25:0071(4)CA - Treasury, IRS and Treasury IRS Austin Service Center, Austin, TX and NTEU and NTEU Chapter 72 -- 1987 FLRAdec CA
[ v25 p71 ]
The decision of the Authority follows:
25 FLRA No. 4 UNITED STATES DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE AND UNITED STATES DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, AUSTIN SERVICE CENTER, AUSTIN, TEXAS Respondent and NATIONAL TREASURY EMPLOYEES UNION AND NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 72 Charging Party Case No. 6-CA-50349 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety. Thereafter, the General Counsel and the Charging Party filed exceptions to the Judge's Decision and supporting briefs. The Respondent filed an opposition to the exceptions of the General Counsel and Charging Party and filed cross-exceptions. Pursuant to Section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's decision, the exceptions and cross-exceptions to that Decision, and the entire record, we adopt the Judge's findings, conclusions, and recommended Order that the complaint be dismissed. In agreement with the Judge, we find that the adequacy of compliance with an arbitration award will be determined by whether the Respondent's construction of the award is reasonable, which would depend on whether the construction is consistent with the entire award and consistent with applicable rules and regulations. See Tidewater Virginia Federal Employees Metal Trades Council, AFL-CIO, 15 FLRA 296, 305 (1984). The complaint in Case No. 6-CA-50349 is dismissed. Issued, Washington, D.C., January 8, 1987. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 6-CA-50349 UNITED STATES DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE and UNITED STATES DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, AUSTIN SERVICE CENTER, AUSTIN, TEXAS Respondent and NATIONAL TREASURY EMPLOYEES UNION and NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 72 Charging Party William F. Burbach, Esquire On Brief: David L. Jordan, Esquire Gary A. Anderson, Esquire For the Respondent Anne Ellzey, Esquire On Brief: M. Kathryn Durham, Esquire For the Charging Party Christopher J. Ivits, Esquire For the General Counsel Before: William B. Devaney Administrative Law Judge DECISION Statement of the Case This proceeding, under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. Section 7101, et seq., /1/ and the Final Rules and Regulations issued thereunder, 5 C.F.R. Section 2423.1, et seq., concerns compliance with an Arbitration Award. Respondent asserts that it has complied fully with the Arbitration Award while the Complaint alleges, and General Counsel and the Charging Party assert, that Respondent has failed and refused to comply with the Award. The Award was, "Grievant is restored to her job without back pay but without loss of other benefits" (G.C. Exh. 3, p. 13); it is conceded that grievant was restored to her job; grievant had been removed on January 28, 1984, and was restored to her job, pursuant to the Award "without back pay", on October 3, 1984; it is conceded that Respondent restored to grievant the amount of sick leave (grievant had been paid for all annual leave accumulated prior to January 28, 1984); but Respondent has not given grievant annual leave or sick leave for the period from January 28 through October 2, 1984, when she had been removed from the payroll and for which period she was denied backpay by the Award; and her service computation date (continuous service) was adjusted from December 28, 1976, to March 1, 1977, to reflect the time in excess of six months for which she was not paid. For reasons set forth hereinafter, I conclude that Respondent has not failed or refused to comply with the Arbitration Award and that the Complaint must be dismissed. This case was initiated by a charge filed on April 10, 1985 (G.C. Exh. 1(a)) and a Complaint and Notice of Hearing issued on August 6, 1986 (G.C. Exh. 1(d)) and fixed the hearing the hearing for October 16, 1985. By Order dated October 3, 1985, pursuant to the timely motion of the General Counsel with which the other parties concurred, the hearing was rescheduled for December 3, 1985 (G.C. Exh. 1 (j)). On November 12, 1985, an Amended Complaint and Notice of Hearing issued (G.C. Exh. (1)), which also set the hearing for December 3, 1985, in Austin. Texas, before the undersigned. All parties were represented at the hearing, were afforded full opportunity to be heard, to introduce evidence bearing on the issues presented, to examine and cross-examine witnesses and were afforded the opportunity to present oral argument. At the conclusion of the hearing, January 3, 1986, was fixed as the date for mailing post-hearing briefs, which time was subsequently extended, upon timely motion of the Charging Party, with which Respondent joined and to which General Counsel did not object, to January 17, 1986. Respondent Charging Party and General Counsel each timely mailed a brief, received on, or before January 21, 1986. Subsequently General Counsel filed a Motion to Strike Portions of Respondent's Post-Hearing Brief, dated January 24, 1986 and received on January 27, 1986, to which Respondent filed a Response, dated February 3, 1986, and received on February 6, 1986. Upon the entire record, I make the following findings and conclusions: Preliminary Matters A. General Counsel's Motion to Strike Portions of Respondent's Post Hearing Brief. 1. General Counsel has moved to strike that portion of Respondent's post-hearing brief on page 5, line 23 to page 6 line 5 which states, "In the arbitration proceedings before Dean White, there was no discussion concerning the mitigation of Ms. Ilse's removal in terms of a specific suspension with or without leave and seniority accruing during the term of that suspension. Indeed, there was no discussion of any specific remedy other than upholding the removal or reinstating Ms. Ilse with full backpay and complete benefits during the period she was removed." General Counsel asserts that the foregoing is improper because, ". . . no evidence was presented at the hearing as to what occurred during the arbitration and, therefore, the Respondent's brief offers facts outside the record." Respondent, in its Response to General Counsel's Motion to Strike asserts that, ". . . the General Counsel introduced Dean White's Arbitration decision and award into evidence. G.C. Exh. 3. In that exhibit the arbitrator defines the issue of the arbitration. . . . In doing so he makes no mention of any remedy sought by the Charging Party, other than full reinstatement with back-pay and all entitlements. . . ." (Response, p. 3). If Respondent's reference had been to the arbitration decision and award I would summarily deny General Counsel's Motion to Strike; but clearly Respondent's statement goes wholly beyond the arbitrator's decision to asserted discussions in the arbitration proceedings as to which no evidence or testimony was offered. Accordingly, General Counsel's motion is granted and I shall not consider line 23, page 5 to line 5, page 6 of Respondent's Brief; however, the arbitration decision, which was introduced as an exhibit, will be considered in its entirety. 2. General Counsel has moved to strike that portion of Respondent's post-hearing brief on page 6, line 15 to line 22, which states, "The view of the arbitrator that the award was 'incomplete and indefinite' is to be viewed with import (citation omitted). Dean White clearly so viewed that portion of his award dealing with 'other benefits.' . . . Further, when the arbitrator has expressed his/her intention as to what the award is to mean, that intention should control." In addition, General Counsel has moved to strike that portion of Respondent's post-hearing brief on page 22 line 22 to line 23, which states, "The arbitrator's award, by his own admission, was stated with less than pristine clarity." As to the last sentence which General Counsel seeks to strike, the only position which, under any view, would properly be subject to objection is the phrase, "by his own admission" which will be considered together with the statements, set forth above, on page 6 lines 15 to 22. General Counsel is quite correct that the statements on page 6, lines 15 to 22 and the phrase "by his own admission" on page 22 refer to a rejected exhibit (Respondent's Exhibit 1 for identification). Respondent Exhibit 1 was, and is, the affidavit of Arbitrator Dean A. A. White, dated November 26, 1985. Dean White is conceded to be seriously ill and unable to attend the hearing as a witness. I rejected his proffered affidavit for the reason that it was obtained by Respondent ex parte without notice to the Union or the General Counsel and, of course, without opportunity for either to be present. I adhere to that ruling. At the hearing I stated, ". . . I am going to reject Respondent's Exhibit No. 1. But I am going to bear in mind the fact that he did make a clarification, which I am going to take note of only for the fact that the arbitrator seemed to feel that there was some ambiguity concerning the language he used in his original decision." (Tr.65) Respondent's statements on page 6, lines 15-22 go well beyond the mere fact that the arbitrator did make a clarification and General Counsel's motion to strike page 6, lines 15-22 is granted. General Counsel's motion to strike language appearing on page 22 of Respondent's Brief is denied. Upon further reflection, I have concluded that it is unnecessary to consider that the arbitrator did make a clarification and, accordingly, I shall not. As I further stated at the hearing, "My concern is whether the award is or is not ambiguous. If it is not ambiguous, then I am not going to go behind it for any purpose. It is a question of whether or not it has been complied with. "And if it is clear what he required and there is no reasonable room for doubt, then I think there is a violation. If it is ambiguous and if it would appear that a reasonable construction is that which Respondent has placed on it, then I am not going to find a violation. It is going to be just that simple." (Tr. 68). B. Testimony by attorney of record. Ms. Anne Ellzey, Assistant Counsel, National Treasury Employees Union, entered her appearance for the Charging Party and was then called as a witness by the General Counsel. Respondent objected to Ms. Ellzey testifying on the basis of disciplinary Rule 5-102(A) of the Texas Code of Professional Responsibility and in its Brief urges that all documents filed by the attorney/witness should be stricken, including all documents emanating therefrom which would include the complaint and amended complaint (Respondent's Brief, p. 22). I am well aware that non-lawyers regularly enter appearances and then testify as witnesses. Where they do not examine witnesses, present oral argument, or otherwise participate as a representative in the conduct of the hearing, no objection is made to their having entered an appearance and then testifying as a witness. Where the representative, whether an attorney or a non-attorney, seeks to do both, he/she must recognize that his/her credibility may be compromised. It is poor practice to attempt to be both an advocate and a witness in the same proceeding, and should be avoided to the extent possible. Nevertheless, nothing in our Rules and Regulations prohibits such practice nor renders such testimony incompetent. Attorneys are subject to higher standards than non-attorneys and Ms. Ellzey may well have violated the Texas Code of Professional Responsibility had this been a proceeding litigated in a court subject to the Texas Code, and it is even possible that, as a member of the Texas Bar, she violated the Code of Professional Resonsibility by her conduct in this case; but this is not the forum to determine that issue. Ms. Ellzey entered her appearance as attorney for the Charging Party and was called as General Counsel's first witness. She took no part in the examination of witnesses, made no objections and presented no oral argument. Her testimony was wholly uncontroverted. Consequently, her testimony was fully admissable and credibility is not at issue. Findings 1. Sandra Ilse, a GS-7 tax examiner at the Austin Service Center, was arrested for possession and sale of hashish; pleaded guilty; was sentenced to ten years probation and fined. On December 15, 1983, Ilse received notice of proposed removal. Ilse, inter alia, on two occasions sold and delivered illegal drugs; a third sale was aborted because her supplier of drugs was out of town; she misrepresented facts to her supervisor on two occasions; and she gave her IRS telephone number as a point of contact which number was used by the purchaser, who in fact was an undercover agent, to contact Ilse for the purchase of illegal drugs. 2. Effective January 28, 1984, Ilse was removed from duty. The Union, National Treasury Employees Union, Chapter 72, contested Ilse's removal and invoked arbitration. On September 27, 1984, Arbitrator A. A. White issued his decision and award (G.C. Exh. 3). His Award was as follows: AWARD "I attach much importance to many years of good, competent, trustworthy service. To me it is more controlling than aberations that, looked at in isolation, are pretty damaging. I suspect if all of us who have committed jail time offenses, had served time for them, the prisons would be much more crosded (sic) than they are. I am convinced, based on the total facts here recorded, that removing Grievant from her job did not promote the efficiency of the service, and that it was disparate treatment to do so. "While I am strong on protecting jobs, I am weak on granting back pay to wrongdoers, particularly where, as here, there is no evidence of interim earnings. Grievant is a wrongdoer -- a serious wrongdoer, and this award should not provide her a basis for saying that she is not. I am saying only that: in light of her long and good past record, the sanctions in other drug and misrepresentation cases, and the restricted nature of her offense, it was unreasonable to remove her from the service. "Grievant is restored to her job without back pay but without loss of other benefits." (G.C. Exh. 3, pp. 12-13). 3. No exceptions to the Award were filed with the Authority; and on October 3, 1984, Respondent returned Ilse to her position at the Austin Service Center without back pay. On, or about, January 28, 1984, Respondent had reimbursed Ilse for the amount of annual leave that she had accumulated prior to January 28, 1984, and annual leave prior to January 28, 1984, is not at issue. The parties stipulated, as relevant, as follows: "17) Since on or about October 3, 1984, Respondent has provided Ilse with the amount of sick leave that had accumulated prior to January 28, 1984. "18) Since on or about October 3, 1984, Respondent restored to Ilse the amount of credittable (sic) service she had accumulated up to January 28, 1984. "19) Respondent has taken the position that it does not have to provide Ilse with the amount of annual leave which would have accrued from January 28, 1984 through October 2, 1984. It is Respondent's position that it will not provide Ilse with said leave. "20) Respondent has taken the position that it does not have to provide Ilse with the amount of sick leave which would have accrued from January 28, 1984 through October 2, 1984. It is Respondent's position that it will not provide Ilse with said leave. "21) . . . Respondent has changed Ilse's service computation date to March 1, 1977. Immediately prior to Ilse's removal on January 28, 1984, Ilse's service computation date was set at December 28, 1976. "22) Respondent and (sic) failed and refused and continues to fail and refuse to maintain July 24, 1984, as the date on which Ilse's within-grade increase waiting period ended. Respondent has changed Ilse's within-grade increase waiting period ending date to on or about March 13, 1985." (Tr. 11-12). 4. On October 11, 1984, Ms. Ellzey learned in a telephone call from Ms. Darla Pittman, now Manager, Report Branch, and then tax examiner, entity control and President of Chapter 72 (Tr. 37, 52), of Respondent's position concerning Ilse's sick leave, annual leave and service computation date /2/ as more fully set forth in the Stipulations of the parties. (Tr. 38). Within a day or two after October 11, 1984, Ms. Ellzey also learned of Respondent's position concerning Ilse's within-grade increase waiting period (Tr. 40). Notwithstanding that the Union knew by October 11th or 13th, 1984, that Respondent's interpretation of the meaning of the phrase, "without loss of other benefits" in the Award differed from its interpretation of the meaning of the phrase, the Union did not seek clarification of the Award and neither Respondent nor the Union filed an exception to the Award. Conclusions This is not a case where the agency has refused to comply with an arbitrator's award. Cf. Department of Defense, Department of the Navy, United States Marine Corps, United States Maring Corps Air Station, Cherry Point, North Caroline, 15 FLRA No. 137, 15 FLRA 686 (1984); U.S. Customs Service, Washington, D.C. and U.S. Customs Service, Northeast Region, Boston, Massachusetts, 20 FLRA No. 51, 20 FLRA 450 (1985 ). To the contrary, Respondent contends that it has fully and properly complied with the arbitrator's award, albeit that the General Counsel and the Union disagree. I am well aware that, when court enforcement of an arbitration award is sought, the award must be certain, definite and free from ambiguity; and an award which is ambiguous will be denied enforcement and remanded for clarification by the arbitrator. United Steelworkers of America v. Enterprise Whell & Car Corporation, 363 U.S. 593 (1960); Bell Aerospace Company, Division of Testron, Inc. v. Local 516 International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), 500 F.2d 921 (2d Cir. 1974); Hart v. Overseas National Airways, Inc., 541 F.2d 386 (3d Cir. 1976); United Transportation Union v. Southern Pacific Transportation Company, 529 F.2d 691 (5th Cir. 1976). Under the Statute, arbitration awards are not subject to direct enforcement, either by the courts or by the Authority. However, either party to an arbitration may file an exception to the arbitrator's award with the Authority, pursuant to Section 22 of the Statute, which further provides that, ". . . If upon review the Authority finds that the award is deficient -- . . . the Authority may take such action and make such recommendations concerning the award as it considers necessary, consistent with applicable laws, rules, or regulations." (5 U.S.C. Section 7122(a)). The Authority may sustain the award, Kelly Air Force Base, 7 FLRA No. 84, 7 FLRA 553 (1982); may modify the award, The Adjutant General, State of Oklahoma, Air National Guard, 8 FLRA No. 23, 8 FLRA 112 (1982); may set the award aside, Watervliet Arsenal, Department of the Army, 10 FLRA No. 112, 10 FLRA 670 (1982); or may remand the award to the parties with the direction that they resubmit the award to the arbitrator for clarification, Norfolk Naval Shipyard, Portsmouth, Virginia, 9 FLRA No. 63, 9 FLRA 538 (1982); Federal Correctional Institution, 7 FLRA No. 50, 7 FLRA 315 (1981), 12 FLRA No. 8, 12 FLRA 34 (1983). Decisions of the Authority pursuant to Section 22 may be subject to review pursuant to Section 23 of the Statute, see Federal Correctional Institution, supra; and the United States Court of Appeals for the Federal Circuit reviewed, and sustained, an arbitration award, presumable pursuant to 5 U.S.C. Section 7703, in American Federation of Government Employees, Local 2718 v. Department of Justice, Immigration and Naturalization Service, 768 F.2d 348 (Fed.Cir. 1985 ). Nevertheless, compliance with arbitration awards is enforceable only pursuant to the unfair labor practice provisions of the Statute, i.e., a failure to comply with a final arbitration award constitutes an unfair labor practice in violation of Sections 16(a)(1) and (8), in the case of an agency or activity, or of Sections 16(b)(1) and (8), in the case of a labor organization. Here, of course, the Complaint alleges that Respondent violated Sections 16(a)(1) and (8) by its failure and refusal, ". . . to comply with the arbitrator's award. . . by not restoring to Ilse the other benefits to which she was entitled during the period of time she had been removed from her position." (Amended Complaint, G.C. Exh. 1(e), Paragraphs 8(h) and 10). As set forth earlier, the Award concluded, "Grievant is restored to her job without back pay but without loss of other benefits. (G.C. Exh.3) (Emphasis supplied). Ilse was discharged, i.e., removed from service on January 28, 1984, and was restored to her job, pursuant to the Award, on October 3, 1984. The Award specifically provided that she was "restored to her job without back pay" and, obviously the Award, while it restored Ilse to her job, left her uncompensated for the period from the date of her discharge to the date of her restoration. During the period from the date of her discharge to the date she was restored to her job, she performed no service for Respondent and, of course, received no compensation. In the context of the Award without back pay, what does the phrase, "but without loss of other benefits" mean? General Counsel and the Union contend that it is clear from the Award that Ilse, notwithstanding that she neither performed any service nor recieved any compensation for service for the period from her discharge, on January 28, 1984, to the date she was restored to her job, on October 3, 1984, accrued sick leave and annual leave for the full period and that Ilse is entitled to credit for continuous service for the entire period. I do not find the Award either clear or fully supportive of the position of the General Counsel and the Union. To the contrary, the Arbitrator stated, "Grievant is a wrongdoer -- a serious wrongdoer . . ." and with specific notice that there was ". . . no evidence of interim earnings" ordered grievant ". . . restored to her job without backpay. . . .", which does not suggest or imply that he intended anymore than, as he stated, "Grievant is restored to her job without back pay but without loss of other benefits" (Emphasis supplied), i.e., that he put her back to work, without back pay, and that she should not lose benefits which she had. The Arbitrator further stated, "While I am strong on protecting jobs, I am weak on granting back pay to wrongdoers. . . ." which also does not suggest or imply that Ilse should gain anything for the period from the date of her discharge to the date of her restoration to her job. Respondent construed the Award to mean that Ilse be restored to her job without back pay, and it restored her to her job on October 3, 1984; that Ilse be given the sick leave she had accrued to January 28, 1984, which it restored to her; that Ilse be given credit for service only for six months following January 28, 1984, which it granted her by fixing her service computation date as March 1, 1977, (the change from December 28, 1976, to March 1, 1977, constituting the period of time in excess of six months that she had been removed); and that the waiting period for within-grade increase be extended from July 24, 1984, to March 13, 1985, to reflect the period of time from Ilse's discharge to her restoration to her job. Although each party, i.e., the Union and Respondent, was well aware by October 13, 1984, that their respective constructions of the Arbitration Award were seriously at odds, neither filed an exception to the Award, each being secure in its conviction that the Award clearly meant what each construed it to mean. In short, neither the Union nor Respondent viewed the Award as either ambiguous or lacking in clarity. As the United States Court of Appeals for the District of Columbia Circuit has stated, "(a) contract is not ambiguous simply because the parties disagree on its interpretation." Clayman v. Goodman Properties, Inc., 518 F.2d 1026, 1034 (D.C. Cir. 1973). . . Rather, the 'standard for determining ambiguity (that) appears to be in fairly general use by American courts' is whether the contract is "'reasonably susceptible of different constructions or interpretation.'" Lee v. Flinkote Co., 593 F.2d 1275, 1282 (D.C. Cir. 1979. . . ." Papago Tribal Utility Authority v. Federal Energy Regulatory Commission, 723 F.2d 950, 955 (D.C. Cir. 1983), cert denied, 104 S. Ct. 3511 (1984). To like effect, see also, Wards Company v. Stamford Ridgeway Association, 761 F.2d 117, 121 (2d Cir. 1985); Ohio Casualty Group of Insurance Companies v. Gray, 746 F.2d 381, 383 (7th Cir. 1984); South Hampton Co. v. Stinnes Corp. 733 F.2d 1108, 1114 (5th Cir. 1984); Casteneda v. Dura-Vent Corporation, 648 F.2d 612, 619 (9th Cir. 1981); Mellon Bank, N.A. v. Aetna Business Credit, Inc., 619 F.2d 1001, 1111 (3d Cir. 1980). The same standard applies to an arbitration award. Galt v. Libbey-Owens-Ford Glass Company, 397 F.2d 439, 442 (7th Cir. 1968) cert. denied. 393 U.S. 925 (1968); Bell Aerospace Company, Division of Textron, Inc. v. Local 516, International Union, United Automobile Aerospace and Agriculture Implement Workers of America (UAW), 500 F.2d 921 (2d Cir. 1974). It is obvious that the parties disagreed as to the interpretation of the Arbitration Award and it is equally obvious that the Arbitration Award is possible susceptible of different constructions or interpretations, although, for reasons set forth hereinafter, I have serious reservations as to whether General Counsel's and the Union's construction is reasonable in light of the provisions of the Federal Personnel Manual and the total absence of illuminating guidance from the Award. Nevertheless, accepting both constructions or interpretations as reasonable and concluding that the phrase "without back pay but without loss of other benefits" is ambiguous does not answer the question as to whether Respondent is guilty of an unfair labor practice. Rather, the test to be applied in resolving the unfair labor practice allegation is whether Respondent's construction of the Award is reasonable. While, broadly, "reasonable" includes all considerations, I view the term as consisting of two somewhat different elements namely whether Respondent's construction of the Award is: (a) reasonable; and (b) consistent with applicable rules and regulations. At the hearing, I repeatedly asked, wholly apart from any award, what was the status of a person vis-a-vis seniority during the period that that person is not on the payroll? General Counsel's response at the hearing that, ". . . she should have been employed at that time, because of the wrongful removal" (Tr. 64) is no answer because the Arbitrator made no such finding or award; but, to the contrary, found that grievant was a wrongdoer, "a serious wrongdoer", and denied back pay for the period of her removal from service, which necessarily meant that he did not find that Ilse should have been employed "at that time", i.e. from the date of her discharge to the date she was restored to her job. Neither General Counsel nor the Union in their post-hearing briefs have seen fit to address the question; however, Respondent has, as set forth hereinafter responded at length and has shown that its construction of the Award is fully in conformance with the requirements of the Federal Personnel Manual. Of course, I agree with the Union that if the award had been different, for example, that if the award had been "Grievant is restored to her job without loss of benefits: (Union Brief, p. 4), such award would have been very different, indeed, than the Award actually made, and, pursuant to the Union's example, it is entirely possible that back pay plus all related benefits would have been required; but I do not agree that, assuming that "restored to her job without loss of benefits" meant both back pay and all related benefits, by insertion of "without back pay", it becomes obvious that the award directs the agency to provide the benefits in dispute." (Union Brief, p. 4). To the contrary, the Award must be read as a whole as written and by the denial of back pay for the period from her discharge, removal from service, to the date of her restoration to service, the Award created, or left, a hiatus in her employment which "but without loss of other benefits" does not answer and the decision and award of the Arbitrator otherwise provides no guidance. I am well aware that Congress has by statute as to military service, beginning with the Selective Service and Training Act of 1940, provided that seniority shall accrue during periods of absence on military duty, Fishgold v. Sullivan Drydock a Repair Corporation, 328 U.S. 275 (1946); Accardi v. The Pennsylvania Railroad Company, 383 U.S. 225 (1966), and that this is fully reflected by the Federal Personnel Manual, Chapter 353, Section 5-1(a)(1); and that in like manner special and specific provision is made for absence while receiving workmen's compensation, Peace Corps of VISTA service, temporary employment in another governmental agency, and state and local government sharing, Federal Personnel Manual Chapter 531. Was Respondent's construction of the Award reasonable? A reasonable construction necessarily means that it must be consistent with the Award. A party may not change, alter or ignore an unequivocal provision of an award as the agency did in changing an award which ordered that an employee be reimbursed for four paid workdays to reimbursement for only two workdays, notwithstanding that the seven day suspension had covered only five workdays and the arbitrator had found a three day suspension was proper. Department of Justice, U.S. Immigration and Naturalization Service, Washington, D.C., 16 FLRA No.118, 16 FLRA 840 (1984). Here, the Award provided, "Grievant is restored to her job without back pay but without loss of other benefits", Respondent restored all benefits which Ilse had to the date of her discharge, or removal from service, including sick leave and seniority. Moreover, Respondent gave Ilse service credit for retirement purposes for six months of the period she was not in service. Nothing in the Award implied or suggested that Ilse was to "gain" any benefit for the period during which she had been removed from service but, rather, that she not "lose" benefits which reasonably meant that she not lose benefits which she had prior to her removal. removal. Accordingly, Respondent's construction of the Award was reasonable. Was Respondent's construction of the Award consistent with applicable rules and regulation? Neither the General Counsel nor the Union has suggested, or pointed to, any provision of the Agreement (G.C. Exh. 2) or established practice to support their construction of the Award. Respondent has shown that its construction is both consistent with and pursuant to the provisions of the Federal Personnel Manual /3/ as follows: (a) Within-grade increase waiting period. Time in non-pay status is creditable up to 80 hours per year; after that time, the waiting period is extended for all additional time the employee is in a non-pay status. Federal Personnel Manual Supp. 990-2, Book 531, S-4a(3). Certain exceptions are listed, e.g., military service, absence while receiving workmen's compensation, etc., none of which applies to Ilse. (b) Credit toward retirement. The Federal Personnel Manual provides, as applicalbe to Ilse: "j. . . . Restoration after erroneous removal or suspension. . . If restoration is without pay, retirement credit is allowed for as much of the intervening period without pay as odes not exceed six months in any calendar year." (Federal Personnel Manual Supplement 831-1, S-3-4j) (c) Annual and sick leave. After an employee is in a non-pay status for 80 hours, no leave is earned for each succeeding increment of 80 hours in which the employee remains in a non-pay status during that leave year. Federal Personnel Manual 630, S-2-3. (d) Service Computation Date. ". . . Nonpay time in excess of six months in the aggregate in any calendar year . . . reduces the amount of service credit the employee receives, as illustrated below: Total Amount of Nonpay Time ..... in Calendar Year ........ 00-07-11 Excess Time in Calendar Year ..... (7 mos., 11 days, less ..... 6 mos.) ................. 00-06-00 ............................... 00-01-11 SCD at Beginning of Year ...... 61-05-18 Plus Excess Nonpay Time ....... 00-01-11 Adjusted SCD .................. 61-06-29 ............................... 06-29-61 No exception applies to Ilse. Accordingly, as Respondent has shown, and neither General Counsel nor the Union contest, it construed and implemented that portion of the award, "without loss of benefits" in compliance with the provisions of the Federal Personnel Manual and Respondent's construction is". . . a clear and compelling interpretation of the award". Bell Aeronautics Company, Division of Textron, Inc. v. Local 516, Internationsl Union, etc., supra, 500 F.2d at 924); its construction of the Award was reasonable; and I conclude that Respondent has fully complied with the Award. Therefore, it is recommended that the Authority adopt the following: ORDER The Complaint in Case No. 6-CA-50349 be, and the same is hereby, dismissed. /s/ WILLIAM B. DEVANEY Administrative Law Judge Dated: May 1, 1986 Washington, D.C. --------------- FOOTNOTES$ --------------- (1) For convenience of reference, sections of the Statute hereinafter are, also, referred to without inclusion of the initial "71" of the statutory reference, e.g., Section 7116(a)(8) will be referred to, simply, as Section 16(a)(8)." (2) The initial question of most pressing concern was whether Ilse would have to pay health insurance premiums for the entire period she was off duty. Ms. Ellzey stated that Ilse did not want insurance coverage for that time period and did not want to pay the premiums. This was resolved by the parties (Tr. 39) and is not at issue. (3) If the Personnel Manual had, for example, provided that in the event of restoration to service when back pay was denied, service credit, for the purposes of retirement, should nevertheless be given for the entire period, an interpretation which, for the same reasons present here with respect to the Award might be reasonable, denied service credit without limitation would not be consistent with applicable regulations and would not be found reasonable because inconsistent with applicable regulations.