American Federation of Government Employees, Local 1138 and United States Department of Defense, Defense Commissary Agency (Authority decision, June 9, 1994)

Final FLRA decision. This Authority order denies exceptions to an arbitration award and ends the exceptions proceeding. Under 5 U.S.C. § 7123(a)(1), an order involving an arbitral award is generally excluded from judicial review unless it involves an unfair labor practice under 5 U.S.C. § 7116. This decision concerns employee work schedules and does not decide an unfair labor practice.

Plain-English summary

The Defense Commissary Agency used 17 intermittent employees to fill continuing work. An arbitrator found that they should have had part-time status and ordered a change in status and make-whole relief beginning no earlier than the union's grievance. AFGE Local 1138 argued that relief should reach back to when each employee first met the scheduling rule for part-time work. The Authority held that the cited personnel rule did not require the arbitrator to award relief from that earlier date. It denied the union's exception, leaving the time limit on the remedy in place.

Decision snapshot

• Authority: Arbitration exceptions under 5 U.S.C. § 7122(a).
• Outcome: Union exception denied; part-time conversion remedy and its retroactive limit stand.
• Key point: The personnel rule did not require retroactive relief before the grievance was filed.

Full text (FLRA public release)

[ v49 p1211 ]
49:1211(115)AR

The decision of the Authority follows:

49 FLRA No. 115

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1138

(Union)

and

U.S. DEPARTMENT OF DEFENSE

DEFENSE COMMISSARY AGENCY

(Agency)

0-AR-2569

_____

DECISION

June 9, 1994

_____

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Roland Strasshofer filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency did not file an opposition to the Union's exceptions.

The Arbitrator sustained a grievance alleging that the Agency improperly failed to convert 17 intermittent employees to part-time status. As a remedy, the Arbitrator directed the Agency to: (1) change the grievants' status from intermittent to part-time, beginning with the date of the grievance or the date of the employees' hire, whichever was more recent; and (2) make the grievants whole with respect to pay and other matters for the period beginning with the date specified above to the date of implementation of the award by the Agency. The Union claims that, by limiting the remedy to the period specified, the award is deficient because it is contrary to the Federal Personnel Manual (FPM).

For the following reasons, we conclude that the award is not deficient. Therefore, we will deny the exceptions.

II. Background and Arbitrator's Award

For a period of at least 4 years before August 1992, the Agency hired certain employees as temporary intermittent employees to fill continuing positions. On August 21, 1992, the General Accounting Office (GAO) issued a report finding that the Agency's practice of using temporary intermittent employees to fill continuing positions was improper. Also on August 21, 1992, the Union filed a grievance challenging the Agency's practice.

In November 1992, the Agency converted some temporary intermittent employees, including 15 of the 17 grievants, to part-time status.(1) In December 1992, the Union amended its grievance. The grievance, as amended, was filed on behalf of intermittent employees who were on the payroll as of August 21, 1992, and who were improperly determined to be intermittent employees instead of part-time employees in violation of FPM chapter 340, subchapter 4-1.c.(2) The parties were not able to resolve the grievance and it was submitted to arbitration.

The Arbitrator framed the issue as follows:

Did the Agency violate [FPM chapter] 340, subchapter 4, paragraph 4-1.c, by failing to classify the [grievants] as part-time rather than intermittent employees? If so, what shall be the remedy?

Award at 2.

The Arbitrator noted the findings of the GAO report and found that the Agency's action in converting intermittent employees in November 1992 to part-time status was in response to the GAO report. The Arbitrator rejected the Agency's contention that the intermittent employees who were converted to part-time status in November 1992 were not entitled to be converted to part-time status any earlier than November 1992 because they did not have a regularly scheduled tour of duty. The Arbitrator found that the grievants met the standards set forth in FPM chapter 340, subchapter 4-1.c and "should not have been classified as intermittents, but rather as part-time." Id. at

16. Accordingly, the Arbitrator concluded that the Agency's use of intermittent
    employees violated FPM chapter 340, subchapter 4-1.c.

With respect to a remedy, the Arbitrator stated that "the grievants cannot expect a remedy prior to the time when they grieved." Id. at 17. The Arbitrator noted that "[w]ith or without regard to any GAO investigation or actions related thereto, there was nothing to prevent an earlier grievance filing." Id. Therefore, the Arbitrator stated that he would provide a remedy "from the date of hiring but not prior to August 21, 1992, and only to the extent permissible under applicable Federal law." Id. at 17-18.

The Arbitrator's award provided, in relevant part, as follows:

The status of each grievant . . . is to be changed from intermittent to part-time retroactive to August 21, 1992 or date of hire, whichever is more recent. They shall be made whole with respect to pay, step increases, thrift savings contributions, retirement contributions, and annual and sick leave accruals, for the period from the aforesaid date to the date of implementation of [the] [a]ward in full by the Agency.

The Agency shall cease and desist using intermittent employees in place of part-time employees, unless it complies with the requirements of FPM
[chapter] 340, [s]ubchapter 4, 1-4c.

Id. at 18.

III. Exception

The Union argues that the Arbitrator's remedy "limiting the retroactive personnel action to the dates he proposed" is inconsistent with the FPM. Exceptions at 3. According to the Union, FPM chapter 340, subchapter 4-1.c "explicitly state[s] that the [A]gency is required to change the employee's work schedule from intermittent to part time, 'when an agency schedules an intermittent employee . . . to work
. . . for more than two consecutive pay periods.'" Id. (emphasis omitted). The Union contends that inasmuch as all of the grievants testified that they were regularly scheduled to work each pay period as soon as they were hired, the grievants should have been converted under FPM chapter 340, subchapter 4-1.c to part-time status effective two pay periods after they were hired.

Additionally, noting that all of the grievants were converted to part-time status by November 1992, the Union contends that for the period between November 1992 and the implementation of the award, the Arbitrator's remedy merely duplicates benefits already flowing to the grievants as a result of their conversion to part-time status. Finally, the Union asserts that, because two of the grievants had been converted to part-time status prior to the filing of the grievance, the Arbitrator's remedy affords those grievants no relief because the remedy does not apply to any time earlier than the filing of the grievance.

IV. Analysis and Conclusions

For the following reasons, we conclude that the Union has not demonstrated that the Arbitrator's award is deficient under section 7122(a) of the Statute and we will deny the Union's exception.

It is well established that arbitrators have broad authority to fashion a remedy for a violation of employees' rights under a collective bargaining agreement. See, for example, American Federation of Government Employees, Local 916 and U.S. Department of the Air Force, Oklahoma City Air Logistics Command, Tinker Air Force Base, Oklahoma, 46 FLRA 1316, 1319-20 (1993) (arbitrator acted within his authority when he limited the grievant's backpay based on his findings concerning the grievant's failure to file the grievance at the time he became aware of the grievable act). The fact that an arbitrator limits retroactive relief to the period beginning with the filing of the grievance or to the contractual time period for filing a grievance does not render the arbitrator's award deficient under the Back Pay Act. See, for example, U.S. Department of the Navy, Naval Surface Warfare Center, Crane Division, Crane, Indiana and American Federation of Government Employees, Local 1415, 49 FLRA 27 (1994).

We find no merit in the Union's exception that the award is deficient under FPM chapter 340, subchapter 4-1.c because the Arbitrator should have ordered each grievant changed to part-time status effective two pay periods after they were hired. Specifically, we find nothing in FPM chapter 340, subchapter 4-1.c which required the Arbitrator to change the grievants' status and order a make-whole remedy retroactive to the date on which the Agency first scheduled the grievants to work during each week for more than two consecutive pay periods. Moreover, the Union has not demonstrated that any other statute or regulation obligated the Arbitrator to award a make-whole remedy retroactive to the date each respective grievant was first regularly scheduled to work two consecutive pay periods. Consequently, we find that the Union's exception provides no basis for finding the award deficient. See, for example, id. at 31-32.

We note the Union's contention that the award affords the benefits of part-time status to the grievants only up to the date of the implementation of the award and that, because the grievants were converted to part-time status by November 1992, for the period between November 1992 and the implementation of the award the Arbitrator's remedy merely duplicates benefits already flowing to the grievants as a result of their conversion to part-time status. We also note the Union's contention that, because two of the grievants had been converted to part-time status prior to the filing of the grievance, the Arbitrator's remedy, which is retroactive to no earlier than the filing of the grievance, affords those grievants no relief. However, the fact that the Arbitrator's award duplicates benefits already obtained by the grievants, or that it fails to afford relief to some of the grievants, is not a basis for finding the award deficient. The Union's contentions merely constitute disagreement with the Arbitrator's formulation of the remedy. The Authority has consistently denied exceptions that constitute nothing more than disagreement with the arbitrator's determination of the remedy or an attempt to substitute another remedy for that formulated by the arbitrator. See, for example, U.S. Department of Defense, Army Chemical and Military Police Centers, Fort McClellan, Alabama and American Federation of Government Employees, Local 1941, 39 FLRA 457, 464 (1991).

The Union has not demonstrated that the Arbitrator's award is deficient under section 7122(a) of the Statute. Accordingly, we will deny the Union's exception.

V. Decision

The exception is denied.

FOOTNOTES:
(If blank, the decision does not
have footnotes.)

1. The other two grievants had been
   converted to part-time status prior to August 21, 1992.

2. FPM chapter 340, subchapter 4-1.c
   provides, in pertinent part, as follows:

When an agency schedules an intermittent employee, in advance of the pay period, to work at some time during each administrative week for more than two consecutive pay periods, the agency is required to change the employee's work schedule from intermittent to part time (or full time in the case of a 40 hour per week schedule) and to issue an SF 50, Notification of Personnel Action, documenting the change. The employee would then be entitled to the benefits appropriate to the work schedule and appointment, i.e., leave and service credit. The employee would also be eligible for retirement, health benefits and life insurance coverage, if not otherwise excluded
. . . . (emphasis omitted.)

On December 31, 1993, the FPM was abolished and succeeded by a Provisional System which will "sunset" on December 31, 1994. See FPM Sunset Document at 1. The FPM Sunset Document outlines the FPM material that was abolished and the FPM material that is being provisionally retained through December 31, 1994. As relevant to this case, FPM chapter 340, subchapter 4 was provisionally retained by the FPM Sunset Document. See id., Chapter Summary Sheet at 53.