Department of the Air Force, McGuire Air Force Base (Activity) and Local 1178, American Federation of Government Employees (Union)  

 3 FLRA No. 38
 
 DEPARTMENT OF THE AIR FORCE,
 MCGUIRE AIR FORCE BASE
 Activity
 
 and
 
 LOCAL 1778, AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES
 Union
 
                                            Case No. 0-AR-3
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON A PETITION FOR REVIEW OF THE
 AWARD OF ARBITRATOR JOHN M. MALKIN FILED BY THE UNION AFTER JANUARY 11,
 1979, AND HENCE UNDER SECTION 7122(A) OF THE FEDERAL LABOR-MANAGEMENT
 RELATIONS STATUTE (5 U.S.C. 7122(A)).
 
    ACCORDING TO THE ARBITRATOR'S AWARD, THE ISSUES IN DISPUTE BEFORE THE
 ARBITRATOR WERE AS FOLLOWS:
 
    1.  IS THE 4.5 HOURS ON AUGUST 13, 1977, AND THE 3.5 HOURS ON AUGUST
 14, 1977, STANDBY TIME
 
    FOR WHICH GRIEVANT . . . IS ENTITLED TO COMPENSATION UNDER ARTICLE
 11, SECTION 3, OF THE
 
    MEMORANDUM OF AGREEMENT BETWEEN LOCAL 1778 AND MCGUIRE AIR FORCE
 BASE?  /1/
 
    2.  IS THE MATTER ARBITRABLE?
 
    THE ARBITRATOR FIRST CONSIDERED THE QUESTION OF ARBITRABILITY AND
 OBSERVED THAT THE ACTIVITY'S POSITION ESSENTIALLY WAS THAT THE DENIAL OF
 OVERTIME PAY IN A CLAIM PAYABLE UNDER THE FAIR LABOR STANDARDS ACT IS
 NOT ARBITRABLE BECAUSE IT IS A MATTER FOR WHICH A STATUTORY APPEAL
 PROCEDURE EXISTS.  THIS MATTER AROSE AND WAS BEFORE THE ARBITRATOR UNDER
 THE PROVISIONS OF EXECUTIVE ORDER 11491, AS AMENDED.  WITH RESPECT TO
 GRIEVANCE AND ARBITRATION PROCEDURES, SECTION 13(A) OF THE ORDER
 PROVIDES IN PART:
 
    THE COVERAGE AND SCOPE OF THE PROCEDURE SHALL BE NEGOTIATED BY THE
 PARTIES TO THE AGREEMENT
 
    WITH THE EXCEPTION THAT IT MAY NOT COVER MATTERS FOR WHICH A
 STATUTORY APPEAL PROCEDURE EXISTS
 
    . . .
 
    IN THIS RESPECT THE ARBITRATOR, CITING FEDERAL PERSONNEL MANUAL (FPM)
 LETTER 551-9, MARCH 30, 1976, /2/ AND A DECISION OF THE FEDERAL LABOR
 RELATIONS COUNCIL, /3/ NOTED THAT CLAIMS FOR COMPENSATION UNDER THE FAIR
 LABOR RELATIONS ACT, SUCH AS THE ONE BEFORE HIM, WERE SUBJECT TO A
 STATUTORY APPEALS PROCEDURE.  ACCORDINGLY, THE ARBITRATOR CONCLUDED THAT
 UNDER SECTION 13(A) OF THE ORDER AND UNDER THE PARTIES' MEMORANDUM OF
 AGREEMENT, THE GRIEVANCE COULD NOT BE ARBITRATED.  THEREFORE, IN
 PERTINENT PART, HIS AWARD WAS AS FOLLOWS:
 
    FOR THE REASONS SET FORTH IN THE OPINION HEREIN, THE ARBITRATOR FINDS
 NOT ARBITRABLE THE
 
    ISSUE OF WHETHER OR NOT THE 4.5 HOURS ON AUGUST 13, 1977, AND THE 3.5
 HOURS ON AUGUST 14,
 
    1977, ARE STANDBY TIME ENTITLING GRIEVANT TO COMPENSATION UNDER
 ARTICLE 11, SECTION 3, OF THE
 
    MEMORANDUM OF AGREEMENT BETWEEN MCGUIRE AIR FORCE BASE AND AFGE LOCAL
 1778.  THE GRIEVANCE IS
 
    DISMISSED.
 
    THE UNION FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD AND
 REQUESTS THAT THE AUTHORITY ACCEPT ITS PETITION ON THE BASIS OF ITS
 EXCEPTION WHICH IS DISCUSSED BELOW.  THE AGENCY DID NOT FILE AN
 OPPOSITION.  THIS APPEAL MUST BE RESOLVED UNDER THE RULES OF PROCEDURE
 SET FORTH IN 5 C.F.R.PART 2411(1978), TO THE EXTENT CONSISTENT WITH THE
 PROVISIONS OF SECTION 7122(A) OF THE STATUTE AND AS AMENDED BY SECTION
 2400.5 OF THE TRANSITION RULES AND REGULATIONS OF THE FEDERAL LABOR
 RELATIONS AUTHORITY, 44 F.R. 44741, BECAUSE THOSE WERE THE RULES OF
 PROCEDURE IN EFFECT AT THE TIME THIS APPEAL WAS FILED.
 
    PURSUANT TO SECTION 2411.32 OF THOSE RULES AS AMENDED BY THE
 TRANSITION RULES, AND PURSUANT TO SECTION 7122(A) OF THE STATUTE, THE
 AUTHORITY WILL GRANT A PETITION FOR REVIEW OF AN ARBITRATOR'S AWARD
 WHERE IT APPEARS, BASED UPON THE FACTS AND CIRCUMSTANCES DESCRIBED IN
 THE PETITION, THAT THE AWARD IS DEFICIENT BECAUSE IT IS CONTRARY TO LAW
 OR REGULATION, OR ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL
 COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS CASES.
 
    IN ITS EXCEPTION, THE UNION ASSERTS THAT THE ARBITRATOR EXCEEDED HIS
 AUTHORITY BY RULING ON A QUESTION OF ARBITRABILITY CONCERNING THE
 EXISTENCE OF A STATUTORY APPEAL PROCEDURE.  IN SUPPORT OF ITS EXCEPTION,
 THE UNION ARGUES THAT THE ARBITRATOR EXCEEDED HIS AUTHORITY IN THIS CASE
 BECAUSE THE PARTIES' MEMORANDUM OF AGREEMENT, SECTION 13(A) OF THE
 ORDER, AND FEDERAL REGULATIONS /4/ ALL PRECLUDED THE ARBITRATOR FROM
 RULING ON THE ARBITRABILITY OF A MATTER FOR WHICH A STATUTORY APPEAL
 PROCEDURE ASSERTEDLY EXISTS.
 
    THE AUTHORITY WILL GRANT A PETITION FOR REVIEW OF AN ARBITRATION
 AWARD WHERE IT APPEARS, BASED ON THE FACTS AND CIRCUMSTANCES DESCRIBED
 IN THE PETITION, THAT AN EXCEPTION PRESENTS A GROUND FOR REVIEW SIMILAR
 TO THOSE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT
 RELATIONS CASES.  FEDERAL COURTS IN PRIVATE SECTOR CASES WILL FIND AN
 ARBITRATION AWARD DEFICIENT ON THE GROUND THAT THE ARBITRATOR EXCEEDED
 HIS OR HER AUTHORITY.  /5/ FOR EXAMPLE, FEDERAL COURTS IN PRIVATE SECTOR
 CASES WILL FIND AN ARBITRATOR'S AWARD DEFICIENT WHEN IT IS DEMONSTRATED
 THAT THE ARBITRATOR RENDERED THE AWARD IN DISREGARD OF A PLAIN AND
 SPECIFIC LIMITATION ON HIS OR HER AUTHORITY.  /6/ THEREFORE, THE FEDERAL
 LABOR RELATIONS AUTHORITY WILL GRANT A PETITION FOR REVIEW OF AN
 ARBITRATOR'S AWARD WHERE IT APPEARS, BASED ON THE FACTS AND
 CIRCUMSTANCES DESCRIBED IN THE PETITION FOR REVIEW, THAT THE EXCEPTION
 PRESENTS THE GROUND THAT THE ARBITRATOR EXCEEDED HIS OR HER AUTHORITY BY
 RENDERING AN AWARD IN DISREGARD OF A PLAIN AND SPECIFIC LIMITATION ON
 THAT AUTHORITY.
 
    IN THIS CASE, HOWEVER, ALTHOUGH THE UNION'S EXCEPTION STATES A GROUND
 ON WHICH REVIEW IS GRANTED, THE UNION'S PETITION FAILS TO DESCRIBE THE
 FACTS AND CIRCUMSTANCES NECESSARY TO SUPPORT ITS EXCEPTION THAT IN
 RENDERING THE AWARD THAT HE DID, THE ARBITRATOR EXCEEDED A LIMITATION ON
 HIS AUTHORITY.  THE ARBITRATOR DETERMINED THAT THE PROVISION OF THE
 PARTIES' AGREEMENT RESTATING SECTION 13(A) OF THE ORDER, AS WELL AS
 SECTION 13(A) OF THE ORDER ITSELF, THE PROVISIONS OF FPM LETTER 551-9,
 AND THE CITED DECISION OF THE FEDERAL LABOR RELATIONS COUNCIL PRECLUDED
 ARBITRATION OF A GRIEVANCE CLAIM WHICH, AT THE ARBITRATION HEARING, THE
 UNION MAINTAINED WAS PAYABLE UNDER THE FAIR LABOR STANDARDS ACT.  IN
 LIGHT OF THE UNION'S CONTENTION BEFORE THE ARBITRATOR THAT THE
 ACTIVITY'S REFUSAL TO PAY THE STANDBY TIME WAS A VIOLATION OF THE FAIR
 LABOR STANDARDS ACT, THE ARBITRATOR CORRECTLY NOTED THAT FAIR LABOR
 STANDARDS ACT QUESTIONS ARE SUBJECT TO STATUTORY APPEAL PROCEDURES, AND
 (AT THE TIME THE MATTER WAS BEFORE THE ARBITRATOR) THUS NOT SUBJECT TO
 ARBITRATION, AND HE DISMISSED THE GRIEVANCE.  THE UNION HAS FAILED TO
 PRESENT FACTS AND CIRCUMSTANCES TO DEMONSTRATE IN WHAT MANNER THE
 ARBITRATOR EXCEEDED ANY LIMITATION ON HIS AUTHORITY WHEN IN OBSERVANCE
 OF THE CLEAR LIMITATIONS OF THE LAW IN EXISTENCE AT THE TIME INVOLVED
 HEREIN, HE DISMISSED A GRIEVANCE WHICH HE HAD NO AUTHORITY TO ARBITRATE.
  THEREFORE, THE UNION'S EXCEPTION PROVIDES NO BASIS FOR ACCEPTANCE OF
 ITS PETITION UNDER SECTION 2411.32 OF THE AMENDED RULES.
 
    ACCORDINGLY, THE UNION'S PETITION FOR REVIEW OF THE ARBITRATOR'S
 AWARD IS DENIED BECAUSE IT FAILS TO MEET THE REQUIREMENTS OF SECTION
 2411.32 OF THE AMENDED RULES FOR ACCEPTANCE BY THE AUTHORITY OF A
 PETITION FOR REVIEW OF AN ARBITRATOR'S AWARD.
 
    ISSUED, WASHINGTON, D.C., MAY 23, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ ACCORDING TO THE ARBITRATOR, ARTICLE 11, SECTION 3 PERTINENTLY
 PROVIDES:  "EMPLOYEES WILL NOT BE OBLIGATED TO A STANDBY STATUS UNLESS
 PLACED IN A PAY STATUS."
 
    /2/ CIVIL SERVICE COMMISSION SYSTEM FOR ADMINISTERING THE FAIR LABOR
 STANDARDS ACT (FLSA) COMPLIANCE AND COMPLAINT SYSTEM.
 
    /3/ U.S. MARINE CORPS SUPPLY CENTER, ALBANY, GEORGIA AND AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (KING, ARBITRATOR), 5 FLRC
 181 (FLRC NO. 75A-98 (MAR. 8, 1977), REPORT NO. 122).
 
    /4/ THE "FEDERAL REGULATIONS" CITED BY THE UNION ARE THOSE OF THE
 ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS IMPLEMENTING
 SECTION 13(D) OF THE ORDER.
 
    /5/ E.G., LOCAL 791, INTERNATIONAL UNION OF ELECTRICAL, RADIO &
 MACHINE WORKERS, AFL-CIO V. MAGNAVOX COMPANY, 286 F.2D 465 (6TH CIR.
 1961).
 
    /6/ TRUCK DRIVERS & HELPERS UNION LOCAL 784 V. ULRY-TALBERT COMPANY,
 330 F.2D 562 (8TH CIR. 1964).