09:0980(137)AR - NFFE Local l4l8 and International Communication Agency, Voice of America -- 1982 FLRAdec AR

 9 FLRA No. 137
 
 NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES, LOCAL 1418
 Union
 
 and
 
 U.S. INTERNATIONAL COMMUNICATION
 AGENCY, VOICE OF AMERICA
 Agency
 
                                            Case No. O-AR-263
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR MOLLIE HEATH BOWERS FILED BY THE AGENCY UNDER SECTION 7122(A)
 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE)
 AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS.  THE UNION FILED
 AN OPPOSITION.
 
    THE GRIEVANCE IN THIS CASE CONCERNS A DISPUTE OVER THE INTERPRETATION
 OF A PROVISION OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT RELATING
 TO THE SETTING OF PAY FOR THE AGENCY'S RADIO BROADCAST TECHNICIANS, WHO
 HAVE THE RIGHT TO NEGOTIATE CERTAIN ASPECTS OF THEIR WAGES.  THE DISPUTE
 WAS NOT RESOLVED AND WAS SUBMITTED TO ARBITRATION.
 
    THE ARBITRATOR EXPLAINED THAT THE PAY OF THESE EMPLOYEES IS SET
 CONSISTENT WITH PREVAILING RATES IN THE PRIVATE SECTOR BY MEANS OF WAGE
 SURVEYS OF THE PRIVATE SECTOR.  THE PARTIES;  COLLECTIVE BARGAINING
 AGREEMENT FORMULA FOR CALCULATING THE PAY SCHEDULE IS TO DETERMINE THE
 PRIVATE SECTOR HOURLY RATES BY DIVIDING THE VARIOUS PRIVATE SECTOR
 WEEKLY RATES BY THE RESPECTIVE "NUMBER OF HOURS WORKED PER WEEK." THE
 ARBITRATOR STATED THE ISSUE BEFORE HER AS WHETHER THE CALCULATION OF
 "HOURS WORKED," AS THIS TERM IS USED IN THE AGREEMENT, SHOULD EXCLUDE
 PAID REST/COFFEE BREAKS OF PRIVATE SECTOR ESTABLISHMENTS FOR PURPOSES OF
 DETERMINING THE HOURLY RATE FOR THE 1981 WAGE SURVEY.  THE ARBITRATOR
 FIRST NOTED THAT THE LANGUAGE OF THE AGREEMENT PROVISION WAS NOT CLEAR
 AND UNAMBIGUOUS, AND FROM THE EVIDENCE AND TESTIMONY PRESENTED THE
 ARBITRATOR CONCLUDED THAT NO MUTUAL UNDERSTANDING ON THE PART OF THE
 PARTIES AS TO THE MEANING OF THE LANGUAGE WAS EVIDENT.
 
    ACCORDINGLY, SHE LOOKED TO THE BEHAVIOR OF THE PARTIES SINCE THE 1977
 COLLECTIVE BARGAINING AGREEMENT FOR GUIDANCE IN DETERMINING THE MEANING
 OF THE DISPUTED PROVISION.  IN THIS REGARD SHE FOUND AS FOLLOWS:
 
    (T)HERE IS AN ESTABLISHED RECORD OF THREE CONSECUTIVE SURVEYS WHERE
 REST/COFFEE BREAKS WERE
 
    DEDUCTED, FIFTY-TWO PAY PERIODS WHERE THE WAGES PAID REFLECTED THE
 DEDUCTION OF REST/COFFEE
 
    BREAKS, AND ONE INTERVENING CONTRACT NEGOTIATION WHERE THE
 APPLICATION AND INTERPRETATION OF
 
    ARTICLE V.A., SECTION 2.A. WAS NOT DISCUSSED BUT RATHER FORWARDED
 VERBATIM FROM THE 1977
 
    CONTRACT.
 
    CONSEQUENTLY, THE ARBITRATOR RULED THAT UNDER THE PARTIES' COLLECTIVE
 BARGAINING AGREEMENT, PAID REST/COFFEE BREAKS WERE TO BE EXCLUDED FROM
 THE CALCULATION OF HOURS WORKED AND ORDERED IMPLEMENTATION RETROACTIVE
 TO JANUARY 25, 1981, OF THE PAY SCHEDULE BASED ON SUCH A CALCULATION.
 
    IN ITS FIRST EXCEPTION THE AGENCY CONTENDS THAT THE CENTRAL FINDING
 OF FACT UNDERLYING THE AWARD IS THAT THERE WAS NO MUTUAL UNDERSTANDING
 AS TO THE MEANING OF THE TERM "HOURS WORKED" AND CONTENDS THAT SUCH
 FINDING IS CLEARLY ERRONEOUS AND CONSTITUTES A GROSS MISTAKE OF FACT BUT
 FOR WHICH THE ARBITRATOR WOULD HAVE REACHED A DIFFERENT RESULT.  IN
 SUPPORT THE AGENCY MAINTAINS THAT AT NEGOTIATIONS BOTH PARTIES MUTUALLY
 UNDERSTOOD AND AGREED THAT "HOURS WORKED" WOULD NOT EXCLUDE
 REST/COFFEE
 BREAKS.  IN ITS SECOND EXCEPTION THE AGENCY CONTENDS THAT THE
 ARBITRATOR'S INTERPRETATION OF "HOURS WORKED" IS NOT SUPPORTED BY THE
 EVIDENCE AND CONSEQUENTLY CONSTITUTES AN AMENDMENT OF THE AGREEMENT
 THAT
 WAS IN EXCESS OF HER AUTHORITY.
 
    BOTH THE AGENCY'S FIRST AND SECOND EXCEPTIONS CONSTITUTE NOTHING MORE
 THAN DISAGREEMENT WITH THE ARBITRATOR'S INTERPRETATION AND APPLICATION
 OF THE AGREEMENT PROVISION BEFORE HER.  THE AGENCY IN THESE EXCEPTIONS
 IS CLEARLY SEEKING TO HAVE ITS OWN INTERPRETATION OF THIS TERM
 SUBSTITUTED FOR THE INTERPRETATION OF THE TERM BY THE ARBITRATOR AND
 CONSEQUENTLY THESE EXCEPTIONS PROVIDE NO BASIS FOR FINDING THE AWARD
 DEFICIENT.  E.G., RED RIVER DEPOT AND NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, LOCAL R14-52, 3 FLRA 252(1980).
 
    IN ITS THIRD AND FOURTH EXCEPTIONS THE AGENCY CONTENDS THAT THE AWARD
 IS CONTRARY TO LAW AND DOES NOT DRAW ITS ESSENCE FROM THE AGREEMENT
 BECAUSE IT WILL RESULT IN GROSSLY INFLATED WAGES THAT ARE NOT CONSISTENT
 WITH PREVAILING RATES IN THE PRIVATE SECTOR AS REQUIRED BY LAW AND THAT
 ARE NOT COMPARABLE TO THE PAY OF EMPLOYEES IN THE PRIVATE SECTOR AS
 REQUIRED BY THE AGREEMENT.  IN OPPOSITION THE UNION MAINTAINS THAT THE
 PAY SCHEDULE ORDERED IMPLEMENTED BY THE ARBITRATOR IS CONSISTENT WITH
 AND COMPARABLE TO PREVAILING RATES IN THE PRIVATE SECTOR BECAUSE IT IS
 BASED ON THE LONGER WORKWEEK OF THE AGENCY TECHNICIANS AS COMPARED TO
 PRIVATE SECTOR TECHNICIANS.
 
    THE AGENCY'S THIRD AND FOURTH EXCEPTIONS PROVIDE NO BASIS FOR FINDING
 THE AWARD DEFICIENT.  WITH RESPECT TO EMPLOYEES WHO NEGOTIATE THEIR
 WAGES, THE AUTHORITY EXPRESSLY HELD IN COLUMBIA BASIN TRADES COUNCIL AND
 ALL OF ITS CONSTITUENT UNIONS, SPOKANE, WASHINGTON AND THE GRAND COULEE
 PROJECT OFFICE, BUREAU OF RECLAMATION, U.S. DEPARTMENT OF INTERIOR,
 GRAND COULEE, WASHINGTON, 9 FLRA NO. 23(1982) THAT NO PRECISE RATES OF
 PAY ARE PRESCRIBED BY LAW FOR SUCH EMPLOYEES AND THAT COLLECTIVE
 BARGAINING IS THE MEANS BY WHICH SUCH RATES ARE DETERMINED AND OBTAINED.
  IN TERMS OF THIS CASE, THE PARTIES AGREED BY MEANS OF COLLECTIVE
 BARGAINING THAT THE DETERMINATION OF SUCH RATES WOULD BE BY WAGE SURVEY
 OF THE PRIVATE SECTOR AND THE PRIVATE SECTOR WEEKLY RATES WOULD BE
 DIVIDED BY THE RESPECTIVE HOURS WORKED TO DETERMINE THE PREVAILING
 HOURLY RATE TO BE APPLIED TO THE LONGER WORKWEEK OF AGENCY TECHNICIANS,
 AND IT HAS NOT BEEN SHOWN THAT SUCH AGREEMENT IS IN ANY MANNER
 INCONSISTENT WITH LAW.  MOREOVER, WITH THE ARBITRATOR'S AWARD ONLY
 RESOLVING THE PARTIES' DISPUTE OVER THE INTERPRETATION AND APPLICATION
 OF THEIR COLLECTIVELY BARGAINED MEANS OF DETERMINING THE PAY RATES OF
 AGENCY TECHNICIANS CONSISTENT WITH AND COMPARABLE TO THE PREVAILING
 RATES IN THE PRIVATE SECTOR, THE AGENCY HAS LIKEWISE FAILED TO
 DEMONSTRATE THAT THE AWARD IS CONTRARY TO LAW OR DOES NOT DRAW ITS
 ESSENCE FROM THE AGREEMENT.  SEE ID.
 
    ACCORDINGLY, THE AGENCY'S EXCEPTIONS ARE DENIED.
 
    ISSUED, WASHINGTON, D.C., AUGUST 16, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY