36:0233(28)AR - - NAGE Local R1-109 and VA, Medical Center, Newington, CT - - 1990 FLRAdec AR - - v36 p233



[ v36 p233 ]
36:0233(28)AR
The decision of the Authority follows:


36 FLRA No. 28

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R1-109

(Union)

and

VETERANS ADMINISTRATION

MEDICAL CENTER

NEWINGTON, CONNECTICUT (*)

(Agency)

0-AR-1632

(35 FLRA 206)

ORDER DENYING MOTION FOR RECONSIDERATION

June 29, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a motion for reconsideration of our decision in National Association of Government Employees, Local R1-109 and Veterans Administration Medical Center, Newington, Connecticut, 35 FLRA 206 (1990) (VA Medical Center, Newington), filed by the Union. The Agency did not file an opposition to the motion for reconsideration. For the following reasons, we deny the Union's motion for reconsideration.

II. Background

In VA Medical Center, Newington, 35 FLRA 206, we set aside the Arbitrator's award of premium pay because it was inconsistent with the Back Pay Act. The Arbitrator found that the Agency violated the parties' collective bargaining agreement by scheduling a grievant to work more than 6 consecutive days. The Arbitrator awarded premium pay for five instances when the grievant worked 7 consecutive days.

We determined that, although the Arbitrator found that the Agency violated the parties' collective bargaining agreement, the Arbitrator did not find that the violation of the agreement resulted in the withdrawal or reduction of the grievant's pay, allowances or differentials. We determined further that the Arbitrator made no finding that the grievant improperly was denied overtime pay as a result of the Agency's violation of the agreement. In fact, we noted the Arbitrator's statement that the grievant was "'not entitled to overtime pay simply because he was scheduled to work seven consecutive days against his will[.]'" VA Medical Center, Newington, 35 FLRA at 211 (quoting Award at 9). Consequently, as the Arbitrator did not make the findings required by the Back Pay Act (that the unwarranted personnel action directly resulted in a withdrawal of or reduction in the grievant's pay, allowances or differentials and that but for the action, the grievant would not have suffered the withdrawal or reduction), we set aside the award.

III. Motion For Reconsideration

The Union asserts that the Authority "has exceeded its authority and has departed from its earlier position regarding the modification of arbitration awards[]" and, thereby, "denied the Parties a meaningful resolution to their dispute through the mechanism of arbitration and perverted the purposes of the Statute." Motion at 5. According to the Union, "[i]t had long been the Authority's practice to strike or set aside only those portions of an arbitrator's award which were inconsistent with statute, rules or regulations." Id.

The Union requests that the Authority state its "new position or practice with regard to remedy[.]" Id. at 7. As an alternative, the Union requests that the Authority (1) remand the case to the Arbitrator, (2) allow the arbitrator's finding of a contractual violation to stand, and (3) allow the parties the "appropriate avenues of agreement, or additional arbitration to resolve the dispute." Id.

IV. Analysis and Conclusion

Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish the existence of "extraordinary circumstances" to request reconsideration of a decision of the Authority. We conclude that the Union has not established extraordinary circumstances to merit reconsideration of our decision in VA Medical Center, Newington.

First, as noted above, we set aside the Arbitrator's award of premium pay in VA Medical Center, Newington because the award did not meet the requirements of the Back Pay Act. In finding the Arbitrator's award of premium pay to be deficient, we found it unnecessary to address the Agency's additional contention, among others, that the Arbitrator's interpretation of the parties' agreement violated the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. Because we made no determination concerning the Arbitrator's finding that the Agency violated the parties' agreement, that portion of the Arbitrator's award was not affected by our decision.

As we neither addressed, nor set aside, the Arbitrator's findings concerning violations of the parties' agreement, we reject as moot the Union's request that we "allow the [A]rbitrator's finding of a contractual violation to stand[.]" Motion at 7. Further, as we set aside only the Arbitrator's award of premium pay, we reject the Union's claim that the Authority departed from its practice of setting aside only those portions of an arbitrator's award determined to be deficient.

Second, we find no basis in this case to remand the award to the Arbitrator for "a fully articulated reasoned discussion as to the [b]ack-pay issue." Motion at 7. We note that, in an appropriate case, we will remand an award to the parties with the direction that they resubmit the award to the arbitrator for clarification. See, for example, Department of the Army, 6th Infantry Division (Light), Fort Richardson, Alaska and American Federation of Government Employees, Local 1834, Fort Wainwright, Alaska, 35 FLRA 42 (1990). Appropriate cases include those where it is not clear whether an arbitrator found a contract violation or whether the requirements for awarding backpay have been satisfied. See U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1122, 34 FLRA 323 (1990).

In this case, the Arbitrator's award is not ambiguous. The Arbitrator clearly found a violation of the parties' collective bargaining agreement. Moreover, it is clear that the requirements of the Back Pay Act were not satisfied. Consequently, there is no basis for remanding the award to the parties or the Arbitrator for further proceedings.

Finally, in view of our decision that there is no basis for remand