National Association of Government Employees (Union) and United States Department of the Navy, Naval Base Ventura County (Agency)
64 FLRA No. 55
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
UNITED STATES DEPARTMENT OF THE NAVY
NAVAL BASE VENTURA COUNTY
December 30, 2009
Before the Authority: Carol Waller Pope, Chairman, and
Thomas M. Beck and Ernest DuBester, Members
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator
Sara Adler 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 untimely opposition to the Union’s exceptions.
The Arbitrator found that the Agency did not violate the parties’ agreement by failing to amend the grievant’s SF-50 to reflect a schedule change. For the reasons set forth below, we deny the Union’s exceptions.
II. Background and Arbitrator’s Award
The grievant, a firefighter, worked a 6 day on and 8 day off schedule per pay period (6/8 day schedule). Award at 2. He was switched to a temporary 7 day on and 7 day off work schedule per pay period (7/7 day schedule) to accommodate a training need. He remained on that schedule for more than 2 years. Id. The grievant was then returned to his 6/8 day schedule. Id. The grievant then filed a grievance requesting that his SF-50 be amended to reflect his time working the 7/7 day schedule because he believed it would increase his retirement pay. Id.
The grievance was unresolved and submitted to arbitration. The Arbitrator defined the issues as:
1. Is this grievance timely?
2. If so, did the [Agency] violate any negotiated agreement, law, rule or regulation in not issuing an SF-50?
3. If so, what is the appropriate remedy?
Id. at 3. The Arbitrator found that the grievance was untimely regarding the commencement of the 7/7 day schedule because it was filed more than 2 years after that schedule began. Id. at 3-4. However, the Arbitrator found that the grievance was timely for the end of the 7/7 day schedule. Id. at 4. The Arbitrator noted that, “in theory, [this] could lead to the absurd result” that the Agency would note the end date, but not the beginning date of the 7/7 day schedule. Id. The Arbitrator held that it was unnecessary to reach a conclusion regarding this point, however, because the grievance must be denied on its merits. Id.
The Arbitrator found that the Agency’s Guide for Processing Personnel Actions did not include any provision that would provide for altering an SF-50 for a full-time shift change. Id. In addition, the Arbitrator found that, although the Union persuasively argued that the Agency could amend an SF-50 to record full-time shift changes, the Union failed to show that the Agency’s failure to document the time the grievant spent on the 7/7 day schedule violated the parties’ agreement, or any law, rule, or regulation. Id. The Arbitrator concluded that because the grievant’s claim is “grounded in the notion that the [Agency] could have, and should have,” provided the requested documentation – rather than it must have -- she “lack[ed] the jurisdiction” to grant the grievant’s claim and denied the grievance. Id. at 5.
III. Union’s Exception
The Union asserts that the award is contrary to law because it did not order the grievant’s SF-50 to be amended as required by Chapter 4 of the OPM Guide to Processing Personnel Actions (OPM Guide). Exceptions at 3-4. The Union further argues that it provided sufficient evidence that the Agency was required to amend the grievant’s SF-50 to reflect the time worked in a 7/7 schedule. Id. at 4. The Union also contends that the award is contrary to law because the Arbitrator failed to grant an equitable remedy on the grounds that she did not have the authority to do so. The Union contends that this interpretation is contrary to law because an arbitrator has the inherent power to fashion a remedy as long as the award draws its essence from the parties’ agreement. Id. The Union alleges that granting the grievant’s requested