[ v55 p596 ]
55 FLRA No. 102
U.S. DEPARTMENT OF THE NAVY
NAVAL SURFACE WARFARE CENTER
INDIAN HEAD, MARYLAND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1923
June 30, 1999
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
Decision by Member Cabaniss for the Authority.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Laurence M. Evans 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 Regulations. The Union filed an opposition to the Agency's exceptions.
The Arbitrator sustained in part and denied in part a grievance challenging the Agency's failure to assign the grievant overtime at various times from January 1, 1996 through September 15, 1997, in violation of the parties' collective bargaining agreement, which requires managers to distribute overtime "fairly and equitably." Award at 2. The Arbitrator directed the Agency to make the grievant whole by paying him for the overtime he would have otherwise received.
II. Background and Arbitrator's Award
The Grievant has been an Agency employee since 1983 and has held the position of Explosives Operator since at least 1994. He has had the same primary supervisor since May of 1996. The supervisor determined that on Monday, September 15, 1997, work needed to be completed, and this necessitated that certain employees be offered overtime. Id. The Grievant was not among those employees who were chosen for the overtime duty.
Four days later, on September 19, 1997, the Grievant filed a first step grievance with his supervisor. The Grievant alleged a violation of Article 28, Section 3 of the parties' collective bargaining agreement [n1] by a continuous practice of denying him overtime at various times beginning in January 1996, and continuing through September 15, 1997.
B. Arbitrator's Award
The Arbitrator first defined the issue, because the parties were unable to stipulate to one. The Arbitrator framed the issue as, "[w]hether the Grievant has been denied overtime at various times since January 1, 1996, in violation of Article 28, Section 3 of the parties' agreement. If so, what shall the remedy be?" Award at 3. The Arbitrator noted that the Agency had not challenged the timeliness of the grievance. Award at 2. The Arbitrator next found that Article 28, Section 3 of the parties' agreement gives the Agency "wide latitude and substantial discretion in distributing overtime among its employees." Award at 5. However, the Arbitrator also found that it does not follow that the Agency may exercise this power in a way that is not fair and equitable to the unit employees. In his view, the phrase "fairly and equitably" means "that overtime will be distributed in a manner that is free from supervisory bias[.]" [n2] Id.
The Arbitrator agreed with the Agency that all overtime assignments must be predicated on the employee being qualified [n3] to do the overtime work. However, he also found that where the employees eligible to work that overtime are "more or less equally qual- [ v55 p597 ] ified to perform that work," then the supervisor must "keep score" to ensure that the work is fairly distributed. Id. at 6.
In examining the evidence, the Arbitrator found that a derogatory reference about the employee by his supervisor was inappropriate but that this remark, without more, was insufficient to lead the Arbitrator to conclude that the Grievant was not awarded overtime because his supervisor did not like him. Id.
The Arbitrator next looked at whether the raw data showing which employees worked overtime, and how often overtime was offered, was sufficient to establish a violation of the parties' agreement. The Arbitrator found that the evidence did not establish a violation during 1997 because, while the Grievant worked substantially less overtime than his co-workers, there were a number of factors that explained why this was so. These factors led the Arbitrator to conclude that the Grievant was not denied overtime during 1997 in violation of the parties' agreement. Award at 6-7.
The Arbitrator next looked at calendar year 1996 and found sufficient evidence to presumptively establish that the Grievant was denied overtime in violation of the parties' agreement. In 1996 there were approximately 241 overtime opportunities actually worked by the Grievant and his similarly situated co-workers. Award at 8. Of these 241 opportunities, the Grievant only worked twice, both in October of 1996. The Arbitrator found that these figures created a "rebuttable presumption" that the Agency did not fairly and equitably distribute overtime vis-a-vis the Grievant. Id. The Arbitrator further stated that the Agency failed to provide any evidence as to why the Grievant was not offered any overtime, as it had done for 1997. In the face of the Agency's inability to adequately explain these circumstances, the Arbitrator concluded that the Agency did not fairly and equitably distribute overtime, and therefore violated Article 28, Section 3 of the parties' agreement. Id.
As a result, the Arbitrator sustained the grievance in part and denied it in part. As a remedy, he ordered the Agency to make the Grievant whole for all overtime compensation he was improperly denied in 1996. The parties were directed to determine what the amount of compensation should be based on what the Grievant would have earned if the Agency had fairly and equitably distributed overtime. Id. at 9.
III. Position of the Parties
A. Agency's Exceptions
The Agency asserts that the Arbitrator acted improperly when he found that the supervisor did not distribute overtime fairly and equitably in 1996, but did not violate the agreement in 1997. The Agency claims that by doing this, the Arbitrator created a new issue not raised by the parties, i.e., whether the Agency had improperly denied the Grievant overtime on unknown dates in 1996 and 1997. Exceptions at 2.
The Agency argues that the Arbitrator exceeded his authority and issued an award which fails to draw its essence from the parties' agreement, because in framing the issue the way he did, the Arbitrator created an issue that was not contemplated by the parties. The Agency asserts that by doing this, the Arbitrator violated 5 U.S.C. § 7122(a)(1) and (2) and 5 C.F.R. § 2425.3(a)(1) and (2), as well as existing Authority case law, because he allowed the Grievant to recover for claims that would have been untimely had the Arbitrator not framed the issue the way he did.
The Agency asserts that in order for the Arbitrator to be allowed to award the Grievant backpay for overtime denied in 1996, the Union must be able to prove that there was a continuing violation and that the claims in 1996 are predicated on a finding that the Grievant was wrongfully denied overtime in September of 1997. Exceptions at 13. Therefore, by awarding the Grievant backpay for 1996, but not first finding a violation in September of 1997, the Agency claims that the Arbitrator exceeded his authority and created an award which fails to draw its essence from the agreement.
The Agency further contends that the Arbitrator's Award should be set aside, because in defining the term "fairly and equitably" the way he did and requiring management to assign work without regard to the Grievant's qualifications, he violated management's right to assign work under § 7106(a)(2)(B) of the Statute. [n4] Id. The Agency asserts that the Arbitrator simply determined that, in 1996, based on the statistical summary provided by the Union, the Agency had failed to provide overtime in a fair and equitable manner, without taking into account the qualifications and skills needed for each particular assignment. In other words, the Agency believes that the Arbitrator required overtime to be distributed fairly and equitably to all explosive operators in [ v55 p598 ] the work area, instead of requiring that it be distributed fairly and equitably to employees qualified to the operator level on a particular work project. Exceptions at 17.
This determination, according to the Agency, violates its section 7106 right to assign work as it sees fit, and therefore is an appropriate ground on which to overturn the Award.
B. Union's Opposition
The Union contends that the Award is not deficient pursuant to 5 U.S.C. § 7122(a)(1) and (2) or 5 C.F.R. § 2425.3(a)(1) and (2), and that the Agency's exceptions constitute nothing more than a disagreement with the Award. Opposition at 3. The Union argues that at the hearing, no procedural issues were raised by the Agency and that an Agency representative at the hearing understood that the grievance concerned the assignment of overtime in 1996 and 1997. Opposition at 4-5.
The Union also asserts that in 1996, the Grievant was qualified to work on the 5-inch projectiles, MK-107, MK-122, MK-125, Det Cord and Smokey Sam projects, but was only offered overtime on two occasions. Opposition at 5. The Union also argues that the Agency's overtime log book shows that overtime was worked regularly in 1996 on the projects for which the Grievant was qualified, and that the Arbitrator's finding that the Grievant was ready, willing and able to work overtime in 1996 was correct.
The Union contends, in conclusion, that the Arbitrator correctly found that "but for" the Agency's violation of the collective bargaining agreement, the Grievant would have been entitled to overtime compensation on many other occasions.
A. The Arbitrator Did Not Exceed His Authority
Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority or award relief to those not encompassed within the grievance. See American Federation of Government Employees, Local 1617 and U.S. Department of the Air Force, San Antonio Air Logistics Center, Kelly Air Force Base, Texas, 51 FLRA 1645, 1647 (1996). In the absence of a stipulated issue, the arbitrator's formulation of the issue is accorded substantial deference. See U.S. Department of the Army Corps of Engineers, Memphis District, Memphis, Tennessee and National Federation of Federal Employees, Local 259, 52 FLRA 920, 924 (1997).
The Agency asserts that by awarding the Grievant backpay for overtime not assigned to the employee in 1996, but determining that he was not entitled to backpay for any period in 1997, including September 15, 1997, [n5] the Arbitrator exceeded his authority. However, the issue as defined by the Arbitrator was "[w]hether the Grievant has been denied overtime at various times since January 1, 1996, in violation of Article 28, Section 3 of the parties' agreement." Award at 3. The Agency claims that in defining the issue the way he did, the Arbitrator exceeded his authority by "raising and then resolving an issue which was not raised or even contemplated by either party." Exceptions at 7. However, the Arbitrator is entitled to substantial deference when he is required to frame the issue himself because of the parties' inability to stipulate the issue. In awarding backpay to the Grievant for overtime improperly withheld in 1996, but not awarding it for overtime not assigned in 1997, the Arbitrator stayed within the parameters of the issue as he framed it. The Award is directly responsive to the issue and, given the substantial deference that the Authority accords the Arbitrator's choice of the issue, it is clear that the Arbitrator did not exceed his authority.
Accordingly, this exception is denied.
B. The Award Should Not Be Overturned on Grounds of Procedural Arbitrability
In its exceptions, the Agency essentially asserts that the Award should be set aside because the grievance was not timely. Exceptions at 13. As this amounts to a claim that the grievance was not procedurally arbitrable, Authority precedent is clear that such claim provides no basis for finding the award deficient. An arbitrator's determination as to procedural arbitrability may be found deficient only on grounds other than grounds that challenge the determination of procedural arbitrability itself. [n6] See American Federation of Government Employees, Local 2921 and U.S. Department of the Army, Army & Air Force Exchange Service, Dallas, Texas, 50 FLRA 184, 185-86 (1995)(Exchange Service). The Agency's exception directly challenges the Arbitrator's determination of procedural arbitrability, a matter the Authority does not consider. See Id.
Accordingly, this exception is denied. [ v55 p599 ]
C. The Award Draws Its Essence From the Parties' Collective Bargaining Agreement
For an arbitrator's award to be found deficient as failing to draw its essence from a collective bargaining agreement, it must be established that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purpose of the collective bargaining agreement as to "manifest an infidelity to the obligation of the arbitrator"; (3) does not represent a plausible interpretation of the agreement; or (4) cannot in any rational way be derived from the agreement or evidences a manifest disregard of the agreement. American Federation of Government Employees Council 220 and Social Security Administration, Baltimore, Maryland, 54 FLRA 156, 159 (1998); United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990) (Department of Labor (OSHA)).
In putting forth its essence claim, the Agency essentially asserts the same arguments put forth in its exceeding authority exception, i.e., since the Arbitrator framed, accepted and resolved an issue that it alleges was untimely, the Arbitrator created an award that did not draw its essence from the collective bargaining agreement.
As noted, supra, the Arbitrator made the Award based on his framing of the issue, as the parties' contract allows him to do when the parties cannot agree on an issue to submit to arbitration. Therefore, in the absence of any assertion other than the one noted, the Agency has not shown that the Arbitrator's Award is irrational, implausible, unfounded, or that it evidences a manifest disregard of the collective bargaining agreement.
Accordingly, this exception is denied.
D. The Award Is Not Contrary to Law And Government-Wide Regulation
The Authority's role in reviewing arbitration awards depends on the nature of the exceptions raised by the appealing party. See U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994). In National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995), the Authority stated that if an arbitrator's decision is challenged, as it is here, on the ground that it is contrary to any law, rule, or regulation, the Authority will review the legal question de novo. In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to an arbitrator's underlying factual findings. See id. [n7]
Here the claim is that the Arbitrator violated §7106(a)(2)(B) of the Statute by fashioning a remedy that would require the Agency to assign overtime work in a particular manner that violates management's right to assign work. The Authority's framework for resolving exceptions alleging that an award violates management's rights under section 7106 of the Statute is set forth in U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and National Treasury Employees Union, Chapter 201, 53 FLRA 146, 151-54 (1997) (BEP). Upon finding that the award affects a management right under section 7106(a), the Authority applies a two-prong test. Under prong I of this framework, the Authority examines whether the award provides a remedy for a violation of either applicable law, within the meaning of section 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to section 7106(b) of the Statute. Id. at 153. If the award provides such a remedy, the Authority will find that the award satisfies prong I of the framework and will then address prong II. Under prong II, the Authority considers whether the arbitrator's remedy reflects a reconstruction of what management would have done if management had not violated the law or contractual provision at issue. Id. at 154. If the arbitrator's remedy reflects such a reconstruction, the Authority will find that the award satisfies prong II.
With respect to prong I of the BEP framework, it is clear that the Arbitrator based his decision to award a make whole remedy on Article 28, Section 3 of the parties' agreement. This provision states that overtime will be distributed by the Agency "fairly and equitably among employees who perform the same duties and as long as the employer's skill needs are met." Award at 2. In applying this provision, the Arbitrator held that an Agency is under no obligation to award overtime to those employees not qualified for a particular project. However, according to the Arbitrator, once the Agency [ v55 p600 ] determines who is qualified, the Agency is under an obligation to distribute overtime to employees in a manner free from any supervisory bias.
An award requiring an agency to adhere to objective criteria in assigning overtime affects management's right to assign work under section 7106(a)(2)(B) of the Statute. U.S. Department of Commerce, Patent and Trademark Office and Patent Office Professional Association, 37 FLRA 1204, 1214 (1990). Here, the Award requires the Agency to "keep score" of who has been offered overtime and when. As a part of keeping score, the Arbitrator held, the Agency should ensure that when overtime is available it is distributed in equal amounts to those who are qualified to do the work. Based on Authority precedent, ordering the Agency to distribute overtime in equal amounts affects management's rights.
We must now determine whether the provision was negotiated pursuant to a subsection of 7106(b). Article 28, Section 3 of the agreement is similar to the procedure set forth in National Federation of Federal Employees, Local 1853 and U.S. Attorney's Office, Eastern District of New York, Brooklyn, N.Y., 29 FLRA 94, 98-101 (1987) (U.S. Attorney's Office). Provision 3 in U.S. Attorney's Office, which the Authority found to constitute a procedure within the meaning of section 7106(b)(2), concerned the assignment of overtime to volunteers who were qualified to perform the work, as determined by the Agency. The provision provided for the equitable rotation of the overtime among the qualified volunteers. The provision in U.S. Attorney's Office is similar to the provision in this case because management has the right to determine who is and is not qualified to do the overtime work that is needed, but then must distribute that work "fairly and equitably."
The Agency asserts that if the provision means that it has no discretion in the distribution of overtime, i.e., that it can't first determine who is qualified for the work, then the provision is violative of 7106(b). However, the Agency concedes that if the provision allows it to first determine which employees possess the necessary qualifications for overtime assignments, then it is enforceable and negotiable under the Statute. Exceptions at 17. The Arbitrator did interpret the provision to allow management to make a determination of who is qualified prior to awarding overtime. Accordingly, we find that the first prong of BEP is satisfied.
Next, we turn to Prong II of the BEP analysis. Under Prong II, the remedy awarded must reflect a reconstruction of what management would have done if management had not violated the agreement provision on a section 7106(b) matter. See BEP 53 FLRA at 154. Here, the Arbitrator ordered the Agency to make the Grievant whole for overtime he was improperly denied in 1996. He instructed the parties to mutually determine what amount of overtime compensation the Grievant would have earned in 1996 had the Agency fairly and equitably distributed its overtime opportunities.
If the Award were to require the Agency to distribute overtime strictly on a fair and equitable basis without regard to the qualifications or training of employees, then it would be inconsistent with §7106(a)(2)(B). However, it is evident here that the Arbitrator took into account management's need to determine who is qualified to complete the work that necessitates overtime. The Award states, "[o]bviously, all overtime assignments must be predicated on the qualifications of those employees available to work the overtime." Award at 6. This clearly indicates that management has the right to make the threshold determination of who is qualified and is not required to distribute overtime to those who are not in order to act in a fair and equitable manner. Requiring the Agency to determine how much overtime the Grievant would have received if it had acted in a fair and equitable fashion only requires management to do what it would have done if it had acted properly. Therefore, the Award satisfies prong II of BEP.
Because the Arbitrator's Award comports with the requirements of BEP, this exception is denied.
The Agency's exceptions are denied.
Footnote # 1 for 55 FLRA No. 102
Employees may be required to work overtime when assigned by the EMPLOYER...The EMPLOYER agrees that overtime shall be distributed fairly and equitably among employees who perform the same duties and as long as the EMPLOYER's skill needs are met. However, the UNION recognizes that there will be instances whereby the EMPLOYER will have to be selective in assigning overtime.
Award at 2.
Footnote # 2 for 55 FLRA No. 102
He further stated that the phrase "also encompasses the notion that, because of the operational circumstances present at the Agency, supervisors have an implicit obligation to manage the distribution of overtime in good faith given their ample discretion in being able to assign it." Award at 5.
Footnote # 3 for 55 FLRA No. 102
The major function of this Agency was assembling warheads for military use. Therefore there were very dangerous jobs on the premises and employees had to have certifications in order to do certain jobs. Award at 5.
Footnote # 4 for 55 FLRA No. 102
Footnote # 5 for 55 FLRA No. 102
Footnote # 6 for 55 FLRA No. 102
For example, a procedural arbitrability award may be found deficient because it resulted from bias on the part of the arbitrator or because the arbitrator exceeded his or her authority. Exchange Service, 50 FLRA at 186
Footnote # 7 for 55 FLRA No. 102
See also U.S. Department of Commerce, Patent and Trademark Office and National Treasury Employees Union, Chapter 243, 52 FLRA 358, 367 (1996); U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993) (discussing Supreme Court's articulation of deferential standard of review of arbitration awards in United Paperworkers v. Misco, Inc., 484 U.S. 29 (1987)).