basis on which to award the grievants straight time pay was the Agency's violation of Article 20, Section (B)(1)(c). Award at 11. In so doing, the Arbitrator did not point to any statutory authorization for the payment. Moreover, the Agency asserts that no such authorization exists and the Union does not assert that the award is supported by requisite statutory authorization. Accordingly, the Arbitrator's award of pay is contrary to law. See Puerto Rico Army Chapter, 60 FLRA at 1006 ("the Authority's decisions establish the need for independent and express statutory authorization for the expenditure of funds separate and distinct from the duty to bargain imposed by the Statute").

VI.     Decision

      The award as it concerns the remedy is deficient as contrary to law and is therefore set aside. [n2] 


Opinion of Member Pope, dissenting in part:

      I agree with the majority opinion in all respects except one. Specifically, I disagree with the majority's decision to set aside the deficient remedy without remanding the award for an alternative remedy. Once again, by setting aside the (sole) remedy but leaving intact the Arbitrator's finding of a contractual violation, the majority has demonstrated its intention to deprive employees of remedies and permit agencies to evade all liabilities for their violations. The majority's continuing refusal to explain what "facts and circumstances" it looks for in determining whether to remand an award and its failure to reveal why it finds no such facts and circumstances in this case renders arbitrary and capricious its decision not to remand this matter. Majority Opinion at 11 n.2.

      Accordingly, and consistent with my dissent in United States Dep't of Veterans Affairs, Cleveland Reg'l Office, Cleveland Ohio, 59 FLRA 248 (2003), I dissent in part. See also Soc. Sec. Admin., 61 FLRA 315 (2005) (Member Pope dissenting in part);