47:0626(57)AR - - Dept. of the Army, Pine Bluff Arsenal, AR and AFGE, Local 953 - - 1993 FLRAdec AR - - v47 p626
[ v47 p626 ]
The decision of the Authority follows:
47 FLRA No. 57
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE ARMY
PINE BLUFF ARSENAL, ARKANSAS
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
May 18, 1993
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 Thomas A. Cipolla 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. The Union did not file an opposition to the Agency's exceptions.
The grievants filed a grievance seeking reinstatement to their security guard positions and backpay for all overtime, shift differentials, Sunday pay and holiday pay lost when they were temporarily disqualified from these positions.(1) The Arbitrator sustained the grievance in part and denied it in part. For the following reasons, we find that the award is contrary to the Back Pay Act, 5 U.S.C. § 5596. Accordingly, we will set aside the portion of the award granting back pay.
II. Background and Arbitrator's Award
The grievants, security guards employed by the Agency, are required to be qualified in the Agency's Chemical Personnel Reliability Program (CPRP). The CPRP is a program designed to provide a means of assessing the reliability and acceptability of individuals being considered for and assigned to chemical duty positions. As security guards, the grievants received mandatory overtime, shift differentials, Sunday pay and holiday pay, and were offered the opportunity to work voluntary overtime.
Pending an investigation into whether the grievants were involved with the possession, use or distribution of controlled substances, the grievants were temporarily disqualified from the CPRP, relieved of their security guard duties, and assigned to non-CPRP duties which did not offer overtime, shift differentials, holiday or Sunday pay. After a 3-month investigation, the "[g]rievants were found not guilty of any wrongdoing[,]" and were returned to their regular CPRP security guard duties. Award at 15.
The grievants filed a grievance seeking reinstatement to their security guard positions and backpay for overtime, shift differentials, Sunday pay and holiday pay lost when they were temporarily disqualified from their CPRP duties. When the grievance was not resolved, it was submitted to arbitration. The Arbitrator framed the issue as follows:
Are the [g]rievants entitled to all lost overtime, shift differential, Sunday pay, and holiday pay they would have received had they remained in their respective jobs instead of being temporarily disqualified and reassigned other duties at the Agency's facility?
Id. at 4.
Relying on Army Regulation-50-6 (AR-50-6), Paragraph 3-23 which states, in part, that, " 'when there is any uncertainty about the reliability of an individual, he or she will be temporarily disqualified from [the] CPRP[,]'" the Arbitrator determined that the Agency's "decision to temporarily disqualify the [g]rievants [could not] be said to be an abuse of discretion or unauthorized . . . ." Id. at 11, 12.(2) In this connection, the Arbitrator found that the removal of the grievants from their CPRP duties was "justified . . . by the interest of public safety and those interests outlined in [the] CPRP regulations." Id. at 15. The Arbitrator further found that the grievants' "temporary disqualification from [the] CPRP [was] not a personnel action[,]" because the grievants did not suffer a reduction in grade. Id. at 14.
The Arbitrator also found, however, that the assignment of the grievants to duties which did not have mandatory overtime "constitute[d] a real and ascertainable loss of pay to the [g]rievants[,]" and was an "adverse personnel action[.]" Id. at 13, 15. In this regard, the Arbitrator found that, although "the assignment of the [g]rievants to straight-time work was not unlawful when it occurred[,]" it was "proven to be 'unjustified' or 'unwarranted' by the Agency's failure to institute any disciplinary or termination proceedings." Id. at 15.
The Arbitrator concluded that "but for the decision to assign the [g]rievants to jobs without overtime and the rest, they would not have suffered a withdrawal or reduction of part of their pay and differentials they normally would have received." Id. Based on these findings, the Arbitrator sustained the grievance in part, and awarded the grievants backpay for mandatory overtime, Sunday pay, night shift differential and holiday pay lost while they were temporarily disqualified from their CPRP duties. The Arbitrator also ordered that "[l]ost voluntary overtime, voluntary Sunday pay, voluntary shift differential, and voluntary [holiday] pay is to be afforded the [g]rievants through additional opportunities to make up such pay over the course of the next year consistent with the parties' past practice." Id. at 16.
The Agency does not dispute the portion of the award regarding voluntary overtime, voluntary Sunday pay, voluntary shift differentials and voluntary holiday pay. The Agency contends that the award of backpay is contrary to the Back Pay Act, 5 U.S.C. § 5596, because "the [A]rbitrator did not properly find that the grievants were affected by an unjustified or unwarranted personnel action[.]" Exceptions at 8. The Agency also contends that the award violates management's right to assign work under section 7106 of the Statute.
IV. Analysis and Conclusions
Under the Back Pay Act, 5 U.S.C. § 5596, an award of backpay is authorized only when an arbitrator finds that:
(1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; (2) the personnel action directly resulted in the withdrawal or reduction of the employee's pay, allowances, or differentials; and (3) but for such action, the employee would not have suffered the withdrawal or reduction. See U.S. Department of the Army, Anniston Army Depot, Anniston, Alabama and American Federation of Government Employees, Local 1945, 46 FLRA 974, 976 (1992). In this regard, a violation of an applicable law, rule, regulation or provision of a collective bargaining agreement constitutes an unjustified or unwarranted personnel action. For example, U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals and American Federation of Federal Employees, Council 215, 46 FLRA 1032 (1992); 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 (1991); See also 5 C.F.R. § 550.803.
The record reveals that, before the Arbitrator, the parties disputed only the Agency's application of AR-50-6 to the grievants' situation. The Arbitrator failed to find that the Agency's removal or reassignment of the grievants violated AR-50-6 or any other law, rule, regulation, or provision of the parties' collective bargaining agreement. To the contrary, the Arbitrator found that the Agency's "removal [of the grievants] from CPRP duties was justified[,]" and that "the assignment of the [g]rievants to straight-time work was not unlawful when it occurred[.]" Award at 15. Although the Arbitrator held that the reassignment was subsequently "proven to be 'unjustified' or 'unwarranted' [because] the Agency fail[ed] to institute any disciplinary or termination proceedings[,]" the Arbitrator did not find that this reassignment was unjustified or unwarranted under applicable law, Executive order, rule, regulation or mandatory personnel policy established by the Agency or through collective bargaining. Id. Absent such a finding, there is no basis on which to conclude that the grievants suffered an unjustified or unwarranted personnel action as defined by the Back Pay Act. See 5 C.F.R. 550.803. Accordingly, we find that the award of backpay for mandatory overtime, shift differential, Sunday and holiday pay is deficient as it is contrary to the Back Pay Act and will be set aside.(3)