43:0337(34)AR - - Treasury, Customs Service, South Central Region, New Orleans, LA and NTEU Chapter 168 - - 1991 FLRAdec AR - - v43 p337



[ v43 p337 ]
43:0337(34)AR
The decision of the Authority follows:


43 FLRA No. 34

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE TREASURY

CUSTOMS SERVICE

SOUTH CENTRAL REGION

NEW ORLEANS, LOUISIANA

(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 168

(Union)

O-AR-2128

DECISION

November 27, 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 Bernard H. Cantor filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency filed an opposition to the Union's exceptions.(1)

The Arbitrator sustained a grievance alleging that the Agency violated the parties' collective bargaining agreement by implementing a new procedure for inspecting petroleum products before completing bargaining with the Union. Although the Arbitrator ordered the Agency to take a number of actions, including returning to the status quo ante, the Arbitrator declined to award backpay to affected employees.

For the following reasons, we conclude that the Union has not established that the Arbitrator's award is deficient under section 7122(a) of the Statute. Accordingly, we will deny the Union's exceptions.

II. Background and Arbitrator's Award

Customs Inspectors are responsible for, among other things, clearing petroleum shipments imported into the United States. Many of the duties related to this function were performed by inspectors on overtime. In 1990, the Agency implemented a new test procedure for petroleum inspection. The Union filed a grievance over the implementation and, when the grievance was not resolved, it was submitted to arbitration. As relevant here, the Arbitrator concluded that the Agency violated the parties' collective bargaining agreement by implementing the new procedure before bargaining over its impact and implementation with the Union.

The Arbitrator ordered the Agency, among other things, to return to the status quo ante. The Arbitrator declined to award backpay, however. The Arbitrator found that although the Customs Inspectors' duties often were performed on overtime, "overtime was not determined solely by this product." Id. at 8. The Arbitrator found that the record "fail[ed] to show a direct connection between the [new procedure] and the actual loss of gross pay of any particular employees." Id. at 31.

III. Positions of the Parties

A. The Union

The Union contends that the Arbitrator's failure to award backpay is inconsistent with the Back Pay Act and is based on a nonfact. The Union also contends that the Arbitrator exceeded his authority.

First, the Union contends that backpay is required in cases involving a refusal to bargain over the impact and implementation of a change in conditions of employment when adversely affected employees establish a causal nexus between the violation and a loss in pay. According to the Union, a causal nexus is established when it is found that an agency's actions resulted in a withdrawal or reduction in employees' pay. The Union argues that the Arbitrator improperly required the Union to demonstrate specific losses to particular employees, in violation of the Back Pay Act.

Second, the Union claims that the Arbitrator exceeded his authority. According to the Union, "the parties stipulated that the issue of individualized harm, or amount of back pay due to employees, would be reached upon separate pleadings after a decision on the merits of the grievance." Exceptions at 11. (Citation omitted). The Union argues that the Arbitrator "ignore[d]" the stipulation. Id.

Finally, the Union contends that the Arbitrator's failure to award backpay is based on a nonfact. According to the Union, "[t]he central fact underlying his decision to deny back pay was his finding of no evidence of a loss in pay to particular employees resulting from" the Agency's violation of the parties' agreement. Id. at 13 (emphasis in original) (citation omitted). The Union argues that the record established "that employees, including a specifically identified employee, suffered a loss in overtime pay as a result of the Agency's improper unilateral implementation . . . ." Id.

The Union requests that the award be modified to order backpay to affected employees. The Union also requests that the award be remanded to the Arbitrator to determine the amounts of such backpay as well as attorney fees.

B. The Agency

The Agency asserts that the Union has failed to establish that the award is deficient. The Agency contends that, as the Union did not establish before the Arbitrator that the change in procedure caused a pay loss to the affected employees, the award is not contrary to the Back Pay Act and is not based on a nonfact. The Agency also contends that the Arbitrator did not exceed his authority. The Agency asserts that the parties stipulated only that the amount of backpay would be determined later and that, therefore, the "issue of whether [the Union] was entitled to an award of back pay was fully within the scope of the Arbitrator's authority." Opposition at 11.

IV. Analysis and Conclusions

A. The Award Is Not Contrary to the Back Pay Act

For an award of backpay to be authorized under the Back Pay Act, an arbitrator must determine that an aggrieved employee was affected by an unjustified or unwarranted personnel action, that the personnel action directly resulted in the withdrawal or reduction of the grievant's pay, allowances or differentials, and that but for such action, the grievant otherwise would not have suffered the withdrawal or reduction. See Federal Employees Metal Trades Council and U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 39 FLRA 3, 7 (1991). An agency's violation of a collective bargaining agreement constitutes an unjustified and unwarranted personnel action under the Act. See U.S. Department of Defense, Army and Air Force Exchange Service, Dallas, Texas and National Federation of Federal Employees, Local 977, 40 FLRA 1099, 1105 (1991).

In this case, the Arbitrator found that the Agency violated the parties' collective bargaining agreement by implementing a change in procedure before bargaining with the Union. Therefore, the first requirement of the Back Pay Act was met. The Arbitrator concluded that the second requirement was not met, however. The Arbitrator found, in this regard, that the record "fail[ed] to show a direct connection between the [new procedure] and the actual loss of gross pay of any particular employees." Award at 31. Consequently, the Arbitrator denied backpay.

We conclude that the award does not violate the Back Pay Act. The Arbitrator expressly concluded that there was no evidence that the Agency's violation of the parties' agreement resulted in a loss of affected employees' pay, allowances, or differentials. Backpay is "available only where it is clear that the violation has resulted in a loss of some pay, . . . that is, when the second requirement of the Back Pay Act has been met." U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and U.S. Department of Health and Human Services, Social Security Administration, Hartford District Office, Hartford, Connecticut, 37 FLRA 278, 292 (1990). As the second requirement of the Back Pay Act was not met in this case, the Arbitrator's denial of backpay is not deficient.

Similarly, we reject the Union's argument that the Arbitrator improperly required the Union to "demonstrate each particular employee's specifically identifiable monetary loss in order to be awarded back pay." Exceptions at 10. The Arbitrator found no evidence of "actual loss of gross pay of any particular employees." Award at 31 (emphasis added). In our view, the Arbitrator properly applied the second requirement of the Back Pay Act and, on the basis of the record before him, concluded that there was no evidence that the Agency's improper action resulted in a loss of pay, allowances, or differentials. That is, the Arbitrator required only what the Back Pay Act itself requires: evidence of a causal relationship between the violation and the loss or reduction in pay, allowances or differentials.

The Union has not demonstrated that the award is contrary to the Back Pay Act. In our view, this exception constitutes mere disagreement with the Arbitrator's assessment of the evidence and testimony presented at the hearing and with the Arbitrator's conclusions based thereon. Such disagreement provides no basis for finding an award deficient. See U.S. Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base and American Federation of Government Employees, Local 1592, 40 FLRA 1243, 1248 (1991).

B. The Arbitrator Did Not Exceed His Authority

An arbitrator exceeds his or her authority when, among other things, the arbitrator resolves an issue not submitted to arbitration. 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).

Contrary to the Union's claim, the record does not demonstrate that the Arbitrator's failure to award backpay is inconsistent with a stipulation between the parties at the arbitration hearing. The transcript of the hearing reveals the following agreement:

[Agency representative]:

I will agree that if there is a finding against the Agency and if there is a finding of back pay, which are all speculative, then that issue can be litigated at a later date.

[The Arbitrator]:

Does that save you from going through 2,000 pages?

[Union representative]:

Yes, it does.

[The Arbitrator]:

Let the record show that they've stipulated that when, as and if and maybe we get to that issue, papers will be sorted out and summarized hereafter.

Attachment F to Exceptions, at 236-37.

The transcript shows only the parties' agreement that, if backpay were awarded to employees, the amounts of such pay would be determined separately. The Arbitrator concluded that no backpay was warranted. As such, the parties' stipulation that amounts of backpay would be determined separately became moot. Nothing in the hearing transcript, or the Union's exceptions, shows that the Arbitrator was prohibited in any way from addressing the issue of overall entitlement to backpay. Accordingly, there is no basis on which to conclude that the Arbitrator exceeded his authority by determining that backpay was not warranted. See U.S. Department of the Treasury, Internal Revenue Service, Philadelphia Service Center, Philadelphia, Pennsylvania, 41 FLRA 710, 723-724 (1991).

C. The Award Is Not Based on a Nonfact

To establish that an award is based on a nonfact, the party making the allegation must demonstrate that the central fact underlying the award is clearly erroneous but for which a different result would have been reached by the arbitrator. For example, U.S. Department of the Navy, Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 41 FLRA 535, 539 (1991).

The Union has not demonstrated that the Arbitrator's failure to award backpay is based on a central fact that is clearly erroneous. The Arbitrator based his award on the record before him and found that no employees suffered any loss in pay because of the Agency's violation of the parties' collective bargaining agreement. The Union's claim to the contrary constitutes mere disagreement with the Arbitrator's evaluation of the evidence and his findings based thereon. Such disagreement provides no basis for finding an award deficient. See U.S. Department of the Army, Army Aviation Center, Fort Rucker, Alabama and American Federation of Government Employees, Local 1815, 40 FLRA 94, 98 (1991); U.S. Department of Defense, Dependent Schools, Mediterranean Region and Overseas Federation of Teachers, 36 FLRA 861, 867-868 (1990).

V. Decision

The Union's exceptions are denied.(2)




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

1. The Union filed a response to the Agency's opposition and the Agency filed a response to the Union's response. The Authority's regulations do not provide for the filing of supplemental submissions and neither party has demonstrated a reason for the Authority to consider its supplemental submission in this case. Therefore, neither supplemental submission has been considered.

2. In view of our finding that the Arbitrator's denial of backpay is not deficient, attorney fees under the Back Pay Act are not authorized. See, for example, American Federation of Government E