72 FLRA No. 110              

 

AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES

LOCAL 2516

(Union)

 

and

 

UNITED STATES

DEPARTMENT OF THE ARMY

U.S. ARMY DENTAL ACTIVITY

FORT BLISS, TEXAS
(Agency)

 

0‑AR‑5628

 

_____

 

DECISION

 

December 13, 2021

 

_____

 

Before the Authority:  Ernest DuBester, Chairman, and

Colleen Duffy Kiko and James T. Abbott, Members

 

1. Statement of the Case

 

Arbitrator Mark D. Keyl denied a Union grievance alleging that the Agency violated the parties’ collective-bargaining agreement regarding changing and cleaning times and breaks, and law by failing to pay certain employees overtime.  The Union filed exceptions on grounds that the award is based on nonfacts, fails to draw its essence from the parties’ agreement, is contradictory, is contrary to Agency regulations, and is contrary to law.  Because the Union failed to demonstrate that the award is deficient on any of these grounds, we deny the exceptions.

 

2. Background and Arbitrator’s Award

 

The Agency implemented changes to improve the dental services it provides to soldiers with a program called Go First Class (GFC).  Subsequently, the Union filed a grievance on behalf of certain dental employees[1] alleging that the Agency violated Article XI, Sections 2 (Section 2) and 3 (Section 3) of the parties’ agreement and law as a result of the changes.  The grievance was unresolved and the parties submitted it to arbitration.

 

As relevant here, the five issues that the Union submitted to the Arbitrator were whether the Agency violated the parties’ agreement “or any rule, regulation[,] or law” when the grievants:  (1) “worked before and after their scheduled shifts and/or during lunch breaks without compensation”; (2) “worked during work breaks”; (3) “were not allowed rest breaks away from the worksite”; (4) “were not allowed a reasonable amount of time to clean the worksite before the end of their shift”; and (5) “were not allowed [ten] minutes to change clothing at the start of the duty day, before and after their meal break and/or at the end of their duty day[.]”[2] 

 

In relevant part, Section 2 provides that “[e]ach employee is authorized one [fifteen] minute rest break within each four hour period of the normal workday [and] [e]mployees shall be allowed to take rest breaks away from the immediate worksite.”[3]  Additionally, Section 3 provides that “employees . . . will be allowed a reasonable amount of official time [to clean their dental operatories] prior to the end of their work day/shift.  Employees . . . will have [ten] minutes to change clothing [before and after their shifts].”[4]

 

After evaluating the conflicting evidence presented by the parties, the Arbitrator concluded that the Union did not present “sufficient evidence” to demonstrate that employees were working during breaks, lunch, or after their shifts.[5]  In reaching this conclusion, the Arbitrator credited testimony that the grievants’ supervisors “counseled employees” to take their breaks and leave the worksite on time.[6]  In addition, the Arbitrator found that the Union did not produce sufficient evidence to demonstrate that the Agency denied employees their opportunity to take their paid breaks.  Lastly, the Arbitrator found that the Union failed to present sufficient evidence to support its claims that employees were not allowed cleaning or changing time.

 

On June 3, 2020, the Union filed exceptions to the award.  Subsequently, on June 23, 2020, the Union filed a motion for leave to submit supplemental documents.  On July 6, 2020, the Agency filed an opposition.[7]

 

3. Preliminary Matter:  We do not consider the Union’s supplemental submission.

 

Section 2425.4 of the Authority’s Regulations provides that an exception must be “self-contained” and include “legible copies of any documents” referenced in support of a party’s arguments.[8]On June 3, 2020, the Union filed timely exceptions to the award, but did not attach its post-hearing brief.[9]On June 23, 2020, the Union filed a motion for leave to submit a post-hearing brief that was not part of the previously filed exceptions.[10]

 

The Authority’s Regulations do not provide for the filing of supplemental submissions, but provide that the Authority may, in its discretion, grant leave to file “other documents” as it deems appropriate.[11]Generally, a party must request leave to file a supplemental submission, as well as explain why the Authority should consider the submission.[12]However, where a party seeks to raise issues that it could have addressed, or did address, in a previous submission, the Authority ordinarily denies requests to file supplemental submissions concerning those issues.[13]

 

The Union maintains that it failed to attach the post-hearing brief to its exceptions because of “a technical error.”[14]However, the Union does not allege that the technical error was due to the Authority’s eFiling system.Nor does it explain why it waited twenty days before attempting to correct the alleged error.[15]Because the Union could have included its brief with its exceptions and the failure to timely file the attachment was caused by the Union’s own “clerical error” and “technical difficulties,” we find that the Union has not established extraordinary circumstances warranting consideration of its supplemental submission.[16]Accordingly, we deny the Union’s motion and do not consider the supplemental submission.[17]

 

4. Analysis and Conclusions

 

1. The award is not based on nonfacts.

 

The Union argues that the award is based on nonfacts because the Arbitrator “disregard[ed]” witness testimony.[18]  As relevant here, an appealing party must demonstrate that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result, in order to establish that an award is based on a nonfact.[19]

 

Here, the Arbitrator evaluated the conflicting testimony and found that the evidence did not support the Union’s claims.[20]  Because the Union merely disagrees with the Arbitrator’s evaluation of the evidence, it fails to demonstrate that a central fact underlying the award is clearly erroneous.  Accordingly, we deny this exception.

 

2. The award is not contrary to law.

 

The Union argues that the award is contrary to the Fair Labor Standards Act (FLSA) and its implementing regulations because the Arbitrator incorrectly determined that there was insufficient evidence to conclude that the Agency “suffer[ed] or permitt[ed]” the grievants to work overtime.[21]  When an exception involves an award’s consistency with law, rule, or regulation the Authority reviews any question of law raised by the exception and the award de novo.^[22]  In applying the standard of de novo review, the Authority assesses whether the arbitrator’s legal conclusions are consistent with the applicable standard of law.^[23]  In making that assessment, the Authority defers to the arbitrator’s underlying factual findings, unless the appealing party establishes they are nonfacts.^[24] 

 

The Authority has explained that, under 5 C.F.R. § 551.104, an employer may be found to have “suffer[ed] or permit[ted] . . . work” when “the employee’s supervisor knows or has reason to believe that the work is being performed and has an opportunity to prevent the work from being performed.”[25]  Here, the Arbitrator found that the testimony of Agency supervisors established that the grievants’ supervisors “counseled employees” to take breaks and to leave the worksite on time.[26]  Therefore, the Arbitrator concluded that there was insufficient evidence that employees had been permitted to work during their lunch or outside of their scheduled shifts.[27] 

 

The Arbitrator’s conclusion that the evidence was insufficient to establish that the Agency knew or had reason to believe that the grievants were performing overtime work is a factual finding to which the Authority defers because the Union has not demonstrated that it is a nonfact.[28]  This finding supports the legal conclusion that the Agency did not violate the FLSA.[29]  Moreover, the Union’s argument that the Arbitrator “disregard[ed]” witness testimony merely disagrees with his evaluation of the evidence, which does not provide a basis for finding the award deficient.[30]  Therefore, we find that the award is not contrary to law, and we deny this exception.

 

3. The Union fails to support its contrary‑to-Agency-regulation exception.

 

As noted above, the Authority reviews questions of law, including an award’s consistency with agency regulations, de novo.[31]  Here, the Union disputes the Arbitrator’s interpretation of the GFC’s requirements.[32]  However, the Union did not provide a copy of the GFC with its exceptions and nothing in the record before us provides the text of the GFC.  Section 2425.6(e)(1) of the Authority’s regulations provides that an exception “may be subject to dismissal or denial if . . . [t]he excepting party fails to . . . support a ground” listed in § 2425.6(a)‑(c).[33]  Because the Union failed to provide evidence to support its argument that the Arbitrator erred in his interpretation, we deny this exception as unsupported.[34]

 

4. The award is not incomplete, ambiguous, or contradictory, so as to make implementation impossible.

 

The Union argues that the award is contradictory because the Arbitrator stated that the Agency had mismanaged grievants’ break time, but also found that the Union did not present sufficient evidence to support its claim that the grievants were denied their breaks, time to clean operatories, and donning and doffing time.[35]  In order to prevail on this ground, “the appealing party must demonstrate that the award is impossible to implement because the meaning and effect of the award are too unclear or uncertain.”[36]  Because the Union fails to argue, let alone demonstrate, that the implementation of the award would be impossible because the meaning and effect of the award are too unclear or uncertain, we deny this exception. 

 

5. The award draws its essence from the parties’ agreement.

 

The Union argues that the award fails to draw its essence from Sections 2 and 3.  When reviewing an arbitrator’s interpretation of an agreement, the Authority will find that an arbitration award is deficient as failing to draw its essence from the agreement when the appealing party establishes 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 purposes of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement.[37]

 

In support of its essence exception, the Union asserts that the Arbitrator incorrectly concluded that the Union failed to present sufficient evidence to support its argument that the Agency did not violate the parties’ agreement.This argument, however, merely challenges the arbitrator’s evaluation of the evidence, which does not provide a basis on which to conclude that the award fails to draw its essence from the parties’ agreement.[38]Therefore, we deny this exception.

 

 

 

5. Decision

 

We deny the Union’s exceptions.