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48:0117(12)AR - - AFGE, Local 1770 and Army, HQ, XVIII Airborne Corps and Fort Bragg, Fort Bragg, NC - - 1993 FLRAdec AR - - v48 p117

[ v48 p117 ]
The decision of the Authority follows:

48 FLRA No. 12





LOCAL 1770











August 10, 1993


Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator James P. Whyte filed by the Union 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 Agency filed an opposition to the Union's exception.

The grievant filed a grievance on his own behalf and on behalf of other employees in the Agency's Ambulance Section alleging that the Agency had not properly paid them for work performed during the sleep portion of their 24-hour tour of duty. The Arbitrator sustained the grievance in part.

For the following reasons, we conclude that the Union's exception fails to establish that the award is deficient. Accordingly, we will deny the exception.

II. Background and Arbitrator's Award

On May 7, 1989, the Agency implemented, for a 90-day period, a change in the tour of duty of employees in its Ambulance Section and the manner in which those employees were paid. Specifically, employees' regular 8-hour daily tours of duty were changed to tours of duty consisting of 24 hours on duty and 48 hours off duty. Each 24-hour tour of duty included 8 hours of scheduled work, 8 hours of standby duty, and an 8-hour sleep period. Employees were required to respond to an emergency within 2 minutes at any time during the 24-hour period. Employees were paid straight time for the scheduled work time, premium pay for the standby duty and, if employees got less than a total of 5 hours of sleep because of work performed during the sleep period, they were also paid additional premium pay for the full 8-hour sleep period. Employees worked an average of 55 hours per week and, because their tour of duty was longer than ordinary tours of duty and consisted of standby duty as a substantial portion of the work performed, they received premium pay in accordance with 5 U.S.C. § 5545(c)(1).

A grievance was filed by a Union steward on his own behalf and on behalf of 22 other employees of the Ambulance Section claiming that they were being paid less under the pay provisions applicable to the new tour of duty for more hours worked than they had received for their prior 8-hour tours of duty. As a remedy, the grievance requested all appropriate backpay and restoration of the method that had been used to calculate the employees' pay prior to the change in tours of duty. The grievance was not resolved and was submitted to arbitration.

The parties submitted the following issues for resolution by the Arbitrator:

1. Whether the [Agency] violated the contract and or laws concerning overtime pay to these [g]rievants during the work and/or non-work time of these employees' 8-hour eat/sleep times of their 24-hour shifts. (a) If so, what should be the remedy?

2. Whether the sleeping accommodations were adequate within the meaning of 5 CFR [§] 551.432 and 29 CFR [§] 785.22? (a) If not, would the employees be entitled to more pay? (b) At what rate of pay?

Award at 4. The parties also stipulated:

1. That the three witnesses called for [the] Union . . . will provide representative testimony for all similarly situated employees and, therefore, all of the other similarly situated employees should not need to testify.

2. That the parties will be capable of reconstructing time records through notes, time cards and other files should the Arbitrator decide that the employees are entitled to back pay as a result of this grievance. Accordingly, specific documentation of each 24-hour shift need not be introduced for all these employees.

Id. at 5.

With respect to the testimony of the three witnesses called on behalf of the Union, the Arbitrator noted that: (1) one witness "estimated that he actually got five hours of sleep once out of 100 times" that he worked the 24-hour tour of duty schedule; (2) another witness "claimed that at no time did he get five hours sleep" during a 24-hour tour of duty; and (3) a third witness testified "that he never got five hours of uninterrupted sleep." Id. at 5-6. The Arbitrator considered additional testimony and other record evidence, including employees' time records. The Arbitrator stated that the two stipulated issues before him did not refer to the rate of pay for actual working time or for standby time, but rather referred to "what rate of pay, if any, should have been paid to employees who were denied the requisite amount of sleep time, if any, because of inadequate sleeping conditions." Id. at 8.

The Arbitrator noted that, under applicable regulations: (1) ambulance employees were entitled to a total of at least 5 hours of sleep during a given 8-hour sleep period; and (2) the 5 hours of sleep did not need to be continuous or uninterrupted. The Arbitrator found that the Union had presented convincing evidence that the grievants' sleeping quarters and conditions were inadequate. The Arbitrator further found that "from time-to-time some, if not all, [g]rievants were deprived of a total of five hours of sleep within a given sleep period." Id. The Arbitrator also found, however, that "there is no proof that sleep was always uninterrupted [sic] to the extent that all [g]rievants never accumulated five hours of sleep within a given shift." Id. (*)

The Arbitrator concluded that "[t]hose [g]rievants who noted 'no sleep' on their time schedule work sheets must be credited and are entitled to be compensated as though they were on standby duty." Id. The Arbitrator noted that the grievants' supervisor disagreed with the claims of employees who entered "no sleep" on their work sheets and that the supervisor changed those notations to "other," which resulted in the employees not being paid for that time. The Arbitrator concluded that the supervisor's action in "denoting that employees were sleeping when they claimed to have been kept awake by inadequate sleeping facilities was arbitrary and capricious." Id. The Arbitrator determined that, "[f]or these reasons, those [g]rievants who claimed 'no sleep' on their time schedule work sheets are entitled to be credited in this regard." Id.

Accordingly, the Arbitrator made the following award:

The [g]rievance is, in part, sustained and is remanded in accord with the [p]arties' stipulations, supra, for a calculation of back pay in accord with applicable law and regulations for those [g]rievants who entered "no sleep" on their time schedule work sheets and who had less than five hours of sleep either continuous or cumulative within a period designated for sleep.


III. Positions of the Parties

A. Union's Exception

The Union contends that the award is deficient because it is based on a nonfact. The Union claims that the Union witnesses presented uncontroverted testimony that Ambulance Section employees were unable to get a total of 5 hours of sleep during a 24-hour tour of duty. The Union also claims that, pursuant to the parties' stipulation, the testimony of the Union witnesses was to be considered representative of all grievants. The Union asserts that, despite the testimony of the Union witnesses, the Arbitrator stated that "'there is no proof that . . . all [g]rievants never accumulated five hours of sleep within a given shift.'" Exception at 1 (quoting Award at 8). According to the Union, based on "the uncontroverted, representative testimony" of the Union witnesses, "[t]he Arbitrator should have concluded that each employee should have been paid for every standby sleep/rest period . . . ." Id. (emphasis added).

B. Agency's Opposition

The Agency contends that the Arbitrator's award is not based on a nonfact and, therefore, is not deficient. According to the Agency, the alleged nonfact on which the Union contends the award is based is the Arbitrator's finding that not all of the grievants failed to get 5 hours of sleep on every tour of duty. The Agency argues that the Union's contention is merely "an allegation that the [A]rbitrator disregarded the testimony of its witnesses." Opposition at 2. Noting that the Arbitrator considered physical documentary evidence (employee work sheets and time cards) in addition to testimony, the Agency asserts that the Arbitrator's finding "that there was no proof that employees never received five hours of sleep in a shift is a decision based on his review of the evidence and testimony presented." Id. at 3. The Agency states that it "accepts the [A]rbitrator's rationale that employees who noted a period of 'no sleep' on their schedule work sheets and who had less than five hours of sleep . . . are to receive an adjustment." Id. The Agency further states that "[c]onversely, those who did not make the appropriate annotation on their time schedule work sheet should not receive an adjustment." Id.

IV. Analysis and Conclusions

We will find an arbitration award deficient because it is based on a nonfact when the party making such a claim establishes that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. See, for example, U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Houston, Texas and American Federation of Government Employees, Council 215, 46 FLRA 529, 534 (1992) (Office of Hearings and Appeals). Applying this test to the award in this case, we find that the Union has not demonstrated that the Arbitrator's award of backpay only to those Ambulance Section employees who recorded "no sleep" on their time schedule worksheets and who had less than five hours of sleep within a sleep period, as opposed to an award of backpay to all Ambulance Section employees for all tours of duty, is deficient.

Even assuming that the Arbitrator's finding that not all of the grievants were unable to sleep for at least 5 hours during every sleep period is the central fact underlying the award, we find that the Union has not demonstrated that the Arbitrator's finding is clearly erroneous. In our view, the Union's argument that the Arbitrator should have found, based on the testimony of the Union witnesses, that all of the grievants were unable to sleep for a total of 5 hours during each sleep period constitutes nothing more than disagreement with the Arbitrator's evaluation of the evidence and his findings based on that evidence. Disagreement with an arbitrator's evaluation of the evidence and the arbitrator's findings based on that evidence provides no basis for finding an award deficient. Office of Hearings and Appeals, 46 FLRA at 533.

V. Decision

The Union's exception is denied.

(If blank, the decision does not have footnotes.)

*/ It appears from the context of this statement that the

word "uninterrupted" is incorrect and should be "interrupted."