American Federation of Government Employees, AFL-CIO, Local 3614 (Union) and United States, Equal Employment Opportunity Commission (Agency)

[ v61 p719 ]

61 FLRA No. 144

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
AFL-CIO, LOCAL 3614
(Union)

and

UNITED STATES
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
(Agency)

0-AR-3821
(60 FLRA 601 (2005))

_____

DECISION

August 31, 2006

_____

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

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award on remand of Arbitrator Lucretia Dewey Tanner 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. [*] 

      In her original award, the Arbitrator denied the grievance, which claimed that the Agency had violated law and the parties' collective bargaining agreement in failing to pay overtime to certain employees. In AFGE, AFL-CIO, Local 3614, 60 FLRA 601 (2005), the Authority remanded the case to have the Arbitrator clarify whether any employees were entitled to overtime pay. In a supplemental award, the Arbitrator clarified that there were no employees who had worked overtime for which they were not properly compensated. For the reasons set forth below, we deny the Union's exceptions to the Arbitrator's clarification award.

II.      Background

A.      Original Award

      The Union filed a grievance alleging that the Agency violated the parties' agreement and the Fair Labor Standards Act (FLSA) when it failed to pay overtime to employees in certain offices. The Union also alleged that the Agency failed to give employees who are covered by the FLSA the option of pay or compensatory time off (comp time) for overtime worked.

      The Arbitrator denied the grievance. She found that "[b]ased on the evidence presented, the Union has not shown that the entire bargaining unit has a claim to back pay for overtime worked or that [s]upervisors knew or should have known that overtime work was being performed." 60 FLRA at 602 (quoting Award at 24).

B.      Authority's Decision in 60 FLRA 601

      The Union filed exceptions to the award. The Union claimed that the Arbitrator had found that employees worked overtime without compensation, but failed to award them a remedy. The Union also claimed that the Arbitrator did not provide a remedy for the Agency's failure to offer employees covered by the FLSA a choice between comp time and overtime pay.

      The Authority first considered whether the award was deficient in relation to individual employee claims to overtime pay. The Authority noted that although the Arbitrator had stated in the award that some employees worked uncompensated overtime, she did not award overtime pay to any employees and stated that the Union had not shown that "the entire bargaining unit" had a claim to backpay. Id. at 604 (quoting Award at 24). The Authority found it unclear whether the employees to whom the Arbitrator had referred as having worked uncompensated overtime were entitled to overtime pay under the applicable legal standards of the FLSA or the Federal Employees Pay Act (FEPA). Accordingly, the Authority remanded this portion of the award to the parties for resubmission to the Arbitrator for clarification, absent settlement. In this regard, the Authority stated as follows:

[A]ny subsequent award should address whether the individual employees are categorized as exempt or non- exempt, whether they worked uncompensated overtime entitling them to compensation under the applicable standards set forth by the FEPA or FLSA . . . and, if so, the amount of compensation to which they are entitled.

Id. [ v61 p720 ]

      The Authority next considered whether the award was deficient as it pertained to comp time. The Authority noted that although the Arbitrator had found that at least some non-exempt employees were given comp time, it was unclear which of these employees, if any, were entitled to overtime pay. Accordingly, the Authority also remanded this portion of the award to the parties for resubmission to the Arbitrator, absent settlement, to have the Arbitrator determine "which, if any, employees were entitled to overtime pay and were erroneously granted comp time." Id. at 605.

C.      Clarification Award

      Thereafter, the parties notified the Arbitrator that "[t]he case has been remanded to you for further action." March 24, 2005 letter to the Arbitrator, Attachment 4 to Exceptions. The parties indicated that they "would like to submit [b]riefs . . . as to where the case should go from here." Id. In a response to the parties, the Arbitrator questioned whether they had attempted to settle the issues. She explained that she believed "that [her] award was clear and [her] intentions and findings were complete." March 26, 2005 letter to the parties, Attachment 5 to Exceptions. Consequently, she encouraged the parties "to come to agreement." Id. However, she agreed to the submission of briefs if the parties were unable to resolve the disputed issues. The parties were unable to resolve the issues and submitted briefs to the Arbitrator.

      In its brief to the Arbitrator, the Union requested that the Arbitrator "hold another hearing at which time all members of the bargaining unit would submit their testimony of claims for overtime." Clarification Award at 1. The Union also responded, as follows, to the Arbitrator's statement in her letter to the parties that she believed that her award was clear and her findings complete and her suggestion that the parties resolve this matter:

This appears to be a statement which demonstrates the Arbitrator is not fully accepting of the FLRA Decision which overturned her Award . . . . The Union sincerely hopes that the Arbitrator withdraws this statement in writing, to both parties, or in the alternative recuses herself from further considering this matter.

Union's Brief to the Arbitrator at 27 (emphasis in original).

      The Arbitrator did not recuse herself and did not withdraw her statement that her findings were clear and complete or her suggestion that the parties resolve this matter. Instead, she clarified her award by stating that there were no employees who had worked overtime for which they had not been properly compensated under the FEPA or the FLSA.

      With respect to exempt employees, the Arbitrator clarified that she had "ruled that no claim for further compensation of any kind was due." Clarification Award at 2. With respect to non-exempt employees, the Arbitrator clarified that she had been persuaded by Agency testimony "that any overtime claimed by non[-]exempt staff was 100 percent compensated" and that she had found that the Agency had supported its position that "no overtime by non[-]exempt staff was suffered and permitted." Id.

      In sum, she emphasized that `[t]he Union witnesses were not credible." Id. She also emphasized that "[t]he Union had very ample opportunity to present its best case in January 2004 and should not now look for a second." Id. at 3. Consequently, the Arbitrator denied the Union's request for a new hearing.

III.      Positions of the Parties

A.      Union's Exceptions

      The Union contends that the Arbitrator's Clarification Award is deficient. Specifically, the Union argues that the Clarification Award fails to comply with 60 FLRA 601, is contrary to law, and is based on a nonfact. The Union also argues that the Arbitrator failed to conduct a fair hearing, was biased, and exceeded her authority.

      In arguing that the Arbitrator failed to comply with the Authority's remand in 60 FLRA 601, the Union maintains that the Authority's decision found that "employees had definitely worked uncompensated overtime [and] charged [the Arbitrator] with determining who--which employees--worked that overtime." Exceptions at 15-16. The Union further maintains that with respect to non-exempt employees, the Authority's decision required

an individualized assessment by the Arbitrator as to the damages only, and established the calculation of those damages. Liability ha[d] been established; the only question [wa]s which non-exempt . . . employees actually worked or earned compensatory time.

Id. at 18 (emphasis in original). In contending that the award is deficient, the Union claims that the Arbitrator's Clarification Award fails to comply with 60 FLRA 601 and fails to resolve the issue of damages. Similarly, the Union cites 5 C.F.R. part 551 and claims that the award [ v61 p721 ] is contrary to law by not awarding non-exempt employees the compensation to which they were entitled.

      In arguing that the award is based on a nonfact, the Union contends that in her Clarification Award, the Arbitrator relied on nonfacts regarding "credibility[,]" "hearsay[,]" "comp time[,]" and "unpaid overtime[.]" Id. at 23-25, 29. With respect to credibility, the Union asserts that the award is deficient because the Arbitrator "found that ex-employees were less credible simply because they were `former employees.'" Id. at 23. With respect to hearsay, the Union maintains that the Arbitrator rejected the testimony of former employees because she viewed it as hearsay. The Union argues that this is error because hearsay is admissible in arbitration hearings and because the testimony as to what they "observed or experienced is not hearsay at all." Id. at 24.

      In alleging that the award is based on a "nonfact regarding comp time[,]" id. at 25, the Union argues that the Arbitrator's clarification that "[c]ompensatory time off requests were made by the employee and denied only when not supported by credible evidence" is a nonfact, id. (quoting Clarification Award at 2). In alleging that the award is based on a "nonfact regarding unpaid overtime[,]" id. at 29, the Union argues that the award is deficient because the Arbitrator relied on the "irrelevant" explanation that "any overtime claimed by non[-]exempt staff was 100 percent compensated[,]" id. at 30 (emphasis in original; quoting Clarification Award at 2).

      The Union asserts that the Arbitrator failed to conduct a fair hearing because "the Arbitrator's refusal to allow certain evidence affected the fairness of the proceeding as a whole." Id. at 35. The Union argues that the Arbitrator in her clarification "failed to review the testimony or evidence (or the Union's arguments in its Brief)[.]" Id. at 38. The Union maintains that the Arbitrator's "unfounded rejection of the Union's suggestion that in order to comply with [60 FLRA 601], every employee should be given the opportunity to testify, showed that she refused to allow pertinent and material evidence, which affected the fairness of the proceeding as a whole." Id. The Union also argues that the Arbitrator failed to properly weigh testimony in her original award and failed to properly review that testimony in her Clarification Award.

      In addition, the Union alleges that the Arbitrator was "biased[.]" Id. at 33, 36. The Union claims that the Arbitrator's statement in her March 26 letter to the parties that she believed that her award was clear and her findings were complete and the Arbitrator's encouragement to the parties to resolve this matter shows that "she pre-decided the case." Id. at 35. The Union also claims that the following closing statement in the Clarification Award shows that the Arbitrator was biased:

As a reminder to the Union, [a]rbitration was intended to be final and binding as it is in the private sector. An [a]rbitrator is selected for being impartial, listens to the parties and makes a determination based on the information presented. The request for a new hearing is certainly not appropriate. The Union had very ample opportunity to present its best case in January 2004 and should not now look for a second.

Id. at 36 (quoting Clarification Award at 3).

B.      Agency's Opposition

      The Agency contends that the Union's exceptions should be denied.

      With respect to the Union's contention that the Clarification Award fails to comply with 60 FLRA 601, the Agency asserts that the exception is largely premised on an erroneous reading of the decision and that the Union's arguments misrepresent the Authority's remand order. Contrary to the claim of the Union, the Agency asserts that the Authority did not find the Agency liable for overtime pay under the FLSA and the FEPA and did not order additional hearings. The Agency maintains that instead, the Authority asked the Arbitrator to explain whether there were any employees entitled to overtime pay under the FEPA or the FLSA, and that by explaining that no employees were entitled to overtime pay, the Arbitrator fully addressed the Authority's remand order. The Agency argues that the Arbitrator correctly rejected the Union's request for a second hearing.

      Similarly, the Agency asserts that the Arbitrator did not exceed her authority by failing to resolve the issue of damages. The Agency argues that once the Arbitrator clarified that no compensation was due any employees, the Arbitrator was not required to resolve the issues of damages. In addition, the Agency asserts that the Arbitrator's legal conclusion that no damages should be awarded is consistent with both the FEPA and the FLSA. Consequently, the Agency maintains that the Authority should defer to the Arbitrator's factual findings and deny the Union's exception contending that the award is contrary to law.

      With respect to the Union's asserted nonfacts, the Agency contends in general that the Union's exception provides no basis for finding the award deficient because the asserted nonfacts relate to matters that the [ v61 p722 ] parties disputed at arbitration. In addition, the Agency argues that contrary to the claim of the Union, the Arbitrator did not reject the testimony of former employees because she viewed it as hearsay. Alternatively, the Agency argues that even if the Arbitrator may have erred with respect to any one of these asserted nonfacts, the Union has failed to establish that such error was central to the award and that but for the error, the Arbitrator would have reached a different result.

      Finally, the Agency contends that the Union provides no basis for finding that the Arbitrator failed to conduct a fair hearing or was biased. The Agency maintains that the Arbitrator's letter to the parties does not indicate that she had pre-decided the matter. The Agency also maintains that at the clarification stage, the Arbitrator's encouragement to settle was "helpful, not biased." Opposition at 16. The Agency asserts that to the extent that the Union's claim of a denial of a fair hearing is premised on the Arbitrator's refusal to hold another hearing, it provides no basis for finding the Clarification Award deficient because the Arbitrator properly viewed the original record sufficient for clarifying her original award. In addition, the Agency argues that the original record fully supports the Arbitrator's clarification.

IV.      Analysis and Conclusions

A.      The Clarification Award does not fail to comply with
          60 FLRA 601 and the Arbitrator did not fail to resolve an issue
          on remand.

      In contending that the Clarification Award fails to comply with the remand order and fails to address the issue of damages, the Union maintains that in 60 FLRA 601, the Authority ruled that employees "definitely worked uncompensated overtime" and ordered "only" that the Arbitrator determine which employees had worked that overtime and calculate the amount of damages to be awarded. Exceptions at 18. The Union has misconstrued the decision in 60 FLRA 601.

      In 60 FLRA 601, the Authority did not rule that "[l]liability ha[d] been established[,]" as claimed by the Union. Id. To the contrary, the Authority held that it was unable to determine whether any employees were entitled to overtime pay. As the Authority expressly stated:

[W]e are unable to determine from the record, whether the employees who worked uncompensated overtime to which the Arbitrator referr[ed] are entitled to overtime pay under the applicable standards.

60 FLRA at 604.

      Likewise, the "only question" on remand was not a determination of which employees had worked uncompensated overtime and a calculation of the amount of damages to be awarded. Exceptions at 18 (emphasis in original). To the contrary, the Authority ordered the Arbitrator to clarify whether any employees had worked overtime "entitling them to compensation under the applicable standards set forth by the FEPA or FLSA . . . and, if so, the amount of compensation to which they are entitled." 60 FLRA at 604. With respect to non-exempt employees, the Authority, in addition, ordered the Arbitrator to clarify "which, if any, employees were entitled to overtime pay and were erroneously granted comp time." Id. at 605. It is clear from the Authority's use of the words "if so" and "if any" that damages were to be addressed and calculated only if the Arbitrator clarified her original award as having found that employees had worked overtime for which they had not been properly compensated. The Arbitrator clarified that there were no employees who had worked overtime for which they had not been properly compensated under the FEPA or the FLSA. Consequently, the Clarification Award fully complies with the remand order and leaves no issue unresolved. Accordingly, we deny these exceptions because they provide no basis on which to find the Clarification Award deficient.

B.      The Clarification Award is not contrary to law.

      In contending that the Clarification Award is contrary to law, the Union cites 5 C.F.R. part 551 and claims that the award is deficient by not awarding non-exempt employees the compensation to which they are entitled. In 60 FLRA 601, the Authority explained that under regulations implementing the FLSA, an agency must compensate non-exempt employees for all hours of work in excess of 40 in a workweek. See 60 FLRA at 604 (citing 5 C.F.R. § 551.501(a)). The Authority noted that "hours of work" include time during which an employee is "suffered or permitted" to work and that work is "suffered or permitted" when the employee's supervisor knows or has reason to believe that the work is being performed and the supervisor has an opportunity to prevent the work from being performed. Id. (citing §§ 551.102; 551.401). With respect to comp time, the Authority noted that a non-exempt employee is entitled to overtime pay, rather than comp time, unless the employee freely requests comp time in lieu of overtime pay. See id. (citing §§ 551.501; 551.531).

      It was unclear from the Arbitrator's original award whether any non-exempt employees were entitled to overtime pay under these standards. Consequently, as part of the remand, the Authority ordered the Arbitrator to clarify whether any non-exempt employee was entitled [ v61 p723 ] to compensation under the standards of the FLSA and 5 C.F.R. part 551. With respect to non-exempt employees, the Arbitrator clarified that she had been persuaded by Agency testimony "that any overtime claimed by non[-]exempt staff was 100 percent compensated" and that she had found that the Agency supported its position that "no overtime by non[-]exempt staff was suffered and permitted." Clarification Award at 2.

      We review the Arbitrator's legal conclusion de novo, but in doing so we defer to the Arbitrator's underlying factual findings. See NFFE Local 1437, 53 FLRA 1703, 1710 (1998). For the reasons that follow, we deny the Union's exception on the basis of the Arbitrator's factual findings.

      In reviewing legal conclusions de novo, the Authority has consistently denied exceptions when the arbitrator has applied the correct standard of law and made findings of fact in support of the disputed legal conclusion. See, e.g., AFGE Local 507, 58 FLRA 378, 381 (2003) (Chairman Cabaniss dissenting as to other matters) (because the arbitrator had factually determined that employees chose comp time for personal convenience, the Authority denied the exception that the award was contrary to 5 C.F.R. part 551); NATCA, 55 FLRA 765, 768 (1999) (the Authority ruled that in view of the arbitrator's findings of fact, the award was consistent with applicable law); United States Dep't of Veterans Affairs, Central Texas Veterans Health Care Sys., Waco Integrated Clinical Facility, 55 FLRA 626, 628 (1999) (because the arbitrator's factual findings supported his legal conclusion, the Authority concluded that there was no basis for finding that the award was contrary to law). In this case, the Arbitrator applied the correct legal standard of "suffered or permitted" to non-exempt employees and factually determined that no overtime work was suffered or permitted by the Agency that was not properly compensated. Consequently, the Union's exception provides no basis for finding that the award is contrary to part 551.

C.      The Clarification Award is not based on a nonfact.

      The Union asserts that the Arbitrator relied on nonfacts regarding credibility, hearsay, comp time and unpaid overtime. To establish that the award is based on a nonfact, the Union must show that a central fact underlying the award is clearly erroneous, but for which the Arbitrator would have reached a different result. See, e.g., United States Dep't of the Treasury, Internal Revenue Serv., Kansas City Field Compliance Serv., 60 FLRA 401, 402 (2004) (IRS). However, 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, see id., or an arbitrator's determinations regarding the credibility of witnesses and the weight to be given their testimony, see id. at 403; United States Dep't of Veterans Affairs, New York Regional Office, New York, N.Y., 60 FLRA 17, 18 (2004) (Member Pope dissenting as to other matters) (New York Regional Office); United States Dep't of the Army, Norfolk Dist., Army Corps of Engineers, Norfolk, Va., 59 FLRA 906, 909 (2004) (Army Corps of Engineers).

      The Union's assertions concerning credibility and hearsay constitute disagreement with the Arbitrator's determinations regarding the credibility of witnesses and the weight to be given their testimony. Consequently, these assertions fail to establish that the award is based on a nonfact. See IRS, 60 FLRA at 403; New York Regional Office, 60 FLRA at 18; Army Corps of Engineers, 59 FLRA at 909. The parties disputed before the Arbitrator the matters of comp time requests and compensation of overtime claimed by non-exempt employees. Consequently, the Union's disagreement with the Arbitrator's factual determinations regarding comp time requests and the compensation of overtime claimed by non-exempt employees also fails to establish that the award is based on a nonfact. See IRS, 60 FLRA at 402. Accordingly, we deny this exception.

D.      The Arbitrator did not fail to conduct a fair hearing and the
          Arbitrator was not biased.

      The Authority will find an arbitration award deficient when it is established that the arbitrator failed to conduct a fair hearing by refusing to consider pertinent and material evidence so as to affect the fairness of the proceeding as a whole. See, e.g., United States Dep't of Veterans Affairs, 60 FLRA 479, 481 (2004) (DVA). However, an arbitrator has considerable latitude in the conduct of the hearing and a mere objection by a party to the conduct of the hearing does not provide a basis for finding an award deficient. See id. Disagreement with an arbitrator's evaluation of evidence and testimony also provides no basis for finding that an arbitrator failed to conduct a fair hearing. See id.

      The Union objects to the Arbitrator's denial of its request pursuant to the remand order in 60 FLRA 601 to "hold another hearing at which time all members of the bargaining unit would submit their testimony of claims of overtime." Clarification Award at 1. This objection again misconstrues the decision in 60 FLRA 601.

      The remand in 60 FLRA 601 did not require the Arbitrator to hold another hearing. Instead, the Arbitrator's clarification that there were no employees who [ v61 p724 ] worked overtime for which they had not been properly compensated fully complied with the remand order. Consequently, the Arbitrator's denial of the Union's request to hold another hearing provides no basis on which to find that the Arbitrator failed to conduct a fair hearing. See Nat'l Labor Relations Bd., Washington, D.C., 48 FLRA 1337, 1341 (1994) (because the Authority's remand did not require the arbitrator to reopen the hearing, the arbitrator's refusal to reopen the hearing did not deny a fair hearing) (NLRB). The Union's arguments concerning the Arbitrator's consideration of the testimony presented in the original hearing merely disagrees with the Arbitrator's evaluation of evidence and testimony and also provide no basis for finding that the Arbitrator denied a fair hearing. See DVA, 60 FLRA at 481; NLRB, 48 FLRA at 1341. Accordingly, we deny this exception.

      To establish that the Arbitrator was biased, the Union must show that the Clarification Award was procured by improper means, that the Arbitrator was partial or corrupt, or that the Arbitrator engaged in misconduct that prejudiced the Union's rights. See, e.g., United States Environmental Protection Agency, Region 5, Chicago, Ill., 61 FLRA 247, 250 (2005). The Union alleges that statements in the Arbitrator's March 26 letter to the parties and her closing statement in the Clarification award show that she was biased. This exception again misconstrues the decision in 60 FLRA 601.

      The Arbitrator complied with the Authority's remand order by clarifying that there were no employees who worked overtime for which they were not properly compensated. Consistent with this compliance with the remand order, the Arbitrator denied the Union's request to hold an additional hearing and commented that arbitration is intended to be final and binding. Because the Arbitrator complied with the remand order by clarifying her original award, the denial of an additional hearing and her comment on finality show no partiality on the part of the Arbitrator. For the same reason, the Arbitrator's March 26 letter also shows that the Arbitrator had not "pre-decided the case." Exceptions at 35. To the contrary, the letter states the Arbitrator's opinion of what she had already decided and what the Authority had requested that she clarify. Consequently, we deny this exception because it provides no basis for finding the award deficient.

V.      Decision

      The Union's exceptions are denied.