United States, Department of the, Air Force, 6TH Air Mobility Wing, Macdill Air Force Base, Macdill Air Force Base, Florida (Respondent) and American Federation of Government Employees, Local 153 (Charging Party)

[ v59 p38 ]

59 FLRA No. 9

UNITED STATES
DEPARTMENT OF THE
AIR FORCE, 6TH AIR MOBILITY WING
MACDILL AIR FORCE BASE
MACDILL AIR FORCE BASE, FLORIDA
(Respondent)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
LOCAL 153
(Charging Party)

AT-CA-01-0851

_____

DECISION AND ORDER

August 19, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.     Statement of the Case

      This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the Respondent. The General Counsel filed an opposition to the Respondent's exceptions.

      The complaint alleges that the Respondent violated §§ 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to properly implement an arbitration award. The Judge concluded that the Respondent violated the Statute as alleged.

      Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions and recommended Notice and Order to the extent consistent with this decision.

II.     Background and Judge's Decision

      In his decision, the Judge determined that the Respondent violated § 7116(a)(1) and (8), 7121 and 7122 by failing to properly implement an arbitration award. Specifically, the Respondent was charged with failing to reinstate a grievant pursuant to the terms of an arbitration award. Upon review, the Judge determined that the arbitrator's award and a letter clarifying the award were unambiguous and that they required the Respondent to reinstate the grievant to a position similar to the one from which he was dismissed within two pay periods. In this respect, the Judge paraphrased the arbitrator's clarification letter which stated in pertinent part:

a. As soon as practical, but no later than two pay periods [the grievant] was to be reinstated to a position similar to that which he occupied immediately prior to his termination. The Arbitrator referred to evidence submitted at the hearing which, "strongly suggested that he performed needed work on a Civil Engineering position immediately before his removal from his service and following his removal from the Firefighter/Driver Operator position. Consequently, he is to be placed on [sic] that position, or the position which more closely reflects the duties actually performed."
b. [The grievant] was to be paid according to the pay grade commensurate with the duties actually performed immediately prior to his termination unless applicable regulations required that he be paid at the GS-06 rate which was applicable to his position as a firefighter and at which he was paid while in the temporary position prior to his termination.

Decision at 3-4.

      Moreover, the Judge noted that the clarification letter did not alter the terms of the original award, nor did it set a time limit on the Respondent's duty to find a new job for the grievant. Additionally, the Judge determined that neither the award nor letter of clarification limited the Respondent to search for positions at Avon Park Bombing Range, the last location the grievant worked, but required the Respondent to also search for positions at MacDill Air Force Base given the grievant's willingness to relocate.

      Accordingly, the Judge determined that the Respondent's contention at the hearing, i.e., that it needed to only search for such a position for two pay periods and then it could stop, was "diametrically opposite to the plain meaning of the award." Decision at 6. Moreover, the Judge noted that the Respondent, at the employee's discretion, should have searched for an appropriate position not only at Avon Park Bombing Range but also at MacDill Air Force Base. As such, the Judge determined that the Respondent violated [ v59 p39 ] § 7116(a)(1) and (8), 7121 and 7122 by failing to properly implement an arbitration award. As a remedy, the Judge recommended awarding the grievant a retroactive reinstatement with back pay and interest to February 5, 2001, and required the Respondent to post a notice at both MacDill Air Force Base and Avon Park Bombing Range stating that it would "not fail or refuse to abide by and implement the final and binding award" of the arbitrator. Decision at 11.

III.     Positions of the Parties

A.     Respondent's Exceptions

      The Respondent argues that the arbitrator's award was ambiguous and that its interpretation was reasonable. It states that the arbitrator's conclusion that the "Grievant . . . is to be reinstated to employment as soon as practical, but no later than two pay periods following receipt of this Award," can be reasonably interpreted to mean "the Respondent must look for two pay periods and if no position is found or there is no need for anyone to perform the duties that [the grievant] had previously been performing after his removal as a firefighter, the Respondent can terminate its search." Exceptions at 4. The Respondent supports this interpretation noting that the arbitrator stated, "Placement on [sic] such a position is dependent on a vacancy and a need to perform the duties involved as determined by Management under the provisions of Article 4 of the Memorandum of Agreement." Id. at 4-5. Finally, the Respondent argues that the arbitrator's award was ambiguous because it did not specify at which location the Respondent should look in trying to find the grievant another position. Id.

      Further, the Respondent argues that the Judge's order of back pay is contrary to the arbitrator's award. The Respondent argues that in his award the arbitrator stated that the, "Grievant . . . is not entitled to any back pay between May 19, 2000, and the date of his reinstatement in consideration of the seriousness of his offense. Further, such period of time is to be considered as a suspension and be handled in accordance with applicable regulations." Exceptions at 10. Accordingly, the Respondent argues that because no exceptions to the award were filed, the Judge cannot substantively review the award. Id. (citing Navy Public Works Ctr., Norfolk, Va., 15 FLRA 296 (1984) (Navy Public Works).

      Finally, the Respondent contends that if back pay is awarded, it should begin two pay periods after the arbitrator amended/clarified his original award on September 5, 2001. In this respect, it argues that the Judge's determination that such back pay should begin on February 5, 2001, is incorrect. Exceptions at 11.

B.     General Counsel's Opposition

      The General Counsel argues that the arbitrator's award was not ambiguous and that the Respondent merely failed to abide by its terms. In this respect, the General Counsel argues that the Respondent's underlying duty to reinstate the grievant was never ambiguous. Opposition at 5.

      In the alternative, the General Counsel argues that the Respondent failed to make even a minimum attempt under its interpretation of the award to find the grievant a position. In this regard, it notes that the Respondent issued a statement only three weeks after the arbitrator's clarification stating that because no positions were available at that time to accommodate the grievant, "he will not be reinstated." Id. at 6. As such, the General Counsel contends that the Respondent only searched for a position for the grievant for two weeks, rather than two pay periods, before terminating the search. Accordingly, the General Counsel argues that the Respondent's efforts to comport with even its own interpretation of the award falls short.

      Moreover, the General Counsel argues that the location in which the Respondent was required to search for a position was not important. The General Counsel argues that Avon Park is "simply a work location within the MacDill bargaining unit." Id. at 8.

      Additionally, the General Counsel argues that back pay should be provided from the date the arbitrator's award became final and binding. The General Counsel contends that not allowing back pay from this point would only reward the Respondent for its decision not to comply with the award. Moreover, the General Counsel argues that the grievant should be paid back pay based on his last position even where the arbitrator determined that the Respondent could have offered the grievant a lower graded position. Id. at 12.

      Finally, the General Counsel agrees that the Judge made a typographical error in awarding retroactive back pay to February 5, 2001. It states that the appropriate date is October 5, 2001, which is consistent with the Respondent's argument. Id. at 12-13.

IV.     Analysis and Conclusions

A.     The Arbitrator's Award Requiring the Respondent To Look for a Position for Two Pay Periods Was Not Ambiguous

      The Authority has found that failing to comply with an unambiguous arbitrator's award violates § 7116(a)(1) and (8) of the Statute. United States Dep't [ v59 p40 ] of the Treasury, IRS, Austin Compliance Ctr., Austin, Tex., 44 FLRA 1306, 1315 (1992), reconsideration denied, 45 FLRA 525 (1992). Where an arbitration award is ambiguous, however, the Authority examines whether the agency's construction of the award is reasonable in determining whether the agency adequately complied with the award. Id. at 1316.

      In determining whether the arbitrator's award, as clarified, was ambiguous, we turn first to the language in dispute. The Respondent claims the following language from the clarification is ambiguous, "[the] Grievant . . . is to be reinstated to employment as soon as practical, but no later than two pay periods following receipt of this Award." Exceptions at 6, Arbitrator's Letter of Clarification/Joint Exhibit 5 at 3. Based on this alleged ambiguity, the Respondent believes it was reasonable to merely search for a position for the grievant for two pay periods and then stop once it determined it could not place the grievant.

      Contrary to the Respondent's argument, the plain language of the clarification does not relieve the Respondent of its responsibility to reinstate the grievant after two pay periods if it has not been able to reinstate the grievant within that time frame. Rather, the clarified award straightforwardly requires the Respondent to reinstate the grievant as "soon as practical" but not later than the two pay period time frame. [n2] As such, because the arbitrator's clarification is not ambiguous as to the requirement that the Respondent reinstate the grievant within the two pay period time frame, the Respondent's contention that the clarification is ambiguous is without merit. [n3] 

B.     The Judge's Remedy of Back Pay is Appropriate

      Under the Back Pay Act, 5 U.S.C. § 5596(b)(1), an award of back pay is authorized only when an appropriate authority finds that: (1) the aggrieved employee was affected by an unjustified and unwarranted personnel action; and (2) the personnel action resulted in the withdrawal or reduction of the employee's pay, allowances, or differentials. [n4] United States Dep't of Defense, Educ. Activity, Arlington, Va., 56 FLRA 1009, 1013 (2000). Here, the Judge determined that the grievant was affected by an unjustified or unwarranted personnel action that resulted in the reduction of all or part of the pay of the grievant as the Respondent committed an unfair labor practice when it failed to comply with the arbitrator's award.

      The Respondent argues that because the arbitrator found that no back pay was warranted, the Judge's decision to find a back pay remedy was contrary to the award. In so arguing, the Respondent cites to Navy Public Works where the Authority stated:

While the Judge recommended that the Respondent also "make whole the Union and affected employees for any other losses suffered as a result of Respondent's failure and refusal to implement that award," the Authority shall order only that the Respondent be ordered to pay the environmental differential in accordance with the arbitrator's award, as neither the evidence nor the Judge's decision establish a basis to support any additional remedy.

15 FLRA at 296 n.2.

      The decision in Navy Public Works is clearly distinguishable from the present matter. Here, the Judge found that the actions of the Respondent amounted to an unjustified or unwarranted personnel action which led to the grievant's loss of pay. Accordingly, the Judge determined that because of the Respondent's failure to implement the arbitrator's award, the grievant was entitled to the statutory remedy of back pay under 5 U.S.C. § 5596(b)(1). As such, unlike the case cited by the Respondent, the findings of the Judge clearly establish a basis for the recommended remedy under the Back Pay Act.

      Moreover, we disagree with the Respondent that the Judge in this matter issued a decision that was inconsistent with the arbitrator's award or amounted to what the Respondent contends is an "unlawful substantive review." Exceptions at 10. Rather, the Judge determined that given the Respondent's refusal to timely implement the award and the subsequent loss of pay that resulted, the grievant was entitled to back pay under the Back Pay Act. Under these circumstances, the recommendation for the payment of back pay is premised squarely on the Respondent's failure to abide by the [ v59 p41 ] terms of the arbitrator's award and is not, as argued by the Respondent, inconsistent with the arbitrator's award. Accordingly, we find that the Respondent has not shown that the Judge's decision to recommend back pay is erroneous. [n5] 

C.     The Judge's Recommended Date to Begin the Payment of Back Pay is Modified

      Finally, the record supports finding that retroactive back pay should begin on October 5, 2001, as opposed to February 5, 2001. In this respect, we note that October 5, 2001, would be approximately two pay periods after the September 5, 2001, letter of clarification. Accordingly, the Order will be modified.

V.     Order

      Pursuant to section 2423.41 of our Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the United States Department of the Air Force, 6th Air Mobility Wing, MacDill Air Force Base, MacDill Air Force Base, Florida, shall:

      1. Cease and desist from:

           (a) Failing and refusing to abide by and implement the final and binding award of Arbitrator Thomas K. Goldie in FMCS Case No. 01-02679.

           (b) In any like or related manner, interfering with, restraining, or coercing unit employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

      2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

           (a) Comply with the final and binding award of Arbitrator Thomas K. Goldie in FMCS Case No. 01-02679 by reinstating Ronald L. Cherrier to a position with duties identical or similar to the duties he performed immediately prior to his removal from employment. Reinstatement is to be retroactive to October 5, 2001, [n6] along with back pay and interest, at a rate of pay commensurate with the duties actually performed by Ronald L. Cherrier immediately prior to his removal from employment or at the rate of pay at which he was actually paid if required by applicable regulations.

           (b) Post at MacDill Air Force Base and Avon Park Bombing Range, where bargaining unit employees represented by the American Federation of Government Employees, Local 153 are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Base Commander, and shall be posted and maintained for 60 consecutive days in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

           (c). Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director, Atlanta Region, Federal Labor Relations Authority, in writing within 30 days from the date of this Order, as to what steps have been taken to comply.


NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the United States Department of the Air Force, 6th Air Mobility Wing, MacDill Air Force Base, MacDill Air Force Base, Florida, violated the Federal Service Labor-Management Relations Statute, and has ordered us to post and abide by this Notice.

We hereby notify employees that:

WE WILL NOT fail or refuse to abide by and implement the final and binding award of Arbitrator Thomas K. Goldie in FMCS Case No. 01-02679.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL comply with the final and binding award of Arbitrator Thomas K. Goldie in FMCS Case No. 01-02679 by reinstating Ronald L. Cherrier to a position with duties identical or similar to the duties he performed immediately prior to his removal from employment. Reinstatement is to be retroactive to October 5, 2001, along with back pay and interest, at a rate of pay commensurate with the duties actually performed by Ronald L. Cherrier immediately prior to his removal [ v59 p42 ] from employment or at the rate of pay at which he was actually paid if required by applicable regulations.

      ______________________
(Activity)

Dated:__________ By:______________________

      (Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Atlanta Regional Office, Federal Labor Relations Authority, whose address is: Marquis Two Tower, 285 Peachtree Center Avenue NE, Suite 701, Atlanta, Ga. 30303, and whose telephone number is: (404) 331-5300.


Concurring Opinion of Member Armendariz:

      I join my colleagues in finding that the Respondent violated the Statute by failing to comply with a final and binding arbitration award. I write separately to set forth the basis on which I find a violation and to address the matter of remedy in these circumstances.

      The clarified award, dated September 5, 2001, set forth the facts and circumstances and concluded in relevant part:

Accordingly, [the grievant] is to be reinstated to employment as soon as practical, but no later than two pay periods following receipt of this Award. He is to be reinstated to a position similar to that occupied immediately before his removal from the service and such reinstatement is to be in accordance with applicable provisions of the Memorandum of Agreement and pertinent regulations.
A. The placement is to be on a position that encompasses duties similar to those actually performed by the [g]rievant immediately prior to his removal from the service or on a position which best reflects such duties.
B. Placement on such a position is dependent on a vacancy and a need to perform the duties involved as determined by Management . . . .

Joint Exh. 5 at 3.

      In my view, the award clearly required the Respondent to reinstate the grievant within two pay periods of the Respondent's receipt of the award. Further, rather than specifying the exact position to which the grievant was to be reinstated, the award gave the Respondent discretion in finding an appropriate position. In this regard, the Arbitrator ordered reinstatement to a "similar" position to the one that the grievant had occupied; stated that the position was to encompass "duties similar to those actually performed by the [g]rievant immediately prior to his removal from the service or on a position which best reflects such duties"; and made it clear that reinstatement was "dependent on a vacancy" (in other words, that reinstatement did not require the removal of another employee from a position) and that there was "a need to perform the duties involved as determined by Management . . . ." Id.

      The Respondent did not reinstate the grievant within two pay periods of its receipt of the award. Therefore, the Respondent did not comply with a clear requirement of the award, and its failure to comply with this clear requirement constitutes an unfair labor practice.

      I note that the Respondent reads the award not as requiring it to reinstate the grievant within two pay periods, but only as requiring it to search for a position for two pay periods. I do not believe that such a reading of the clarified award is a reasonable one in these circumstances. However, even if it were, the Respondent did not conduct a search for two pay periods (that is, for 4 weeks after receipt of the September 5 clarified award). Rather, the record reflects that on September 26, 2001--before the expiration of the two pay periods specified in the award--the Respondent notified the Union that there were no positions available and that the grievant would not be reinstated. Accordingly, even under the Respondent's strained interpretation of the clarified award, the Respondent failed to comply with the award by prematurely terminating its search for an available position.

      To remedy the Respondent's failure to comply with the clarified award, I would order the Respondent to reinstate the grievant within two pay periods of the date of our decision in this case, consistent with the discretion given to it by the Arbitrator, as set forth above.

      I agree with my colleagues that the grievant is entitled to backpay from October 5, 2001, until the grievant is reinstated.


File 1: Authority's Decision in 59 FLRA No. 9 and Opinion of Member Armendariz
File 2: ALJ's Decision


Footnote # 1 for 59 FLRA No. 9 - Authority's Decision

   Member Armendariz's concurring opinion is set forth at the end of this decision.


Footnote # 2 for 59 FLRA No. 9 - Authority's Decision

   Article 4, entitled "Management Rights," which takes its language directly from § 7106(a) of the Statute, does not relieve the Respondent from its underlying obligation to search for a suitable vacancy for the grievant, and does not permit the Respondent to terminate its search, which did not even last two full pay periods. Joint Exhibit 1 at 11.


Footnote # 3 for 59 FLRA No. 9 - Authority's Decision

   While we note that the