American Federation of Government Employees, Local 2516 (Union) and United States, Department of the Army, William Beaumont, Army Medical Center, Fort Bliss, Texas (Agency)

[ v61 p836 ]

61 FLRA No. 167

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2516
(Union)

and

UNITED STATES
DEPARTMENT OF THE ARMY
WILLIAM BEAUMONT
ARMY MEDICAL CENTER
FORT BLISS, TEXAS
(Agency)

0-AR-4016

_____

DECISION

October 13, 2006

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope, Member [n1] 

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Norman Bennett 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 did not file an opposition to the Union's exceptions.

      The Arbitrator concluded that the time during which the grievants were subject to call-back procedures did not constitute hours of work and that they were not eligible for premium pay on an annual basis. For the reasons that follow, we deny the Union's exceptions.

II.      Background and Arbitrator's Award

      The Union filed a grievance on behalf of employees in certain departments of the Agency who are not exempt from the Fair Labor Standards Act, which claimed that the time they were subject to call-back procedures constituted compensable standby duty under 5 C.F.R. § 551.431(a)(1). [n2]  Alternatively, the Union claimed that the employees were entitled to premium pay on an annual basis under 5 C.F.R. § 550.141.  [n3]  The Arbitrator denied the grievance.

      The Arbitrator concluded that when subject to call-back procedures, employees were in an on-call status and off duty under § 551.431(b). He found that under § 551.431(b)(2), the time spent subject to call-back did not constitute hours of work because the evidence showed that employees are allowed to swap call-back shifts with other employees. [n4]  He also concluded that the employees did not meet the requirements of § 551.431(a)(1) to have the time considered hours of work. He found that there was no official order restricting employees to a designated post of duty. He also found that during the time that they were subject to call-back, employees were not subject to limitations on their activities sufficiently substantial that they could not use the time effectively for their own purposes.

      In addition, the Arbitrator concluded that employees were not eligible for premium pay on an annual basis under § 550.141. He found that their living quarters had not been designated as their duty station by the Agency and that their activities were not substantially restricted. Finally, the Arbitrator rejected the Union's claim that employees of other departments were paid when subject to call-back and that consequently, the grievants were subjected to disparate treatment. He found that the evidence was insufficient to support a finding of disparate treatment because there was no documentation or specific testimony about the alleged pay to employees of other departments.

III.      Exceptions

      The Union contends that the Arbitrator erred in concluding that time spent subject to call-back procedures did not constitute hours of work under § 551.431 and in concluding that employees were not eligible for premium pay on an annual basis under § 550.141.

      The Union argues that there was sufficient evidence that the restrictions placed on employees subject to call-back procedures restricted their quality of life so as to warrant compensation under either § 551.431(a)(1) or § 550.141. The Union also disputes the Arbitrator's finding that there was no official order restricting employees to a designated post of duty. The Union further [ v61 p837 ] claims that the Arbitrator's finding that employees are allowed to swap shifts fails to reflect that swapping swifts "is next to impossible because of the cut backs in the federal workforce." Exceptions at 6.

      In addition, the Union contends that "[t]he Arbitrator was amiss when he states that the Union did not prove that affected employees were subjected to disparate treatment." Id. The Union claims that evidence and testimony established that some employees of other departments were paid when subject to call-back and that consequently, the Arbitrator erred by failing to order the grievants similarly compensated.

IV.      Analysis and Conclusions

A.      The award is not contrary to § 551.431.

      We review questions of law and government-wide regulations raised by exceptions to an arbitrator's award de novo. See United States Dep't of the Army, Evans Army Community Hospital, Fort Carson, Colo., 58 FLRA 244, 245 (2002). In applying a standard of de novo review, we determine whether the arbitrator's legal conclusions are consistent with the applicable standard of law. In making that determination, we defer to the arbitrator's underlying finds of fact. See id.

      The Union argues that the Arbitrator erred in concluding that time spent subject to call-back procedures was time spent off duty in an on-call status rather than compensable time spent on standby duty. We conclude that the Union provides no basis for finding the award contrary to § 551.431.

      In this case, the Arbitrator made two separate legal conclusions: (1) employees were off duty and in an on-call status under § 551.431(b)(2); and (2) the disputed time was not hours of work spent on standby duty under § 551.431(a)(1). The Union disputes both conclusions. However, a determination under § 551.431(b), that time shall not be considered hours of work, precludes a determination that the time constitutes compensable standby duty under § 551.431(a)(1). See Allen v. United States, 1 Cl. Ct. 649, 651-52 (1983) (when either of the circumstances of § 551.431(b) are met, "[t]ime spent on an on-call status is not considered work" ); AFGE Local 1897, 51 FLRA 1290, 1292 (1996) ("5 C.F.R. § 551.431(b)(1) precludes standby pay for employees who are permitted to carry beepers and required to remain within a reasonable call-back radius."). For the reasons that follow, we conclude, on the basis of § 551.431(b)(2), that the Union fails to establish that Arbitrator erred in concluding that the disputed time could not be considered hours of work. In view of this, our conclusion that the award is not deficient under § 551.431(b)(2) effectively resolves the Union's claim under § 551.431(a)(1).

      Section 551.431(b)(2) provides: "An employee will be considered off duty and time spent in an on-call status shall not be considered hours of work if . . . [t]he employee is allowed to make arrangements such that any work which may arise during the on-call period will be performed by another person." The Arbitrator concluded that employees were in an on-call status and off duty because the evidence showed that employees are allowed to swap on-call shifts with other employees. Deferring to the Arbitrator's specific factual finding, which is not disputed, [n5]  the Arbitrator's conclusion that employees were off duty and the disputed time was not hours of work is consistent with § 551.431(b). See United States Dep't of Commerce, Nat'l Oceanic and Atmospheric Admin., Office of NOAA Corps Operations, Atlantic Marine Ctr., Norfolk, Va., 55 FLRA 816, 821 (1999) (Chair Segal concurring as to other matters; Member Wasserman dissenting as to other matters) (based on specific factual findings of the arbitrator, to which the Authority deferred, the arbitrator's legal conclusion that employees were in a standby duty status was not contrary to § 551.431) (NOAA).

B.      The award is not contrary to § 550.141.

      Under § 550.141, an agency may pay premium pay on an annual basis, instead of overtime pay, to employees required "regularly to remain at, or within the confines of, [their] station[,] . . . a substantial part of which consists of remaining in a standby status rather than performing work." As applicable to this case, the words "at, or within the confines of, [their] station" mean in employee homes, if designated by the Agency as their duty station and if their whereabouts are narrowly limited and their activities substantially restricted. See § 550.143(b)(3); Huskey v. Trujillo, 302 F.3d 1307, 1313 (Fed. Cir. 2002) (Huskey).

      The Arbitrator found that employee homes had not been designated by the Agency as their duty stations and that their activities were not substantially restricted. Deferring to the Arbitrator's specific factual findings, his conclusion that employees were not eligible for premium pay on an annual basis is consistent with § 550.141. See Huskey, 302 F.3d at 1313; NOAA, 55 FLRA at 821. Accordingly, the Union fails to establish that the Arbitrator's conclusion is deficient.

      In reaching this decision, we note that although the Union has disputed the Arbitrator's finding, under § 551.431(a)(1), that there was no official order restricting employees to a designated post of duty, the Union does not dispute the Arbitrator's finding, under [ v61 p838 ] § 550.141, that employee living quarters had not been designated as their duty station by the Agency. Although the Union disputes the Arbitrator's finding that the restrictions were not substantial, all of the criteria of § 550.141 must be met to be eligible for premium pay on an annual basis. Consequently, the Union's argument disputing only whether the restrictions were substantial clearly provides no basis for finding the Arbitrator's legal conclusion deficient. See Huskey, 302 F.3d at 1313 n.4 (because the employee's home was not designated by her agency as her duty station, the court found it unnecessary, in denying her premium pay, to address whether her whereabouts were narrowly limited and her activities substantially restricted).

C.      The Union's claim of disparate treatment provides no basis for finding the award deficient.

      The Arbitrator found that the evidence was insufficient to support the Union's claim of disparate treatment because there was no documentation or specific testimony about the alleged pay to other employees. The Union asserts that "[t]he Arbitrator was amiss" because evidence and testimony established that some employees of other departments were paid when subject to call-back procedures and that consequently, the award is deficient by failing to order the grievants similarly compensated. Exception at 6.

      Construing the Union's assertion as a claim that the award is based on a nonfact, we conclude that this assertion provides no basis for finding the award deficient. For the Union 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 Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593-94 (1993). However, the Authority will not find an award deficient on the grounds of nonfact on the basis of an arbitrator's determination on any factual matter that was disputed at arbitration. See, e.g., NFFE Local 1442, 59 FLRA 849, 852 (2004) (Chairman Cabaniss concurring). It is clear that the matter of whether employees of other departments were paid when subject to call-back procedures was disputed by the parties at arbitration. Consequently, the Union's assertion provides no basis for finding the award deficient. Moreover, the Union's claim that other employees were compensated can provide no basis for ordering the grievants similarly compensated. In view of our ruling that the disputed time was not legally compensable, correction of any such disparate treatment must be to terminate compensation to those employees being illegally compensated, not to illegally compensate the grievants.

V.      Decision

      The Union's exception is denied.


Appendix

Section 551.431 pertinently provides, as follows:

     (a)(1) An employee is on duty, and time spent on standby duty is hours of work if, for work-related reasons, the employee is restricted by official order to a designated post of duty and is assigned to be in a state of readiness to perform work with limitations on the employee's activities so substantial that the employee cannot use the time effectively for his or her own purposes. . . .
     (b) An employee will be considered off duty and time spent in an on-call status shall not be considered hours of work if:
. . . .
     (2) The employee is allowed to make arrangements such that any work which may arise during the on-call period will be performed by another person.

Section 550.141 pertinently provides, as follows:

     An agency may pay premium pay on an annual basis, instead of the premium pay . . . for regularly scheduled overtime, . . . to an employee in a position requiring him or her regularly to remain at, or within the confines of, his or her station during longer than ordinary periods of duty, a substantial part of which consists of remaining in a standby status rather than performing work. . . .

Section 550.143 pertinently provides, as follows:

     (b) The words "at, or within the confines, [sic] of[,] his station [sic]" in § 550.141 mean one of the following:
     (3) In an employee's living quarters, when designated by the agency as his duty station and when his whereabouts is narrowly limited and his activities are substantially restricted. This condition exists only during periods when an employee is required to remain at his quarters and is required to hold himself in a state of readiness to answer calls for his services. This limitation on an employee's whereabouts and activities is distinguished from the limitation placed on an employee who is subject to call outside his tour of duty but may leave his quarters provided he arranges for someone else to respond to calls or leaves a telephone number by which he can be reached should his services be required. [ v61 p839 ]

Concurring Opinion of Chairman Cabaniss:

      I join the Authority's decision because I agree that when the Union's claim of disparate treatment is construed as a nonfact exception, the exception provides no basis for finding the award deficient. However, I write separately to reemphasize my view that such claims, which expressly allege that the arbitrator erred in the assessment of the evidence, should be more appropriately resolved under the terms of the Statute on the basis of their express allegations.

      Section 7122(a)(2) provides that arbitration awards in the federal sector will be found deficient on grounds that are similar to grounds applied by federal courts in reviewing arbitration awards in the private sector. The Authority determined that in resolving whether awards are deficient under § 7122(a)(2), it would be guided by the Joint Explanatory Statement of the Committee on Conference, S. Rep. No. 95-1272, at 153 (1978) (Conf. Rep.). See, e.g., Veterans Admin. Reg'l Office, 5 FLRA 463, 466 (1981) (VARO). In explaining the provisions for review of arbitration awards under § 7122(a)(2), the committee stated, as follows:

The Authority will only be authorized to review the award of the arbitrator on very narrow grounds similar to the scope of judicial review of an arbitrator's award in the private sector.

Conf. Rep., at 153. Accordingly, the Authority has specifically advised, as follows:

Consistent with Congressional intent, the Authority, in determining whether a particular arbitration award being reviewed is deficient under the provisions of § 7122(a)(2) of the Statute, applies only grounds similar to those applied by Federal courts in private sector cases[.]

VARO, 5 FLRA at 466.

      In Fed. Aviation Science and Technological Ass'n, 2 FLRA 680 (1980), the Authority noted that "[i]t is settled law in the private sector that an arbitrator's award is not open to review on the merits." 2 FLRA 681 (citing Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960) (Enterprise Wheel); Crigger v. Allied Chemical Corp., Semet-Solvay Div., 500 F.2d 1218 (4th Cir. 1974); Paper Mill Workers, Local Union No. 874 v. St. Regis Paper Co., 362 F.2d 711 (5th Cir. 1966) (Mill Workers)). Moreover, the Authority explained that the merits embrace "asserted errors in determining the credibility of witnesses [and] the weight to be given their testimony[.]" Id. (quoting Mill Workers, 362 F.2d at 714). Applying this approach to a claim that the award was contrary to the evidence, the Authority summarily denied the exception. The Authority advised that it would not find arbitration awards deficient under the Statute on the basis of an exception that disagrees "with the reasoning employed by [arbitrators] on the merits of the issue before [them]." Id. at 682.

      Thereafter, the Authority repeatedly denied summarily exceptions that disputed the arbitrator's assessment of the evidence presented. For example, in United States Dep't of Labor, 19 FLRA 300, 302 (1985), the agency contended that the award was deficient because "there was no credible evidence" to support it. The Authority summarily denied the exception. To the Authority, it was clear that the agency was "simply attempting to relitigate the merits of the case before the Authority[.]" Id. at 303. In the Authority's view, "the [a]gency's contentions essentially constitute[d] disagreement with the [a]rbitrator's . . . reasoning and conclusions based upon the evidence and testimony before him[.]" Id. The Authority reaffirmed that "[i]t is well-established that such contentions provide no basis for finding an award deficient." Id.

      In Paperworkers v. Misco, Inc., 484 U.S. 29 (1987) (Misco), the Supreme Court ruled that courts are not authorized to reconsider the merits of an award and expressly reaffirmed the following holding of Enterprise Wheel:

The refusal of courts to review the merits of an arbitration award is the proper approach to arbitration under collective bargaining agreements. The federal policy of settling labor disputes by arbitration would be undermined if courts had the final say on the merits of the awards.

484 U.S. at 36 (quoting Enterprise Wheel, 363 U.S. at 596). In United States Dep't of Justice, Immigration and Naturalization Serv., Honolulu Dist. Office, Honolulu, Haw., 41 FLRA 207, 211 (1991), the Authority expressly determined that it would "follow the advice and guidance of the Supreme Court in [Misco] on the scope of review of arbitration awards." In other words, the Authority advised that it would not sit to hear claims of factual or legal error by an arbitrator as an appellate court does in reviewing decisions of lower courts. See id.

      In United States Dep't of the Navy, Naval Surface Warfare Ctr., Dahlgren, Va., 44 FLRA 1118 (1992), the Authority expressly relied on Misco and its reaffirmation of Enterprise Wheel in denying the agency's allegation that the arbitrator erred in finding that it had not presented any evidence to support one of its claims. The Authority emphasized that the allegation constituted nothing more than disagreement with the arbitrator's evaluation of the evidence and testimony. The Authority ruled that in view of Enterprise Wheel and Misco, the [ v61 p840 ] allegation provided no basis for finding the award deficient.

      In some more recent cases, the Authority has directly confronted these allegations and summarily denied them as providing no basis on which an award can be found deficient under the Statute. See, e.g., NTEU, 61 FLRA 618, 623 (2006) ("To the extent that the Union is challenging Arbitrator Snow's decision to credit the Agency's expert over the Union's expert, the Authority has held that challenges to an arbitrator's evaluation of evidence and testimony presented, including the credibility of witnesses and the weight to be given their testimony, provide no basis for finding an award deficient."); AFGE Local 3295, 51 FLRA 27, 32 (1995) (the Authority described the union's claim that the arbitrator disregarded testimony as pertaining to the "evaluation of the evidence" and summarily denied the claim as "disagreement with [the] arbitrator's evaluation of the evidence and his determination of the weight to be accorded such evidence[.]"). However, the more common approach in recent cases appears to be to construe such an allegation as a claim that the award is deficient on one of the recognized grounds on which the Authority will find an award deficient under § 7122(a)(2) of the Statute, usually nonfact or fair hearing. See, e.g., NFFE Local 1442, 59 FLRA 849, 850 (2004) (Chairman Cabaniss concurring) (the Authority construed the allegation that the arbitrator "disregarded key evidence" as a claim that the award was based on a nonfact and denied the exception because no basis was provided for finding that the award was deficient on that ground).

      I concurred in NFFE Local 1442, to note the long line of cases that I have discussed above in which exceptions that constituted nothing more than disagreement with an arbitrator's evaluation of evidence provided no basis for finding an award deficient under the Statute and to suggest that they should be expressly denied on this basis. I again write separately this time to emphasize that these allegations should be confronted on their express terms and summarily denied. Neither the terms of the Statute nor the parties before us benefit from suggesting that such an allegation constitutes a "ground[] similar to those applied by Federal courts in private sector labor-management relations[.]" § 7122(a)(2). It does not; it provides no basis for finding an arbitration award deficient under the terms of the Statute. The Authority needs to convey this message to the parties who file exceptions to arbitration awards. In my view, summary denial of these allegations is the best means of getting this message conveyed.



Footnote # 1 for 61 FLRA No. 167 - Authority's Decision

   Chairman Cabaniss' concurring opinion is set forth at the end of this decision.


Footnote # 2 for 61 FLRA No. 167 - Authority's Decision

   Relevant provisions of § 551.431 are set forth in the appendix to this decision.


Footnote # 3 for 61 FLRA No. 167 - Authority's Decision

   Relevant provisions of §§ 550.141, 143 are set forth in the appendix to this decision.


Footnote # 4 for 61 FLRA No. 167 - Authority's Decision

   It is evident from the award that the Arbitrator found that employees were allowed to swap shifts despite stating that the criteria for on-call status "has not been met." Award at 11 (emphasis added). In our view, the addition of the word "not" is an obvious error.


Footnote # 5