51:1088(88)AR - - GPO, Washington, DC and IBEW, Local 121 - - 1996 FLRAdec AR - - v51 p1088

[ v51 p1088 ]
The decision of the Authority follows:

51 FLRA No. 88














March 29, 1996


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Louis Aronin filed by the Agency (GPO) under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

The Arbitrator found that 5 U.S.C. § 6101(a)(3)(E) applies to employees of the GPO.(1) For the following reasons, we conclude that the Arbitrator's award is deficient and we set aside the award.

II. Arbitrator's Award

The Union represents a unit of engineers who work various shifts and workweeks, 24 hours a day, 7 days a week, in GPO's Power Branch. The Agency has a practice of adjusting these employees' workweeks in order to have an adequate number of employees at work, both before and after a holiday, without resorting to overtime. This case arose when the Agency changed an employee's days off to avoid payment of overtime for work on a holiday. The Union, relying on 5 U.S.C. § 6101(a)(3)(E), filed a grievance asserting that the Agency had no right to change the employee's basic workweek because of staffing needs related to a holiday. The Agency argued that it was not covered by section 6101(a)(3)(E).

The parties agreed that the only issue before the Arbitrator was:

[W]hether 5 U.S.C. § 6101(a)(3)(E) was applicable to the GPO . . . or whether the failure to list the employees of the GPO in 5 U.S.C. § 5441 (2) meant that the [GPO] was not covered by that provision.

Award at 4.

The Arbitrator stated that section 6101(a)(1) "'does not include an employee or individual excluded from the definition of employee in section 5541(2).'" Id. (emphasis added by the Arbitrator, quoting section 6101). The Arbitrator reviewed the exclusions listed in section 5541(2) and found that none of them referred to GPO employees. The Arbitrator then stated that "[t]he key to a determination of the status of the employees of the [GPO] is not alone in the absence of their exclusion in 5 U.S.C. 5541(2), but a reference to 5 U.S.C. 5349, which is listed as an included group in [section] 6101(a)(1) . . . .'" Id. at 5-6 (emphasis in original). The Arbitrator found that "the employees of the [GPO], who are covered by section 5349[,] are thereby also covered by 5 U.S.C. 6101." Id. at 6. The Arbitrator stated that "[b]ased on the fact that the [GPO] employees are not only not excluded specifically by 5 U.S.C. 5541(2), but are also covered by 5 U.S.C. 5349, they are therefore covered by 5 U.S.C. 6101." Id. at 6-7 (emphasis in original). Consequently, the Arbitrator found that section 6101(a)(3)(E) "is applicable to employees of the [GPO]." Id. at 7.

As his award, the Arbitrator stated: "The provisions of title 5, section 6101(a)(3)(E), relating to hours of work, is [sic] applicable to employees of the [GPO]."(3) Id.

III. Exceptions

A. Agency's Contentions

The Agency asserts that the award is deficient as contrary to law. In this regard, the Agency contends that the Arbitrator's determination that the Agency is covered by section 6101 is based on his incorrect finding that the employees are governed by section 5349. According to the Agency, the employees are not governed by section 5349 but, instead, are covered by 44 U.S.C. § 305 (also referred to as the Kiess Act). Additionally, the Agency claims that the employees are not included under 5 U.S.C. § 5343. In sum, the Agency argues:

The Arbitrator chose to look into [s]ection 5349 after having concluded that the Agency was not covered within the meaning of [s]ection 5541, the section to which both the Agency and the Union referred him in seeking to resolve the issue. . . . Since, by the Arbitrator's own analysis, the Agency is not covered by [s]ection 5541 and because the Agency's employees do not come within the meaning of [s]ection 5349 or [s]ection 5343, . . . the Arbitrator's decision should be reversed as a matter of law . . . .

Exceptions at 10.

B. Union's Opposition

According to the Union, GPO employees are covered by section 6101(a)(1) since they are not in the extensive list of exclusions in 5 U.S.C. 5541. The Union states that "[b]oth the Union and the Agency referred the Arbitrator to section 5541 in seeking to resolve this matter." Opposition at 7. It acknowledges that the Arbitrator erred "in his assumption" that the affected employees are covered by sections 5349 and 5343. Id. at 4. However, the Union claims that the Arbitrator referred to sections 5343 and 5349 "only . . . to show more justification of the GPO's coverage, even though it is not necessary." Id. The Union also claims that the Comptroller General, the GPO, and the Authority "have cited sections 6101 and or 5546 as governing law in numerous cases involving the GPO." Id. at 6.

IV. Analysis and Conclusions

Because the Agency challenges the award's consistency with law, we review the question of whether the award is inconsistent with section 6101(a)(3)(E) de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995), citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994). <