United States Department of the Treasury, United States Customs Service, El Paso, Texas (Agency) and National Treasury Employees Union, Chapter 143 (Union)

[ v57 p724 ]

57 FLRA No. 153

UNITED STATES DEPARTMENT
OF THE TREASURY
UNITED STATES CUSTOMS SERVICE
EL PASO, TEXAS
(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION
CHAPTER 143
(Union)

0-AR-3393

_____

DECISION

April 3, 2002

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This matter is before the Authority on exceptions to a supplemental award of Arbitrator Carol Kyler filed by the Agency under § 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 supplemental award addresses a dispute regarding implementation of the Arbitrator's initial award of backpay. The supplemental award was issued after exceptions to the initial award were denied by the Authority in United States Dep't of the Treasury, U.S. Customs Service, El Paso, Tx., 55 FLRA 553 (1999) (El Paso).

      For the reasons explained below, we deny the Agency's exceptions to the supplemental award.

II.     Background and Arbitrator's Awards

      Grievances were filed after the Agency began using National Guard personnel, rather than unit employees, at two facilities -- the Bridge of the Americas (BOTA) and Ysleta. Prior to that time, the BOTA gate was not being staffed due to a shortage of Customs Inspectors. The Agency began using National Guard personnel at the BOTA gate, and then at the Ysleta gate, because of concerns about potential port runners. The Union claimed that the Agency violated the parties' regional and national agreements when it assigned National Guard personnel to the gates without also assigning a Customs Inspector to be present at, or in close proximity to, one of the gates.

      The Arbitrator upheld the grievances and ordered backpay, with interest, for all adversely affected employees. The Arbitrator also retained jurisdiction to address disputes concerning implementation of the award.

      The Agency excepted to the award on several grounds, including a claimed violation of the Back Pay Act. As relevant here, the Authority found in El Paso that the Arbitrator was not required to identify specific employees who were entitled to backpay in order for the award to be consistent with the Back Pay Act. In addition, the Authority held that "the Agency's complaint about the absence of appropriate records to substantiate the award [did] not implicate the requirements of the [Back Pay] Act but rather implicate[d] a matter of compliance and implementation." El Paso, 55 FLRA at 560.

      After El Paso was issued, the Union requested, and the Arbitrator agreed, to convene a hearing to resolve a dispute concerning implementation of the backpay award. The Arbitrator determined, over the Agency's objection, that she had retained jurisdiction to resolve disputes arising out of implementation of the initial award and, accordingly, she scheduled a hearing on the issue of backpay. Following the hearing, the Arbitrator issued the supplemental award to which the Agency now excepts.

      In the supplemental award, the Arbitrator reiterated her view that her retention of jurisdiction in this case was appropriate. The Arbitrator also found that a dispute existed as to the implementation of the backpay remedy in the initial award and that an evidentiary hearing was necessary to determine the specific amount of backpay to be paid to employees.

      The Arbitrator then addressed the requirements of 19 U.S.C. § 267 (Act of 1911), and the Federal Employees Pay Act (FEPA), 5 U.S.C. § 5542, to determine the amount of lost overtime for which backpay was due. Based on the evidence submitted into the record, the Arbitrator identified the total number of workdays that National Guard personnel staffed the BOTA and Ysleta gates. [n1]  Then, the Arbitrator identified the total number of workdays that Customs Inspectors were available to work, and would have worked, at each of the gates. Next, the Arbitrator calculated the total amount of overtime [ v57 p725 ] in "dots" or hours that the employees would have received had the Agency assigned them to the gates concurrently with National Guard personnel. [n2]  Award at 13-15.

      The Arbitrator remanded the issue of "overtime backpay compensation" to the parties for "final resolution" in accordance with the Act of 1911 and the FEPA. Id. at 15. The Arbitrator stated that there would be no award of backpay "wherein records (i.e., U.S. Custom Inspector Schedules and/or National Guard Schedules) reflect that the National Guard personnel were not present to staff either the BOTA or Ysleta exit gates" during the period at issue in this case. Id. The Arbitrator retained jurisdiction "in the event a dispute arises concerning the implementation of this Supplemental Award and the determination of the Union's request for attorney fees." Id. at 16.

III.     Positions of the Parties

A.     Agency's Exceptions

      First, the Agency claims that the supplemental award is contrary to El Paso because it requires backpay for times when a Customs Inspector was assigned to the gates. [n3]  The Agency argues that by awarding backpay under these circumstances, the Arbitrator "revis[ed]" the initial award. Exceptions at 7. According to the Agency, the supplemental award exceeds the scope of the Arbitrator's limited authority to resolve implementation issues as set forth in the initial award.

      Second, the Agency contends that the award is contrary to Authority case law and fails to draw its essence from the parties' national agreement by shifting the burden of proof from the grievant to the Agency. [n4]  In this regard, the Agency contends that the Arbitrator's calculations of damages were erroneous, insofar as she found that National Guard personnel worked at the gates on all possible work days, minus the days they were on training. According to the Agency, "[o]n the hundreds of other available workdays [when National Guard employees were not on training], the Arbitrator award[ed] back pay, essentially because the Agency did not prove that there was a Customs Inspector assigned to the gates, or that no National Guardsmen were assigned to the gates." Id. at 8-9. The Agency argues that backpay should be awarded in this case only for those occasions on which the Union demonstrates that a National Guard employee was actually assigned to a customs gate and a Customs employee was not also present.

      Third, the Agency claims that the award is contrary to the Back Pay Act. According to the Agency, "[b]y awarding back pay without a showing that there was no Customs Inspector assigned to the gates," the Arbitrator awarded backpay without finding that there was an employee adversely affected by an unjustified or unwarranted personnel action. Id. at 10.

      Fourth, the Agency claims that the Union is not entitled to interest payments from the period of July 2, 1993 to August 28, 1996. [n5]  The Agency argues that it would be inequitable to hold it responsible for paying interest on backpay when the Union "delayed for thirty-seven months" before taking steps to select an arbitrator for this case. Id. at 19. The Agency claims that the Authority should apply equitable principles here and, in so doing, issue "a prospective ruling on interest payments that precludes the Agency from incurring interest charges[,]" unless and until the Union is able to "identify the specific employees to be paid and the specific amounts owed." Id. at 22.

      Finally, the Agency opposes the Union's motion to strike Exhibits H and I. The Agency maintains that neither exhibit contains new evidence not previously submitted to the Arbitrator. [ v57 p726 ]

B.     Union's Opposition and Motion to Strike

      The Union claims that the supplemental award does not exceed the Arbitrator's authority because the award is directly responsive to the stipulated issues in the initial award, which included the question of an appropriate remedy. The Union also claims that the supplemental award is consistent with the Authority's decision in El Paso, which required the Agency to compensate employees for lost overtime pay. The Union states that the supplemental award simply calculates the amount of overtime. The Union adds that any disagreement over the Arbitrator's evaluation of the evidence on staffing of the gates provides no basis for finding the award deficient because it challenges the Arbitrator's factual findings.

      The Union further claims that the Arbitrator did not improperly shift the burden of establishing backpay and, as the Authority confirmed in El Paso, the Arbitrator applied the appropriate legal standard to support a backpay award. The Union also disputes the Agency's claim that the award of interest violates the Back Pay Act. First, the Union asserts that the Agency's claim is untimely. The Union notes that interest was awarded in the initial award and the Agency did not except to that portion of the award. Second, the Union maintains that the award of interest is not unlawful because interest must be paid on an award of backpay. Citing El Paso, the Union contends that the issue of whether the award of backpay itself complies with the Back Pay Act is res judicata.

      Finally, the Union moved to strike Agency Exhibits H and I on the basis that they contain new information that was not submitted previously to the Arbitrator.

IV.     Analysis and Conclusions

A.     Exhibit I is properly before the Authority; Exhibit H will not be considered

      The Authority's Regulations provide, in § 2429.5 and as relevant here, that "[t]he Authority will not consider evidence offered by a party . . . which was not presented in the proceedings before . . . the arbitrator." Contrary to the Union's claim, Exhibit I was clearly before the Arbitrator. This exhibit contains copies of various pages from the transcript of the initial hearing. Consequently, we deny the Union's motion to strike Exhibit I.

      Exhibit H, on the other hand, apparently was not presented to the Arbitrator. The Agency states that this exhibit "was provided [as part of its exceptions] simply for ease of use of the Authority and the Union." Agency's Opposition to Union's Motion to Strike at 2. The Agency contends that Exhibit H is merely a compilation of two other reports that had been provided to the Arbitrator. The record does not support this assertion.

      The record shows that Exhibit H is a one-page document entitled "Reports Showing Customs Inspectors at the Exit Gates." The document contains various dates on which Customs Inspectors purportedly worked overtime and whether that overtime was authorized under FEPA or the Act of 1911. The other two reports are entitled "Summary of Utilization of National Guard" at the BOTA and Ysleta gates, respectively. Each report is broken down by month and day and purports to show whether National Guard personnel did, or did not, work on each day. In our view, Exhibit H, which records overtime hours of Customs Inspectors, contains different information than the reports submitted to the Arbitrator, which record staffing of National Guard personnel. Thus, contrary to the Agency's assertion, Exhibit H is not merely a compilation of reports previously submitted to the Arbitrator. As Exhibit H could have been, but was not, presented to the Arbitrator, we find that the exhibit is not properly before us. As such, we will not consider it and we grant the Union's motion to strike Exhibit H. See, e.g., NAGE, Local R4-45, 53 FLRA 517, 519-20 (1997).

B.     The supplemental award is not contrary to El Paso and the Arbitrator did not exceed her authority

      The Agency claims that the award is contrary to El Paso by requiring the Agency to pay Customs Inspectors for occasions on which they worked at the exit gates and presumably have already been paid. The Agency points to the portion of El Paso in which the Authority stated that "the Agency is only required to compensate employees for lost overtime pay for the dates . . . on which it assigned National Guard personnel to staff the BOTA and Ysleta exit gates but failed to also assign a Customs employee." El Paso, 55 FLRA at 560. Also with respect to the award of backpay, the Agency claims that the Arbitrator exceeded the scope of her retained authority, which was limited to implementation issues.

      Contrary to the Agency's claim, we find nothing in the supplemental award that would obligate the Agency to provide backpay for periods when Customs Inspectors alone, that is, without National Guard personnel, were assigned to the gates and for which they have already been paid. In this connection, the Arbitrator specifically ordered that no backpay be paid where the records show that National Guard personnel did not staff the BOTA and Ysleta gates. Thus, if National [ v57 p727 ] Guard personnel were not assigned to the gates on particular dates, there would be no ground for awarding backpay to Customs Inspectors since the basis of the backpay award was the Agency's failure to assign a Customs Inspector at the same time National Guard personnel were assigned to the BOTA or Ysleta gates.

      On the occasions that National Guard personnel were assigned to the gates, we similarly find nothing in the supplemental award that would provide backpay to Customs Inspectors who also were assigned to the gates and who have been paid for that work. Although the Arbitrator did not expressly state that backpay was due only on the occasions when a National Guard individual was present at the gate and a Customs Inspector was not present, this is evident from other findings made by the Arbitrator. In particular, in calculating the total number of workdays during the period for which backpay was recoverable, the Arbitrator limited the workdays to those on which "a Customs Inspector would have been assigned . . . ." See, e.g., Award at 14. The Arbitrator made this finding with respect to each gate and each type of overtime -- namely, Act of 1911 or FEPA. Furthermore, as noted above, the Arbitrator held that no backpay was warranted where work schedules reflected that National Guard personnel did not staff the BOTA or Ysleta gates.

      Finally, the fact that the Arbitrator addressed the period of backpay recovery in the aggregate, that is, without identifying specific employees who were entitled to backpay, does not render the award deficient. In El Paso, the Authority rejected the Agency's claim that the award "fail[ed] to include a finding that the `affected employees' would actually have been assigned to staff the exit gate." 55 FLRA at 556 (quoting Agency's exceptions). Relying on long-standing precedent, the Authority held that the Arbitrator's findings that the Agency violated the parties' agreements and that such violation resulted in a loss of overtime pay for adversely affected employees, "sufficiently identified the specific circumstances under which Customs employees were entitled to backpay. There is no additional requirement for the Arbitrator to have identified specific employees." Id. at 560. Moreover, questions concerning the sufficiency of records to substantiate the award of backpay were found to be a matter of compliance with the award. In addressing issues of compliance that led to the supplemental award, there is no evidence that the Arbitrator was asked to identify specific employees to whom backpay should be given. Instead, the Arbitrator directed the parties to resolve this issue. Nothing in the Arbitrator's direction to the parties is contrary to law.

      In sum, as we read the supplemental award, backpay is limited to those occasions on which National Guard personnel were assigned to the gates and Customs Inspectors were not assigned to the gates but would have been assigned had it not been for the Agency's violations of the parties' regional and national agreements. We emphasize that the supplemental award does not require the Agency to provide backpay for employees who have already been compensated or for employees who were not adversely affected by the Agency's conduct within the meaning of the Back Pay Act. [n6] 

      We conclude that the Agency's exception does not establish that the award is contrary to El Paso or that the Arbitrator exceeded the scope of her authority. See AFGE, Local 1617, 51 FLRA 1645, 1647 (1996); United States Dep't of Veterans Affairs, Allen Park Veterans Admin. Med. Ctr., Allen Park, Mi., 40 FLRA 160, 168-70 (1991) (arbitrator did not exceed his authority when he issued a supplemental award clarifying scope of remedy set forth in initial and remand awards). Consequently, we deny this exception.

C.     The Arbitrator did not violate law and/or the parties' agreement in assessing the burden of proof

      Article 32, Section 7(I) of the parties' National Agreement provides that "[t]he grievant shall bear the burden of proving his case by a preponderance of the evidence . . . ." Exceptions at 8. The Agency contends that the Arbitrator improperly shifted the burden of proof from the grievant to the Agency and awarded backpay "essentially because the Agency did not prove that there was a Customs Inspector assigned to the gates, or that no National Guardsmen were assigned to the gates." Id. at 8-9. As a result, the Agency claims that the award fails to draw its essence from the parties' National Agreement and is contrary to Authority precedent.

      Authority precedent holds that where, as here, a standard of proof is set forth in a collective bargaining agreement, an arbitrator's failure to apply the prescribed standard will constitute a basis for finding the award deficient as failing to draw its essence from the agreement. See United States Dep't of the Navy, Navy Public Works Center, San Diego, Ca. 49 FLRA 553, 558 (1994). There is no evidence that the Arbitrator improperly placed the burden of proof on the Agency. The [ v57 p728 ] Arbitrator found, and the Agency does not dispute in this proceeding, that the Union, acting on the grievant's behalf, established that the Agency violated the parties' agreements by a preponderance of the evidence.

      More specifically with respect to the backpay award, the Agency similarly has not established that the Arbitrator improperly placed the burden of proof on the Agency. The record reflects that the Union submitted evidence to the Arbitrator identifying the number of days on which Customs Inspectors would have worked at the gates and the amount of overtime the employees would have received had they been assigned to the gates. See Union's Post-Hearing "Back Pay Brief," Attachment D to Union's Opposition. The Arbitrator's reliance on this evidence indicates that the Arbitrator placed the burden of proof on the Union. Moreover, as we stated above, there is no indication in the supplemental award that the Arbitrator was requested or required to identify specific employees for which an award of backpay was warranted.

      Based on the foregoing, we conclude that the exception does not establish that the award fails to draw its essence from the agreement. As the Agency points to no other contractual provision with which the award allegedly conflicts, we deny the exception.

D.     The supplemental award is not contrary to the Back Pay Act

      The Agency contends that, by awarding backpay without a showing that Customs Inspectors were assigned to the gates, the award fails to establish that employees were adversely affected by an unjustified or unwarranted personnel action, as required by the Back Pay Act.

      This argument is essentially the same argument as that advanced by the Agency in its exception to the initial award and in its present claim that the award is contrary to the decision in El Paso.

      As we stated in denying the exception to the initial award, there is no requirement to identify the specific employees who are entitled to backpay in order for the award to be consistent with the requirements of the Back Pay Act. We reject the Agency's attempt to relitigate an issue that has already been addressed and resolved by the Authority.

      As we stated in denying the claim that the award is contrary to El Paso, and for the reasons more fully explained in Part IV.B. of this decision, backpay is limited to those occasions on which National Guard personnel were assigned to the gates and Customs Inspectors were not assigned to the gates but would have been assigned had it not been for the Agency's violations of the parties' regional and national agreements.

      Finally, we reject the Agency's requests that the Authority limit the period of recovery on the award of interest and issue "a prospective ruling on interest payments . . . ." Exceptions at 22. Under the provisions of the Back Pay Act, 5 U.S.C. § 5596, "interest must be paid" on backpay awards. See United States Dep't of Defense, Marine Corps Logistics Base, Barstow, Cal., 37 FLRA 796 (1990). The Back Pay Act itself provides the method for computing interest. As such, we are bound to apply the requirements set forth therein. Under § 5596(b)(2)(B), interest "shall be computed for the period beginning on the effective date of the withdrawal or reduction involved and ending on a date not more than 30 days before the date on which payment is made[.]" § 5596(b)(2)(B)(i). In addition, in calculating the amount of backpay due, the Authority has held that there is "no basis in law or regulation on which to conclude that procedural delays form a basis to withhold the payment of interest under 5 U.S.C. § 5596(b)(2)(A)." Id. at 798. Applying the Back Pay Act to this case, we find that interest on the backpay award is owing from July 31, 1991, the date on which the withdrawal or reduction took place, and ending not more than 30 days from the date on which the Agency makes payment.

V.     Decision

      The Agency's exceptions are denied.



Footnote # 1 for 57 FLRA No. 153

   The Arbitrator did not include Sundays, holidays and training days in her calculation of workdays.


Footnote # 2 for 57 FLRA No. 153

   The Authority previously has found that a "dot" consists of a two-hour period of overtime work, or any fraction thereof of at least one hour. See NTEU, Chapter 143, 56 FLRA 304, 304 n.3 (2000). The Arbitrator's calculations were based on the presence of one Customs Inspector for each period of overtime worked, rather than two Inspectors as the Union had argued.


Footnote # 3 for 57 FLRA No. 153

   The Agency cites Exhibits H and I, attached to the exceptions, to support its claim that, on various occasions, Customs Inspectors were assigned to staff exit gates along with National Guard personnel. Exhibit H is a list of dates, claimed by the Agency to be derived from compilations of shift reports provided previously to the Arbitrator, on which Customs Inspectors were present at the gates. Exhibit I contains copies of various pages from the transcript of the initial hearing where, according to the Agency, "Union Counsel admitted that the compilation of shift reports shows that there were Customs [I]nspectors at the gates at times during the period in question." See Agency's Opposition to Union's Motion to Strike at 1.


Footnote # 4 for 57 FLRA No. 153

   The Agency cites Article 32, Section 7(I) of the parties' National Agreement, which states, in relevant part, that "[t]he grievant shall bear the burden of proving his case by a preponderance of the evidence . . . . " Exceptions at 8.


Footnote # 5 for 57 FLRA No. 153

   In the initial award, the Arbitrator ordered backpay, with interest, for adversely affected employees for the period July 31, 1991 to September 15, 1993. The Agency claims that no interest should be awarded for the time "[t]he Union invoked arbitration on July 2, 1993 . . . until August 28, 1996, when the Union called the Agency regarding dates for the arbitration." Exceptions at 19.


Footnote # 6 for 57 FLRA