[ v41 p1441 ]
41:1441(113)AR
The decision of the Authority follows:
41 FLRA No. 113
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 Barbara W. Doering. The Arbitrator determined that the Agency did not violate the parties' collective bargaining agreement by scheduling training for 8 1/2 hours to include an unpaid, 30-minute meal period in any situation where the employees are not at least potentially in an on-call status with respect to operational duties. However, the Arbitrator ruled that, to the extent training may have been scheduled for operationally qualified air traffic controllers to include a 30-minute, unpaid meal period, the practice must be changed to conduct such training within a regularly scheduled 8-hour workday.
Both the Union(1) and the Agency filed exceptions to the Arbitrator's award under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations.(2) The Union filed an opposition to the Agency's exceptions. The Agency did not file an opposition to the Union's exceptions.
We find that the portion of the Arbitrator's award ordering that training of operationally qualified air traffic controllers must be conducted within a regularly scheduled 8-hour workday is deficient, and we will modify the award accordingly.
II. Background and Arbitrator's Award
Air traffic controllers, when involved in the operation of air traffic control, work an 8-hour shift, which includes a 30-minute, paid meal period. However, when the Agency assigns certain controllers, who are not exempt from the Fair Labor Standards Act (FLSA), to training or nonoperational administrative status, the Agency schedules a workday of 8 1/2 hours, which includes a 30-minute, unpaid meal period. The Union filed a grievance claiming that the Agency had violated Article 34, Section 1 of the parties' collective bargaining agreement by "requir[ing]" employees "to work 8 1/2 hours while assigned to administrative duties such as training." Transcript of Arbitration Hearing, Joint Exhibit 3A. Article 34, Section 1 pertinently provides: "The basic workday shall consist of eight (8) consecutive hours . . . ." The grievance was not resolved and was submitted to arbitration. The parties were unable to agree on a statement of the issue. The Arbitrator stated the issue as follows:
Does the Agency violate the Contract by scheduling a workday of 8.5 hours, as a result of inclusion of a 30 minute unpaid lunch, for members of the bargaining unit assigned to administrative duties such as training? If so, what is the appropriate remedy?
Award at 1.
Before the Arbitrator, the Union contended that nothing in the collective bargaining agreement suggests that there are exceptions to the 8-consecutive-hour workday for different kinds of duty. The Union argued that it was understood in the negotiation of the agreement that air traffic controllers are a special category of Federal employee because 5 U.S.C. § 5546a(e)(1) entitles them to premium pay for missed meals and effectively provides for paid meal periods. 5 U.S.C. § 5546a(e)(1)(3) provides:
The Administrator or the Secretary may pay premium pay to any air traffic controller or flight service station specialist of the Federal Aviation Administration or the Department of Defense who, while working a regularly scheduled eight-hour period of service, is required by his supervisor to work during the fourth through sixth hour of such period without a break of thirty minutes for a meal.
The Union submitted to the Arbitrator a press release concerning the proposed legislation that became the ATRA in which the Secretary of Transportation stated that the provision for missed-meal premium pay had "the effect of reducing the controller's work week to 37 1/2 hours, while getting paid for 40." October 22, 1981, Statement of U.S. Secretary of Transportation Drew Lewis at 2. The Union took the position that Article 34, Section 1, when read in the context of an uninterrupted meal period with missed-meal premium pay under the ATRA and the Agency's practice of providing a paid meal period when scheduling full-performance level controllers for training and developmental controllers for laboratory training, meant that controllers in the bargaining unit "receive, by contract, a paid lunch." Award at 7 (emphasis in original). As a remedy, the Union requested overtime pay for all unit employees who had been required to work 8 1/2 hours since the effective date of the collective bargaining agreement and an award of attorney fees.
The Agency conceded to the Arbitrator that, when in operational status, controllers are treated differently than other Federal employees because they receive premium pay for missed meals. However, the Agency argued that the missed-meal premium set forth in the ATRA is inapplicable when controllers are engaged in administrative duties because there is no claim that any employee in a training program was required to work during or through his or her meal period. The Agency maintained that the decision of the Comptroller General in 62 Comp. Gen. 58 (1982) demonstrates that controllers are subject to the same rules as other Federal employees regarding paid and unpaid meal periods.
The Arbitrator found that management "mostly relie[d] upon the legal complexity of the paid versus unpaid lunch issue" to explain why it did not believe Article 34, Section 1, "had anything to do with inclusion or lack of inclusion of paid meal breaks." Id. at 9. The Arbitrator acknowledged that "[a] paid, duty-free, meal period has been a very touchy issue with a long history at the FAA." Id. She noted that the FLSA "prohibits counting bona fide meal periods as hours worked." Id. However, she found that "[t]he ATRA legislation . . ., in a back-handed way, by implication, . . . provides for paid meal periods for certain air traffic controllers." Id. In the Arbitrator's view, "[t]he legislation clearly contemplates that air traffic controllers receive an unworked, uninterrupted lunch break within their regularly scheduled 8-hour period of service and be paid for all 8 hours inclusive of the meal-break." Id. Therefore, the Arbitrator held that the ATRA "legislation clearly creates an exception to the more general coverage of the FLSA in the case of certain air traffic controllers." Id. at 10.
Reviewing the language of 5 U.S.C. § 5546a(e)(1), the Arbitrator concluded that the ATRA exception to the FLSA restrictions on meal periods constituting hours of work is "limited by implication to situations where controllers are at least conceivably on-call to operate a position, if not in actual operational duty status." Id. at 11. Applying the ATRA in this manner, the Arbitrator ruled that "individuals on special assignment away from the facility, individuals medically disqualified from operational duty, and Developmentals not yet qualified for operational duty" are not entitled to a scheduled workday of 8 hours, inclusive of a paid, 30-minute, uninterrupted meal period. Id. at 11-12. The Arbitrator held that those individuals are subject to the FLSA restrictions that bona fide meal periods are not compensable. She further ruled, however, that, under the ATRA, developmental controllers, "once they are sufficiently trained to qualify for operational duty (and on-call status)," are entitled to a regularly scheduled 8-hour period of duty, inclusive of a paid, 30-minute, uninterrupted meal period. Id. at 12. Because the evidence was not clear as to what extent, if any, such individuals may have been scheduled for an unpaid lunch in connection with training, the Arbitrator determined that no remedy other than a change in practice was appropriate.
Accordingly, the Arbitrator awarded as follows:
The Agency does not violate the Contract by scheduling training for 8.5 hours to include an unpaid 30 minute lunch break in any situation where participants are not at least potentially in an on-call status with respect to operational duties.
To the extent on-site training may have been scheduled for operationally qualified controllers to include an unpaid break, the arbitrator finds that this practice shall be changed to conduct such training within a regularly scheduled 8 hour period of service.
Id.
III. Agency's Exceptions
A. Contentions
The Agency filed exceptions to the portion of the award directing that the Agency conduct the training of operationally qualified controllers within a regularly scheduled 8-hour period of duty, inclusive of a paid, 30-minute, uninterrupted meal period. The Agency contends that this portion of the award violates 5 C.F.R. part 551, which implements the FLSA for Federal employees, and violates management's right to assign work under section 7106(a)(2)(B) of the Statute.
The Agency argues that the award violates 5 C.F.R. part 551 by directing that the Agency allow paid meal periods for employees under circumstances where the meal periods are not compensable. The Agency notes that 5 C.F.R. § 551.411(c) provides that bona fide meal periods are not considered hours of work. The Agency cites to decisions of the Comptroller General setting forth criteria to determine whether a meal period is compensable. The Agency disputes the Arbitrator's conclusion that because operationally qualified controllers are potentially in an on-call status during a scheduled, uninterrupted meal period, the meal period is compensable. The Agency asserts that, because it is able to provide a scheduled, uninterrupted meal period for controllers who are on administrative duties, there is no legal authority for compensating the meal period as hours of work, and the award is deficient.
The Agency also argues that the Arbitrator's order to conduct training only within a regularly scheduled 8-hour period of duty restricts the Agency from scheduling 8 1/2 hours of training when necessary. Therefore, the Agency asserts that the award directly interferes with management's right under section 7106(a)(2)(B) to assign and schedule work in the form of training and to determine the personnel who will perform this training.
B. Union's Opposition
The Union contends that the award does not violate 5 C.F.R. part 551 or management's right to assign work under section 7106(a)(2)(B) of the Statute.
The Union argues that the record supports the Arbitrator's finding that the meal period is compensable because the employees who are assigned training are subject to call-back. The Union cites testimony as to controllers having been called out of training for emergency purposes and testimony of the Chicago Center manager who conceded that all controllers are at least "generically" on call. Union's Opposition at 4. The Union also points out that the Agency does not explain why it provides a paid meal when scheduling full-performance level controllers for training and developmental controllers for laboratory training if all controllers are guaranteed an uninterrupted, 30-minute, meal period on training days. The Union further argues that the decisions of the Comptroller General are of no support because of the application of the ATRA. The Union maintains that the missed-meal premium provision "must be read, by way of Legislative history, with the statements made at the time the legislation was submitted." Id. at 6. The Union quotes the statement of Secretary of Transportation Lewis stating that the ATRA has the effect of reducing a controller's workweek to 37 1/2 hours while getting paid for 40 hours.
The Union also argues that the award does not restrain the Agency in the scheduling of training. The Union maintains that the award simply requires the Agency to schedule the workday for 8 consecutive hours, rather than 8 1/2 hours, in order to comply with its commitment in the parties' collective bargaining agreement.
IV. Union's Exceptions
The Union contends that the Arbitrator exceeded her authority by deciding issues not submitted. The Union further argues that the limitation of the award to prospective relief is contrary to law and public policy and fails to draw its essence from the collective bargaining agreement. The Union also asserts that the award is deficient because the Arbitrator failed to rule on the Union's request for attorney fees.
The Union argues that the Arbitrator exceeded her authority by addressing the schedules of controllers on special assignment away from the facility, controllers medically disqualified from operational duty, and developmental controllers not yet qualified for operational duty. The Union asserts that these issues were not submitted to the Arbitrator. The Union maintains that the record reflects that the grievance issues were clearly confined to controllers "in the phase 8 and phase II Alpha training." Union's Exceptions at 13 (citation omitted).
The Union argues that the award is contrary to law and public policy and fails to draw its essence from the agreement because there is no basis for the Arbitrator to have excused the Agency from the liability of compensating the controllers that she found were entitled to the benefit of a paid meal period under law and the collective bargaining agreement. The Union maintains that there was never a dispute over the period of the alleged breach of the agreement by the Agency. The Union asserts that the award fails to draw its essence from the agreement because the award cannot limit the relief to prospective relief when a breach of the agreement is found. The Union also asserts that because the Arbitrator found a violation of the ATRA, the grievants were entitled to an award of backpay as a matter of law under the Back Pay Act, 5 U.S.C. § 5596. The Union further asserts that the award would violate public policy unless the award is modified to provide a proper remedy to the grievants. The Union claims that by failing to vindicate the grievants' losses, the award violates public policy because it frustrates the collective bargaining process.
The Union argues that the award is also deficient because the Union requested an award of attorney fees, but the Arbitrator did not rule on the request. The Union maintains that under the decisions of the Authority, an arbitrator may not decide a fee request by implication by failing to address it.
V. Analysis and Conclusions
A. The Arbitrator Did Not Exceed Her Authority
Contrary to the Union's claim, the Arbitrator did not exceed her authority by ruling on issues that were not submitted. We find that the Arbitrator's addressing of the schedules of controllers on special assignment, controllers medically disqualified from operational duty, and developmental controllers not yet qualified for operational duty is directly responsive to the issue as the Arbitrator framed it in the absence of a stipulation by the parties. Arbitrators are accorded substantial deference in the formulation of issues. For example, U.S. Department of Defense, Delaware National Guard, Wilmington, Delaware and Association of Civilian Technicians, 39 FLRA 1225, 1233 (1991). In our view, the schedules of these controllers were encompassed by the Arbitrator's statement of the issue as it pertained to the assignment of administrative duties, and no basis is provided for finding that the Arbitrator exceeded her authority. See id. at 1232-33 (the award was directly responsive to the issues as the arbitrator framed them, and, consequently, no basis was provided for finding that the arbitrator exceeded his authority by ruling on matters not before him). We note that the schedules of medically disqualified controllers and controllers on special assignment were specifically addressed before the Arbitrator. Transcript at 107-08; Agency's Post-hearing Brief at 2. Moreover, we find that the schedules of these controllers were encompassed by the statement of the grievance itself. The grievance, as did the Arbitrator's statement of the issue, related to controllers assigned to "administrative duties." In our view, the use of the words "such as training" in the grievance was for the purpose of providing an example and not for the purpose of restricting the scope of the grievance.
Accordingly, we deny this exception.
B. The Award Is Contrary to Law
The Arbitrator ruled that, under 5 U.S.C. § 5546a(e)(1), operationally qualified controllers are entitled to a regularly scheduled 8-hour period of duty, inclusive of a paid, 30-minute, uninterrupted meal period, when assigned to training. She found that "[t]he ATRA legislation . . ., in a back-handed way, by implication, . . . provides for paid meal periods for certain air traffic controllers." Award at 9. She held that "[t]he special (ATRA) legislation clearly creates an exception to the more general coverage of the FLSA in the case of certain air traffic controllers." Id. at 10. We disagree. We find that section 5546a(e)(1) does not provide for paid meal periods and does not create an exception to the legal prohibitions on compensating meal periods. We further find that the uninterrupted meal period provided the controllers is not compensable and that the award is deficient to the extent that it orders the meal period to be compensated.
We disagree with the Arbitrator that section 5546a(e)(1) provides for paid meal periods. We have examined the provisions of section 5546a(e)(1) and DOT Order 3550.13 implementing the statutory provisions. In our view, the statutory language and the implementing regulation make it clear that section 5546a(e)(1) is a provision for premium pay and not a provision for paid, uninterrupted meal periods. This is made clear by the fact that the premium pay provisions do not apply when management offers employees a meal period between the 4th through 6th hours of their shifts, as was evidently done in this case. DOT Order 3550.13, Appendix 1, Section 4(f). In view of the clear statutory language and implementing regulatory provisions, we will not look to the preenactment statement of Secretary Lewis in interpreting and applying section 5546a(e)(1). In our view, to do so would improperly supplant the statutory provisions of section 5546a(e)(1). Moreover, we are unwilling to interpret section 5546a(e)(1) as effectively reducing the controllers' workweek to 37 1/2 hours, with payment for 40 hours, without more evidence of such intent by Congress. Such an interpretation would directly conflict with the longstanding requirement of 5 U.S.C. § 6101 that the basic workweek must consist of 40 hours of work. See, for example, American Federation of Government Employees, AFL-CIO, Local 3231 and Department of Health and Human Services, Social Security Administration, 25 FLRA 600, 601 (1987) (AFGE Local 3231).
Accordingly, as section 5546a(e)(1) is inapplicable to the determination of whether controllers could be compensated for an uninterrupted meal period, the Arbitrator was required to have made the determination under title 5 of the U.S. Code and the FLSA. As recognized by the Arbitrator, the FLSA prohibits bona fide meal periods from being compensated as hours of work. Under Federal Personnel Manual Letter 551-1, when an employee's meal periods are uninterrupted except for rare and infrequent emergency calls, the meal periods are not compensable. In addition, in considering the specific issue of whether time set aside for a meal period is compensable as hours of work under title 5 or the FLSA, the Authority in AFGE Local 3231 adopted the position of the Court of Claims, which had consistently held that meal periods are not compensable unless the employee performs substantial job-related duties. 25 FLRA at 602 (citing Baker v. United States, 218 Ct. Cl. 602 (1978) (Baker)).
In Baker, the court recognized the general principle that employees cannot be compensated under title 5 or the FLSA unless the employee has performed substantial, job-related duties. 218 Ct. Cl. at 623. The court held that substantial, job-related duties are not performed during a designated duty-free meal period when the meal period is interrupted only rarely by the necessity of performing work. Because the court in Baker found that the meal period was interrupted only rarely, the court ruled that the meal period was not compensable. The fact that the employees were "on call" during their meal period did not persuade the court otherwise. Id. at 622. Accord Bennett v. United States, 194 Ct. Cl. 889 (1971).
Consequently, in this case, we find that the award is deficient by ordering that all operationally qualified controllers assigned to training be compensated for a 30-minute, uninterrupted meal period without regard to whether substantial interruptions occurred.(4) In so finding, we conclude that the Union has failed to establish that any actual interruptions were more than rare. In addition, because the Agency's scheduling of full-performance level controllers for training and developmental controllers for laboratory training was not encompassed by the Arbitrator's award, we find, contrary to the Union's assertion, that the Agency's practice in that regard is not relevant to whether the paid meal period ordered by the Arbitrator is deficient. Accordingly, we will modify the award by striking the second paragraph.(5)
VI. Decision
The award is modified to strike the second paragraph, which provides as follows:
To the extent on-site training may have been scheduled for operationally qualified controllers to include an unpaid break, the arbitrator finds that this practice shall be changed to conduct such training within a regularly scheduled 8 hour period of service.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. On August 10, 1990, the Authority ordered the Union to show cause why its exceptions should not be dismissed as untimely filed. The order noted that the award was dated June 27, 1990, and stated that if the award had been served on the Union on that date, the Union's exceptions filed on August 2 would be untimely. In its response to the order, the Union has established that, although it had received a copy from the Agency, the Arbitrator had not served a copy of the award on the Union. Accordingly, there is no basis on which to find the exceptions untimely, and they will not be dismissed.
2. The Agency also requested a stay of the Arbitrator's award when it filed its exceptions to the award. Effective December 31, 1986, the Authority's Regulations were revised to revoke those portions pertaining to the filing of requests for stays of arbitration awards. 51 Fed. Reg. 45754 (1986). Accordingly, no action was taken on the stay request.
3. Public Law Nos. 97-276, 97-377, and 98-78, in appropriating funds for the Department of Transportation (DOT), enacted and amended 5 U.S.C. § 5546a to provide certain premium pay to air traffic controllers as a part of an air traffic control revitalization. Both the parties and the Arbitrator refer to these provisions as the Air Traffic Revitalization Act or ATRA.
4. In reaching this conclusion, we have considered both title 5 of the U.S. Code and the FLSA, consistent with the implementation of section 210 of the Federal Employees Pay Comparability Act of 1990 by the Office of Personnel Management. 56 Fed. Reg. 20339 (1991).
5. In view of this decision, we need not address the Agency's other exception to the award. Because we have found that the disputed portion of the Arbitrator's order is contrary to law, we deny the Union's exceptions contending that the award is deficient by limiting the remedy to prospective relief. Because the award, as modified by this decision, finds no unjustified or unwarranted personnel action and awards no backpay, we find that the Union's exception pertaining to its request for attorney fees is now moot, and the exception is dismissed.