49:1211(115)AR - - AFGE, Local 1138 and DOD, Defense Commissary Agency - - 1994 FLRAdec AR - - v49 p1211

[ v49 p1211 ]
The decision of the Authority follows:

49 FLRA No. 115





LOCAL 1138









June 9, 1994


Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Roland Strasshofer 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 did not file an opposition to the Union's exceptions.

The Arbitrator sustained a grievance alleging that the Agency improperly failed to convert 17 intermittent employees to part-time status. As a remedy, the Arbitrator directed the Agency to: (1) change the grievants' status from intermittent to part-time, beginning with the date of the grievance or the date of the employees' hire, whichever was more recent; and (2) make the grievants whole with respect to pay and other matters for the period beginning with the date specified above to the date of implementation of the award by the Agency. The Union claims that, by limiting the remedy to the period specified, the award is deficient because it is contrary to the Federal Personnel Manual (FPM).

For the following reasons, we conclude that the award is not deficient. Therefore, we will deny the exceptions.

II. Background and Arbitrator's Award

For a period of at least 4 years before August 1992, the Agency hired certain employees as temporary intermittent employees to fill continuing positions. On August 21, 1992, the General Accounting Office (GAO) issued a report finding that the Agency's practice of using temporary intermittent employees to fill continuing positions was improper. Also on August 21, 1992, the Union filed a grievance challenging the Agency's practice.

In November 1992, the Agency converted some temporary intermittent employees, including 15 of the 17 grievants, to part-time status.(1) In December 1992, the Union amended its grievance. The grievance, as amended, was filed on behalf of intermittent employees who were on the payroll as of August 21, 1992, and who were improperly determined to be intermittent employees instead of part-time employees in violation of FPM chapter 340, subchapter 4-1.c.(2) The parties were not able to resolve the grievance and it was submitted to arbitration.

The Arbitrator framed the issue as follows:

Did the Agency violate [FPM chapter] 340, subchapter 4, paragraph 4-1.c, by failing to classify the [grievants] as part-time rather than intermittent employees? If so, what shall be the remedy?

Award at 2.

The Arbitrator noted the findings of the GAO report and found that the Agency's action in converting intermittent employees in November 1992 to part-time status was in response to the GAO report. The Arbitrator rejected the Agency's contention that the intermittent employees who were converted to part-time status in November 1992 were not entitled to be converted to part-time status any earlier than November 1992 because they did not have a regularly scheduled tour of duty. The Arbitrator found that the grievants met the standards set forth in FPM chapter 340, subchapter 4-1.c and "should not have been classified as intermittents, but rather as part-time." Id. at 16. Accordingly, the Arbitrator concluded that the Agency's use of intermittent employees violated FPM chapter 340, subchapter 4-1.c.

With respect to a remedy, the Arbitrator stated that "the grievants cannot expect a remedy prior to the time when they grieved." Id. at 17. The Arbitrator noted that "[w]ith or without regard to any GAO investigation or actions related thereto, there was nothing to prevent an earlier grievance filing." Id. Therefore, the Arbitrator stated that he would provide a remedy "from the date of hiring but not prior to August 21, 1992, and only to the extent permissible under applicable Federal law." Id. at 17-18.

The Arbitrator's award provided, in relevant part, as follows:

The status of each grievant . . . is to be changed from intermittent to part-time retroactive to August 21, 1992 or date of hire, whichever is more recent. They shall be made whole with respect to pay, step increases, thrift savings contributions, retirement contributions, and annual and sick leave accruals, for the period from the aforesaid date to the date of implementation of [the] [a]ward in full by the Agency.

The Agency shall cease and desist using intermittent employees in place of part-time employees, unless it complies with the requirements of FPM [chapter] 340, [s]ubchapter 4, 1-4c.

Id. at 18.

III. Exception

The Union argues that the Arbitrator's remedy "limiting the retroactive personnel action to the dates he proposed" is inconsistent with the FPM. Exceptions at 3. According to the Union, FPM chapter 340, subchapter 4-1.c "explicitly state[s] that the [A]gency is required to change the employee's work schedule from intermittent to part time, 'when an agency schedules an intermittent employee . . . to work . . . for more than two consecutive pay periods.'" Id. (emphasis omitted). The Union contends that inasmuch as all of the grievants testified that they were regularly scheduled to work each pay period as soon as they were hired, the grievants should have been converted under FPM chapter 340, subchapter 4-1.c to part-time status effective two pay periods after they were hired.

Additionally, noting that all of the grievants were converted to part-time status by November 1992, the Union contends that for the period between November 1992 and the implementation of the award, the Arbitrator's remedy merely duplicates benefits already flowing to the grievants as a result of their conversion to part-time status. Finally, the Union asserts that, because two of the grievants had been converted to part-time status prior to the filing of the grievance,