73 FLRA No. 144                                                                                                         

 

AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES

LOCAL 2053, COUNCIL 243

(Union)

 

and

 

UNITED STATES

DEPARTMENT OF THE NAVY

COMMANDER, NAVY REGION SOUTHEAST

(Agency)

 

0‑AR‑5886

 

_____

 

DECISION

 

December 6, 2023

 

_____

 

Before the Authority:  Susan Tsui Grundmann,  Chairman, and Colleen Duffy Kiko, Member

(Chairman Grundmann concurring)

 

I.  Statement of the Case

 

Arbitrator Paul Gordon issued an award dismissing, as untimely, a Union grievance alleging the Agency failed to pay employees overtime under the Fair Labor Standards Act (FLSA).[1]  The Union filed exceptions alleging the award is contrary to law and public policy.  Because arbitrators may lawfully enforce contractual time limits for filing grievances that are shorter than the FLSA’s filing periods, we deny the exceptions.

 

II.  Background and Arbitrator’s Award

 

The Agency implemented a compressed work schedule – effective the pay period starting September 16, 2018 – of twelve hours on, twelve hours off, “with 3/2, 2/3 alternating work days.”[2]  Beginning with that implementation, the Agency did not pay employees on the compressed schedule any overtime pay for hours worked in excess of eight hours per day or forty hours per week.

 

On May 27, 2022, the Union filed a grievance challenging the Agency’s failure to pay those employees overtime.  The grievance went to arbitration, where the Arbitrator framed the issue as:  “Whether the . . . grievance . . . was filed timely so as to be arbitrable in compliance with the Master Agreement?”[3]

 

The Arbitrator noted Article 32, Section 4(B) of the parties’ agreement states that “grievances must be presented within fourteen (14) calendar days after the incident occurs or the grievant became aware of the incident.”[4]  The Arbitrator found that the Union and affected employees were aware of the nonpayment of overtime beginning in September 2018, and that the fourteen-day time limit for filing a grievance began at that time.

 

The Arbitrator also found Article 32’s time limit does not contain any exception for alleged continuing violations.  The Arbitrator determined the parties knew how to bargain exceptions to that time limit, as they agreed in Article 32 to exclude several items, including certain types of statutory complaints, from that limit.  The Arbitrator further determined that the parties did not include any exceptions to that time limit for FLSA claims.

 

Additionally, the Arbitrator rejected a Union claim that the FLSA statute of limitations, set forth in 29 U.S.C. § 255(a) (§ 255(a)), is incorporated into the parties’ agreement and supersedes Article 32’s time limit.  Citing Authority precedent,[5] the Arbitrator found that applying the contractual time limit was “not a waiver contrary to [c]ongressional command[] and [did] not preclude effective vindication of any statutory rights.”[6]  In that regard, the Arbitrator stated, “There may be other forums for the Union to seek redress for the wage claims, but the [agreement] limits the time period for filing a grievance” to fourteen days.[7]  Because the Union did not file its grievance within fourteen days of when the grieved incident occurred, or when the Union or employees became aware of that incident, the Arbitrator dismissed the grievance as untimely.

 

On April 26, 2023, the Union filed exceptions to the award, and on May 31, 2023, the Agency filed an opposition.[8]

 

III.  Analysis and Conclusions

 

The Union argues the award is contrary to law because the Arbitrator failed to apply the time limits in § 255(a).[9]  According to the Union, § 255(a) “is a substantive right” that the parties’ agreement does not “clearly and unmistakably waive,” as Article 2, Section 1 of the parties’ agreement allegedly requires.[10]  For support, the Union cites various court decisions.[11]

 

An arbitrator’s determination regarding the timeliness of a grievance is a procedural‑arbitrability determination.[12]  In order for a procedural‑arbitrability determination to be found contrary to law, the appealing party must establish the determination conflicts with statutory procedural requirements that apply to the parties’ negotiated grievance procedure.[13]  When an exception involves an award’s consistency with law, the Authority reviews any question of law raised by the exception de novo.[14]  In applying the standard of de novo review, the Authority assesses whether an arbitrator’s legal conclusions are consistent with the applicable standard of law.[15]  In conducting that assessment, the Authority defers to the arbitrator’s factual findings unless the excepting party demonstrates the award is based on a nonfact.[16]

 

The Authority has held that, where a collective-bargaining agreement contains time limits for filing grievances that are shorter than § 255(a)’s filing periods, it is not contrary to the FLSA for an arbitrator to rely on those contractual limits to dismiss grievances as untimely.[17]  Contrary to the Union’s claim, the Authority has held that “nothing in the express language of § 255(a) suggests that the time limit contained in [that] provision is a substantive right” that must be clearly and unmistakably waived.[18]  Further, none of the cited court decisions hold that arbitrators may not enforce contractual time limits that are shorter than § 255(a)’s filing periods.[19]  Accordingly, the Union has not demonstrated the award is contrary to § 255(a), and we deny the contrary‑to‑law exception.

 

The Union also argues the award is contrary to public policy.[20]  However, the Union’s public-policy exception repeats the same arguments from its contrary‑to‑law exception.  As we deny the contrary-to-law exception, we likewise deny the public‑policy exception.[21]

 

IV.         Decision

 

We deny the Union’s exceptions.

 

 

 

Chairman Grundmann, concurring:

 

I concur with the decision to deny the exceptions.  The result is correct based on the Arbitrator’s interpretation of the language of the collective-bargaining agreement, even if the result is harsh.  I write separately to note two things.

 

First, as the decision acknowledges,1 the Arbitrator stated, “There may be other forums for the Union to seek redress for the wage claims.”2  Nothing in our decision today should be construed as holding to the contrary.

 

Second, in finding the grievance untimely, the Arbitrator cited several Authority decisions, including U.S. DOJ, Federal BOP, Federal Correctional Complex, Terre Haute, Indiana;3 U.S. Department of VA, John J. Pershing VA Medical Center;4 U.S. DOD Education Activity;5 and U.S. Department of the Treasury, IRS.6  I was not a Member when the Authority issued those decisions and, thus, I did not participate in those cases.  I am open to revisiting the relevant parts of those decisions in a future, appropriate case.7  However, the Union’s exceptions do not challenge the Arbitrator’s reliance on those decisions or require us to resolve whether they were rightly decided.  As such, I need not address that question in this case.

 

Therefore, I concur.