United States, Department of the Navy, Puget Sound Naval Shipyard and, Intermediate Maintenance Facility, Bremerton, Washington (Agency) and Bremerton Metal Trades Council, (Union)

[ v59 p932 ]

59 FLRA No. 167

UNITED STATES
DEPARTMENT OF THE NAVY
PUGET SOUND NAVAL SHIPYARD AND
INTERMEDIATE MAINTENANCE FACILITY
BREMERTON, WASHINGTON
(Agency)

and

BREMERTON
METAL TRADES COUNCIL
(Union)

0-AR-3769

_____

DECISION

May 12, 2004

_____

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 an exception to an award of Arbitrator Richard W. Croll 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 sustained a grievance alleging that the grievant lost an overtime opportunity due to the Agency's violation of a Memorandum of Understanding and was entitled to lost pay resulting from that missed overtime opportunity.

      For the following reasons, we set aside the award.

II.     Background

      The Agency and the Union were parties to a collective bargaining agreement that set forth the procedure to be used to assign overtime. Award at 2. When the Agency established the Pumpwell Roving Watch Crew (PRWC), a crew that would provide 24 hour surveillance of the facility, the Agency and Union entered into a Memorandum of Understanding (MOU) that applied to the handling of unscheduled time off and overtime for the PRWC, specifically dictating the steps the Agency would take to provide coverage for unscheduled time off. [n2]  Award at 3-4.

      The Agency stipulated that it violated the MOU on October 13, 2001. Id. at 4. On that date, an employee from the PRWC called in sick. Id. According to the MOU, the first step to cover unscheduled time off was to use the second employee on the same shift and pay that employee straight time. Id. at 3. The next step was for the Agency to contact any employee on regularly scheduled time off and pay the covering employee overtime. Id. On October 13, although there were three employees on regularly scheduled time off, the foreman called only one employee, who refused the assignment. Id. at 4. Subsequently, in order to cover the shift, the foreman assigned one employee to stay an extra one half of a shift and one employee to report for duty one half of a shift early. Id.

      The grievant, one of the two employees on regularly scheduled time off who was not contacted, filed the instant grievance. Id. The Agency, in an attempt to settle the grievance, offered the grievant the next overtime opportunity. Id. at 4. The parties were unable to resolve the grievance and the matter went to arbitration. The parties agreed that the issue for arbitration was "should the [g]rievant be awarded overtime." Id. at 5.

      The Agency presented six arguments. First, the Agency argued that after the first employee was contacted and refused the assignment, time was short and the Agency had to act. Id. In addition, the Agency explained that because there were two employees on regularly scheduled time off who were not called, there was no guarantee that the grievant would have been offered the overtime opportunity. Award at 5. Next, the Agency asserted that the MOU did not provide a remedy for a violation. Id. The Agency also contended that it was "unable to determine the facts behind the packet of grievances submitted by the Union showing a past practice of paying overtime, Union #7." See id. Then, the Agency alleged that the circumstances did not meet the requirements of the Back Pay Act. Id. Finally, the Agency stated that paying the grievant for work he did not perform was not an appropriate remedy and that the Agency had offered an appropriate remedy by offering the grievant the next opportunity to work overtime. Id.

      The Union argued that the Agency violated the MOU and that the Agency had a past practice of paying [ v59 p933 ] overtime for such a violation. Id. The Union offered a "packet of decisions" to support its argument. Id.

      The Arbitrator, agreeing with the parties, found that neither the agreement nor the MOU specified a penalty for the violation of "mis-assigned overtime." Id. In order to support their arguments about the appropriate penalty, each party offered into evidence prior awards. Id. at 6. The Arbitrator concluded that the awards submitted by the Agency had minimal precedential value because they did not involve the same parties involved in this grievance. Id. On the other hand, the Arbitrator determined that the awards submitted by the Union had heightened precedential value because they concerned the same parties and were "very similar to the grievance before [the Arbitrator]." Id. at 7.

      The Arbitrator disregarded the Agency's argument that the grievant may have not have been called and assigned the overtime because there was another employee eligible for the assignment. Id. at 7. The Arbitrator stated that the Agency's argument was moot because the other employee did not file a grievance related to the failure to contact. Id.

      The Arbitrator, concluding that the Agency was arguing that despite the admitted violation, a penalty was not warranted, explained that a penalty is warranted any time there is a violation of an agreement. Award at 7-8. The Arbitrator stated, "[the Agency] is not only not accepting a penalty, through [its] proposal that the [g]rievant work the next available overtime, [it] is penalizing the Employee who otherwise would have worked that overtime." See id. at 8.

      The Arbitrator awarded the grievant overtime pay and determined that the award was consistent with the "resolution of the previous grievances with similar fact patterns." See id.

III.     Agency's Exception

      The Agency argues that the Arbitrator erroneously rejected the application of the Back Pay Act. Exception at 4. The Agency asserts that the award is inconsistent with the Back Pay Act because the Arbitrator did not find that the grievant was affected by an unwarranted or unjustified personnel action and lost pay as a result of such an action. Id. at 4-5. The Agency argues that it is not clear an unwarranted or unjustified personnel action took place and even assuming that there was an unjustified or unwarranted personnel action, the grievant did not suffer a loss of pay as a result of that action. Id. at 5.

      The Agency alleges that the burden is on the grievant to prove that the unwarranted or unjustified personnel action resulted in the loss of pay. Id. at 6 and n.8 (citing 5 C.F.R. § 550.804). The Agency maintains that the grievant could not prove that he lost pay as a result of the Agency's violation because he did not prove that he would have been the employee called to work the overtime or that he would have agreed to work the overtime. Id. at 7. According to the Agency, the MOU did not require it to contact the eligible employees in any sort of order. Id. Thus, the Agency reasons that the grievant could only prove that he had, at most, a fifty percent chance of being assigned the overtime as there were two employees eligible under the established process. Exception at 7. The Agency asserts that even if the grievant could prove that he would have been called, which he cannot, the grievant must also prove that he would have accepted the assignment. Id. Because the grievant did not testify at the hearing, the Agency argues that there is no evidence the grievant would have accepted the overtime if offered. [n3]  Id. at 7-8.

      Finally, the Agency contends that the grievant only demonstrated a possibility that he lost pay and therefore, an award of back pay is not justified under the Back Pay Act. Id. at 8. The Agency points out that the Arbitrator ordered the back pay based on the belief that "awarding back pay to the grievant would impress on the employer that even unavoidable violations of the contract must result in a penalty . . . ." See id. at 8. The Agency asserts that an award of back pay must be consistent with the Back Pay Act and cannot be based only on a desire to penalize an agency. Id. at 9 and n.14 (citing Def. Sec. Assistance Dev. Ctr., 59 FLRA 270 (2003)). The Agency argues that because there was no proof that the grievant lost pay, the Arbitrator misapplied the Back Pay Act by awarding the grievant overtime pay. Exception at 9.

      The Union did not file an opposition to the Agency's exception.

IV.     Analysis and Conclusions

      The Agency argues that the Arbitrator's award is contrary to the Back Pay Act. When a party's exception involves an award's consistency with law, the Authority reviews the question of law and the arbitrator's award de novo. 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 de novo standard of review, the Authority assesses whether the [ v59 p934 ] arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. Id.

      Under the Back Pay Act, 5 U.S.C. § 5596(b)(1), an award of back pay is authorized only when an arbitrator finds that: (1) the aggrieved employee was affected by an unjustified or 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). An arbitrator's award of back pay must be supported by the arbitrator's factual findings. United States Dep't of Health and Human Serv., 54 FLRA 1210, 1219 n.9 (1998) (citing United States Dep't of Veterans Affairs, Medical Ctr., Kansas City, Mo., 51 FLRA 762, 767 (1996)).

      With regard to the first requirement, although the Agency argues that it is not clear that the grievant was affected by an unwarranted or unjustified personnel action, the Agency stipulated to a violation of the MOU. Exception at 5 and n.7; Award at 4. The violation of an MOU constitutes an unwarranted or unjustified personnel action within the meaning of the Back Pay Act. United States Dep't of Health and Human Serv., Soc. Sec. Admin., San Francisco Region, 48 FLRA 293, 304 (1993).

      With regard to the second requirement, the Agency argues that even if the grievant was affected by an unwarranted or unjustified personnel action, the grievant did not suffer a "loss of pay as a result of that action." Exception at 5. The Arbitrator did not make any factual findings that the grievant would have been offered the overtime opportunity nor did he find that the grievant was available to work the overtime. The Arbitrator dismissed the Agency's argument that the grievant may not have been given the opportunity to work the overtime because he was only one of two employees eligible for the overtime, stating, "[t]he issue is made moot, as the other employee who was [eligible] did not file a grievance." Award at 6. The Arbitrator, focusing on the idea that every violation warrants a penalty, concluded, "[i]n this case the [Agency] is not only not accepting a penalty, through [its] proposal that the [g]rievant work the next available overtime, [it] is penalizing the Employee who otherwise would have worked that overtime." See id. at 7-8. The Arbitrator made no findings supporting the conclusion that the grievant would have actually been offered and worked the overtime and therefore was entitled to back pay.

      Nothing in the award or the record supports a conclusion that the Agency's admitted violation of the MOU resulted in grievant actually losing pay. As such, the award of back pay violates the Back Pay Act and is deficient as contrary to law. See United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Complex, Beaumont, Tex., 59 FLRA 466, 468 (2003) (BOP Beaumont).

      Although a remand was appropriate in United States Dep't of Hous. and Urban Dev., 59 FLRA 243 (2003) (HUD), that case is distinguishable from the present case. In HUD, the Arbitrator "made a finding of fact when he determined that sufficient work was available . . . [for] two of the three grievants" and determined that but for the agency's violation of the collective bargaining agreement, the grievants would have been promoted. HUD, 59 FLRA at 246. Because the arbitrator awarded all three grievants promotion with back pay, despite finding that there was only enough work for two of the grievants to be promoted, the Authority remanded for the arbitrator to "determine, if possible, which two of the three GS-13 grievants would have been promoted." Id.

      The present case, like BOP Beaumont, presents a situation where nothing in the Arbitrator's award or the record supports a conclusion that there was a causal connection between the Agency's violation of the collective bargaining agreement and the award. The Arbitrator never found that "but for" the Agency's actions the grievant would have been available and would have accepted the overtime assignment. In BOP Beaumont, the Authority set aside an award granting a promotion with back pay and back pay for overtime, shift differential and Sunday work as contrary to the Back Pay Act because the arbitrator never found that the grievant applied for or would have been selected for the promotion if the agency had not violated the agreement or that the grievant would have been offered or available for overtime assignments, shift differentials and Sunday work. BOP Beaumont, 59 FLRA at 468. Given the above, we set aside the award.

V.     Decision

      The award is set aside because it is inconsistent with the Back Pay Act. [ v59 p935 ]


APPENDIX

Collective Bargaining Agreement
Article 08 - Overtime

0801     Policy. It is the Employer's policy to assign overtime as reasonably and fairly as possible among qualified employees in accordance with their particular qualifications and the Shipyard's need for overtime work. The Employer shall determine the qualifications needed to perform the assignments and shall select and assign from qualified employees accordingly. An employee will be relieved from an overtime assignment upon request when a qualified substitute is available, can be spared to work the overtime, and the use of a substitute does not delay or increase the cost of accomplishing the work. The immediate supervisor will provide notice of availability of overtime within the immediate work crew. The supervisor will consider volunteers from outside the work crew provided the employee desiring consideration for overtime assignment is qualified to perform the work, can be spared from other work, and makes his/her availability known in advance of the overtime assignment to the appropriate supervisor in accordance with that particular Shop/Code practice. Whenever possible and in accordance with Section 0701, an employee will not be required to work more than thirteen (13) consecutive days. The Employer reserves the right to require employees to report for overtime work.

Memorandum of Understanding - August 20, 2001

7. Reliefs for unscheduled time off will be covered in the following order:

1.      Second person on watch - straight time.
2.      Any person J'd out [on regularly scheduled time off] from any shift - overtime.
3.      Dayshift:
A.     Mon. - through - Fri., Qualified Pumpwell Maintenance Crew - Straight time,
B.     Sat & Sun, Any person J'd out from any shift - overtime . . . .

Dissenting Opinion of Member Pope:

      The majority sets aside the award on the ground that the Arbitrator did not find the causal connection necessary to award backpay. I agree that the Arbitrator did not make this finding. What the majority misses, however, is that: (1) the Arbitrator expressly did not make this finding because he believed the issue was moot; and (2) it is not possible on the record before the Authority to determine whether the causal connection has been established. In these circumstances, precedent supports a conclusion that the award should be remanded.

      As the majority notes, the Arbitrator did not make a factual finding that the grievant would have worked the disputed overtime. See Majority Opinion at 6. In fact, the Arbitrator made no findings one way or the other, refusing to resolve the Agency's argument that there was one other employee (in addition to the grievant) who could have been assigned the overtime. This is because the Arbitrator found the Agency's argument "moot, as the other employee . . . did not file a grievance." Award at 7.

      The Arbitrator's conclusion that the issue whether the grievant would have worked the disputed overtime was moot is incorrect. This is because, to award backpay, it is necessary to find that the Agency's -- conceded -- violation of the parties' agreement resulted in a reduction in the grievant's pay. See, e.g., United States Dep't of Hous. and Urban Dev., 59 FLRA 243, 246 (2003) (HUD). The majority does not dispute that it is not possible from the record to determine whether the grievant would have worked the past overtime. Accordingly, the award should be remanded to the parties for settlement and/or resubmission to the Arbitrator for resolution of this matter. See id.; United States Dep't of Educ., 50 FLRA 34, 37-38 (1994).

      In refusing to remand the award, the majority makes two errors: it improperly relies on United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Complex, Beaumont, Tex. (BOP, Beaumont), 59 FLRA 466, and improperly distinguishes HUD.

      In BOP, Beaumont, the arbitrator awarded backpay for a retroactive promotion -- as well overtime, shift differential, and Sunday pay in which the arbitrator found the grievant was "interested" -- based on the agency's improperly placing the grievant on "home duty." Id. at 466. On review, the Authority set aside the backpay award, noting that there was nothing in the record indicating that the grievant ever applied for a promotion and no basis to conclude that the grievant [ v59 p936 ] would have been assigned any particular overtime, shift differential, or Sunday work. Id. at 467-68. In the case now before us, by contrast, the Agency concedes both that it violated the parties' agreement by the manner in which it made the one, disputed overtime assignment and that either the grievant or the other employee would have been assigned the overtime if the assignment had been proper. This is a far cry from BOP, Beaumont.

      In HUD, the arbitrator found that, but for the agency's violation of the parties' agreement, two employees would have been promoted. As the arbitrator was unable to determine which two of the three grievants would have been promoted, he promoted all three with backpay. On review, the Authority set aside the backpay award because there was no causal connection between the agency's violation and the loss of pay "by any or all of the three grievants." 59 FLRA at 246. The Authority remanded the award because the arbitrator "did not determine which two employees . . . would have been promoted" and the Authority could not "make that determination based on the record[.]" Id.

      The majority states that HUD does not apply here because, unlike HUD, the Arbitrator in the case now before us never found that but for the Agency's violation the grievant would have received additional pay. See Majority Opinion at 7. The majority is missing the forest for the trees. As in HUD, the Arbitrator in the case now before us did not find the necessary causal connection between the Agency's violation of the parties' agreement and a loss of pay. Also as in HUD, it is not possible based on the record to determine whether the grievant suffered such loss. The fact that the arbitrator in HUD refused to find the causal connection for one reason (because he could not determine which two grievants would have been promoted) and the Arbitrator in the case now before us refused to do so for a different reason (because he believed the issue moot) is irrelevant. Accordingly, as in HUD, the award should be remanded.

      Based on the foregoing, I dissent.



Footnote # 1 for 59 FLRA No. 167 - Authority's Decision

   Member Pope's opinion, dissenting in part, is set forth at the end of this decision.


Footnote # 2 for 59 FLRA No. 167 - Authority's Decision

   The relev