United States, Department of Defense, Education Activity, Domestic Dependent Elementary and Secondary Schools, Antilles Consolidated School System (Agency) and Antilles Consolidated Education Association (Union)

[ v60 p80 ]

60 FLRA No. 19







July 14, 2004


Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Robert Bennett Lubic filed by the Agency under § 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 ruled that under the parties' collective bargaining agreement, the two grievants were entitled to pay for extra work they performed as the result of being assigned additional duties.

      For the reasons that follow, we deny the Agency's exceptions.

II.      Background and Arbitrator's Awards

      The two grievants, Vilma Rodriguez and Alma Rosado, are guidance counselors. For several years, the Agency also assigned them the duties of another position called case-study committee (CSC) chairperson. During this period, the grievants performed both their guidance counselor work as well as the work of the case study committee. Specifically, grievant Rodriguez performed the work of both positions from 1992 to 2000 for the middle school, and grievant Rosado performed the work of both positions from 1996 to 2000 for the high school. The performance of these duties resulted in the grievants' working additional hours on a regular basis.

      In 2000, the grievants filed a grievance claiming that the Agency violated Article 28 of the parties' collective bargaining agreement by failing to pay them for the extra work required by performing the duties of both positions. [n1] 

      The grievance was not resolved and was submitted to arbitration where the Arbitrator stated the issues as follows:

I. Is the joint grievance of Ms. Vilma Rodriguez and Dr. Alma L. Rosado timely under the Collective Bargaining Agreements of August 2000 and July 1996?
II. Does the Agency owe back pay to Ms. Rodriguez from August of 1992 and Dr. Rosado from August of 1996 until the time in the year 2000 when they ceased functioning as both guidance counselors and CSC Chairpersons at [the middle and high schools]?
III. If back pay is due in this matter, what is the total amount including COLA and interest owing to each of the [g]rievants and what is total amount of the fees owing for legal services under the Back Pay Act?

Initial Award at 11.

      As to Issue I, the Arbitrator found that the grievance was timely. As to Issue II, the Arbitrator noted the Union's argument that the grievants were owed backpay under Article 28(g) of the current collective bargaining agreement and Article 28(k) of the prior agreement "for extension of their duty time." Id. at 14. The Arbitrator also noted the Agency's claim that no such payment was due because the grievants were professional employees who were not required to extend their work day and who were exempt from the overtime provisions of the Fair [ v60 p81 ] Labor Standards Act (FLSA). The Arbitrator further stated that "[t]he Agency does not contest the fact that the additional duty time was worked by the [g]rievants but claims that it was done so voluntarily or due to inefficiency." Id.

      The Arbitrator found, contrary to the Agency's claim, that the grievance did not involve overtime. Rather, he found that "[t]he issue is wrapped within the first sentence of Article 28(g) which reads: `(i)f the Employer decides to extend the duty day or year of a unit employee by assigning work ***, the employee shall be compensated at a rate equal to the employee's `wage earned' rate during the regular duty years[.]'" Id. at 17. The Arbitrator stated that "an extension at a rate equal to the employee's wage earned rate during the regular duty years can by no stretch of the imagination be considered overtime." Id. (emphasis in award.) Following this discussion of the contractual provision, the Arbitrator concluded as follows with respect to Issue II:

In view of the evidence presented regarding the extension of the duty time of Ms. Rodriguez and Dr. Rosa[d]o, it is the finding of the Arbitrator that this resulted solely from the action of the Agency in assigning them to the dual positions of guidance counselor and CSC Chairperson. As a result, they are entitled to additional wages for the period involved.

Id. at 18.

      After stating that "[t]he first two issues in this matter are applicable to contract interpretation[,]" the Arbitrator stated that "[t]he third issue involves damages." Id. at 19. He found that Issue III "cannot be decided at this time without additional evidence entered into the record." Id. at 21. Accordingly, he bifurcated his award. He ruled on Issues I and II, finding that the "grievance was timely filed and that the hourly work of the [g]rievants was extended solely as a result of the Agency assigning them to the dual positions of guidance counselor and CSC Chairperson." Id. at 20-21. As to Issue III, he ordered the parties to submit additional evidence on backpay and on attorney fees.

      Thereafter, the parties submitted a joint stipulation to the Arbitrator. The stipulation stated that, based on a formula the parties developed and "based upon the findings of the Arbitrator, the parties agree that the total back pay award for the [g]rievants is as follows: a. Vilma Rodriguez--$164,238.62; b. Alma Rosado--$145,485.41." Supplemental Award, Attachment A at 2. The stipulation did not "waiv[e] any appeal rights by the parties." Supplemental Award at 3. In addition, the Union filed a motion for attorney fees and the Agency filed a response. After considering these submissions, the Arbitrator issued a supplemental award in which he ordered the Agency to pay backpay to the grievants in the stipulated amounts and to pay attorney fees in the amount of $72,136.25.

III.     Positions of the Parties

A.      The Agency  [n2] 

      The Agency contends that the award is contrary to law because the Arbitrator applied "the Fair Labor Standards Act and its implementing regulation which by law were not applicable to this case." Exceptions at 8. The Agency notes that in the portion of the award listing pertinent statutes and regulations, the Arbitrator included 5 C.F.R. § 551.401, which defines "hours of work" for federal employees covered by the FLSA. The Agency maintains that the Arbitrator "clearly relied upon this provision in determining the [g]rievants had been assigned additional `hours of work[,]'" and that "his reliance was misplaced." Id. at 9. Consequently, the Agency asserts that his ruling that the Agency "was culpable in requiring the [g]rievants to work additional hours . . . cannot be sustained." Id. at 20.

      The Agency concedes that the Arbitrator "correctly ruled that the work in question in the grievance was not `overtime[.]'" Id. at 9. However, the Agency asserts that he erroneously applied the FLSA definition of "hours of work" in determining that the grievants were entitled to compensation because, under 10 U.S.C. § 2164, [n3]  the Agency and its employees are exempt from the coverage of the FLSA.

      The Agency asserts that the core issue of the grievance was what constitutes an assignment of work for purposes of additional compensation under Article 28. The Agency maintains that the "determinative factor is pertinent contract provisions." Id. at 20. The Agency claims that although the "agreement provides no definitive answers[,]" id. at 14, the award "is not logical [or] supported by contract language[,]" id. at 21. The Agency contends that it was not logical for the Arbitrator to rule that employees may unilaterally determine when they need to work additional hours and have such work be considered an assignment by management.

      Additionally, the Agency argues that because the grievants are professional employees who would be exempt from coverage under the FLSA, the Arbitrator [ v60 p82 ] should have looked to the provisions of 5 U.S.C. § 5542 for guidance in interpreting and applying the agreement. The Agency maintains that if the Arbitrator had applied this approach, he would have denied the grievance because the grievants "were never directed, required, induced, or coerced into performing such work outside of regular working hours." Id. at 19.

      Accordingly, the Agency submits that the award of backpay must be found deficient. The Agency further contends that once the Authority finds the award of backpay deficient, the award of attorney fees must also be found deficient.

B.      The Union

      The Union disputes the Agency's claim that the award is contrary to law. The Union argues that the award is based on the Arbitrator's valid interpretation of the collective bargaining agreement and not on the FLSA, as asserted by the Agency. The Union maintains that the issue before the Arbitrator did not concern overtime; rather, "[t]he issue was contract application true and simple." Opposition at 8.

      The Union notes that the Arbitrator summarily rejected the Agency's claim that the grievance involved overtime and that the Agency concedes in its exceptions that the Arbitrator was correct in doing so. The Union acknowledges that the Arbitrator included 5 C.F.R. part 551 in his citation of pertinent authorities. However, the Union asserts that the Arbitrator clearly did not rely on the FLSA or part 551 in finding that the grievants were entitled to additional compensation under the collective bargaining agreement. The Union maintains that a review of the award shows that the Arbitrator does not refer to or apply part 551 or the FLSA in resolving the grievance. In addition, the Union disputes the Agency's claims that the Arbitrator should have applied 5 U.S.C. § 5542 and that, if he had, he would have denied the grievance because the grievants were not ordered or induced to work.

IV.      Analysis and Conclusions

A.      The Agency's Personnel System

      Department of Defense domestic dependent elementary and secondary schools are governed by 10 U.S.C. § 2164. Under § 2164(e), the Secretary of Defense is authorized to create a compensation system to attract qualified applicants to these schools. See Antilles Consolidated Educ. Assoc., 56 FLRA 664, 665 (2000). More specifically, as noted above, under § 2164(e)(2)(C), the Secretary is authorized to fix the compensation of Agency employees without regard to the provisions of any other law relating to the number, classification, or compensation of employees. Thus, the compensation of these employees is not subject to laws relating to employee compensation, which would include the FLSA.

      The Authority has ruled that the Secretary is required to collectively bargain with respect to hours, wages, and other terms and conditions of employment of represented employees. See id. The parties do not dispute that Article 28 of their agreement is the result of this obligation and is fully enforceable. Article 28 of the current and prior agreements provides that when the Agency extends the duty day of a unit employee by assigning work, "the employee shall be compensated at a rate equal to the employee's `wage earned' rate during the regular duty year." Initial Award at 5.

B.      The Award Is Not Contrary to Law.

      The Agency contends that the award is contrary to 10 U.S.C. § 2164. The Agency claims that the Arbitrator improperly relied on the FLSA in ruling that the grievants were entitled to additional compensation under the agreement because, under § 2164, the Agency and its employees are exempt from coverage of the FLSA. In support of this claim, the Agency notes that the Arbitrator set forth provisions of 5 C.F.R. part 551 in a section of the award entitled "Pertinent Statutes, Regulations, and Contractual Provisions." See Initial Award at 3. In our view, the Agency has misconstrued the basis for the Arbitrator's award.

      The Agency is correct in noting that the Arbitrator set forth provisions of part 551 in the relevant authorities section of his award. However, in resolving the grievance, there is no indication that the Arbitrator based his award on the FLSA or part 551 in resolving the grievance. Instead, the Arbitrator clearly stated that the issue of additional compensation was an issue of contract interpretation. In rejecting the Agency's claim that the grievance involved overtime, the Arbitrator ruled that "[t]he iss