United States, Department of Justice, Federal Bureau of Prisons, Federal Correctional Complex, Beaumont, Texas (Agency) and American Federation of Government Employees, Council of Prisons Local C-33 (Union)

[ v59 p466 ]

59 FLRA No. 75

UNITED STATES
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL COMPLEX
BEAUMONT, TEXAS
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
COUNCIL OF PRISONS LOCAL C-33
(Union)

0-AR-3675

_____

DECISION

December 8, 2003

_____

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

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Russell C. Neas 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. [n2] 

      The Arbitrator found that the Agency violated the parties' agreement by placing the grievant on home duty without just cause. He sustained the grievance and ordered backpay for lost overtime, shift differential, and Sunday work, and a promotion with backpay.

      For the reasons that follow, we find that portions of the award are contrary to law and we set aside those portions.

II.     Background and Arbitrator's Award

      Upon completion of an investigation by the Agency involving alleged misconduct of the grievant, a correctional officer, the Agency placed the grievant on home duty for security reasons and because of a different, ongoing investigation conducted by the Office of Inspector General (OIG). The Union filed a grievance alleging that the Agency took this action without just cause and failed to give the grievant fair and equitable treatment regarding promotional, overtime, shift differential, and Sunday work opportunities. The grievance was unresolved and submitted to arbitration where the Arbitrator framed the issues as whether the Agency had just cause for placing the grievant on home duty and whether the Agency violated the parties' agreement by giving the grievant unfair and inequitable treatment. [n3] 

      Relying on his findings of numerous improper actions taken by the Agency during its investigation of the grievant's alleged misconduct, the Arbitrator concluded that there was no just cause for placing the grievant on home duty and that this action violated Article 6, Section b-2 of the parties' agreement because the grievant was not treated fairly and equitably. [n4]  According to the Arbitrator, the grievant was "damaged by the actions of the Agency" with regard to loss of pay for overtime, shift differential, and Sunday work, which were not available to the grievant during the period he was on home duty even though he was "interested" in such benefits. Award at 72, 56. The Arbitrator also found that the grievant was "denied a promotion for which he was well qualified, because he was under investigation." Id. Accordingly, the Arbitrator sustained the grievance and issued, as relevant here, the following award: (1) backpay for lost overtime, shift differential, and Sunday work, computed on the basis of the average amount paid to correctional officers during the time period the grievant was on home duty; and (2) a promotion, with backpay retroactive to the date of the grievance. [n5]  [ v59 p467 ]

III.     Agency's Exceptions

      The Agency contends that the award of a promotion with backpay is contrary to the Back Pay Act because the Arbitrator failed to find a direct causal connection between the violation of the agreement and the grievant's failure to be promoted. In this regard, the Agency asserts that the Arbitrator did not find that the grievant would have been selected for a promotion "but for" the fact that the Agency improperly placed the grievant on home duty and failed to consider him. Exceptions at 4.

      The Agency also contends that the Arbitrator's award of backpay for overtime, shift differential, and Sunday work is contrary to the Back Pay Act. In this regard, the Agency claims that the process for obtaining certain shifts is "not an automatic one" and it would be "speculative to assert that a[n] employee would be guaranteed a certain amount of overtime, Sunday pay, or other differentials . . ." Id. at 5. The Agency argues that the Arbitrator's determination that the grievant was "`interested'" in the benefits at issue does not establish the causal findings necessary to satisfy the requirements of the Back Pay Act. Id. (quoting Award at 56).

IV.     Analysis and Conclusions

      The Agency contends that the award of a promotion with backpay, and backpay with respect to overtime, shift differential, and Sunday work is contrary to the Back Pay Act, 5 U.S.C. § 5596. The Authority reviews questions of law de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA , 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.

      Under the Back Pay Act, 5 U.S.C. § 5596(b)(1), an award of backpay is authorized only when an arbitrator 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. See SSA, Office of Hearings and Appeals, Falls Church, Va., 55 FLRA 349, 353 (1999).

      With regard to the first requirement, the Authority has held that a violation of a collective bargaining agreement constitutes an unjustified or unwarranted personnel action within the meaning of the Back Pay Act. See United States Dep't of Defense, Dep't of Defense Dependents Schools, 54 FLRA 773, 785 (1998). The Arbitrator found, and the Agency does not dispute, that the Agency violated Article 6, Section b-2 of the parties' agreement. The Agency contends that the second requirement has not been met with regard to either the award of a promotion with backpay or the award of backpay with respect to overtime, shift differential and Sunday work. We address the two portions of the award separately.

      With regard to the promotion portion of the award, the Arbitrator found that the grievant was "denied a promotion for which he was well qualified, because he was under investigation." Award at 72. The Arbitrator made no other findings supporting the award. In particular, the Arbitrator made no finding that the grievant applied for, or would have been selected for, a specific promotion if the Agency had not violated Article 6, Section b-2 of the parties' agreement by placing the grievant on home duty. In fact, the only discussion of the promotion issue in the award, other than the above statement, is the Arbitrator's statement that the Union made the following argument:

The Agency denied [the grievant] promotional opportunities while he was on home duty because he was under investigation, thereby denying him due process.

Award at 37.

      Consistent with the foregoing, nothing in the Arbitrator's award or the record supports finding that there is a causal connection between the violation of Article 6, Section b-2 and the award of a promotion with backpay. Accordingly, we find that the promotion portion of the award is deficient as contrary to the Back Pay Act. See SSA, Office of Hearings and Appeals, Paducah, Ky., 58 FLRA 124, 125-26 (2002) (award that did not reflect any connection between the failure to follow promotion procedures and the failure of the grievant to be selected for promotion found deficient); SSA, Office of Hearings and Appeals, Orlando, Fla., 54 FLRA 609, 614 (1998) (same).

      Regarding the portion of the award granting backpay for overtime, shift differential, and Sunday work, the Arbitrator determined that the grievant was "interested" in these benefits and awarded the grievant the "average" amount of these benefits paid to correctional officers during the relevant time period. Award at 56, 73. However, the Arbitrator did not find that but for the Agency's violation of the parties' collective bargaining agreement, the grievant, even if interested, would have [ v59 p468 ] been offered specific overtime assignments, shift differentials, and Sunday work. There is also no finding by the Arbitrator that the grievant, if offered this work, would have been available to perform it or would have worked the amount of time necessary to receive the average amount paid to correctional officers during the relevant time period. In this regard, the Agency asserts, and the Union does not dispute, that employees are not guaranteed a certain amount of overtime, shift differentials, or Sunday work.

      Nothing in the Arbitrator's award or the record supports a determination that, but for the Agency's violation of Article 6, Section b-2 of the parties' agreement, the grievant would have worked a specific amount of overtime on specific days, different shifts, or on Sundays. As such, we find that the award of backpay for overtime, shift differentials and Sunday work is deficient as contrary to the Back Pay Act. See Navy Public Works Ctr., Norfolk, Va., 33 FLRA 592, 599 (1988) (award of retroactive overtime pay calculated to bring the grievant's yearly total into balance with two other employees violated Back Pay Act where arbitrator did not find that, but for the agency's violation of the parties' agreement, the grievant would have performed specific overtime assignments and received overtime pay); see also United States Dep't of the Air Force, Warner Robins Air Force Base, Ga., 56 FLRA 541, 543 (2000) (award violated Back Pay Act where the arbitrator did not find that the grievant suffered an actual, as opposed to potential, loss of a monetary award); AFGE, Local 1857, 35 FLRA 325, 328 (1990) (award of retroactive overtime pay violated the Back Pay Act where the arbitrator did not find that, but for the agency's violation of the parties' agreement, the grievant would have worked a specific amount of overtime on specific days).

      Accordingly, we find that the portions of the award granting a promotion with backpay, and backpay for overtime, shift differential, and Sunday work are deficient as contrary to the Back Pay Act, and we set aside those portions of the award. See United States, DOJ, Fed. Bureau of Prisons, Fed. Med. Ctr. Carswell, Fort Worth, Tex., 58 FLRA 210, 212 (2002) (setting aside promotion and backpay award without remanding where other portion of the award was left undisturbed); AFGE, Local 1587, 35 FLRA at 328 (setting aside backpay award for overtime).

V.     Decision

      The portions of the award granting a promotion with backpay, and backpay with respect to overtime, shift differential, and Sunday work are set aside. We leave undisturbed the other portions of the award. See n.5, supra.


Opinion of Chairman Cabaniss, Dissenting in Part:

      I write separately regarding the majority's failure to raise and address a sovereign immunity issue that was not identified by the parties. Sovereign immunity issues are jurisdictional in nature, cannot be waived, and are subject to being raised at any stage of the proceedings. See, e.g., Dep't of the Army v. FLRA, 56 F.3d 273, 275 (D.C. Cir. 1995). Additionally, "the Authority may question, sua sponte, whether it has subject matter jurisdiction to consider the merits of a dispute." United States Small Bus. Admin., Wash., D.C., 51 FLRA 413, 423 n.9 (1995) (citing to United States Dep't of the Army, Army Reserve Pers. Ctr., 34 FLRA 319 (1990)).

      In the present circumstances, I am aware of no waiver of sovereign immunity that would permit this grievant to be compensated for his personal gym expenses incurred as a result of a contract violation. Even though the parties did not choose to address the legality of this remedy, I would take this opportunity to apprize the parties of the legally improper nature of this award, lest the Authority condone an improper waiver of sovereign immunity.



Footnote # 1 for 59 FLRA No. 75 - Authority's Decision

   The opinion of Chairman Cabaniss, dissenting in part, is set forth at the end of this decision.


Footnote # 2 for 59 FLRA No. 75 - Authority's Decision

   The Unio