51:0762(67)AR - - VA Medical Center, Kansas City, MO and AFGE, Local 2663 - - 1996 FLRAdec AR - - v51 p762
[ v51 p762 ]
The decision of the Authority follows:
51 FLRA No. 67
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF VETERANS AFFAIRS
KANSAS CITY, MISSOURI
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
January 31, 1996
Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.(1)
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Mark Berger 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 Regulations. The Union did not file an opposition to the Agency's exceptions.
The Arbitrator found that the Agency's failure to timely respond to the grievance concerning the assignment of overtime violated the time limits for processing grievances under the parties' master collective bargaining agreement. To remedy this violation, the Arbitrator ordered that aggrieved employees be awarded backpay to cover lost overtime as requested by the Union.
For the following reasons, we conclude that the award is contrary to the Back Pay Act, 5 U.S.C. § 5596, and we set it aside.
II. Background and Arbitrator's Award
The boiler plant at the Agency's facility operates around the clock and is staffed by an operations foreman who works on the day shift and five boiler plant operators who rotate through three shifts. When there is no plant operator available to work on the Wednesday day shift, the foreman regularly serves as a plant operator on that shift on straight-time pay, which reduces the amount of overtime work available for plant operators.
The Union filed a grievance alleging in part that the Agency's practice of assigning possible overtime work in the boiler plant to the foreman violated Article XIII, Section 3 of the parties' local agreement and sought as relief, among other things, back pay for affected employees.(2) During the processing of the grievance, the Union informed the Agency that the Agency had failed to comply with the contractual time limits for filing an answer at step 3 of the negotiated grievance procedure. Ultimately, the grievance was submitted to arbitration, where the Arbitrator framed the issues as follows:
1. Did management meet the time limits required by the contract to respond to the grievance, and if not what is the consequence?
2. Has the Kansas City Medical Center violated any provision of the national agreement, local agreement or established procedures, law or regulation, with regard to the assignment of overtime or denial of overtime in the boiler plant of the Engineering Service, and if so what remedy is appropriate?
Award at 1.
The Arbitrator found that the Agency had failed to comply with the contractual time limits for rendering a decision at step 3 of the negotiated grievance procedure as set forth in Article 13, Section 9 of the parties' master agreement.(3) He concluded that to remedy a violation of that provision he was required, by its terms, to resolve the grievance in the grievant's favor provided that, as pertinent here, "the remedy requested by the [g]rievant is legal and reasonable under the circumstances of the grievance." Award at 13 (quoting Article 13, Section 9). The Arbitrator then evaluated whether the Union's request for a monetary remedy met those requirements by identifying "where and how the Agency violated its obligations to the Union." Id. at 14. Specifically, he examined the situations in which the foreman had worked as a boiler plant operator during day shift hours.
The Arbitrator found that the assignment of nonsupervisory plant operator duties on the day shift to a plant operator, rather than to the foreman, was a matter enforceable in arbitration because the plant operators and the foreman were all qualified to perform plant operator duties. Therefore, he concluded that this case was similar to National Treasury Employees Union and U.S. Department of the Treasury, Customs Service Pacific Region, 47 FLRA 1038 (1993), in which the overtime distribution provisions of a negotiated directive were found enforceable in arbitration because they provided a procedure for the assignment of work to employees management had determined were qualified to perform the work.
Concluding that a monetary award was lawful and reasonable, the Arbitrator sustained the grievance. He stated that the grievants "were affected by an unjustified or unwarranted personnel action" and that "[t]his was reflected in the contractual violation established by the Agency's forfeiture." Award at 17. He further stated that this contractual violation had resulted in "a withdrawal or reduction of the pay of the affected boiler plant operators . . . ." Id. He directed the Agency to identify, through its records, the occasions on which the foreman improperly worked as a boiler plant operator on the day shift and ordered backpay covering lost overtime to be divided evenly among all plant operators who were available on those occasions to work on overtime.
The Agency first argues that the award of backpay is deficient because it did not commit an unwarranted or unlawful personnel action in violation of the Back Pay Act when it declined to provide overtime to the plant operators. The Agency contends that it had a right under section 7106(a)(2)(B) of the Statute to assign work on the day shift to the foreman on straight-time pay and that the Arbitrator's interpretation of Article XIII, Section 3 of the parties' local agreement abrogates that right under the test established in Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309 (1990). Second, the Agency asserts that the award is contrary to 5 C.F.R. § 610.121, a Government-wide regulation, because it penalizes management for scheduling employees to avoid the payment of overtime and requires that management change employees' schedules to assure that bargaining unit employees receive overtime assignments. Finally, the Agency maintains that the award is deficient because it does not draw its essence from the parties' collective bargaining agreements in two ways. The Agency claims that Article XIII, Section 3 of the parties' local agreement reserves to management the right to assign overtime and does not bar management from assigning work to supervisors to avoid the payment of overtime to unit employees. In addition, the Agency asserts that the remedy is not "legal and reasonable," as required by Article 13, Section 9 of the parties' master agreement.
IV. Analysis and Conclusions
A. Requirements of the Back Pay Act
Under the Back Pay Act, an award of back pay is authorized if: (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 grievant's pay, allowances, or differentials; and (3) but for such action, the grievant otherwise would not have suffered the withdrawal or reduction. See, for example, American Federation of Government Employees, Local 31 and U.S. Department of Veterans Affairs, Medical Center, Cleveland, Ohio, 41 FLRA 514, 517 (1991). A violation of a collective bargaining agreement constitutes an unjustified or unwarranted personnel action under the Back Pay Act. U.S. Department of Justice, Immigration and Naturalization Service and American Federation of Government Employees, National Immigration and Naturalization Service Council, 42 FLRA 222, 232 (1991). Because the second and third requirements of the Back Pay Act require evidence of a causal relationship between the violation and a loss or reduction in pay, allowances, or differentials, backpay is authorized only where the violation found by the arbitrator resulted in such a loss or reduction. See U.S. Department of the Treasury, Customs Service, South Central Region, New Orleans, Louisiana and National Treasury Employees Union, Chapter 168, 43 FLRA 337, 340-41 (1991).
B. The Arbitrator Found a Violation of Article 13, Section 9 of the Master Agreement
The Arbitrator found the Agency had violated Article 13, Section 9 of the master agreement, based on its failure to timely respond to the grievance. In this regard, he stated that it was the Agency's failure to timely respond that resulted in "a withdrawal or reduction of the pay of the affected boiler plant operators . . . ." Award at 17. Although the Arbitrator quoted Article XIII, Section 3 of the parties' local agreement as relevant to the grievance concerning overtime distribution, he did so only to assess an appropriate remedy for the Agency's violation of Article 13, Section 9. Id. at 9. Consequently, we find that the award enforced Article 13, Section 9 of the parties' master agreement. Therefore, contrary to the Agency's arguments, which are based on the assumption that the Arbitrator enforced Article XIII, Section 3, we must determine whether the award enforcing Article 13, Section 9 is deficient.
C. There Is No Causal Connection Between the Contractual Violation and the Loss of Pay
Assuming, without deciding, that the violation of Article 13, Section 9 constituted an unjustified or unwarranted personnel action in satisfaction of the first requirement of the Back Pay Act, the record does not support a conclusion that the violation of that provision resulted in a loss of the grievants' pay, allowances or differentials. The Agency's violation of Article 13, Section 9 resulted from its failure to meet its obligations under the procedural requirements of the parties' negotiated grievance procedure. This conduct occurred long after the filing of the grievance and the alleged loss of overtime opportunities that gave rise to the grievance. Thus, the violation found by the Arbitrator could not have resulted in the loss of pay, allowances, or differentials at issue in this case. In these circumstances, there is no causal connection between the violation and any monetary loss. As the requirements of the Back Pay Act have not been met, we find that the award of overtime pay is deficient and must be set aside.(4) See, for example, National Association of Government Employees, Local R1-109 and Veterans Administration Medical Center, Newington, Connecticut, 35 FLRA 206, 211 (1990) (arbitrator's award ordering that grievant be paid overtime set aside because arbitrator had not found that the grievant was improperly denied overtime pay as a result of the agency's violation of parties' agreement).
In reaching this conclusion, we note that in agreeing to the terms of Article 13, Section 9 of the master agreement, the parties specifically limited the remedy for a violation of that provision to one that was: (1) requested by the Union; and (2) legal and reasonable under the circumstances of the grievance. Thus, the Arbitrator was restricted by the terms of Article 13, Section 9 to evaluate the remedy of backpay that had been requested by the Union. As shown above, that remedy is not legal under the Back Pay Act. In these circumstances, there is no basis on which to remand the award for determination of another remedy, and we set the award aside.
The award is set aside.
(If blank, the decision does not have footnotes.)
1. This case was considered and all deliberations were completed prior to the date on which Donald S. Wasserman was sworn in as a Member of the Authority. Therefore, Member Wasserman did not participate in this decision.
2. Article XIII, Section 3 provides, in pertinent part, that:
The Hospital reserves the right to assign overtime. It will be distributed as equitably as possible among qualified employees in accordance with skills required. In assignment of overtime the employee will be given as much advance notice as possible in accordance with the conditions requiring the overtime.
Award at 9.
3. Article 13, Section 9 provides, in pertinent part, that
Should management fail to comply with the time limits for rendering a decision at Step 2, or Step 3, the grievance shall be resolved in favor of the grievant, provided that: (1) receipt of the grievance had been acknowledged by management at the appropriate step in writing and (2) the remedy requested by the grievant is legal and reasonable under the circumstances of the grievance.
Award at 8.
4. In view of our determination