Parties: HHS, SSA, Baltimore, MD and AFGE ID: 49 FLRA 483 / 49 FLRA No. 40 / 49:483(40)AR Date: March 10, 1994 Type: AR Volume: 49 Arbitrator: Segal CaseNo: 0-AR-2507 ========== Synopsis: ========== The Union filed grievances on behalf of various employees to protest the Agency's decision to exempt those employees from coverage under the Fair Labor Standards Act (FLSA). The Arbitrator ruled that the Agency had improperly designated certain of the grievants as exempt from coverage under the FLSA on the ground that they are bona fide administrative employees. The Arbitrator ordered the Agency to treat those grievants as covered under the FLSA and to pay them backpay with either interest or liquidated damages for overtime pay to which they were entitled. The Arbitrator denied the grievances of those employees he found were properly designated as exempt from FLSA coverage. The Agency argued that the Arbitrator's award concerning the grievants who were found covered under the FLSA and awarded backpay was contrary to law and Government-wide regulation. The Authority found that the Agency failed to demonstrate that the Arbitrator's award was deficient under the Statute. Concerning the Union's first exception, the Authority found no basis on which to conclude that the award was contrary to 29 U.S.C.  255. The Authority noted that there was no law or precedent requiring the use of the statute of limitations contained in 29 U.S.C.  255 in resolving grievances of Federal employees claiming backpay for FLSA violations. As to the second exception, the Authority concluded that the Agency's exception failed to establish that the Arbitrator's award was contrary to 29 U.S.C.  260. The Authority noted that it has held that arbitrators have the authority under 29 U.S.C.  260 to find that liquidated damages are not warranted if the agency has demonstrated to an arbitrator that its exemption of employees from coverage under the FLSA was done in good faith. The Authority found that the Agency had not shown that the Arbitrator's conclusions concerning the Agency's good faith were contrary to law. As to the third exception, the Authority concluded that the Agency's exception failed to establish that the award was deficient. The Authority noted that this exception merely constituted disagreement with the Arbitrator's evaluation of the evidence and his reasoning and conclusions, which provided no basis for finding the award deficient. As to the fourth exception, the Authority concluded that the Agency had not shown that the award was contrary to the OPM regulation concerning primary duties. Finally, the Authority found that the Agency's fifth exception was mere disagreement with the Arbitrator's evaluation of the evidence in deciding the issue before him. ***** ***** ***** ***** ***** ***** Parties: National Air Traffic Controllers Association, Local NKT and Dept. of the Navy, Marine Corps Air Station, Cherry Point, NC ID: 49 FLRA 499 / 49 FLRA No. 41 / 49:499(41)AR Date: March 11, 1994 Type: AR Volume: 49 Arbitrator: Mathews CaseNo: 0-AR-2497 ========== Synopsis: ========== The Arbitrator denied a grievance claiming that the Agency violated its regulations when it failed to pay three employees performance awards of at least 2 percent of their base pay for receiving outstanding performance ratings. The Authority concluded that the Union failed to establish that the award was deficient. The Authority rejected the Union's contention that the award was based on a nonfact. The Authority noted that to establish that an award is based on a nonfact, a party making the allegation must demonstrate that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached. The Authority construed the Union's assertion that the Arbitrator denied the Union an opportunity to raise the issue of the Agency's failure to comply with its statutory obligation to bargain as a contention that the Arbitrator failed to conduct a fair hearing. The Authority noted that it will find an arbitration award deficient if it is established that the arbitrator failed to conduct a fair hearing by, for example, refusing to consider pertinent and material evidence. In this case, however, the Authority found that the Union did not demonstrate that the Arbitrator failed to conduct a fair hearing. ***** ***** ***** ***** ***** ***** Parties: Navy, Mare Island Naval Shipyard, Vallejo, CA and Intl. Federation of Professional and Technical Engineers, Local 11 ID: 49 FLRA 510 / 49 FLRA No. 42 / 49:510(42)AR Date: March 11, 1994 Type: AR Volume: 49 Arbitrator: Askin CaseNo: 0-AR-2517 ========== Synopsis: ========== The Arbitrator sustained grievances alleging that the Agency violated the parties' collective bargaining agreement when it required employees to use annual leave and denied Union representatives official time during a temporary shutdown of its operations. The award provided, among other things, for restoration of annual leave to affected employees. The Authority concluded that the Agency's exceptions provided no basis for finding the award deficient. The Authority found that the Agency failed to establish that the award was deficient on the ground that it conflicted with an Agency regulation. The Authority also rejected the contention that the award was based on a nonfact. ***** ***** ***** ***** ***** ***** Parties: Interior, Bureau of Indian Affairs, Chemawa Indian Boarding School and NFFE, Local 241 ID: 49 FLRA 519 / 49 FLRA No. 43 / 49:519(43)AR Date: March 11, 1994 Type: AR Volume: 49 Arbitrator: Axon CaseNo: 0-AR-2587 ========== Synopsis: ========== The Authority dismissed the Union's exceptions as untimely. The Authority noted that the time limit for filing exceptions to an arbitration award is 30 days beginning on the date the award is served on the filing party. The Authority further noted that date of service is the date the arbitration award is deposited in the U.S. mail or is delivered in person. If the award is served by mail, 5 days are added to the period for filing exceptions to the award. Lastly, the Authority noted that the time limit may not be extended or waived by the Authority. ***** ***** ***** ***** ***** ***** Parties: Defense Commissary Agency (DCA), Fort Monroe, Virginia and NAGE, Local R4-11; DCA, Naval Commissary Store Group, Norfolk, Virginia and NAGE, Local R4-45; DCA, San Diego, CA and NFFE, Local 63; DCA, Defense Commissary Store Charleston, Charleston, SC and Federal Employees Metal Trades Council of Charleston; DCA, Governors Island Commissary, Governors Island, NY and AFGE, Local 2747 and DCA, Fallon, NV and Laborers' International Union of North America, Local 169; DCA, Stockton, CA and Laborers' International Union of North America, Local 1276; DCA, Vallejo, CA and Laborers' International Union of North America, Local 1276 ID: 49 FLRA 521 / 49 FLRA No. 44 / 49:521(44)AC and RO Date: March 11, 1994 Type: AC and RO Volume: 49 Arbitrator: CaseNo: WA-AC-20195; WA-RO-20194; WA-AC-20193; WA-RO-20538; SA-AC-20016; WA-AC-20781; WA-RO-20780; BY-RO-20029; SF-AC- 20009; SF-AC-20009; SF-AC-20005; SF-AC-20010 ========== Synopsis: ========== AFGE requested review of the Regional Director's finding that the unit sought by AFGE was not appropriate under section 7112(a)(1) of the Statute. By order of February 3, 1994, the Authority granted AFGE's application for review and allowed the parties time to file briefs. Later, AFGE filed a motion requesting the withdrawal of its application for review. The Authority granted AFGE's motion to withdraw its application for review. ***** ***** ***** ***** ***** ***** Parties: AFGE, Council of Prison Locals, Local 171 and U.S. Dept. of Justice, Federal Bureau of Prisons, Federal Correctional Institution, El Reno, Oklahoma ID: 49 FLRA 525 / 49 FLRA No. 45 / 49:525(45)AR Date: March 17, 1994 Type: AR Volume: 49 Arbitrator: Harr CaseNo: 0-AR-2521 ========== Synopsis: ========== The Arbitrator denied a grievance alleging that the Agency improperly administered its program to obtain and act on information relating to employee indebtedness. The Authority concluded that the Union's exceptions failed to establish that the award was deficient. Preliminarily, the Authority denied the Agency's request that the Authority not consider the attachments to the Union's exceptions. The Authority found that the Union had not established that the award conflicted with the plain wording of either the Fair Debt Collection Act of 1977 or with 28 C.F.R.  45.735-15, which prohibits an employing agency from acting as a collection agency. The Authority noted that the Arbitrator specifically found that the Agency did not act as a collection agency. The Authority further rejected the Union's exception that the award was deficient because the Arbitrator did not specifically address the Union's request for corrective action. The Authority noted that the fact that an arbitrator's opinion does not mention an issue does not establish that the arbitrator did not address and rule on the issue. There is no general obligation that an arbitrator set forth any specific findings or rationale to support an award denying a grievance. ***** ***** ***** ***** ***** ***** Parties: AFGE, Local 1336 and HHS, SSA, Mid-America Program Service Center, Kansas City, Missouri ID: 49 FLRA 529 / 49 FLRA No. 46 / 49:529(46)AR Date: March 17, 1994 Type: AR Volume: 49 Arbitrator: Marino CaseNo: 0-AR-2524 ========== Synopsis: ========== The Arbitrator denied a grievance alleging that the Agency violated the parties' collective bargaining agreement when it suspended the grievant for excessive absenteeism. The Authority concluded that the Union's exceptions failed to establish that the award was deficient. The Authority rejected the Union's claim that the award conflicted with an Agency regulation. The Authority noted that the Union did not provide a copy of the referenced regulation, and moreover, the Union did not assert that the cited Agency regulation governed the matter. The Authority also rejected the Union's contention that the award failed to draw its essence from the parties' agreement. ***** ***** ***** ***** ***** ***** Parties: AFGE, Local 1786 and Navy, Marines Corps Combat Development Command, Marine Corps Base, Quantico, Virginia ID: 49 FLRA 534 / 49 FLRA No. 47 / 49:534(47)NG Date: March 17, 1994 Type: NG Volume: 49 Arbitrator: CaseNo: 0-NG-2158 ========== Synopsis: ========== This case concerned the negotiability of one proposal involving shopping privileges at the base exchange. The Authority found the proposal negotiable. The Authority found that the proposal concerned a matter affecting the conditions of employment of unit employees. In addition, the Authority rejected the Agency's contention that the proposal directly interfered with its right to determine its mission under section 7106(a)(1) of the Statute. The Authority noted that nothing in the proposal prevented the base exchange from appropriately serving authorized patrons or interfered with its mission. Rather, the Authority found that by authorizing Base exchange privileges for unit employees, the proposal simply included unit employees within the scope of those individuals who were considered authorized patrons of the exchange. The Authority also rejected the contention that the proposal was nonnegotiable under section 7117(a)(2) of the Statute because it was inconsistent with DOD Directive 1330.9, Section II, an Agency regulation for which a compelling need exists under section 2424.11(a) and (c) of the Authority's Rules and Regulations. The Authority found that the Agency did not establish that a compelling need existed for DOD Directive 1330.9, Section II under section 2424.11(a) and (c) of the Authority's Rules and Regulations. The Authority noted that to establish a compelling need under section 2424.11(a) of the Authority's regulations, an agency must demonstrate that its regulation is essential, as distinguished from helpful or desirable, to the accomplishment of its mission or execution of its functions in a manner that is consistent with the requirements of an effective and efficient Government. The Authority found that the Agency had not met its burden of establishing that the regulation in question was "essential" to carrying out the mission of the DOD, MWR program at the Base. ***** ***** ***** ***** ***** ***** Parties: AFGE, National Border Patrol Council, Local 2544 and U.S. Dept. of Justice, INS, Border Patrol, Tucson, Arizona ID: 49 FLRA 545 / 49 FLRA No. 48 / 49:545(48)NG Date: March 18, 1994 Type: NG Volume: 49 Arbitrator: CaseNo: 0-NG-2023 ========== Synopsis: ========== This negotiability case is before the Authority on remand from the United States Court of Appeals for the Ninth Circuit. U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, Tucson, Arizona v. FLRA, Nos. 93-70137 and 93-70293 (9th Cir. Oct. 5, 1993). The court granted the Authority's motion to dismiss as moot the Agency's petition for review of 46 FLRA 930 (INS) and the Authority's cross-application for enforcement of the order in that case. Further, pursuant to the Authority's request, the court vacated the bargaining order in INS. The court also denied, without prejudice to presenting the matter to the Authority, the Agency's motion to vacate the decision in INS and remanded the case to the Authority to permit the Agency to seek vacatur of the decision in INS. The Agency filed a motion to vacate the decision in INS. The Authority denied the Agency's motion to vacate the decision in INS. The Authority noted that where cases become moot on appeal, the general practice is for the reviewing court to remand the case to the lower court with instructions to vacate the judgment below. The practice applies to review of administrative orders as well as district court judgments. The Authority explained that such an action is proper because a party should not be subjected to the consequences of an adverse ruling where appellate review of that ruling, otherwise available as a matter of right, fails because of intervening mootness. The Authority found that the Agency would incur only minimal harm if the decision was not vacated, and that on the other hand, there was significant value to retaining the Authority's decision as precedent. The Authority found that maintaining the decision as precedent would provide clear guidance to Federal agencies and unions concerning the issues discussed and decided by the Authority in this case. Therefore, after considering the competing interests involved, the Authority found that its decision should not be vacated. ***** ***** ***** ***** ***** ***** Parties: Navy Public Works Center, San Diego, CA and NAGE, Local R12-35 ID: 49 FLRA 553 / 49 FLRA No. 49 / 49:553(49)AR Date: March 18, 1994 Type: AR Volume: 49 Arbitrator: Vitaro CaseNo: 0-AR-2522 ========== Synopsis: ========== The Arbitrator denied a grievance alleging that the grievants were entitled to Environmental Differential Pay (EDP) because they were exposed to toxic chemicals. The Authority concluded that the Union's exception provides no basis for finding the Arbitrator's award deficient. First, the Authority rejected the Union's contention that the award was deficient because the Arbitrator incorrectly applied the burden of proof. The Authority noted that if a standard of proof is set forth in law, rule, regulation, or a collective bargaining agreement, an arbitrator's failure to apply the prescribed standard will constitute a basis for finding the award deficient as contrary to law, rule, regulation, or as failing to draw its essence from the agreement. However, in the absence of a specified standard of proof, arbitrators have the authority to establish whatever standard they consider appropriate. In this case, the Authority concluded that the Union failed to demonstrate that the Agency was required to bear the burden of proof under law, rule, regulation, or the parties' agreement. The Authority also rejected the Union's contention that the award was deficient because it failed to grant EDP to the grievants. The Authority noted that the FPM Supplement 532-1, Appendix J, is a Government-wide regulation that lists categories of situations, such as exposure to toxic chemicals, that warrant the payment of EDP. In order to justify EDP, all the pertinent regulatory requirements must be met. The Authority noted that the Arbitrator applied the standards and concluded, based on the evidence before him, that the Union failed to prove that protective devices and/or safety measures had not practically eliminated the potential for personal injury. The Authority held that the Union's contention constituted disagreement with the Arbitrator's findings of fact and conclusions. As such, this contention provided no basis for finding the award deficient.