54:0764(78)AR - - Treasury, Customs Service, Portland, OR and NTEU Chapter 156 - - 1998 FLRAdec AR - - v54 p764



[ v54 p764 ]
54:0764(78)AR
The decision of the Authority follows:


54 FLRA No. 78

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF THE TREASURY

U.S. CUSTOMS SERVICE

PORTLAND, OREGON

(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 156

(Union)

0-AR-3022

_____

DECISION

August 27, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Louis M. Zigman 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 filed an opposition to the Agency's exceptions.

The Arbitrator awarded the grievant backpay to remedy an administrative error that resulted in the grievant being passed over for an overtime assignment. For the following reasons, we conclude that the award is not deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.

II. Background and Arbitrator's Award

As a result of an administrative error, the grievant was passed over for an overtime assignment to which he was otherwise entitled. The Union filed a grievance. After determining that the grievant had been entitled to the overtime assignment, the Agency offered the grievant an opportunity to work a comparable overtime assignment. The grievant declined, claiming that he was entitled to backpay in an amount equaling what he would have received if he had worked the overtime shift. Unable to agree to an appropriate remedy, the parties proceeded to arbitration.

Before the Arbitrator, the parties stipulated the above facts and the following issue: "[w]hat is the appropriate remedy for a missed overtime assignment due to administrative error in this case?"(1) Exceptions at 1; Opposition at 41.

The dispute before the Arbitrator centered around the parties' bargaining history and what remedy the parties' collective bargaining agreement provided for a missed overtime assignment.(2) After determining that the collective bargaining agreement did not contain any language mandating the type of remedy in circumstances such as the one at issue, the Arbitrator rejected the Agency's claim that the Back Pay Act does not permit an award of backpay to remedy a missed overtime assignment.

With respect to whether the grievant was entitled to backpay, the Agency argued to the Arbitrator that, although the grievant listed himself as available to work the date of the missed assignment, there was no evidence that the grievant was "actually ready, willing, and able to perform the work if called." Agency's Attachment C, Agency's Post Hearing Brief at 48. Further, the Agency argued that even if the grievant was able to perform the work, there was no evidence to demonstrate that the grievant suffered a withdrawal of or reduction in pay as a result of not receiving the overtime assignment.

Rejecting the Agency's claim, the Arbitrator determined that the grievant satisfied the requirements for a backpay award under the Back Pay Act. Specifically, the Arbitrator found that:

the evidence did establish that the 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 but for such action, the grievant otherwise would not have suffered the withdrawal or reduction.

Award at 30-31.(3)

III. Positions of the Parties

A. Agency's Exceptions

The Agency excepts to the award on three grounds.

First, the Agency claims that the award is deficient because two of the requisite arbitral findings for an award of backpay under the Back Pay Act are based on a nonfact.(4) The Agency contends that "[u]tterly no fact in the record supports the [Arbitrator's] finding that the [Agency's] personnel action directly resulted in the withdrawal or reduction of [the] grievant's pay, allowances, or differentials . . . [and] but for the action, [the] grievant would not have suffered the withdrawal or reduction." Exceptions at 2. Because, the Agency argues, these findings were not supported by any evidence, the award is based on a nonfact. According to the Agency, to support such a finding, the Arbitrator was required to find that the grievant was actually "ready, willing, and able to work the overtime assignment that is claimed to have been denied him." Id. at 8.

Second, the Agency claims that the award is contrary to the Back Pay Act. Relying on its assertion that two findings of the Arbitrator's are based on a nonfact, the Agency argues that two of the three requisite elements for an award of backpay under the Back Pay Act have not been met. In this regard, the Agency claims that a "mere violation alone [of a collective bargaining agreement] is not a sufficient basis upon which to make a [backpay] award." Id. at 21.

Third, the Agency claims that the Arbitrator exceeded his authority by deciding an issue that was outside the issue he was charged to resolve. According to the Agency, the parties stipulated the issue to be resolved as: "[w]hat is the appropriate remedy for a missed overtime assignment due to an administrative error in this case?" Id. at 3. In contrast, the Agency claims the Arbitrator framed the issue as: "[w]hat is the appropriate remedy for a missed overtime assignment due to an administrative error?" Id. The Agency argues that by deleting "from this case" in the issue statement, the Arbitrator broadened the issue and "reached a conclusion that appears to answer, as a definitive matter, the question of [the] remedy for all cases of missed overtime assignment caused by administrative error." Id.

B. Union's Opposition

First, the Union claims that the record clearly demonstrates that the Agency's action in this case directly resulted in the withdrawal of the grievant's pay and that but for that action, the grievant would not have suffered that withdrawal. In this regard, the Union asserts that the Agency admitted that the grievant was entitled to work the overtime assignment because the Agency offered to provide the grievant with a comparable overtime assignment during the grievance proceedings. The Union also claims that the record, including the stipulated issue, demonstrates that the grievant "had been available for the assignment and was improperly denied it." Opposition at 24.

Second, the Union claims that backpay is the appropriate remedy for a missed overtime assignment and that such awards are authorized under the Back Pay Act. In this regard, the Union claims that "longstanding precedent establishes that once it is shown that an agency, in violation of a collectively bargained assignments rights, precludes an employee from receiving an overtime assignment and, but for that violation the employee would have worked the assignment, it follows, ipso facto, that he/she has suffered a withdrawal of overtime pay." Id. at 34.

Finally, the Union contends that the "Arbitrator neither awarded relief to persons other than the grievant, nor resolved an issue not submitted for arbitration." Id. at 41. Specifically, the Union claims that "[t]he award in plain and unambiguous terms directs back pay to no one other than [the grievant]." Id.

IV. Analysis and Conclusions

A. 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. U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993) (Lowry Air Force Base). However, the Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties disputed at arbitration. U.S. Department of the Interior, Bureau of Mines, Pittsburgh Research Center and American Federation of Government Employees, Local 1916, 53 FLRA 34, 40 (1997) (Bureau of Mines). The Authority accords deference to an arbitrator's factual findings because the parties have bargained for the facts to be found by an arbitrator, not the Authority. Lowry Air Force Base, 48 FLRA at 593.

The Agency's arguments challenge a factual matter--whether the facts demonstrate that the grievant is entitled to an award of backpay under the Back Pay Act--that the parties disputed at arbitration. Before the Arbitrator, the Agency specifically argued that the "'record is devoid of any evidence that the missed overtime opportunity caused a withdrawal of or reduction in grievant's pay, allowances, or differentials. Rather, the record suggests that [the] grievant was not harmed . . . as a result of the missed assignment[.]'" Award at 18 (quoting the Agency's position in the Arbitration hearing). See also Agency's Attachment C, Agency's Post Hearing Brief at 53 (stating the exact same argument).

Before the Authority, the Agency makes this same contention with regard to its nonfact exception. Specifically, the Agency claims that "[t]here is simply no evidence in this record . . . that but for . . . the missed overtime opportunity--the grievant otherwise would not have suffered a withdrawal or reduction in pay, allowances, or differentials." Exceptions at 10. The Agency also claims that "no fact in [the] record" showed that the grievant was harmed because he "suffered any withdrawal of or reduction in his pay, allowances, or differentials[.]" Id. at 13.

Because the factual matters the Agency now disputes before the Authority were disputed at arbitration and resolved by the Arbitrator, the Agency's challenge does not provide a basis for finding the award deficient. See Bureau of Mines, 53 FLRA at 40.

Based on the foregoing, we conclude that the award is nor deficient as based on a nonfact.

B. The Award Is Not Deficient Under the Back Pay Act

The Agency claims that the Arbitrator's following two findings are based on nonfacts: (1) that the administrative error directly resulted in the withdrawal or reduction in the grievant's pay; and (2) that but for the administrative error, the grievant would not have suffered that withdrawal. Therefore, the Agency claims that the award is contrary to the Back Pay Act, 5 U.S.C. § 5596. In this respect, the Agency argues generally that a "mere violation of a collective bargaining agreement is an insufficient ground upon which to base a back pay award[.]"(5) Exceptions at 20. The Agency also argues, relying on its nonfact allegation, that the evidence does not demonstrate that the grievant was "ready, willing, and able" to work the overtime assignment or that the grievant suffered a withdrawal in pay. Id. at 8. Thus, the Agency claims that the evidence does not support the Arbitrator's finding that the requisite elements of the Back Pay Act have been met.

The Agency's exception involves the consistency of the award with law. Thus, we review the questions of law raised by the Agency's exceptions and the Arbitrator's award de novo. See National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995). In applying a standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id. If an award fails to contain the factual findings necessary to enable it to assess the arbitrator's legal conclusions, and the findings cannot be derived from the record, the award will be set aside and the case will be remanded to the parties for submission to the arbitrator so that the requisite findings can be made. See id.

In U.S. Department of the Army, Anniston Army Depot, Anniston, Alabama and American Federation of Government Employees, Local 1945, 46 FLRA 974, 976 (1992) (Department of the Army), the Authority upheld an award of backpay under the Back Pay Act to remedy the failure of the agency to offer an employee an overtime assignment. In that case, the agency asserted before the Authority that "there was 'no testimony, nor any finding by the arbitrator, that [the grievant] was available and willing to perform the overtime[,]'" and the arbitrator "did not find that the grievant 'actually suffered a loss of overtime pay[.]'" Id. at 975. The Authority, holding that "a direct causal connection" may be implicit from the record and the award, rejected the agency's contentions and found that the award as a whole sufficiently established that the elements for an award of backpay had been met. Id. at 976. In doing so, the Authority found significant the fact that the award noted the agency's contention that the grievant may not have been available for the overtime and ultimately awarded the grievant the overtime pay. The Authority concluded that the award as a whole sufficiently established that the arbitrator had implicitly rejected the agency's claims that the grievant may not have been available to work the overtime assignment and did not suffer a withdrawal in pay. Cf. Norfolk Naval Shipyard, Portsmouth, Virginia and Tidewater Virginia Federal Employees Metal Trades Council, 21 FLRA 307, 308 (1986) (determining that the arbitrator's single finding that the grievant "should have been assigned or should have been requested to perform the overtime" did not satisfy the Back Pay Act requirements).

Here, the Arbitrator made specific factual findings with respect to each of the requirements that the Authority has held satisfy the Back Pay Act. In particular, the Arbitrator found that: (1) "the evidence did establish" that the grievant "was affected by an unjustified or unwarranted personnel action"--the administrative error; (2) "that the personnel action directly resulted in the withdrawal or reduction in the grievant's pay allowances or differentials"--the missed overtime pay; and (3) "but for such action, the grievant otherwise would not have suffered the withdrawal or reduction"--if the administrative error did not occur, the grievant would have received the assignment, and therefore the overtime pay. Award at 30-31. Based on these findings, the Arbitrator determined that an award of backpay was authorized under the Back Pay Act in this case.

Although the Arbitrator did not specifically address the Agency's contentions that there was no evidence establishing that the grievant was ready, willing and able to work the missed overtime assignment or that the grievant suffered a reduction in pay, allowances or differentials, the Arbitrator set forth those arguments in the Award (see Award at 18). In addition, the record demonstrates that the Agency explicitly made those arguments in its Post Hearing Brief to the Arbitrator (see Agency's Attachment D at 48) and a subsequent letter to the Arbitrator (see Agency's Attachment F, Agency June 17, 1997 Letter to Arbitrator). The record also demonstrates that the Union contested both of the Agency's arguments before the Arbitrator. See Agency's Attachment E, Union June 10, 1997 Letter to Arbitrator; Agency's Attachment E, Union's Post Hearing Brief at 7, 18-22. Thus, as in Department of the Army, based on the record and the award as a whole, it is clear that the Arbitrator implicitly rejected the Agency's argument that the grievant would not have worked overtime. In this regard, the Arbitrator in effect found that, but for the Agency's unjustified and unwarranted personnel action, the grievant, who had listed himself as available for that overtime shift, would have worked and received the overtime pay for that shift. See 46 FLRA at 976; see also Department of Justice, 51 FLRA at 1098 (holding that a finding of direct causal connection under the Back Pay Act may be implicit from the award).

The Arbitrator's findings set forth above, fulfill each of the criteria set forth by the Authority for an award of backpay under the Back Pay Act. These underlying factual findings made by the Arbitrator regarding the elements of the Back Pay Act, to which we defer, clearly support the Arbitrator's legal conclusion that the grievant was entitled to an award of backpay under that Act.

Based on the foregoing, we conclude that the award is consistent with the Back Pay Act.

C. The Arbitrator Did Not Exceed His Authority

An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. U.S. Department of the Navy, Naval Base, Norfolk, Virginia and American Federation of Government Employees, Local 22, 51 FLRA 305, 307-08 (1995).

The issue the parties stipulated before the Authority was as follows: "[w]hat is the appropriate remedy for a missed overtime assignment due to administrative error in this case?" Contrary to the Agency's claims, although the Arbitrator restated the issue without the language, "in this case," nothing in the Arbitrator's decision indicates that the Arbitrator broadened the scope of the issue he was charged with resolving by reaching a conclusion that definitively provides the appropriate remedy for all missed overtime assignments that are the result of an administrative error. Specifically, as set forth below, the Arbitrator issued his award only with respect to the grievant:

Based on the foregoing, I conclude that the appropriate remedy for a missed overtime assignment that was due to administrative error would be the payment of pay for the lost assignment, i.e., seven hours of overtime compensation, including commute and call back with interest. . . . In doing so, I found the evidence did establish that the aggrieved employee, [met all the criteria for an award of backpay under the Back Pay Act].

Award at 30-31 (emphasis added). The Arbitrator also noted that his decision "does not invalidate agreements to use comparable work assignments[,]" nor does it prevent the parties from imposing a limitation on backpay in other cases. Clearly, the Arbitrator did not state that in all cases, the proper remedy for a missed overtime assignment is backpay. Nor did the Arbitrator make a finding that all future grievants will meet the factual requirements for an award of backpay under the Back Pay Act.

Based on the foregoing, we conclude that the award is not deficient because the Arbitrator exceeded his authority.

V. Decision

The Agency's exceptions are denied.




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

1. As discussed in more detail infra, the Arbitrator restated the stipulated issue in the award without the words "in this case." See Award at 9.

2. The parties had historically bargained over and negotiated the appropriate remedy for administrative errors like the one at issue in this case. See Award at 4.

3. The Arbitrator issued his original award on October 30, 1997. See Exceptions, Appendix B. On October 31, 1997, the Arbitrator issued a corrected version of the final two pages--pages 30 and 31--of his award. See Exceptions, Appendix C. The parties do not dispute that it is the final version of the award, which includes the two corrected pages issued October 31, 1997, that is before the Authority.

4. The Authority has held that 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