United States , Department of Agriculture, Federal Grain Inspection Service Grain Inspection Packers and Stockyards Administration (Agency) and American Federation of Government Employees, Local 3157 (Union)

[ v58 p98 ]

58 FLRA No. 19

UNITED STATES
DEPARTMENT OF AGRICULTURE
FEDERAL GRAIN INSPECTION SERVICE
GRAIN INSPECTION, PACKERS AND
STOCKYARDS ADMINISTRATION
(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3157
(Union)

0-AR-3429

_____

DECISION

September 12, 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 an exception to an award of Arbitrator Gary C. Raffaele 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 did not file an opposition to the Agency's exception.

      The Arbitrator determined that a disputed overtime assignment was not in accordance with the parties' collective bargaining agreement and awarded the grievants backpay. For the following reasons, we find that the award of backpay is deficient.

II.     Background and Arbitrator's Award

      The grievance in this case contended that certain overtime assignments for inspection employees were not made in accordance with the parties' collective bargaining agreement. Article 11, Section 1(L) of the agreement provides, in pertinent part, that "[t]op priority employees will be assigned the basic positions at the elevator/worksite which is projected by union and management to work the most hours."

      On the weekend in dispute, the top priority employees were assigned to the ADM elevator, rather than the Bunge elevator. However, they were not needed for the full Sunday shift and were "knocked-off" 5 hours early. Award at 5. The lower priority employees assigned to the Bunge elevator worked their entire overtime shift on Sunday. The employees assigned to the ADM elevator filed the grievance and claimed that they were due 5 hours of overtime because the priority designation had been incorrect and, if it had been correct, they would have worked their entire shift at the Bunge elevator.

      The Arbitrator sustained the grievance "in part." Id. at 12. He found that "[t]he Agency did not fully carry out [its] responsibilities under Article 11, Section 1(L) in the assignment of the top priority employees" on the disputed weekend. Id. As a remedy, he awarded each of the grievants 5 hours of overtime.

      The Arbitrator noted that under Section 1(L), the assignment of priorities is the responsibility of both parties, but that the parties were not in agreement on how the responsibilities are jointly carried out. The Arbitrator explained that part of the problem in this case was due to a change in Union representatives. Two weeks prior to the weekend in dispute, the responsible Union representative was promoted out of the unit and resigned his Union position. According to the Arbitrator, there was little, or no, communication between the promoted representative and his replacement as to the responsibilities of the Union in designating overtime assignments.

      In the Arbitrator's view, the "grievance [wa]s the result of neglect on the part of both parties." Id. at 10. He found that agency officials chose to ignore responsibility for designating priorities while waiting for the new Union representative to assume the responsibilities of the former representative. The Arbitrator noted the Agency's claim that the Union representative "should have taken initiative on the weekend in question." Id. However, the Arbitrator found that agency officials "took no action to give him the information[.]" Id. The Arbitrator viewed it "unacceptable" for the Agency to take the position that it is the Union's responsibility for assigning priorities, while, at the same time, "not get[ting the Union] the information needed to make those priorities." Id.

      Accordingly, in answer to the question of whether the Agency followed the procedures of Article 11, Section 1(L) in the assignment of overtime, he ruled "yes and no." Id. at 11. The affirmative answer was based on the Arbitrator's "opinion that the greater burden to carry out this assignment rested with the Agency supervisors, since they were in a position to both receive and disseminate the full information needed to make and [sic] appropriate priority designation." Id. The Arbitrator concluded that "the supervisor knew the union official [ v58 p99 ] did not have such information and was not attempting to get it, yet allowed the procedure to fail." Id. On this basis, the Arbitrator ruled that the overtime assignment for the weekend in dispute was not in accordance with the parties' collective bargaining agreement and awarded the grievants "5 hours of overtime." Id. at 12.

      For purposes of clarification, the Agency (with the Union's knowledge) asked the Arbitrator whether the grievants were to receive the opportunity to work 5 hours of overtime or whether they were to receive 5 hours of overtime as backpay. The Arbitrator replied that the 5 hours was backpay "[a]ssuming [that] this is within Federal regulations." Arbitrator's e-mail of June 13, 2001. He stated that "[i]f the regulations are otherwise, then it would be five hours of overtime work at the next opportunity." Id.

III.     Agency's Exception

      The Agency contends that to the extent that the Arbitrator has ordered backpay, the award is deficient because it is contrary to the Back Pay Act, 5 U.S.C. § 5596. The Agency asserts that the award of backpay does not meet the requirements of the Act. The Agency does not except to the Arbitrator's clarified award of an alternative remedy of providing the grievants with the opportunity to work the next available 5 hours of overtime, in the event that an award of backpay is not authorized. [n1] 

      The Agency first argues that to the extent that the Arbitrator found that it violated Article 11, Section 1(L), the violation does not constitute the required unjustified or unwarranted personnel action because the priority designation of overtime assignments is not nondiscretionary. In addition, the Agency argues that, in any event, the award is deficient because there is no causal connection between the violation and the 5 hours of overtime not worked by the grievants. The Agency claims that the Arbitrator did not find that had the assignment of overtime been designated in accordance with the agreement, the priority designation would have resulted in assigning the grievants to the Bunge elevator. The Agency maintains that "[a]t best, the elevator/worksite that worked the most hours was known after the hours were actually worked." Exception at 2.

IV.     Analysis and Conclusions

      The Agency contends that to the extent that the Arbitrator has awarded backpay, the award is contrary to law. When a party's exception disputes an award's consistency with law, we review the question of law raised by the award and the exception de novo. See NTEU Chapter 24, 50 FLRA 330, 332 (1995).

      An award of backpay by an arbitrator is authorized under the Back Pay Act only when: (1) the aggrieved employees were affected by an unjustified or unwarranted personnel action; and (2) the personnel action resulted in a loss of pay, allowances, or differentials by the employees. See, e.g., United States Dep't of the Air Force, Warner Robins Air Force Base, Ga., 56 FLRA 541, 543 (2000). In determining whether an award of backpay is deficient, we examine whether there has been an unjustified or unwarranted personnel action and whether there is a causal connection between the unwarranted personnel action and the loss of pay, allowances, or differentials. See id. With respect to the requirement of a causal connection, we typically examine whether the arbitrator has found that but for the unwarranted action, the loss of pay, allowances, or differentials would not have occurred. See United States Dep't of Health and Human Services, 54 FLRA 1210, 1218-19 (1998) (an e