Tuesday, February 22, 2011
FLRA Upholds 2006 Arbitration Victory on Interpretation of Cancellation of Overtime Language from Green Book
In March 2006, Arbitrator Kathy Durham found in NATCA’s favor regarding a Southern Region grievance filed over the agency cancelling overtime assignments with less than seven days notice. She found that the agency had violated Article 38, Section 8 of the Green Book by cancelling overtime with less than seven days notice in instances that were not specifically allowed under the language of the CBA. She also found that Section 8 constitutes a valid appropriate arrangement and, thus, a valid infringement upon management rights. She found that the grievants were thus entitled to be made whole and that they should be paid the overtime pay they otherwise would have earned but for the agency’s improper actions.
On appeal to the FLRA, the agency argued that the decision 1) was based upon a non-fact; 2) failed to draw its essence from Section 8 of the CBA; and 3) was contrary to management rights under 7106a2a, 7106a2b, 7106a2d, 7106b2, 7106b3, and 7101a of the Statute.
NATCA argued to the contrary. The FLRA agreed with NATCA.
The FLRA found that 1) the agency had failed to raise the 7106a2a and 7106a2d and 7101 issue before the arbitrator, and thus, they were dismissed; 2) that the award was NOT based upon a non-fact; 3) that the award draws its essence from the CBA; and 4) that the award was not contrary to law. Specifically, the FLRA held that as the language of Section 8 constituted an appropriate arrangement, it was a permissible infringement upon management rights that did not rise to the level of an abrogation of management’s right to assign work. Therefore, the FLRA found no violation of 7106a2b, 7106b2 or 7106b3. For the whole decision, see FAA v NATCA, 65 FLRA 171 (2010).
In response to the FLRA’s decision, the agency and NATCA negotiated a settlement agreement, which provided all of the bargaining unit employees whose grievances were originally litigated at the hearing with a monetary payment for the total number of overtime hours that the agency previously failed to provide to them. All told, 154 hours of overtime compensation was provided to 21 employees located at ZMA, ZTL, ZJX and TRI.
Adverse Arbitration Decision in Travel Comp Time Grievances
On Feb. 24, 2011, Arbitrator Linda Byars denied NATCA’s grievances contesting the FAA’s providing travel compensatory time instead of overtime pay for travel spent beyond an employee’s tour of duty. NATCA contended that Article 38 (overtime) requires the payment of overtime pay for work beyond an employee’s tour of duty, including travel time when employees are required to travel beyond their scheduled shift. The FAA argued that travel is not FLSA overtime work and that compensatory time for travel is permitted.
Additionally, NATCA maintained that the reference to 5 CFR 551 in Article 38, Section 6 of the contract only referred to pay computations and the eligibility requirements in 5 CFR 551 are not applicable. In contrast, the FAA contended that all aspects of 5 CFR 551 apply and are relevant when considering pay computations. The arbitrator considered Article 38, Section 6 and noted that Article 38, Section 7 discusses the rate of pay for FLSA overtime work. The arbitrator found that “the record supports a finding that the parties intended eligibility for overtime pay to be consistent with the Fair Labor Standards Act as outlined in 5 CFR Part 551. Article 38, Section 6 and 7 demonstrate the FAA is required to pay employees for travel that qualifies as work and is compensable pursuant to the FLSA. The provisions do not provide for overtime pay for travel beyond that required by the FLSA.”
The FAA noted that the contract provided benefits beyond those provided in the FLSA, such as working a full hour of overtime when held over for less than an hour (Article 38, Section 9). The FAA argued that if benefits beyond the FLSA were contemplated, then they would be captured in the contract. Despite NATCA’s argument that all travel benefits the agency so employees should be paid overtime, the arbitrator found that such a position fails to acknowledge “the contractual provisions that reference the FLSA and the eligibility requirements for payment of overtime under the FLSA.” The arbitrator noted that while the contract “does not directly distinguish work and travel….by reference to “FLSA overtime work” the distinction is included contractually.”
NATCA also argued that the Abbey v. United States, 108 LRP 454698 (2008), provided support for the payment of overtime for travel since the FAA was ordered to pay overtime pay and not compensatory time for overtime work. The arbitrator concluded that in Abbey, the Judge ruled that the FAA must pay overtime for FLSA overtime work. In response to the Abbey case, NATCA and the FAA agreed to delete references to compensatory time from the contract. NATCA argued the deletion of compensatory time supports NATCA’s contention that compensatory time for travel is prohibited. However, the arbitrator ruled that the inclusion of the FLSA in the overtime provisions of the contract demonstrate that work must be FLSA overtime work to be compensable. “Compensatory time is provided for travel time that is not compensable, and not utilized as a substitute for time that is compensable.” The arbitrator further noted that the “FAA is not providing compensatory time in lieu of pay for FLSA overtime work, but is providing compensatory time for hours of travel that employees would otherwise receive nothing.” The arbitrator found that the “clear and unambiguous language of Article 38 requires the FAA to pay overtime for FLSA overtime work.” The arbitrator found no violation of contract or law, and denied the grievances.