American Federation of Government Employees, Local 607, Council of Prison Locals (Union) and United States, Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Elkton, Ohio (Agency)

[ v61 p707 ]

61 FLRA No. 141

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 607
COUNCIL OF PRISON LOCALS
(Union)

and

UNITED STATES
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
ELKTON, OHIO
(Agency)

0-AR-3994

_____

DECISION

August 24, 2006

_____

Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member

1.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Jack Stieber 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.

      The Arbitrator denied a grievance alleging that the Agency violated the master collective bargaining agreement and law by failing to pay night shift differential to employees who worked certain night overtime. For the following reasons, we deny the exceptions.

II.      Background and Arbitrator's Award

      The Agency employs approximately 340 emplo-yees. The Union filed a grievance alleging that the Agency violated the master collective bargaining agreement and law by failing to pay night shift differential to employees who had worked night overtime that had been scheduled prior to the administrative workweek. See Award at 3. As a remedy, the Union sought back pay for six years prior to the filing of the grievance. See id.

      When the grievance was unresolved, it was submitted to arbitration. The Arbitrator framed the relevant issue as follows: "Did the Agency violate the collective bargaining agreement or Federal Law by not paying employees night shift differential?" [n1]  Id. at 2.

      The Arbitrator found that the Union presented testimony by employees that they met the requirements for night shift differential because they were assigned or signed up for night overtime prior to the administrative workweek. See id. at 13. On the other hand, the Arbitrator found that the Agency disputed the Union witnesses' claims and submitted into evidence an exhibit that "purports to show that the overtime was actually assigned to the employees after the administrative workweek." Id. at 14. In this regard, the Agency argued that the employees did not meet the requirements for night shift differential because the night overtime assigned to them was "occasional or irregular overtime" that could not have been scheduled in advance of the administrative workweek. Id. at 12.

      The Arbitrator stated that under 5 U.S.C. § 5545(a), a night differential is authorized for "regularly scheduled work between the hours of 6:00 p.m. and 6:00 a.m." [n2]  Id. at 9. The Arbitrator also stated that under 5 C.F.R. § 610.102, "[r]egularly scheduled work" is defined as work that is scheduled in advance of an administrative workweek. [n3]  Id. Further, as to the master collective bargaining agreement, the Arbitrator noted that Article 6, Section q provides that employees will notify their first-line supervisor in writing of "underpayments." [n4]  Id.

      The Arbitrator determined that the burden of proof was on the Union to establish that the employees were entitled to night shift differential. See id. at 14. The Arbitrator reasoned that "a report of underpayment" for [ v61 p708 ] night shift differential, pursuant to Article 6, Section q of the master collective bargaining agreement, would have supported testimony presented at the hearing by employees that they met the requirements for night shift differential. Id. at 14. However, the Arbitrator found that the "[U]nion presented no evidence that such a report was made by any employee." Id. Therefore, the Arbitrator concluded that the Union had not "met its burden of proof to support the grievance." Id. Accor-dingly, the Arbitrator denied the grievance

III.     Positions of the Parties

A.      Union's Exceptions

      The Union contends that the award is deficient because: (1) it is based on a nonfact; (2) it is contrary to law; and (3) the Arbitrator denied the Union a fair hearing.

      Specifically, the Union argues that the Arbitrator erroneously assumed that the Agency had not scheduled night overtime prior to the start of the administrative workweek and that this erroneous assumption constitutes a nonfact. See Exceptions at 18. The Union explains that the Arbitrator "did not make any factual determinations on the issue, but must have assumed that no employees were so scheduled in order to have denied the grievance." Id. at 22.

      Further, the Union contends that the Arbitrator's award is contrary to 5 U.S.C. § 5545(a) and the regulations that implement that law. The Union argues that the employees were entitled to night shift differential because they were scheduled night overtime prior to the start of the administrative workweek. See Exceptions at 25-26, 36, 37. In addition, the Union argues that employees were entitled to night shift differential because there were instances when they should have been, but were not, scheduled for night overtime prior to the start of the administrative workweek. In this regard, the Union asserts that, pursuant to procedures under the local supplemental agreement, the employees signed up for night overtime prior to the start of the administrative workweek. See id. at 26, 36-37, 39. In support of this argument, the Union cites 5 C.F.R § 610.121(b)(3).

      The Union also argues that the award is contrary to law on "an independent ground." Exceptions at 37. The Union asserts that the "procedure the Agency admittedly follows when it has non-emergency overtime itself entitles those employees who sign up for nightwork overtime slots in advance of the Administrative workweek to [night shift differential] under 5 C.F.R § 610.121(b)." Id. The Union explains that "[w]hen the overtime need is apparent to the Agency before the start of a pay period . . . , it is scheduled by seniority and in accordance with a sign-up procedure." Id.

      Finally, the Union contends that the Arbitrator denied the Union a fair hearing by failing to admit into evidence exhibits that, in the Union's view, were pertinent and relevant to the case. According to the Union, the exhibits would have established that employees were scheduled to work night overtime prior to the start of the administrative workweek. See id. at 41. The Union argues that the Arbitrator improperly refused to admit the exhibits into evidence based on the physical "weight" of the exhibits. Id. In this regard, the Union notes that the Arbitrator stated, "[h]ow many boxes go to myself?" and "I'm not carrying those." Id. at 42 (ci-ting Transcript (Tr.) at 99).

B.      Agency's Opposition

      The Agency contends that the Union has not demonstrated that the award is based on a nonfact. The Agency argues that the Arbitrator's finding that the Agency had not scheduled night overtime prior to the start of the administrative workweek does not constitute a nonfact because the parties disputed that matter before the Arbitrator. See Opposition at 3.

      Further, the Agency contends that the Union has not demonstrated that the award is contrary to law. The Agency argues that the record establishes that the grievants did not satisfy the requirements for night shift differential under 5 U.S.C. § 5545(a) and its implementing regulations. In this regard, the Agency asserts that the Arbitrator correctly found that the Union did not meet its burden of proof to establish that the grievants were, or should have been, scheduled night overtime prior to the start of the administrative workweek. See id. at 5. The Agency also states that it presented evidence "indicating that merely signing up for overtime opportunities prior to the administrative workweek did not mean that such work had been assigned or that the Agency specifically contemplated assigning particular employees to certain overtime work." Id. at 5-6.

      Finally, the Agency contends that the Union has not demonstrated that the Arbitrator denied the Union a [ v61 p709 ] fair hearing. The Agency asserts that the Union sought to admit exhibits to address when employees worked night overtime, not whether they were scheduled in advance to do so. See id. at 8 (emphasis added). The Agency argues that the dispositive issue in this case is whether employees were scheduled night overtime prior to the start of the administrative workweek and not when employees actually worked night overtime, thus the exhibits were not relevant.

      Furthermore, the Agency points out that the Arbitrator stated that the exhibits were "repetitious" and did not add to the Union's argument. See id. (citing Tr. at 100). The Agency asserts that the Union responded to the Arbitrator's statement by noting that the exhibits were for the purpose of "the remedy, the dollar amount." Id. (citing Tr. at 100). The Agency also points out that the Union did not object when the Arbitrator replied that the exhibits could be considered later at the "remedial phase." Id. (citing Tr. at 100).

IV.     Preliminary Issue

      Under 5 C.F.R. § 2429.5, the Authority will not consider issues that could have been, but were not, presented to an arbitrator. See United States Dep't of the Air Force, Air Force Materiel Command, Robins Air Force Base, Ga., 59 FLRA 542, 544 (2003). In its exception, the Union argues that the award is contrary to law on "an independent ground." Exceptions at 37. The Union asserts that the "procedure the Agency admi-ttedly follows when it has non-emergency overtime itself entitles those employees who sign up for nightwork overtime slots in advance of the administrative workweek to [night shift differential] under 5 C.F.R § 610.121(b)." Id. There is no evidence in the award or the record that the Union's argument that the procedure followed by the Agency, in itself, established an entitlement to night shift differential was presented to the Arbitrator. As such, the Union's argument is not pro-perly before the Authority, and we will not consider it.

V.     Analysis and Conclusions

A.      The Award Is Not Based on a Nonfact

      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. United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593 (1993) (Lowry). 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 Union argues that the Arbitrator erroneously "assumed that" the Agency had not scheduled night overtime prior to the start of the administrative workweek and that this erroneous assumption constituted a nonfact. Exceptions at 18. In particular, the Union states that the Arbitrator "did not make any factual determinations on the issue, but must have assumed that no employees were so scheduled in order to have denied the grievance." Id. at 22.

      The parties disputed before the Arbitrator whether the Agency assigned the grievants night overtime prior to the administrative workweek. See Award at 12-13, 14. As this matter was disputed below, the Union's exception provides no basis for finding the award deficient as based on a nonfact. See Lowry, 48 FLRA at 593. Therefore, the Union has not established that the award is based on a nonfact.

B.      The Award Is Not Contrary to Law

      The Authority reviews questions of law raised by exceptions to an arbitrator's 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 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.

      5 U.S.C. § 5545(a) authorizes a 10 percent night differential for "regularly scheduled work between the hours of 6:00 p.m. and 6:00 a.m." See also 5 C.F.R. § 550.121(a). [n5]  The Office of Personnel Management (OPM) is authorized to prescribe regulations necessary for the administration of premium pay and hours of duty. See 5 U.S.C. § 5548; 5 U.S.C. § 6101(c). OPM has defined the term "regularly scheduled work" in 5 U.S.C. § 5545(a) as work which has been scheduled in advance of an administrative workweek. See 5 C.F.R § 610.102  [n6] See also United States Dep't of Justice, [ v61 p710 ] Immigration and Naturalization Service, 19 FLRA 823, 824 (1985) (INS). Thus, an employee is entitled to night shift differential, under 5 U.S.C. § 5545(a), when night work has been scheduled in advance of an administrative workweek. See United States Dep't of Health and Human Services, Social Security Administration, Baltimore, Md., 37 FLRA 1469, 1474 (1990) (SSA). [n7]  Moreover, an agency is obligated to reschedule an employee's tour of duty when it is known in advance of an administrative workweek that there will be a different work requirement (such as night work) in that workweek. See 5 C.F.R § 610.121(b) (2). See also INS, 19 FLRA at 824-25.

      An employee may be entitled to night shift differential even when night work has not been scheduled in advance. See INS, 19 FLRA at 825. In this regard, an employee is entitled to night shift differential, even when not previously scheduled, where the agency: "(i) [h]ad knowledge of the specific days and hours of the work requirement in advance of the administrative workweek, and (ii) had the opportunity to determine which employee had to be scheduled, or rescheduled, to meet the specific days and hours of that work requirement." 5 C.F.R.§ 610.121(b)(3). See also INS, 19 FLRA at 825.

      The Union has not shown that the award conflicts with 5 U.S.C. § 5545(a) and its implementing regulations. The Arbitrator ruled that the burden was on the Union to prove that employees met the requirements of § 5545 for night shift differential. Despite employee testimony that they performed night work scheduled in advance, the Arbitrator found that the Union failed to support the grievance. Because the Arbitrator found that employees did not submit any reports of underpayments, pursuant to a collective bargaining agreement, as evidence to establish an entitlement to night shift differential, he found that the Union had not established that employees met the requirements for night shift differential. See Award at 14. Thus, the Arbitrator found no factual support for employees having performed night work that the Agency either (a) scheduled in advance or (b) knew about and could have scheduled in advance. This factual determination, to which we defer, supports the Arbitrator's legal conclusion that the requirements of § 5545 were not met. See, e.g., AFGE Council 236, 56 FLRA 136, 138 (2000) (based on factual findings of the arbitrator, to which the Authority deferred, the arbitrator's legal conclusion that overtime pay was not wa-rranted was not deficient). Therefore, the Union has not shown that the award conflicts with 5 U.S.C. § 5545(a) and the regulations that implement that law.

C.     The Arbitrator Did Not Fail to Conduct a Fair Hearing

      An award will be found deficient on the ground that an arbitrator failed to conduct a fair hearing where a party demonstrates that the arbitrator refused to hear or consider pertinent and material evidence, or that other actions in conducting the proceedings so prejudiced a party as to affect the fairness of the proceeding as a whole. See, e.g., AFGE, Local 1668, 50 FLRA 124, 126 (1995). An arbitrator has considerable latitude in the conduct of a hearing, however, and the fact that an arbitrator conducted a hearing in a manner that a party finds objectionable does not, in and of itself, provide a basis for finding an award deficient. See, e.g., United States Dep't of the Army, Army Reserve Personnel, St. Louis, Mo., 35 FLRA 1200, 1205 (1990). Disagreement with an arbitrator's evaluation of evidence and testimony, including the determination of the weight to be accorded such evidence, provides no basis for finding the award deficient. See AFGE, Local 3295, 51 FLRA 27, 32 (1995). Also, issues involving an arbitrator's conduct at the hearing that could have been, but were not, raised before the arbitrator will not be considered for the first time on review of the award absent extraordinary circumstances. See Bremerton Metal Trades Council, 59 FLRA 583, 587-88 (2004) (Bremerton).

      The Union contends that the Arbitrator denied the Union a fair hearing by failing to admit into evidence exhibits that, in the Union's view, were pertinent and relevant to the case. See Exceptions at 41.

      The record reveals that at the hearing, the Arbitrator stated that the exhibits in question constituted "repetitious material" and questioned whether that evidence would add to the Union's argument. See Tr. at 100. The Union responded at the hearing that the exhibits were for "purposes of the remedy, the dollar amount." Id. Then, the Arbitrator stated, without objection from the Union, that:

When you get to the dollar amount, we can look at that. Right now, we're not going to introduce [ v61 p711 ] evidence on the dollar amount. If there is any need for it, I don't know. . . .

Id.

      In these circumstances, the Union has not established that the exhibits in question would have been pertinent or material to the issue of whether the Agency violated law or the master agreement (as distinct from a remedial issue) or shown that it was prejudiced by the Arbitrator's actions. Moreover, to the extent the Union challenges the Arbitrator's decision not to admit into evidence the exhibits until the parties addressed the monetary remedy at the hearing, that issue could have been, but was not, raised before the Arbitrator. The Union has neither argued nor established that extraordinary circumstances are present in this case for the Authority to consider this matter for the first time on review. In sum, the Union has not demonstrated that the Arbitrator denied it a fair hearing. See Bremerton, 59 FLRA at 587-88.

VI.     Decision

      The Union's exceptions are denied.


APPENDIX

5 C.F.R. § 610.121(b) provides:

(b)(1) The head of an agency shall schedule the work of his or her employees to accomplish the mission of the agency. The head of an agency shall schedule an employee's regularly scheduled administrative workweek so that it corresponds with the employee's actual work requirements.

(2) When the head of an agency knows in advance of an administrative workweek that the specific days and/or hours of a day actually required of an employee in that administrative workweek will differ from those required in the current administrative workweek, he or she shall reschedule the employee's regularly scheduled administrative workweek to correspond with those specific days and hours. The head of the agency shall inform the employee of the change, and he or she shall record the change on the employee's time card or other agency document for recording work.

(3) If it is determined that the head of an agency should have scheduled a period of work as part of the employee's regularly scheduled administrative workweek and failed to do so in accordance with paragraphs (b)(1) and (2) of this section, the employee shall be entitled to the payment of premium pay for that period of work as regularly scheduled work under subpart A of part 550 of this chapter. In this regard, it must be determined that the head of the agency: (i) Had knowledge of the specific days and hours of the work requirement in advance of the administrative workweek, and (ii) had the opportunity to d