United States Department of the Navy, Naval Undersea Warfare Center, Division Newport, Newport, Rhode Island (Agency) and Federal Union of Scientists and Engineers, National Association of Government Employees, Local R1-144 (Union)

[ v63 p222 ]

63 FLRA No. 85

UNITED STATES
DEPARTMENT OF THE NAVY|
NAVAL UNDERSEA WARFARE CENTER
DIVISION NEWPORT
NEWPORT, RHODE ISLAND
(Agency)

and

FEDERAL UNION OF SCIENTISTS
AND ENGINEERS
NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES
LOCAL R1-144
(Union)

0-AR-4092

DECISION

April 17, 2009

_____

Before the Authority: Carol Waller Pope Chairman, and
Thomas M. Beck, Member

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Phyllis N. Segal 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 did not file an opposition to the Agency's exceptions.

      The Arbitrator found that the Agency erred in not changing the grievant's official transfer of function (TOF) date and, as a remedy, the Arbitrator directed the Agency to make the grievant whole by paying him a lump sum, with interest, for restored annual leave.

      For the reasons that follow, we deny the Agency's exceptions to the award.

II.     Background and Arbitrator's Award

A.     Background

      The grievance that gave rise to this arbitration resulted from reductions in the Base Realignment and Closure (BRAC) restored leave account balances of certain unit employees following an audit conducted by the Naval Sea Systems Command (NSSC). [n1]  Restored annual leave is leave that is not used in a required time period and would be forfeited if it did not qualify for placement in a restored leave account. Such leave is automatically placed in a BRAC restored annual leave account for a period of time after the base closure "exigency" is deemed complete. Exceptions, Attachment B, Interim Award (Interim Award) at 3 n.2.

      In 1996, the grievant accepted transfer to the Agency's facility in Newport, Rhode Island upon the closing of the Agency's New London, Connecticut facility. The TOF dates recorded in the grievant's official record were August and September 1996. BRAC restored annual leave was carried on the grievant's restored leave account for over six years following his transfer from New London to Newport. By letter dated May 6, 2003 (May 6 Letter), the grievant was advised that an audit review had resulted in the determination that the leave balance in his account should be reduced by 813 hours. Later, the grievant was notified that his leave would be reduced by 1,021 hours.

      On July 23, 2003, the Union filed a grievance contending that, as relevant here, the grievant's TOF date was inaccurate. The "grievance was filed under Section 11" of the parties' negotiated agreement (CBA). [n2]  Id. at 6. The grievance was denied and the matter was submitted to arbitration on the following agreed-upon issues:

1.     Is the grievance non-arbitrable because it is untimely filed under applicable terms and conditions of the parties' negotiated grievance procedure?
2.     Is the grievance non-arbitrable because it is not specific as to grounds as required under the applicable terms and conditions of the parties' negotiated grievance procedure? Is the grievance non-arbitrable because it is not specific as to remedy sought as required under the applicable terms and conditions of the parties' negotiated grievance procedure?
3.     Did the Agency err in not changing the TOF dates? If so, should the [A]gency be required to change the TOF dates to reflect the actual dates of employee relocation, i.e., physical move to the new duty station?
[ v63 p223 ] 4.     If the answer to whether the Agency should be required to change the TOF date is yes, are the employees entitled to a lump sum payment of restored leave and, if not, what remedy, if any, is deemed appropriate?

Id. at 2.

      Subsequently, in November 2003, "Congressional action . . . authorized the restoration of annual leave and payment of restored annual leave for certain employees who transferred from a base closed or realigned under the [BRAC]." See Section 1114 of the National Defense Authorization Act for Fiscal Year 2004, Pub. L. 108-136 (November 23, 2003) (hereinafter Remedial Legislation) [n3]  and Final Award at 7. This Remedial Legislation authorized a lump sum payment for certain BRAC-related leave to employees with TOF dates on or after September 23, 1996. Thereafter, the Undersecretary of Defense issued a memorandum directing implementation of this legislation.

B.     Interim Award

      The parties agreed to submit Issues 1 and 2, which concerned procedural arbitrability, for a decision prior to presenting Issues 3 and 4. The Arbitrator resolved Issues 1 and 2 in her Interim Award.

      With respect to Issue 1, the Arbitrator stated that, as to the meaning of the time limitation in Section 11 of the parties' CBA, the "parties disagreed whether the 15-day time limitation runs from when the grievant or the Union becomes aware of the relevant act or occurrence." Interim Award at 11 (emphasis in award). The Arbitrator found, based on her interpretation of the wording of Section 11, that the "relevant trigger date in this case is when the Union . . . becomes aware of the act or occurrence giving rise to the dispute." Id. at 12. Applying her interpretation of Section 11, the Arbitrator concluded that the grievance was timely filed. In so concluding, the Arbitrator specifically rejected the Agency's contention that the grievance also was untimely because the grievant's name was not included in a timely manner.

      With respect to Issue 2, the Arbitrator rejected the Agency's argument that the grievance failed to specify the exact nature of the grievance or the remedies sought as required by Section 3, Step 2 of the parties' CBA. The Arbitrator found that the CBA did not require more specificity than the Union provided, noting "unrebutted testimony" from the Union President that past practice also did not require greater specificity. Id. at 16.

      Accordingly, the Arbitrator found the grievance was procedurally arbitrable.

C.     Final Award

      Before the Arbitrator, the Union argued that the "Agency should be required to adjust [the] grievant's official TOF date, [of] mid-August 1996, to match the date when his work was moved, and his duty station was in fact transferred, from New London to Newport in October 1996." Final Award at 8. The Union also argued that the grievant is entitled to a lump sum payment under the Remedial Legislation. The Agency disputed the Union's contentions and argued that granting relief to the grievant "would be contrary to [the Remedial Legislation] because relief under this legislation for employees with TOF dates prior to September 23, 1996 applies only where an employee had used the questioned BRAC leave on or before January 12, 2002." Id. at 10.

      In her Final Award, the Arbitrator found the TOF date recorded in the grievant's official record was mid-August 1996. The Arbitrator found that "[d]espite this official record date, unrebutted evidence indicates that [the] grievant did not begin working in Newport until early October 1996." Id. at 4. According to the Arbitrator, the Agency did not "produce[] any evidence or argument contradicting this evidence that [the] grievant continued to physically work in New London until early October 1996," [when] his work location was moved to Newport." Id. at 5.

      In concluding that the grievant's TOF date should be changed to October 1996, the Arbitrator rejected several Agency arguments. First, the Arbitrator rejected the Agency's reliance on the definition of "transfer of function" in 5 C.F.R. § 351.203, finding that the Agency did not show that the October 1996 TOF date for the grievant was inconsistent with this definition. Second, the Arbitrator rejected the Agency's argument that it could not change the grievant's TOF date because it had no authority to do so. The Arbitrator found "nothing ha[d] been presented . . . that explicitly limits the Agency's authority to make retroactive changes to an official TOF date to align it with the actual date that an employee's performance of work was transferred." Id. at 14. The Arbitrator noted the Agency's reliance on the Remedial Legislation and found "[t]here is no language on the face of this legislation that prohibits changing a TOF date. Indeed, the term `Transfer of Function' or `TOF' is nowhere in the law." Id.

      [ v63 p224 ] Third, the Arbitrator rejected the Agency's argument that it could not change the TOF date because compelling it to do so would interfere with management's rights. The Arbitrator found that the "only action at issue . . . concerns record keeping: the entry of a date in an official personnel record to correctly establish a transfer that, pursuant to the Agency's own management decisions, has already taken place." Id. at 15. Finally, the Arbitrator rejected as unsupported the Agency's claim that it could not change the grievant's TOF date because the grievant was bound by his acceptance of the August 1996 TOF date.

      Based on the foregoing, the Arbitrator concluded that the Agency improperly refused to change the grievant's TOF date to reflect the actual date the performance of the grievant's work was transferred to the new duty station in the first week of October 1996. As to the remedy, the Arbitrator found that section (b) of the Remedial Legislation "expressly gives [the Agency] authority to order a lump sum payment to employees who transferred on or after September 23, 1996[,]" and that the grievant's transfer met this requirement. Id. Because the amount of leave appropriate for payment was disputed by the Agency -- the Agency claimed 605 hours, while the Union claimed 813 -- the Arbitrator left the number of hours to be used in calculating the lump sum payment to be resolved during implementation of the remedy.

III.     Agency's Exceptions

      The Agency asserts that the interim award "fails to draw its essence from the [parties' CBA]." Exceptions at 10. The Agency contends that the Arbitrator's determination that the grievance was timely filed under the parties' CBA does not "represent a plausible interpretation" of the parties' CBA because it would allow the Union to raise matters "based on `years old' occurrences. Exceptions at 11.

      The Agency asserts that the Final Award is contrary to law. In this regard, the Agency asserts that management's "prerogative to reassign employees throughout the [A]gency includes the authority to direct reassignments within and outside of the geographic commuting area." Id. at 12. Citing United States Department of Justice, Federal Bureau of Prisons, Federal Transfer Center, Oklahoma City, Okla., 58 FLRA 109 (2002) (concurring opinions of Chairman Cabaniss, Member Pope, and Member Armendariz) (BOP), the Agency claims that, by requiring the Agency to change the grievant's TOF date, the award "excessively" interferes with the exercise of a management right. Id. at 13.

      The Agency also claims that the Final Award is contrary to the Remedial Legislation. Although, the Agency does not reference any particular section of the legislation, the Agency contends that Congress provided statutory relief that contained certain limitations. According to the Agency, "[t]hose limitations included the need for those persons with transfer dates earlier than September 23, 1996 to have used BRAC leave on or before January 12, 2002[.]" Id. at 14. The Agency asserts that the grievant did not use such leave before that date and as a result, changing the grievant's TOF date "would be contrary to the Remedial Legislation . . . and inconsistent with actions taken with respect to all the other grievant['s] who received relief and who also had TOF dates prior to September 23, 1996." Id.

IV.     Analysis and Conclusions

A.     The Arbitrator's procedural arbitrability determination is not deficient

      The Authority generally will not find an arbitrator's ruling on the procedural arbitrability of a grievance deficient on grounds that directly challenge the procedural arbitrability ruling itself. See, e.g., AFGE, Local 3882, 59 FLRA 469, 470 (2003). However, the Authority has stated that a procedural arbitrability determination may be found deficient on grounds that do not directly challenge the determination itself, which include claims that an arbitrator was biased or that the arbitrator exceeded his or her authority. See id.; see also United States Equal Employment Opportunity Comm'n, 60 FLRA 83, 86 (2004) (citing AFGE, Local 2921, 50 FLRA 184, 185-86 (1995)). In addition, the Authority has stated that a procedural arbitrability determination may be found deficient on the ground that it is contrary to law. See AFGE, Local 3882, 59 FLRA at 470 (citing AFGE, Local 933, 58 FLRA 480, 481 (2003)).

      The Agency's claim that the Arbitrator's finding regarding the timeliness of the Union's grievance fails to draw its essence from the parties' CBA directly challenges the Arbitrator's procedural arbitrability determination. As such, it provides no basis for finding the award deficient. See, e.g., United States Dep't of Homeland Sec., Customs & Border Prot. Agency, N.Y., N.Y., 60 FLRA 813, 815 (2005); United States Dep't of Defense, Army and Air Force Exchange Service, Fort Worth General Merchandise Distribution Activity, 34 FLRA 158 (1990) (union's claim that award finding grievance arbitrable was contrary to procedures established in § 7121 did not provide a basis for finding the award deficient because such contention disputed arbitrator's application of the procedural requirements of a [ v63 p225 ] negotiated grievance procedure which is not a ground for finding an award deficient).

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.

1.     Management's right to assign employees

      The Agency asserts that management's "prerogative to reassign employees throughout the [A]gency includes the authority to direct reassignments within and outside of the geographic commuting area." Exceptions at 12. The Agency asserts that it "should not now be forced to unilaterally change [the TOF date] for the . . . grievant" and that the award directing it to do so "interfere[s] excessively with the exercise of a management right." Id. at 13. We construe this contention as a claim that the award excessively interferes with its right to assign employees. In this regard, management's right to assign employees under § 7106(a)(2)(A) of the Statute includes the right to make initial assignments to positions, to reassign employees to different positions, and to make temporary assignments or details. See, e.g., AFGE, Local 12, 61 FLRA 209, 221 (2005) (citing POPA, 53 FLRA 625, 640 (1997) (then Member Pope concurring in part and dissenting in part).

      When resolving an exception which contends that the award is contrary to a management right under § 7106 of the Statute, the Authority first considers whether the award affects the exercise of a management right.

      In this case, the award directs the Agency to change the grievant's TOF date to reflect the actual date his duty station was changed. The award does not affect management's right to assign or reassign the grievant on any date. The award simply requires the Agency to change the grievant's TOF date to the correct date. As such, the Agency's reliance on BOP is misplaced. The award in BOP prohibited the agency from vacating posts of duty and directed the agency to appoint a representative designated by the union to serve on an agency committee. The award in this case only requires the Agency to change a date on an Agency record to the correct date.

      Based on the above, the Agency has failed to establish that the award affects its right to reassign employees.

2.     Remedial Legislation

      According to the Agency, the Remedial Legislation provided statutory relief that contained certain limitations, including the need for those persons with transfer dates earlier than September 23, 1996 to have used BRAC leave on or before January 12, 2002. Exceptions at 14.

      The Agency has not pointed to any language in the Remedial Legislation that prohibits the Agency from changing a TOF date nor is there any language in the Remedial Legislation that mentions transfer of function. Further, Section 1114(b) of this legislation gives the Agency the authority to pay to an employee "transferring" from a closing or realigning Department of Defense installation or activity "on or after September 23, 1996" a lump sum payment of restored annual leave as described in that section. The Arbitrator's factual findings show that the grievant's actual TOF date to Newport, Rhode Island should have been changed to the first week of October 1996. As the Agency has not demonstrated that the Remedial Legislation prohibits the Agency from changing the TOF date to October 1996, and the specific time limitation on which the Agency relies applies to TOF dates earlier than September 23, 1996, the Agency has not demonstrated that the award is deficient on this ground.

V.     Decision

      The Agency's exceptions are denied.


APPENDIX

1.     Relevant provisions of the parties' CBA are as follows:

SECTION 2.C

      Any complaint which is not taken up with the employee's immediate supervisor within fifteen (15) calendar days, by the employee(s) after the occurrence of the matter, or after the employee learns of the matter from which the complaint arose, shall not be presented for consideration at a later date. Exception to this is employees who are incapacitated for duty or on TDY (and have not learned of the matter). Upon return to duty or duty station, such employees will be allowed the [ v63 p226 ] additional days to make up the requirement of fifteen (15) calendar days maximum.

SECTION 3 - Step 2 Formal Grievance

      If no satisfactory settlement was reached at Step 1, the employee shall reduce the grievance to writing within four (4) workdays of receipt of a decision by the immediate supervisor stating the exact nature of the grievance and the corrective or remedial action sought. . . .

SECTION 11

      In lieu of the step-by-step procedure outlined above, a grievance initiated by the Union/Employer shall be reduced to writing and submitted to the Union President/Commanding Officer, as appropriate, within 15 days after the act or occurrence which gave rise to the dispute. The Commanding Officer or his/her designated representative shall meet within ten (10) days with the Union President or his/her designated representative to discuss the grievance. . . .

Interim Award at 2-3.

2.     Remedial Legislation

RESTORATION OF ANNUAL LEAVE FOR CERTAIN DEPARTMENT OF DEFENSE EMPLOYEES.

(a) Restoration of Annual Leave.--During the period October 1, 1992, through December 31, 1997, all employees transferring from a closing or realigning Department of Defense installation or activity as defined under section 6304(d)(3) of title 5, United States Code, to another Department of Defense installation or activity--

(1) may be deemed eligible by the Secretary of Defense for automatic restoration of forfeited annual leave under section 6304(d)(3) of title 5, United States Code, during the year of transfer; and
(2) may be deemed by the Secretary of Defense to have used all forfeited annual leave properly restored under section 6304(d)(3) of title 5, United States Code, within the appropriate time limits, only if such restored annual leave was used by the employee or paid to the employee in the form of a lump sum payment under section 5551(a) of title 5, United States Code, by the last day of the 2001 leave year