52:1522(142)AR - - NAGE Local R4-6 and Army, Fort Eustis, Virginia - - 1997 FLRAdec AR - - v52 p1522
[ v52 p1522 ]
The decision of the Authority follows:
52 FLRA No. 142
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE ARMY
FORT EUSTIS, VIRGINIA
May 27, 1997
Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Frederick U. Reel 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 Regulations. The Agency filed an opposition to the Union's exceptions.
The Arbitrator sustained, in part, a grievance alleging that the Agency violated the parties' collective bargaining agreement when the Agency closed for 1 day and granted administrative leave to all employees except for those employees who were excused from work on "approved leave."(1) The Arbitrator denied the Union's request for attorney fees. For the following reasons, we grant in part and deny in part the Union's exceptions.
II. Background and Arbitrator's Award
The Agency's facility was struck with a severe snow storm. Before the start of the workday, "Code Amber" was declared, permitting all non-essential civilian employees to arrive up to 2 hours late for the start of their shifts and granting them 2 hours of administrative leave. As conditions worsened, some departments dismissed their non-essential employees for the entire day, granting them administrative leave. At approximately 1:45 p.m., "Code Red" was declared, excusing all non-essential employees from work and granting administrative leave to those employees for the remainder of their shift. Employees who were on approved leave were not granted administrative leave for any part of the day.
The Union grieved an alleged lack of uniformity in the treatment of employees' leave status, and the failure of the Agency to change to administrative leave the leave status of those who were on approved leave. The Union claimed that the Agency had violated Article 16, sections 1 and 6 of the parties' collective bargaining agreement and the TCFE Severe Weather Plan 600-2 (Plan), which was incorporated into the agreement.(2) The grievance was unresolved and was submitted to arbitration, where the Arbitrator framed the issue as:
[T]he amount of administrative leave which should be awarded to non-essential civilian employees [that] were charged with annual or sick leave [or LWOP].
Award at 1.
The Arbitrator rejected the Union's contention that all employees who had been excused from work for the entire day because they were on approved leave were entitled to administrative leave for the entire day under the Plan. However, the Arbitrator sustained the grievance to the limited extent that he found the Agency had violated the agreement by not granting any administrative leave to employees charged with approved leave.
The Arbitrator ordered the Agency to grant administrative leave for the first 2 hours of the work shift to those employees who had been charged with approved leave for the entire day. The Arbitrator based the award on the following two question-and-answer portions of the Plan:
Question . If an employee was absent on approved leave for the entire work shift (i.e., on annual leave from 0730 until 1630) and the day is declared a "snow day" prior to the beginning of the work shift, must he or she be charged annual leave?
Question . When an employee (who is not designated mission essential) is [o]n approved leave for only part of the work shift and the commander dismisses the work force before the employee reports to work, how is leave charged?
Answer. The employee is charged leave only until the time set for dismissal. For example, if an employee is on approved sick leave for a dentist's appointment from 0730 until 1000 and the commander dismisses non-mission essential employees at 0830, the employee is only charged on[e] hour of sick leave (0730-0830).
Id. at 4.
The Arbitrator determined that, based on the first question and answer, the Agency is required to provide administrative leave to employees only where Code Red is declared prior to the beginning of the employees' work shift. According to the Arbitrator, since Code Red was not implemented on the day in dispute until well into the work shift, employees on approved leave were not entitled to administrative leave for their entire shift. The Arbitrator rejected the Union's reliance on the second question and answer. According to the Arbitrator, the second question and answer applies to those "employees on leave 'for only part of the work shift' and [thus, did] not apply to employees [who were on approved] leave for the entire shift." Id. at 7. The Arbitrator did find however, that because Code Amber (permitting employees to arrive up to 2 hours late) was declared prior to the work shift, the agreement was violated to the extent that the Agency failed to grant 2 hours of administrative leave to those employees on approved leave.
In addition to determining the amount of administrative leave to which employees were entitled, the Arbitrator addressed the Union's request for attorney fees. The Arbitrator stated that "[b]ecause [the] order goes to leave records and not to back pay, the Union's request for attorney fees is denied." Id. at 8.
III. Positions of the Parties
A. Union's Exceptions
The Union excepts to the Arbitrator's determinations regarding both administrative leave and attorney fees.
With respect to administrative leave, the Union asserts that the award "failed to conform to law, rule, regulation, and the negotiated agreement." Exceptions at 10. The Union argues that the award fails to provide "relief in a fair and equitable manner to all affected employees" in accordance with Article 16, sections 1 and 6 of the parties' agreement and the Plan. Id. The Union contends that employees who were excused for the entire day on approved leave prior to the day of the closing were entitled to receive administrative leave for the entire day like all other employees who were dismissed but were not on approved leave.
With respect to attorney fees, the Union claims that the award improperly "failed to award reasonable attorney fees under the Back Pay Act . . . ." Id. at 8. In this connection, the Union asserts that the Arbitrator's denial of attorney fees is based on a nonfact because, according to the Union, the Arbitrator relied on the erroneous determination that awarding 2 hours of administrative leave did not constitute an award of backpay. According to the Union, the award constitutes backpay for all employees who were previously charged with approved leave.
B. Agency's Opposition
The Agency claims that the Union's exceptions are without merit and constitute "nothing more [than] disagreement with the [A]rbitrator's interpretation of the evidence and testimony presented to him." Opposition at 3. The Agency argues that the Union is attempting to "relitigate the merits of the grievance before the Authority in hopes of a more favorable outcome." Id. Additionally, the Agency contends that the Union is not entitled to attorney fees because the Arbitrator determined that the award involved leave records and not backpay.
IV. Analysis and Conclusions
A. The Award Draws Its Essence From the Parties' Collective Bargaining Agreement
The Union contends that the award "failed to conform to law, rule, regulation, and the negotiated agreement" because it conflicts with the Plan, which is an Agency regulation. Exceptions at 10. It is well-settled that when a collective bargaining agreement incorporates the regulations with which an award allegedly conflicts, the matter becomes one of contract interpretation because the agreement, not the regulation, governs the matter in dispute. Panama Canal Commission and International Association of Firefighters, Local 13, 41 FLRA 284, 292-93 (1991). In this case, the parties' agreement expressly incorporates the Agency's Plan. Consequently, the issue before the Authority is whether the award is deficient as failing to draw its essence from the parties' agreement under section 7122(a)(2) of the Statute.
The parties' agreement provides that leave status will be changed in accordance with the Plan, which the Union concedes "is not all inclusive and fails to address the issue" presented in this case. Exceptions at 6. The Plan's first question-and-answer provision provides that where a snow day is declared prior to the start of a workday, employees on leave will not be charged with approved leave. The Plan's second question and answer provision provides that where the workforce is dismissed after the start of the workday, employees on approved leave for "part of the work shift" will only be charged leave for the time prior to the dismissal.
The Arbitrator examined the parties' agreement as well as the Plan's question-and-answer provisions. Based on this examination, the Arbitrator determined that an employee on approved leave for an entire shift is not entitled to administrative leave for part of the shift that is declared Code Red after the shift has begun. The Union has not demonstrated that the Arbitrator's interpretation and application of the agreement and the Plan are unfounded, implausible, or irrational. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-76 (1990). Accordingly, we conclude that the award is not deficient because it fails to draw its essence from the parties' agreement.
B. The Award is Inconsistent With the Back Pay Act
The Union contends that the decision of the Arbitrator "failed to award reasonable attorney fees under the Back Pay Act[.]" Id. at 8. We construe this as an exception that the award is deficient under section 7122(a)(1) of the Statute as contrary to the Back Pay Act, 5 U.S.C. § 5596.
The Back Pay Act provides for the recovery of attorney fees where, as a threshold requirement, there is a finding that the grievant was affected by an unjustified or unwarranted personnel action that resulted in the withdrawal or reduction of the grievant's pay, allowances or differentials.(3) Norfolk Naval Shipyard, 52 FLRA at 84. Once such a finding is made, the Back Pay Act further requires that an award of attorney fees must be: (1) in conjunction with an award of back pay, i.e., pay, allowances, or differentials, to the grievant on correction of the personnel action; (2) reasonable and related to the personnel action; and (3) in accordance with the standards established under 5 U.S.C. § 7701(g).(4) Defense Distribution, 51 FLRA at 158. These standards established under 5 U.S.C. § 7701(g) require a fully articulated, reasoned decision setting forth the Arbitrator's specific findings supporting the decision on each pertainment statutory requirement. Id.
In this case, the Arbitrator found that the Agency violated the parties' agreement, which resulted in the loss of leave to those employees who were on approved leave, by failing to grant them administrative leave. A violation of a collective bargaining agreement resulting in the loss of leave constitutes an unjustified or unwarranted personnel action entitling the aggrieved employee to a backpay award. INS, San Diego, 51 FLRA at 1097. Further, the restoration of leave, used as the result of an unjustified or unwarranted personnel action, constitutes an award of backpay under the Back Pay Act. See, e.g., 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, 558 (1991) (Authority found that "award of backpay in the form of recrediting . . . leave" was not deficient). As such, the Arbitrator's conclusion that attorney fees are not recoverable because the award does not encompass backpay is inconsistent with the Back Pay Act.
Accordingly, we conclude that the award is deficient as contrary to law. Because of the erroneous determination that the award did not encompass backpay, the Arbitrator declined to address any of the requirements necessary to determine whether attorney fees may be recovered in this case. Therefore, we remand the award to the parties for submission to the Arbitrator, absent settlement, for consideration of the issue of attorney fees, including the standards established in 5 U.S.C. § 7701(g).
The award is remanded to the parties for further action consistent with this decision.(5)
(If blank, the decision does not have footnotes.)
1. For the purpose of this decision, "approved leave" refers to the leave status of those employees who were excused from work for the entire day because they were granted annual leave, sick leave or leave without pay prior to the day of the closing.
2. Article 16 provides, in relevant part, that:
Section 1 When in accordance with applicable law and USATCFE regulations, it has been determined that activities must be curtailed due to adverse weather conditions, employees shall be administratively excused without charge to leave or loss of pay.
. . . .
Section 6 The EMPLOYER agrees that employees on approved leave, annual, sick, etc. shall have such leave changed to administrative leave in accordance with TCFE Severe Weather Plan 600-2.
Award at 3.
The TCFE Severe Weather Plan 600-2, Annex D, Section 3(a) provides, in relevant part, that:
(a) On occasion, normal operations are interrupted by emergency situations, such as extreme weather conditions, which are beyond the control of management or employees. These situations may prevent the opening of Fort Eustis . . ., may prevent personnel from getting to work, or may create the necessity to release personnel early. Activities must abide by uniform curtailment and release policies and procedures to avoid confusion and ensure fair treatment of personnel.
Exceptions at 5-6.
3. Under the Back Pay Act, an award of backpay is authorized only where 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 grievant's pay, allowances or differentials; and (3) but for such action, the grievant otherwise would not have suffered the withdrawal or reduction. See U.S. Department of Justice, Immigration and Naturalization Service, San Diego, California and American Federation of Government Employees, National Immigration and Naturalization Service Council, 51 FLRA 1094, 1097 (1996) (INS, San Diego) (citing American Federation of Government Employees, Local 31 and U.S. Department of Veterans Affairs, Medical Center, Cleveland, Ohio, 41 FLRA 514, 517 (1991)). Where an arbitrator makes such findings, the arbitrator may award a grievant pay, allowances, or differentials, including annual leave. See American Federation of Government Employees, Local 4015 and U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia, 52 FLRA 82, 84 (1996) (Norfolk Naval Shipyard); American Federation of Government Employees, Local 1395 and Department of Health and Human Services, Social Security Administration, 10 FLRA 18, 19 (1982).
4. The prerequisites for an award of attorney fees under 5 U.S.C. § 7701(g)(1), which applies in all cases except those involving allegations of discrimination, are as follows: (1) the employee must be the prevailing party; (2) the award of fees must be warranted in the interest of justice; (3) the amount of the fees must be reasonable; and (4) the fees must have been incurred by the employee. U.S. Department of Defense, Defense Distribution Region East, New Cumberland, Pennsylvania and American Federation of Government Employees, Local 2004, 51 FLRA 155, 158 (1995) (Defense Distribution) (citing American Federation of Government Employees, Local 12 and U.S. Department of Labor, Washington, D.C., 38 FLRA 1240, 1248 (1990)). The Arbitrator did not consider these standards in denying attorney fees.
5. In light of our conclusion that the award is contrary to the Back Pay Act, we need not address the Union's additional contention that the award is deficient under section 7122(a)(2) of the Statute because it is based on a nonfact.