42:0902(64)AR - - Interior, Bureau of Reclamation, Great Plains Region and IBEW Local 1759 - - 1991 FLRAdec AR - - v42 p902



[ v42 p902 ]
42:0902(64)AR
The decision of the Authority follows:


42 FLRA No. 64

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE INTERIOR

BUREAU OF RECLAMATION

GREAT PLAINS REGION

(Agency)

and

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS

LOCAL 1759

(Union)

0-AR-1921

DECISION

October 17, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator George E. Bardwell filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations.(1) The Union filed an opposition to the Agency's exceptions. Also, the U.S. Department of Energy (Energy) and the U.S. Information Agency, Voice of America (VOA) each filed briefs as amicus curiae, which have been accepted as part of the record.

The grievance alleged that the Agency violated the parties' collective bargaining agreement by unilaterally eliminating a Wage Board (WB) Warehouseman position in the collective bargaining unit represented by the Union and assigning the duties of the WB position to a General Schedule (GS) Supply Clerk position outside the bargaining unit. The Arbitrator sustained the grievance and ordered the Agency to begin negotiations with the Union in accordance with the agreement "to return the activities of the WB Warehouseman to . . . the bargaining unit." Award at 34. The Arbitrator also awarded backpay to a retired WB employee because the Arbitrator found that the employee prematurely retired from his WB Warehouseman position because of the Agency's unwarranted action. Also, as an additional remedy, the Arbitrator awarded backpay to the Union.

For the following reasons, we find that the Arbitrator's award of backpay to the Union is contrary to the Back Pay Act, 5 U.S.C.§ 5596(b)(2). Therefore, the award will be modified consistent with our decision. We will dismiss the remainder of the Agency's exceptions.

II. Background and Arbitrator's Award

The parties in this case negotiate the terms and conditions of employment of unit employees, including wages and premium pay provisions, in accordance with section 704 of the CSRA, codified at 5 U.S.C.§ 5343 (Amendments) (1988 ed.) and section 9(b) of the Prevailing Rate Systems Act (PRSA), codified at 5 U.S.C.§ 5343 (Amendments, note) (1988 ed.).

After investigating the Agency's organization and work processes, an Agency task force recommended that certain positions in the Agency's central supply warehouse be eliminated. Subsequently, the Agency advised the employee assigned to a GS supply clerk position and the employee assigned to a WB Warehouseman position that their positions in the central supply warehouse were to be abolished by the end of 1987. Sometime prior to December 1987, the Agency determined that it would "withhold implementation" of its decision to abolish the positions in the central supply warehouse. Award at 4. However, the Agency did not inform the affected employees of its decision. The employee assigned to the WB Warehouseman position retired on December 3, 1987, without knowledge that the Agency no longer planned to abolish his position.

Following the WB employee's retirement, the Agency initiated procedures to reclassify the GS supply clerk position and the WB Warehouseman position in the central supply warehouse. The Agency wrote a new position description for the supply clerk position which included all of the duties of the WB Warehouseman and abolished the WB Warehouseman position. Meanwhile, the employee assigned to the GS supply clerk position "opted for medical retirement." Id. at 5. After reviewing and finalizing the new position description for the reclassified supply clerk position, the Agency issued a vacancy announcement and filled the position.

The Union filed a grievance alleging that the Agency "has unilaterally taken away a WB position and replaced it with a GS position." Award at 6. The Union requested that the position be returned to the WB unit. The parties agreed to submit the grievance to arbitration and stipulated all but one of the issues before the Arbitrator.

The threshold issue, as stipulated by the parties, was: "Is the grievance filed by [the Union] . . . grievable and arbitrable under the General Labor Agreement between the parties?" Id. at 2. The parties were unable to agree upon the second issue. Therefore, the Arbitrator framed that issue as: "Did the Agency violate the General Labor Agreement when it included the duties of the WB Warehouseman into the position of GS Supply Clerk . . . without negotiating such changes with the Union?" Id. at 13. The parties stipulated the third issue as follows: "Has the Agency's action violated the General Labor Agreement?" Id. at 2. The fourth issue, as stipulated by the parties, was: "If the answer to issue No. 3 above is in the affirmative, what shall the remedy be?" Id.

The Arbitrator determined that the grievance was grievable and arbitrable. The Arbitrator rejected the Agency's claim that the subject matter was excluded from the grievance procedure under Article VIII, Section 8.4(E) of the parties' agreement,(2) which specifically excluded from the grievance procedure any claimed violation relating to "[t]he classification of any position which does not result in the reduction-in-grade or pay of an employee." Id. at 7. The Arbitrator found that the exemption in section 8.4(E) was "inoperable" because when the Agency reclassified the supply clerk position, the pay of a bargaining unit employee was reduced as contemplated by Section 8.4(E). The Arbitrator stated that "[f]or all intents and purposes, [the Agency] eliminated a classification in the central supply warehouse which [the employee] had relied upon for his livelihood. The pay of [the employee] was not merely reduced . . .; it was, in fact, eliminated along with the position." Award at 11. The Arbitrator also found that the subject of the grievance was the unilateral removal of work from a bargaining unit position and that the Agency's claim that its action was a "classification" action was "tautological." Id.

On the merits, the Arbitrator found that "[n]egotiation of the Warehouseman's classification in the collective bargaining agreements between the parties for at least the past dozen years . . . is a tacit understanding between the parties that duties and functions of the Warehouseman position will be performed by members of the bargaining unit." Id. at 24-25. The Arbitrator stated that by "flout[ing] these classifications and shunt[ing] them aside . . . the Agency . . . repudiate[s] and scorn[s] the very existence of the General Labor Agreement itself." Id. at 25. The Arbitrator found that Article V, Section 5.5 of the parties' agreement "binds both parties to continue the rates of pay and working conditions set out in the Agreement until such time as changes are negotiated by the parties." Id. at 26 (emphasis in original).

The Arbitrator rejected the Agency's argument that the term "working conditions" in Article V, Section 5.5 cannot be interpreted to include matters concerning classifications. Relying on Sections 1.1 and 6.1 of the parties' Supplementary Labor Agreement No. 1, the Arbitrator found that the terms "working conditions" and "conditions of employment" in the parties' General Labor Agreement "apply to every labor classification in the Agreement[,] each having a unique profile of duties painstakingly negotiated by the parties." Id. at 27. The Arbitrator stated:

[T]he only reasonable interpretation of Section 5.5. in the Basic Agreement is that the parties agreed to continue the "working conditions" . . . in effect at the time the Agreement was executed until otherwise changed by negotiation. Surely this means that work customarily performed by bargaining unit employees in the warehouse will not be transferred outside the domain of the bargaining unit without negotiation with the Union.

Id. at 28. The Arbitrator also cited section 5.1 of the parties' Basic Agreement, providing that working conditions shall be determined by negotiation, and section 8.1 of the Basic Agreement, which requires the Agency to exercise its management rights in accordance with the provisions of the parties' General Labor Agreement. Because the Arbitrator found that the parties' agreement precluded the Agency from unilaterally changing the duties of bargaining unit employees, the Arbitrator concluded that "[t]he Agency did violate the General Labor Agreement when it included the duties of WB Warehouseman in the position of GS Supply Clerk . . . without negotiating such changes with the Union." Id. at 29-30.

Finally, the Arbitrator discussed the appropriate remedy for the Agency's violation of the parties' collective bargaining agreements. The Arbitrator determined that the WB Warehouseman position should be returned to the bargaining unit. The Arbitrator stated that because of the changing needs of the Agency, "[t]he parties must be given the opportunity and flexibility to hammer out accommodations" concerning the changes in the WB position. Id. at 31. Therefore, the Arbitrator ordered that "negotiations toward this end begin immediately in accordance with Article V of the Basic Agreement." Id. at 32.

The Arbitrator also found that an award of backpay was appropriate. The Arbitrator found that the Agency "benefitted monetarily by improperly eliminating the WB Warehouseman position and assigning the duties of the position to GS supply personnel during the period, December 4, 1987 to December 3, 1988, and then to the disputed GS Supply Clerk from December 4, 1988, to January 17, 1990." Id. The Arbitrator rejected the Union's request that the employee assigned to the GS Supply Clerk position be awarded backpay in an amount equal to the difference between the wages the employee received in the GS position and the wages he would have received as a WB Warehouseman. However, the Arbitrator found that it was appropriate to order backpay to the WB employee "who was advised to take 'early' retirement because of the Agency's premature and improper actions relating to the elimination of the WB Warehouseman position." Id. at 32. The Arbitrator stated:

Back pay is awarded to [the retired employee] for the period December 4, 1988, to January 17, 1990 or to the date of his compulsory retirement at age 70, whichever comes earlier, equal to the difference in pay received as a WB Warehouseman for this period. In the event [the employee's] compulsory retirement date is earlier than January 17, 1990, the Union is entitled to receive the difference in pay for the period from [the employee's] compulsory retirement date to January 17, 1990, calculated in the manner prescribed above.

Id. at 33. The Arbitrator also stated that "[s]ince the Union has not complained about the Agency's assignment of WB Warehouseman's duties during the period December 4, 1987 to December 3, 1988, no monetary award is appropriate for this period." Id.

III. First Exception

A. Positions of the Parties

1. Agency

The Agency contends that the award is contrary to law insofar as the Arbitrator found that the Agency violated the parties' collective bargaining agreement and ordered bargaining over the termination of the WB Warehouseman position. The Agency argues that the award is contrary to section 7121(c)(5) of the Statute because the Arbitrator determined that matters excluded from the grievance procedure under that provision are grievable and arbitrable under the parties' agreement. The Agency states that section 8.4.E of the parties' General Labor Agreement incorporates section 7121(c)(5) of the Statute into the agreement. The Agency asserts that by incorporating section 7121(c)(5), the parties excluded from their negotiated grievance and arbitration procedure "any matter relating to the 'classification of any position which does not result in the reduction-in-grade or pay of any employee[.]'" Exceptions at 3 and 11.

The Agency maintains that the grievance in this case concerns the Agency's classification of the duties of a vacant WB Warehouseman's position with certain duties of a general schedule Supply Clerk, and establishing that position as a GS Supply Clerk. The Agency asserts that "[s]ince the Warehouseman position had been vacant, and the Supply Clerk position was newly established, the classification did not result in the reduction in grade or pay of any existing employee." Id. The Agency argues, therefore, that the grievance is excluded from the parties' negotiated grievance procedure and that the Arbitrator violated section 7121(c)(5) of the Statute by determining that the grievance was arbitrable.

The Agency also argues that the award is contrary to section 7103(a)(14)(B) of the Statute because the Arbitrator "failed to take into account Federal law by determining that section 5.5 of the agreement, providing for negotiations on the broad generic term 'working conditions'[,] automatically meant any and all matters that affect working conditions of Federal employees with no exceptions." Id. at 23.(3) The Agency states that in the Federal sector, the term "working conditions" or "conditions of employment" is defined in section 7103(a)(14) of the Statute and that "not all 'working conditions' are subject to bargaining in the Federal sector as they usually are in the private sector." Id. at 23. The Agency asserts that the Arbitrator failed to take into account the definition of "working conditions" in section 7103(a)(14) and other exceptions to "conditions of employment" in section 7106 and 7117(a)(1) and (2) of the Statute when he determined that section 5.5 of the parties' agreement (providing for negotiations on the "working conditions" of unit employees) "automatically meant any and all matters that affect the working conditions of Federal employees with no exceptions. Specifically, the Arbitrator read into this generic term 'working conditions', the Union's 'ownership' of unit work and a restriction on management's right to assign work . . . outside the bargaining unit." Id.

The Agency contends that the award is "deficient as a matter of law because it violates a broad range of management rights." Id. at 16. According to the Agency, the Arbitrator failed to apply Federal statutes and case law to the grievance and inappropriately relied on "the Arbitrator's own views of private sector labor management concepts (e.g. Union's ownership of work)" and on private sector arbitration cases. Id. at 17. The Agency states that "[a]ccording to the provisions which the Arbitrator determined were assumed or implied in the contract, the Agency could not assign work customarily performed by any member of the bargaining unit to an employee or position outside the bargaining unit without first bargaining with the Union." Id. at 18.

Specifically, the Agency argues that the award is contrary to management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency asserts that "since the [A]rbitrator's award restricts the assignment of duties to a particular position . . . , and directs the [A]gency to restore duties to a particular position, the [A]rbitrator is substituting his judgment for that of management . . . , thereby making the award deficient as contrary to management's right to assign work pursuant to section 7106(a)(2)(B)." Id. at 28 (citation omitted).

The Agency argues that "in the Federal sector, restrictions on management's ability to assign work or to restructure positions to meet the Agency's operational needs cannot be implied from the mere listing of job titles or the mere fact that there is a General Labor Agreement." Id. The Agency asserts that the Authority's decisions provide ample support for the Agency's position that management has no duty to bargain on the transfer of the Warehouseman's duties to a non-unit position, or its decision to abolish or fill the Warehouseman's position. The Agency argues that, under section 7106 of the Statute, management has the "unilateral right" to take those actions. Id. at 22. The Agency states that "management rights are provided by law . . . . If management were required to negotiate on any of its actions with respect to the Warehouseman's position, this would be inconsistent with the exercise of . . . management's rights under 5 U.S.C.§ 7106[.]" Id.

The Agency states that "[s]ection 704 does not help the Union because, under the facts of this case, it has not been shown that the specific subject of the grievance had been negotiated prior to August 19, 1972." Id. at 24 (emphasis in original). The Agency maintains that the evidence in the record does not show that the parties negotiated a written agreement concerning the specific subjects of the Union's grievance, that is, "transfer of duties out of the bargaining unit, classification of position according to law and [Office of Personnel Management] standards, or the assignment of specific duties to the Warehouseman position." Id. at 34. The Agency argues that "[s]ince the subject matter of the Union's grievance or the requirements of the Arbitrator's Award had not been the subject of negotiation prior to August 19, 1972, there is no duty to bargain on these matters under section 704." Id.

The Agency also claims that issues as to the WB employee's retirement and the assignment of the WB Warehouseman's duties to other GS employees in the warehouse were not part of the grievance before the Arbitrator. The Agency states that "neither [the WB employee] or [sic] the Union saw fit to complain about matters relating to [the employee's] retirement, or the assigning of the Warehouseman's duties to the remaining GS warehouse employees. Therefore, any matters concerning [the WB employee's] retirement are irrelevant to the issues of this case[.]" Id. at 12-13.

2. Union

The Union states that "the law which the Agency claims the award violates is the various management rights provisions of the CSRA. The management rights limitations in the CSRA do not control or impact the contract or the Arbitrator's interpretation of that contract for these Section 704 employees[.]" Opposition at 20. The Union maintains that Article 8, section 8.1 of the parties' collective bargaining agreement sets forth the parties' agreement concerning those rights explicitly reserved to management. The Union asserts that "[a]t no place in this provision does the Agency explicitly reserve or preserve any right to assign, classify or determine 'work', 'jobs', or 'positions' within the bargaining unit, as opposed to 'employees.'" Id. at 21. The Union also asserts that section 8.1 of the parties' agreement does not support the Agency's position that it has reserved any special rights or status with respect to work assignments or working conditions in the bargaining unit. The Union states that the Agency "has not reserved . . . the right to ignore the . . . provisions in the contract which reserve certain work for certain job classifications, limit the assignment of work by management, and establish working conditions for the bargaining unit." Id. The Union maintains that "in [s]ection 8.1 the parties have expressly agreed that any management powers reserved in the provision may only be exercised by the Agency 'in accordance with the provisions of this Basic Agreement.'" Id. at 22 (emphasis in original).

The Union states that under section 704 of the CSRA, Federal agencies must negotiate on all terms and conditions of employment, employee benefits, and pay practices for the employees who are covered by section 9(b) of the PRSA, and are now covered by section 704, concerning any subject that was the subject of negotiation or agreement by the parties prior to August 19, 1972, despite any provision to the contrary in the CSRA. The Union maintains that "the contract provisions which were at issue here and the subject matters disputed in this grievance . . . have clear predecessors which were negotiated by the parties and included in the 1954 and 1955 contracts between the parties." Opposition at 8. The Union states that "[f]or over thirty years the parties have clearly negotiated and agreed upon labor classifications and the positions of employees to be established within the bargaining unit." Id. The Union asserts:

Since the parties have historically negotiated working conditions limiting assignment of work and the establishment of positions and job classifications within the unit, as well as the grievance and arbitration of disputes, and have put such provisions into their various contracts well prior to 1972, it is obvious that the Arbitrator had complete authority under [s]ection 704 to resolve this dispute . . . solely based upon consideration of the provisions, terms, language, and intentions set forth in the parties' contract.

Id. at 10.

The Union maintains that the Arbitrator's conclusion that the grievance was arbitrable under Article 8 of the parties' agreement was reached "by interpreting the terms, language and provisions of the contract and applying such interpretation to the facts as he found them in the matter." Id. at 16. The Union also maintains that the Arbitrator's determination that the Agency violated the parties' collective bargaining agreement is based on the Arbitrator's findings of facts, his interpretation of the provisions of the parties' agreement, and the evidence presented in the arbitration proceeding. The Union states that "[t]he mere fact that [the Arbitrator's] interpretation or application of the agreement is not what the Agency would like it to be is not sufficient for the Authority to overturn his award." Id. at 20.

3. Amici

Energy disagrees with the Arbitrator's finding that the parties' Supplementary Labor Agreement No. 2 provides evidence that the parties negotiated over the assignment of work to the job classifications listed in the agreement. Energy asserts that "the language of Supplemental Agreement No. 2 cannot establish that the designation of job duties or work assignment . . . was a subject of bargaining prior to the passage of the [CSRA] and discussed in [s]ection 704 of the act." Brief for the Department of Energy as Amicus Curiae (Energy's Brief) at 6. Energy argues that section 8.1 of the Basic Labor Agreement, which requires management to exercise its rights in accordance with the General Labor Agreement, "may not limit by fiat management's other authorities and responsibilities to accomplish other aspects of its agency mission." Id. Energy asserts that "[a]ssignment of work or conditions of work are not discussed in Section 8.1 and were presumably not subjects of bargaining prior to August 19, 1978." Id. (4) Energy states that "[s]ection 7106 rights, which are essential contributing components to the capability of management to accomplish its mission, must be the singular reference source for resolving disputes concerning management's right to assign work and direct its employees absent explicit directives authorized by higher authority (e.g. written agreements authorized under Section 704)." Id.

Energy disagrees with the Arbitrator's interpretation of the term "working conditions" in Article V, Section 5.1 of the parties' agreement. Energy states that "[t]he rationale applied by the [A]rbitrator is that the actual work done is an integral component of the 'working conditions' under which an employee performs his duties. The [A]rbitrator concludes that 'working conditions' apply to the job duties of a position[.]" Id. at 4. Energy asserts that "such a concept is not supported by the language of [Article V, Section 5.1] . . . [which] must infer [sic] that working conditions are activities that impact on the way and how an individual employee functions on the job." Id. Energy argues that "[s]ince the [A]gency took job duties from a vacant position it did not violate the contract because the action did not involve the working conditions of any employee covered by the agreement." Id.

The Voice of America states that "[t]he major issue in this case for the VOA is the arbitrator's adoption of the private sector doctrine of 'ownership of work.' It is the VOA's position that the adoption of this doctrine in the Federal sector is clearly contrary to [section 7106(a) of the Statute]." VOA's Brief as Amicus Curiae (VOA's Brief) at 1-2.

B. Analysis and Conclusions

The Agency contends that the Arbitrator's award is contrary to the parties' agreement. We conclude that the Agency's argument does not demonstrate that the Arbitrator's award is deficient because it fails to draw its essence from the parties' agreement. The Agency also contends that the Arbitrator's award is contrary to law. We conclude that the Agency has failed to establish that the award is deficient because it is inconsistent with sections 7103(a)(14)(B), 7106, and 7121(c)(5) of the Statute. Therefore, we deny the Agency's exceptions that the award is deficient on these bases.

1. The Agency Has Not Established that the Award Is Deficient Because It Fails to Draw Its Essence from the

Parties' Agreement

The Agency argues that the Arbitrator misinterpreted the term "working conditions" in the parties' agreement. The Agency states that the Arbitrator interpreted the agreement "as requiring the Agency to bargain on the transfer of the duties customarily performed by the Warehouseman to a position outside the bargaining unit." Exceptions at 5. The Agency asserts that "[t]he Arbitrator's ruling is not based on any specific contract requirement but, rather, on a very general one referring only to 'working conditions.'" Id.

We construe the Agency's argument as a contention that the award fails to draw its essence from the parties' collective bargaining agreement. In order to demonstrate that an award fails to draw its essence from an agreement, a party must show that the award: (1) cannot in any rational way be derived from the agreement; or (2) is so unfounded in reason and fact, and so unconnected with the wording and the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; or (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See U.S. Department of the Justice, Federal Bureau of Prisons, Terre Haute, Indiana and American Federation of Government Employees, 41 FLRA 237, 242 (1991).

The Agency has not demonstrated that the award is deficient under any of these tests. The Arbitrator interpreted and applied the provisions of the parties' collective bargaining agreement to find that the Agency violated the agreement by failing to bargain over the elimination of the WB Warehouseman position, which concerned the working conditions of bargaining unit employees under Article V, sections 5.1 and 5.5 of the parties' agreement. The Agency provides no basis on which to conclude that the Arbitrator's interpretation of the parties' agreement is implausible, irrational, or unconnected to the wording of the agreement. The Agency's argument in this regard constitutes nothing more than disagreement with the Arbitrator's interpretation and application of the parties' collective bargaining agreement, and his reasoning and conclusions. See U.S. Department of the Treasury, U.S. Customs Service, Region IV, Miami District and National Treasury Employees Union, Chapter 137, 41 FLRA 394, 399 (1991).

2. The Arbitrator's Award Requiring the Agency to Bargain under Section 704(a) Concerning the Change in the WB Position Is Not Deficient

In U.S. Department of Interior, Bureau of Reclamation, Lower Colorado Dams Project Office, Parker and Davis Dams and International Brotherhood of Electrical Workers, Local 640, 41 FLRA 119 (1991) (Lower Colorado Dams Project Office), request for reconsideration denied 42 FLRA 76 (1991), we discussed the meaning of section 704 and the bargaining obligations of parties who negotiate their terms and conditions of employment in accordance with section 704. We found that under section 704(a), in order for a term or condition of employment or other employment benefit to be negotiable, it must have been the subject of negotiations in accordance with prevailing rates and practices prior to August 19, 1972.

The Agency argues that the award is deficient because the record does not show that the parties negotiated, prior to August 19, 1972, a written agreement that included an item that was specifically referred to in the parties' agreements as "transfer of duties out of the bargaining unit, classification of position according to law and [Office of Personnel Management] standards, or the assignment of specific duties to the Warehouseman position." Exceptions at 34. As stated above, an agency's duty to bargain under section 704 extends to matters that were subject to negotiation prior to August 19, 1972. Contrary to the Agency, we find that the record in this case demonstrates that matters pertaining to the duties of the WB Warehouseman position were subject to negotiations prior to August 19, 1972, and supports the Arbitrator's conclusion that the Agency was required to bargain under section 704 on the change in the WB Warehouseman position.

The Arbitrator determined that "negotiation of the Warehouseman classification in the collective bargaining agreements between the parties for at least the past dozen years is a tacit understanding between the parties that duties and functions of the Warehouseman position will be performed by members of the bargaining unit." Award at 25. The Arbitrator also determined that the parties' agreement "binds both parties to continue the rates of pay and working conditions set out in the Agreement until such time as changes are negotiated by the parties." Id. at 26 (emphasis in original).

The provisions of the current agreement concerning the Warehouseman classification cited by the Arbitrator have predecessors in the parties' 1960 General Labor Agreement. Union Attachment No. 1 (1960 General Labor Agreement) at 6. Further, the parties' 1954 and 1955 collective bargaining agreements support the Arbitrator's conclusion that the parties negotiated concerning the duties assigned to WB unit employees. Union Attachment No. 2 (1954 General Agreement) at 16-17 and 29-33; Union Attachment No. 3 (1955 General Agreement) at 7-8 and 25-28. We conclude, based on the record in this case, that the provisions of the parties' agreement that relate to the duties of WB unit employees concern matters that were subject to negotiation prior to August 19, 1972.

Consequently, because the changes in the WB Warehouseman position related to the working conditions of unit employees which had been the subject of negotiations between the parties prior to August 19, 1972, we find that the record supports the Arbitrator's determination that the Agency is obligated to bargain with the Union concerning the changes in that position. Accordingly, we conclude that the Agency has failed to establish that the award is deficient because the subject matter of the Union's grievance, and the subject matter over which the Agency is required to bargain under the Arbitrator's award, had not been the subject of negotiation between the parties prior to August 19, 1972.

3. The Statute Does Not Provide a Basis for Finding the Award Deficient

"The plain meaning of [section 704(a)] is that it exempts provisions of specified collective bargaining agreements from the limitations on the scope of bargaining set forth in the Statute, including the management rights provisions of section 7106." Columbia Power Trades Council and United States Department of Energy, Bonneville Power Administration, 22 FLRA 998, 1005 (1986) (Bonneville Power Administration). See also U.S. Department of the Interior, Bureau of Reclamation, Lower Colorado Region, Yuma, Arizona and National Federation of Federal Employees, 41 FLRA 3, 12-15 (1991) (Lower Colorado Region, Yuma, Arizona). Further, section 704(b) specifically provides for the negotiation of the pay and pay practices of prevailing rate employees without regard to any provision of chapter 71 of title 5 (the Statute) "to the extent that any such provision is inconsistent with [section 704]." Thus, parties who negotiate under section 704 may agree to contract provisions concerning terms and conditions of employment and pay and pay practices, where those terms and conditions of employment and pay practices had been negotiated prior to August 19, 1972, notwithstanding the fact that such provisions might otherwise conflict with the Statute.

Because section 704 preserves the parties' right to negotiate on certain matters that might otherwise be in conflict with the Statute, a provision in a collective bargaining agreement that was negotiated consistent with section 704 is enforceable in arbitration despite any inconsistency with the Statute. Id. As we found above, the Agency has not demonstrated that the provisions of the agreement enforced by the Arbitrator were not negotiated consistent with section 704. Consequently, we conclude that the award is enforceable notwithstanding the provisions of the Statute.

In particular, we find that the subsections of the Statute cited by the Agency do not render the award deficient. Under section 704 of the CSRA, the provision of the collective bargaining agreement requiring the Agency to negotiate changes in "working conditions," including matters relating to changes in job classification, is enforceable in arbitration despite any inconsistency with the Statute. We conclude, therefore, that the Agency's contention that the award is inconsistent with section 7103(a)(14)(B) of the Statute provides no basis for finding the award deficient. See id.

We also find that the Agency's argument that the award is inconsistent with section 7121(c)(5) of the Statute provides no basis for finding the award deficient. Section 8.4(E) of the parties' agreement excludes from a negotiated grievance procedure a grievance concerning the classification of any position which does not result in the reduction in pay of an employee. Section 8.4(E) of the parties' agreement restates the terms of section 7121(c)(5) of the Statute. The Arbitrator found that as a result of the Agency's reclassification of the GS supply clerk position, the pay of a bargaining unit employee "was not merely reduced as contemplated by Section 8.4(E); it was, in fact, eliminated[.]" Award at 11. Based on his interpretation of the parties' agreement and his examination of the facts in this case, the Arbitrator concluded that the exemption in section 8.4(E) did not preclude the Union's grievance. The Arbitrator specifically rejected the Agency's argument that this grievance was excluded from the grievance procedure under section 8.4(E) and concluded that the grievance was arbitrable.

The Arbitrator's award is based on his interpretation of section 8.4(E) of the parties' agreement. The Agency has not alleged or shown that section 8.4(E) was not negotiated consistent with section 704 of the CSRA. Even if section 8.4(E) as interpreted by the Arbitrator is inconsistent with section 7121(c)(5) of the Statute, it is nonetheless enforceable under section 704 of the CSRA because, as we stated above, collective bargaining agreement provisions that were negotiated consistent with section 704 are enforceable in arbitration despite any inconsistency with the Statute. See Lower Colorado Region, Yuma Arizona, 41 FLRA at 12-15; Bonneville Power Administration, 22 FLRA at 1005. Therefore, the Agency's argument as to section 7121(c)(5) of the Statute provides no basis for finding the award deficient.

For the same reason, we reject the arguments of the Agency and the amici that the award is deficient because the Arbitrator enforced the provision of the parties' collective bargaining agreement requiring the Agency to negotiate changes in "working conditions" in a manner that directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. As we stated above, a provision in a collective bargaining agreement that was negotiated consistent with section 704 is enforceable in arbitration despite any inconsistency with the Statute, including the management rights provisions of section 7106. See National Federation of Federal Employees, Local 1418 and United States Information Agency, Voice of America, 37 FLRA 1385, 1402-03 (1990).

IV. Second Exception

A. Positions of the Parties

1. Agency

The Agency contends that the award of backpay is deficient because the Arbitrator exceeded his authority by awarding backpay to a retired employee and to the Union. The Agency states that the Union: (1) never requested backpay on behalf of the retired former incumbent of the WB Warehouseman position; (2) did not file a grievance on the retired employee's behalf; and (3) did not present an issue to the Arbitrator that the former WB employee "was forced to take 'early' retirement because of the Agency's premature and improper actions relating to elimination of the WB Warehouseman position[.]" Id. at 36-37. The Agency asserts that an award may be found deficient as in excess of an arbitrator's authority when the arbitrator resolves an issue not submitted, or awards relief to persons who did not file grievances on their own behalf or who did not have the union file grievances for them. The Agency argues that the Arbitrator exceeded his authority by awarding the retired employee backpay where that employee did not file a grievance and the Union did not file a grievance on his behalf.

The Agency also argues that the Arbitrator's backpay award to the retired WB Warehouseman and the Union is not authorized by the Back Pay Act and "is so arbitrary, capricious and unreasonable that it is tantamount to punitive damages against the Agency, for which there is no basis in law." Id. at 38. The Agency states that "[i]t is axiomatic that the Union would not be eligible for an award of back pay under the Back Pay Act because it obviously is not an 'employee' of an [a]gency of the Government." Id. at 39. The Agency maintains that "there is no legal basis upon which the Arbitrator's back pay award to the Union may be justified." Id. The Agency also argues that the Arbitrator failed to make the "'but for' finding which is required under the Back Pay Act. Therefore, the back pay award to [the retired WB Warehouseman] or to the Union must be reversed as inconsistent with law." Id.

2. Union

The Union argues that the Agency is attempting to relitigate the merits of the arbitration before the Authority "simply because it disagrees with the Arbitrator's reasoning and conclusions, or his interpretation and application of the Agreement." Opposition at 22. The Union asserts that the Agency has not demonstrated that the award violates any law or is deficient on any other ground that warrants the conclusion that it should be overturned.

B. Analysis and Conclusions

1. The Arbitrator Did Not Exceed His Authority

The Agency has failed to establish that the Arbitrator exceeded his authority by awarding backpay to the retired WB Warehouseman because "no grievance was filed by [the retired WB employee] or by the Union on his behalf." Exceptions at 38.

The Agency claims that issues as to the WB employee's retirement and the assignment of the WB Warehouseman's duties to other GS employees were not part of the grievance before the Arbitrator. We interpret the Agency's claim as an assertion that the Arbitrator exceeded his authority. An arbitrator exceeds his or her authority when, among other things, the arbitrator resolves an issue not submitted or awards relief to persons who are not encompassed within the grievance. See U.S. Department of the Treasury, Internal Revenue Service, Brookhaven Service Center and National Treasury Employees Union, Chapter 99, 37 FLRA 1176, 1188 (1990) (IRS, Brookhaven); and U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base and American Federation of Government Employees, Local 916, 35 FLRA 700, 703 (1990).

One of the issues stipulated by the parties was: If the Agency's action violated the General Labor Agreement, "what shall the remedy be?" Award at 2. Thus, the appropriate remedy for the Agency's violation of the parties' collective bargaining agreement was directly at issue in this case. See Award at 32. The Arbitrator fashioned a remedy that included a former bargaining unit employee because the Arbitrator found that the retired WB Warehouseman was harmed by the Agency's violation of the agreement. According to the Arbitrator, the Warehouseman's employment with the Agency was terminated as a direct result of the Agency's violation of the parties' agreement.

The Arbitrator's remedy in this case was designed to correct the harmful effect on the former bargaining unit employee of the Agency's violation of the collective bargaining agreement. Arbitrators have great latitude in fashioning remedies. U.S. Department of the Treasury, Internal Revenue Service, Philadelphia Service Center, Philadelphia, Pennsylvania and National Treasury Employees Union, Chapter 71, 41 FLRA 710, 724 (1991). The Arbitrator's award of a remedy to the retired WB Warehouseman is directly responsive to the issue stipulated by the parties. Therefore, the Arbitrator acted within his authority when he included the retired WB Warehouseman in his award. See U.S. Department of Justice, U.S. Federal Bureau of Prisons, U.S. Penitentiary, Lewisburg, Pennsylvania and American Federation of Government Employees, Council of Prison Locals, Local 148 C-33, 39 FLRA 1288, 1295-96 (1991) (U.S. Penitentiary, Lewisburg, Pennsylvania).

2. The Award of Backpay to the Retired WB Warehouseman Is Consistent with the Back Pay Act

A backpay award under the Back Pay Act requires determinations that: (1) an employee was affected by an unjustified or unwarranted personnel action, (2) the action resulted in a withdrawal or reduction in the pay, allowances, or differentials of the employee, and (3) the withdrawal or reduction would not have occurred but for the unjustified action. U.S. Department of the Air Force, Aerospace Guidance and Metrology Center, Newark Air Force Base, Ohio and American Federation of Government Employees, Local 2221, 41 FLRA 550, 557-58 (1991). In refusal-to-bargain cases, the causal nexus required by the Back Pay Act is established when the Authority finds that an agency's action that gave rise to the violation resulted in a withdrawal or reduction in the pay, allowances or differentials of employees. Department of Justice, U.S. Immigration and Naturalization Service, U.S. Border Patrol, El Paso, Texas, 39 FLRA 1325, 1333 (1991) (U.S. Border Patrol, El Paso, Texas). The Authority will sustain an arbitration award ordering a backpay remedy where it is clear that the violation resulted in a loss of some pay, allowances or differentials. See, for example, U.S. Department of the Treasury, Customs Service, New Orleans, Louisiana and National Treasury Employees Union, Chapter 168, 38 FLRA 163, 174-76 (1990).

The Arbitrator determined that the Agency violated the parties' collective bargaining agreement when it eliminated the WB Warehouseman position and assigned the duties of that position to the GS Supply Clerk position without bargaining with the Union. The Arbitrator found that the unit employee assigned to the WB Warehouseman position "was advised to take 'early' retirement because of the Agency's premature and improper actions relating to the elimination of the WB Warehouseman position." Award at 32. The Arbitrator also found that "[f]or all intents and purposes, [the Agency] eliminated a classification in the central supply warehouse which [the employee] had relied upon for his livelihood. The pay of [the employee] was not merely reduced . . .; it was, in fact, eliminated along with the position." Award at 11. The Arbitrator awarded backpay to the retired WB Warehouseman "for the period December 4, 1988, to January 17, 1990 or to the date of his compulsory retirement at age 70, whichever occurs earlier, equal to the difference in pay received by [the GS employee who was assigned the WB Warehouseman duties] and the amount [that employee] would have received as a WB Warehouseman for this period." Id. at 33.

The Agency asserts that because the retired WB employee was not coerced or forced to retire, he is not entitled to backpay. In support of its position, the Agency cites, among other cases, Bland v. Veterans Administration, 31 M.S.P.R. 592 (1986) and Rayfield v. U.S. Department of Agriculture, 26 M.S.P.R. 243 (1985). In each of those cases, the Merit Systems Protection Board (MSPB) held that an employee was not entitled to backpay and other remedies in circumstances where it was determined that the employee's retirement was voluntary and was not the result of agency coercion.

We find that the cases cited by the Agency do not demonstrate that the Arbitrator's award of backpay is contrary to law. In reviewing the right of a retired employee to backpay, the focus is on the voluntariness of the employee's retirement. If that choice was freely made, the employee has no right after that event to further employment (and rights associated with that employment) by the Federal Government. See Arneson v. Heckler, 879 F.2d 393, 396 (8th Cir. 1989) (Heckler). To determine whether a resignation or retirement is voluntary, a court examines the surrounding circumstances to assess whether the employee exercised free choice. Tannehill II v. United States, 18 Cl.Ct. 296, 300 (1989); Scharf v. Department of the Air Force, 710 F.2d 1572, 1574 (Fed. Cir. 1983) (Scharf). An action is not voluntary if "'it is produced by government conduct which is wrongful.'" Heckler, 879 F.2d at 396 (citing Roskos v. United States, 549 F.2d 1386, 1389-90 (Ct. Cl. 1977)). See also Scharf, 710 F.2d at 1574 (resignation will be held involuntary if obtained by agency misrepresentation or deception); Tiffany v. Department of Treasury, 48 M.S.P.R. 334, 337 (1991) (a retirement is involuntary if the agency made misleading statements upon which the employee reasonably relied to his or her detriment).

In this case, the Arbitrator found that the WB employee was never informed of the Agency's decision not to implement its plan to abolish his position. The Arbitrator cited the WB employee's testimony that had he been informed of the Agency's decision not to abolish his position, he would not have retired. See Award at 4. The Arbitrator found that the employee retired because he believed that his position was being abolished. The Arbitrator concluded that the WB employee "was advised [by the Agency] to take 'early' retirement because of the Agency's premature and improper actions relating to the elimination of the WB Warehouseman position." Award at 32. The Arbitrator determined, therefore, that there was a direct causal connection between the WB employee's retirement and the Agency's improper actions. Having determined that the employee's retirement resulted from the Agency's improper actions, the Arbitrator could award backpay to the employee. See Heckler, 879 F.2d at 396. Therefore, we conclude that the Agency has not demonstrated that the Arbitrator's award of backpay is improper on the basis that the employee voluntarily retired.

Moreover, the Arbitrator made the required findings under the Back Pay Act to support an award of backpay. By finding that the Agency violated the parties' collective bargaining agreement when it eliminated the WB position without bargaining with the Union, the Arbitrator found that the Agency committed an unjustified and unwarranted personnel action for purposes of the Back Pay Act. Further, the causal nexus required by the Back Pay Act was established when the Arbitrator found that the employee was advised to take and took early retirement because of the Agency's improper actions and that the Agency's action resulted in the elimination of the WB employee's pay. See, for example, Panama Canal Commission and International Association of Firefighters, Local 13, 41 FLRA 284, 291-92 (1991). It is proper to order a backpay remedy where it is clear that the violation resulted in a loss of some pay, allowances or differentials. U.S. Border Patrol, El Paso, Texas, 39 FLRA at 1333. Accordingly, we conclude that the Arbitrator's remedy of backpay for the retired WB Warehouseman is authorized by the Back Pay Act.

3. The Backpay Award to the Union Is Contrary to the Back Pay Act

As part of his award, the Arbitrator stated: "In the event [the employee's] compulsory retirement date is earlier than January 17, 1990, the Union is entitled to receive the difference in pay for the period from [the employee's] compulsory retirement date to January 17, 1990, calculated in the manner prescribed above." Award at 33. We find that the award of backpay to the Union is contrary to the Back Pay Act.

The purpose of the Back Pay Act is to put an employee who was the victim of an unjustified or unwarranted personnel actions in the same position as he or she would have been had the erroneous action not occurred. Wells v. Federal Aviation Administration, 755 F.2d 804 (11th Cir. 1985). Because the Union is not an "employee," within the meaning of the Back Pay Act, it is not entitled to an award of backpay. Therefore, the portion of the award granting backpay to the Union is set aside.

4. The Arbitrator's Award Is Not Punitive

The Agency states that the backpay award "is so arbitrary, capricious and unreasonable that it is tantamount to punitive damages against the Agency, for which there is no basis in law." Exceptions at 38. We interpret the Agency's argument as a contention that the award is contrary to law because the Arbitrator issued a "punitive" remedy. However, the Agency does not define what it means by a "punitive" remedy. Merely characterizing a remedy as "punitive" does not establish an independent basis for finding an award deficient. U.S. Penitentiary, Lewisburg, Pennsylvania, 39 FLRA at 1295-96.

V. Decision

The Summary of Awards is modified to provide:

4. The retired WB employee is awarded backpay from December 4, 1988 to January 17, 1990, or to the date of the retired WB employee's compulsory retirement at age 70, whichever occurs earlier, in an amount equal to the difference in pay received by the GS employee assigned to the newly classified GS Supply Clerk position in the Agency's central supply warehouse and the amount the GS Supply Clerk would have received as a WB Warehouseman for this period.

The portion of the award granting the Union backpay is set aside.

APPENDIX

Relevant portions of the parties' General Labor Agreement and Supplementary Labor Agreement No. 1 provide as follows:

GENERAL LABOR AGREEMENT

ARTICLE V

NEGOTIATIONS

SECTION 5.1--The rates of pay and working conditions affecting the employees covered by this agreement shall be determined through the process of collective bargaining between the Union and the [U.S. Department of the Interior, Bureau of Reclamation, Great Plains Region (Region)].

. . . .

SECTION 5.2--Prior to such negotiations the Region and the Union shall set up a joint fact-finding committee and appropriate sub-committees for the purpose of establishing any relevant facts bearing on the determinations of rates of pay, such as job classifications, conditions of employment, rates of pay established by collective bargaining for work of a similar nature performed under similar circumstances prevailing in the various geographic areas in which the Region operates.

. . . .

SECTION 5.5--Rates of pay and working conditions in effect at the time of execution of this Agreement shall continue in effect until changed or modified in the manner herein provided.

ARTICLE VIII

GRIEVANCE AND ARBITRATION PROCEDURES

SECTION 8.4--The following matters are specifically excluded from this procedure. Any claimed violation relating to:

. . . .

E. The classification of any position which does not result in the reduction-in-grade or pay of an employee.

SUPPLEMENTARY LABOR AGREEMENT NO. 1

GENERAL WORKING CONDITIONS

SECTION 1--APPOINTMENT, TENURE AND SECURITY

SECTION 1.1--The objective of the Region is to provide permanent and continuous employment for hourly employees consistent, of course, with statutory and budgetary limitations and the Region's labor requirement. Where and whenever possible, these employees will receive appointments of the type which will afford greatest job security.

SECTION 6--CONDITIONS OF EMPLOYMENT

SECTION 6.1--The services to be performed by the employees covered by the basic labor agreement pertain to the operation and maintenance of an essential public utility engaged in the delivery of power and water. Therefore, in the interest of maintaining continuity of services rendered the public, employees may be required to perform work outside of their classifications, but not to the extent that qualified trainees and apprentices are held up on their rating as operators and journeymen.

. . . .

SECTION 6.5--The Region recognizes the desirability of making work assignments consistent with the classification normally considered applicable to work and every reasonable effort will be made to make such arrangement.

(Amended 5/26/89)




FOOTNOTES:
(If blank, the decision does not have footnotes.)

1. The Agency filed a supplemental submission pursuant to sections 2429.5 and 2429.26 of the Authority's regulations noting the decision of the United States Court of Appeals for the Tenth Circuit in United States Department of the Interior, Bureau of Reclamation, Rio Grande Project v. FLRA, 908 F.2d 570 (10th Cir. 1990) (Rio Grande Project v. FLRA) and presenting additional arguments. We find no circumstances warranting our consideration of the Agency's unsolicited supplemental submission in this case. However, we are cognizant of the case cited by the Agency and, where appropriate, we will address that decision in our analysis of the Agency's exceptions.

2. The relevant portions of the parties' General Labor Agreement and Supplementary Labor Agreement No. 1 are set forth in the Appendix to this decision.

3. Section 7103(a)(14)(B) provides:

"conditions of employment" means personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions, except that such term does not include policies practices, and matters--

. . . .

(B) relating to the classification of any position[.]