38:0362(39)AR - - Army, Aviation Applied Technology Directorate, Fort Eustis, Virginia and NAGE Local R4-6 - - 1990 FLRAdec AR - - v38 p362
[ v38 p362 ]
The decision of the Authority follows:
38 FLRA No. 39
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE ARMY
AVIATION APPLIED TECHNOLOGY DIRECTORATE
FORT EUSTIS, VIRGINIA
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
November 26, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Paul A. Weinstein filed by the Agency pursuant to section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exceptions.
The three grievances involved in this case alleged that the Agency violated the parties' collective bargaining agreement by improperly assigning overtime work. The Arbitrator sustained the three grievances and ordered that the Agency provide backpay to each of the three grievants for the overtime they had lost as the result of the Agency's violation. The Arbitrator also retained jurisdiction over the Union's request for attorney fees.
For the following reasons, we find that the award of backpay to all three grievants is deficient. We will, therefore, modify the award to require the Agency to provide backpay to the grievant who, according to the record before us, would have been assigned overtime but for the Agency's violation of the parties' agreement.
II. Background and Arbitrator's Award
The Agency assigned a unit employee to perform overtime work. The three grievants, including Grievant McCreery, filed grievances alleging that the overtime assignment violated Article X, Section 1, paragraph (a) of the parties' agreement which provides, in pertinent part:
Overtime work assignments will be distributed fairly and equitably on a quarterly basis where appropriate, otherwise over a reasonable period of time, on a rotational basis among qualified employees, consistent with workload requirements. Preference will be given to those employees who are currently assigned to the job. If no currently assigned employees are available, consideration will be given to those other employees best qualified to do the job.
Arbitrator's Award at 6 (quoting parties' agreement). When the grievances were not resolved, they were combined and submitted to arbitration.
The Arbitrator stated that the issues before him were as follows:
Was the Employer exercising a protected managerial right in the assignment of the overtime, or had they violated the contract and were not protected in so doing? If, ruling in favor of the grievants, should they receive lost pay? Should the Employer be required to follow the terms of the agreement as stated with regard to the maintenance of overtime rosters as well as the allocation of overtime? Should they pay attorney's fees? If ruling in favor of the employer, are there issues of assignment that need to be addressed?
Did the assignment . . . violate the [E]mployer's responsibility to protect the safety of the workplace by assigning a person who was not suitable for the assignment? These questions ultimately merge to the issue of whether the [E]mployer was protected under Section 7106(a)(2)(B) of the Civil Service Reform Act and Section IV of the [c]ollective bargaining agreement?
Id. at 5-6.
According to the Arbitrator, the three grievants: (1) had many years of experience; (2) previously performed the work which was performed on overtime; (3) were available for the overtime; and (4) were not asked whether they were available for the work. The Arbitrator found that the employee who was assigned the overtime work was selected solely because he had already been assigned to work overtime on that day. The Arbitrator noted that (1) the employee who was assigned to perform the overtime work was selected by individuals who had no direct knowledge of the employee's competence; and (2) the grievants' supervisor testified that he would have assigned the task to Grievant McCreery.
The Arbitrator concluded that the Agency violated Article X of the parties' agreement in assigning the overtime work in question. The Arbitrator rejected, in this regard, the Agency's argument that it had the right under section 7106(a)(2)(A) to assign the overtime and determine the competency of the assignee. The Arbitrator found that "[m]anagement's behavior in assigning the overtime on the date in question was cavalier. No good faith attempt was made to find any of the grievants." Id. at 18. The Arbitrator concluded that the "actions taken by management in this case can not rest for protection under the reserved rights, nor can management claim that they have the power to assign when the assignment leads to inefficiency." Id. at 20.
As a remedy, the Arbitrator stated that because each grievance was individually brought, the Agency "must make each of the three grievants whole for the assignment on that Saturday." Id. at 21. However, he found that as the grievants testified that they would have been able to perform the work in less time than that used by the assigned employee, the amount of backpay should be reduced to 6 hours for each grievant--2 hours less than that worked by the assigned employee. The Arbitrator retained jurisdiction over the issue of attorney fees which was raised by the Union but was not argued before him.
III. Agency's Exceptions
The Agency does not except to the Arbitrator's findings that the Agency violated the parties' collective bargaining agreement. Rather, the Agency disputes only the part of the Arbitrator's award which compensates each of the three grievants for 6 hours of overtime. According to the Agency, the remedy violates the Back Pay Act, 5 U.S.C. º 5596.
The Agency contends that the Arbitrator "did not make any findings as to which grievant would have received the overtime assignment . . . ." Exceptions at 2 (emphasis in original). The Agency notes that although the grievants' supervisor testified that he would have assigned the work to Grievant McCreery or, if he wasn't available, one of the other two grievants, the Arbitrator did not find that any particular grievant would have worked but for management's violation of the parties' agreement. Accordingly, the Agency contends that the Arbitrator's award violates the Back Pay Act and should be set aside.
The Agency also contends that the Authority must set aside the award, instead of remanding it to the Arbitrator for clarification. The Agency notes, however, "that overturning the arbitrator's award does not preclude it from agreeing on an appropriate remedy to resolve this matter." Exceptions at 5. The Agency notes that if the award is set aside, attorney fees cannot be awarded.
IV. Union's Opposition
As a preliminary matter, the Union contends that the Agency's exceptions should be dismissed because the exceptions were not filed by the Agency's representative at the arbitration hearing and there was no notification from the Agency that it had changed its designated representative.
On the merits, the Union contends that the "evidence clearly shows which employee would have worked the overtime in question." Opposition at 5. The Union points out that the grievants' supervisor testified that Grievant McCreery would have been assigned the overtime. The Union claims that the Arbitrator "agreed that Mr. McCreery would have been assigned the overtime[.]" Id. at 6. Accordingly, the Union contends that, even if the award violates the Back Pay Act, the Authority should modify only that part of the remedy dealing with the other two grievants.
V. Analysis and Conclusions
A. The Agency's Exceptions Were Properly Filed
We conclude that the Agency's exceptions are properly before us. The individual who filed the exceptions is the Chief of the Labor and Employee Relations Division of the Office of the Deputy Chief of Staff for Personnel of the Department of the Army. Nothing in the record before us indicates that the exceptions were not authorized by the Agency. Further, nothing in the Authority's Rules and Regulations requires exceptions to be filed by a party's representative at an arbitration hearing. A party is free to designate different representatives for different purposes. See U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia and National Association of Government Employees, Local R4-19, 36 FLRA 304, 308-309 (1990).
B. The Back Pay Act
The Agency does not except to the Arbitrator's finding that the Agency violated the parties' collective bargaining agreement in the method of assigning the disputed overtime work. The Agency asserts only that the Arbitrator's award violates the Back Pay Act because the Arbitrator did not make a specific finding as to which grievant would have received the overtime assignment.
In order for an award of backpay to be authorized under the Back Pay Act, an arbitrator must determine that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; (2) the personnel action resulted in the withdrawal or reduction of all or part of the grievant's pay, allowances, or differentials; and (3) but for such action, the grievant otherwise would not have suffered the withdrawal or reduction. See American Federation of Government Employees, Local 1857 and U.S. Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 35 FLRA 325 (1990).
We find, in agreement with the Agency, that the award of backpay to each of the three grievants does not satisfy the requirements of the Back Pay Act. The Arbitrator did not determine which of the three grievants would have received the overtime assignment had the Agency complied with the parties' collective bargaining agreement. Further, the Arbitrator did not find that all three grievants would have been assigned. As such, the Arbitrator's award of backpay to each of the grievants is deficient.
In this case, however, the Agency does not dispute that it violated the parties' agreement. In fact, the Agency asserts that "overturning the arbitrator's award does not preclude it from agreeing on an appropriate remedy to resolve this matter." Exceptions at 5. Further, it is clear that each of the three grievants was qualified to perform the overtime work. It is clear also, and not disputed by the Agency, that because of the Agency's violation of the parties' agreement, one of the grievants is entitled to backpay. Finally, the record demonstrates that, of the three grievants, Grievant McCreery would have been assigned to work the overtime. The Arbitrator found, in this regard, that Grievant McCreery was available to perform the overtime work. Award at 5. More importantly, the Arbitrator found that the grievants' supervisor's "judgement" that he would have assigned the work to Grievant McCreery was "flawless." Id. at 14.
Section 7122(a) of the Statute provides that if the Authority finds that an arbitration award is deficient, the Authority may, among other things, "take such action . . . as it considers necessary . . . ." In the circumstances of this case, noting specifically the Agency's acknowledgement that it violated the parties' agreement, we conclude that it is necessary and appropriate to modify the Arbitrator's award to provide backpay to Grievant McCreery. See, for example, U.S. Department of Veterans Administration, Medical Center, Houston, Texas and American Federation of Government Employees, Local 1633, 36 FLRA 122 (1990) (Authority substituted the remedy of priority consideration for a deficient backpay award, noting that the arbitrator found a violation of the collective bargaining agreement); Local 12, American Federation of Government Employees, AFL-CIO and U.S. Department of Labor, 24 FLRA 134, 137 (1986) (Authority substituted the remedy