United States, Department of Health and Human Services, Food and Drug Administration (Agency) and National Treasury Employees Union (Union)

[ v60 p250 ]

60 FLRA No. 56

UNITED STATES
DEPARTMENT OF HEALTH
AND HUMAN SERVICES
FOOD AND DRUG ADMINISTRATION
(Agency)

and

NATIONAL TREASURY
EMPLOYEES UNION
(Union)

0-AR-3828

_____

DECISION

September 16, 2004

_____

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 Otis H. King 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 exception. [n1] 

      The Arbitrator determined that the Agency violated the parties' collective bargaining agreement by scheduling a training course in a manner that required the employees to travel during non-duty hours. To remedy the violation, the Arbitrator directed the Agency to cease and desist from scheduling meetings in a manner that requires travel on non-work days and awarded the Union monetary damages.

      The Agency excepts only to the award of monetary damages to the Union. For the reasons that follow, we set aside that portion of the award. [ v60 p251 ]

II.     Background and Arbitrator's Award

      The affected employees are Consumer Safety Officers. The employees are exempt from the coverage of the Fair Labor Standards Act (FLSA). See Award at 1. The Agency scheduled the employees for a national two-day training session presented by Verbal Judo, a third-party vendor, for the dates of May 29-30, 2003. The training session started on a Thursday and ended on a Friday. This required the employees to travel back to their duty stations during non-duty hours on either Friday evening or Saturday.

      The Union filed a grievance over the scheduling of the training session. In step 1 of the grievance, the Union stated the following as the basis of the grievance:

By denying bargaining unit employees that are FLSA exempt from any form of compensation, such as Comp/ Overtime, for return travel from an event which could have been administratively controlled, the employ[er] is in violation of CBA Article 42, Section 1E and F. If the event could not have been administratively controlled by the employer, failing to compensate FLSA exempt employees by granting comp/overtime is in violation of 5 C.F.R. § 550.112(g)(2)(iv). [n2] 

Id. at 5.

      The grievance was unresolved and was submitted to arbitration. The Arbitrator adopted the Agency's statement of the issues as follows:

Did the Agency violate Article 42 Section 1E of the Collective Bargaining Agreement (CBA) by scheduling the Verbal Judo training course in the manner that required employees to travel during non-duty hours? If so, what should be the remedy? [n3] 

Id. 1.

      The Arbitrator found that it was undisputed that the Agency had control of the scheduling of the training sessions. See id. at 7. The Arbitrator added that, in these circumstances, the Agency was obligated under the parties' agreement to show that it was "not administratively feasible" to schedule the sessions in a manner as to avoid requiring the employees to travel during non-duty hours. Id. In this regard, the Arbitrator found that the Agency failed to present "one piece of evidence" that it met that obligation by engaging in negotiations with the vendor regarding not scheduling the sessions on Thursdays and Fridays. Id. The Arbitrator pointed out that the Agency "overlooked . . . it[s] . . . responsibility to represent the employees regarding their travel schedules." Id. The Arbitrator explained that:

The Arbitrator does not know whether it would have been possible to make other arrangements for the training. Perhaps not. The problem is that neither does the Agency as it did not exert a reasonable effort to find out. It made no request as to whether its preferred scheduled, one that would have benefitted its FLSA exempt employees, could have been accommodated. It simply accepted, apparently without negotiations or even discussion regarding an alternative, the dates presented[.]

Id. Therefore, the Arbitrator sustained the grievance.

      In assessing the appropriate remedy, the Arbitrator noted that the Union "acknowledged" that because the employees are exempt from the coverage of the FLSA, the employees were barred by 5 U.S.C. § 5542 from receiving overtime payment when in travel status. Id. at 8. The Arbitrator found that, instead of requesting overtime pay, the Union requested "time-off awards" for the affected employees. See id. The Arbitrator rejected the Union's request, and found that time-off awards were not applicable because those awards were "designed to be given to individuals or groups for meritorious service in the traditional sense[.]" Id. at 9.

      Further, the Arbitrator stated that the failure of the Agency "to make a reasonable effort to determine the feasibility of rescheduling the training sessions was a breach of its duty of good faith owed to the Union pursuant to its continuing responsibility under the CBA." Id. at 10. The Arbitrator found that, because the Agency breached its duty of good faith owed to the Union under the parties' agreement, the Union was entitled to monetary damages from the Agency. See id.

      Consequently, as a remedy, the Arbitrator directed the Agency "to cease and desist from scheduling meetings [ v60 p252 ] in a manner that requires non-workday travel when it is administratively feasible to do otherwise." Id. The Arbitrator also directed the Agency "to pay to the Union monetary damages in a sum to be determined by calculating the amount to which the employees who attend the May 29-30 training sessions would have received had they been entitled to pay for their travel." Id.

III.     Positions of the Parties

A.     Agency Exception

      The Agency contends that the award of monetary damages to the Union is contrary to law because it violates the doctrine of sovereign immunity. See Exception at 1, 3. The Agency argues that the grievance proceeded to binding arbitration in accordance with § 7121 of the Statute and that § 7121 does not authorize arbitrators to award monetary damages to a union for contract violations. The Agency further argues that § 7122(b) provides for the remedy of back pay under 5 U.S.C. § 5596 "to benefit employees not their Union." Id. at 6.

B.     Union Opposition

      The Union agrees that there is no statutory basis for the award of monetary damages to the Union. See Opposition at 1-2. The Union contends that, in cases such as here, where the underlying violation is upheld, but the remedy is set aside, the Authority has remanded awards to the parties for resubmission to the arbitrator to determine an alternative appropriate remedy. Id. at 2. In any event, the Union maintains that the Agency excepts only to the portion of the award providing for monetary damages and only that portion of the award should be set aside. See id. at 3.

IV.     Analysis and Conclusions

      The Authority reviews questions of law raised by an arbitrator's award and an exception to it de novo. NTEU, Chapter 24, 50 FLRA 330, 332 (1995). In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making such a determination, the Authority defers to the arbitrator's underlying factual findings. See id.

      The United States is immune from liability under the doctrine of sovereign immunity. See Lane v. Pena, 518 U.S. 187 (1996). Sovereign immunity can be waived by statute, but a waiver will be found only if "unequivocally expressed in statutory text . . . and will not be implied[.]" Id. at 192. Thus, a Federal agency will be subject to a monetary claim only if the statute on which the claim is based unambiguously establishes that the Government has waived its sovereign immunity to permit suit, and that the scope of that waiver extends to an award of money damages. Id. See also INS, Los Angeles Dist., Los Angeles, Cal., 52 FLRA 103 (1996). As such, an award by an arbitrator that an agency provide monetary damages to a union must be supported by statutory authority to impose such a remedy.

      Here, the Agency argues, and the Union concedes, that there is no statutory basis for the award of monetary damages to the Union. See Opposition at 1-2. Thus, as it is undisputed that there is no statutory basis for the award of monetary damages to the Union, we conclude that the portion of the award providing money damages to the Union violates the doctrine of sovereign immunity and is deficient as contrary to law. Accordingly, we set aside that portion of the award.

      The Union contends that, although there is no statutory basis for the remedy of monetary damages, the award should be remanded. In this regard, the Union asserts that in cases where the underlying violation is upheld but the remedy is set aside, the Authority has remanded awards to the parties for resubmission to the arbitrator to determine an alternative appropriate remedy.

      No remand is warranted in this case. As an initial matter, we note that, contrary to the Union's assertion, only part of the remedy for the underlying violation (the remedy of monetary damages) has been set aside. The other part of the Arbitrator's remedy, which directs the Agency to cease and desist from scheduling meetings in a manner that requires non-workday travel when it is administratively feasible to do otherwise, remains in effect. As such, this is not a case in which there is an unremedied violation, and, therefore, there is no basis for a remand in this case. See, e.g., United States Dep't of Justice, Federal Bureau of Prisons, Federal Correctional Complex, Beaumont, Tex., 59 FLRA 466, 468 (2003) (Chairman Cabaniss dissenting in part as to other matters) (DOJ Beaumont) (citing, among others, United States Dep't of Justice, Federal Bureau of Prisons, Federal Medical Center Carswell, Fort Worth, Tex., 58 FLRA 210, 212 (2002) (DOJ Carswell)).

      Moreover, insofar as the Union contends that the Authority always remands awards where the underlying violation is upheld but the remedy for the violation is set aside, such a contention is incorrect. In United States Dep't of Veterans Affairs, Cleveland Reg'l Office, Cleveland, Ohio, 59 FLRA 248 (2003) (Member Pope dissenting) (VA Cleveland), the Authority addressed what actions it would take in cases where it set aside the remedy but left undisturbed an arbitrator's finding of an [ v60 p253 ] underlying contractual violation. [n4]  The Authority stated that "[t]he question then becomes whether in this circumstance the Authority should direct further action, such as remanding the matter to the parties for further proceedings to give the arbitrator another opportunity to issue a legal remedy for the violation that he found." VA Cleveland, 59 FLRA at 251-52. The Authority concluded that the action it would take under the Statute would require "an individualized judgment to be determined on the facts and circumstances of each case." Id. at 252. In this regard, the Authority stated:

That action can take many different forms: setting aside the deficient remedy without further proceedings, modifying the remedy, remanding the case to the parties for submission to the same or different arbitrator, or possibly other variations. The guiding principle as to what particular action is necessary is whether an action, under the facts and circumstances presented, would promote the purposes and policies of the Statute.

Id.

      Accordingly, the Union is incorrect in contending that a remand is warranted in this case simply because the remedy of monetary damages is set aside.

V.     Decision

      The portion of the award providing for monetary damages to the Union is set aside.


APPENDIX

5 C.F.R. § 550.112(g) provides, in relevant part:

Computation of overtime work.

      The computation of the amount of overtime work of an employee is subject to the following conditions:

. . . .

      (g) Time in travel status. Time in travel status away from the official duty station of an employee is deemed employment only when:

(1) It is within his regularly scheduled administrative workweek, including regular overtime work; or
(2) The travel -

. . . .

(iv) Results from an event which could not be scheduled or controlled administratively, including travel by an employee to such an event and the return of the employee to his or her official-duty station.



Footnote # 1 for 60 FLRA No. 56 - Authority's Decision

   The Agency filed an unsolicited response to the Union's opposition to the Agency's exception. As the Authority's Regulations do not provide for the filing of supplemental submissions, and as the Agency failed to request permission to file its submission under § 2429.26, the Authority has not considered the submission. See, e.g., Sport Air Traffic Controllers Organization, 55 FLRA 34, 34 n.1 (1998).


Footnote # 2 for 60 FLRA No. 56 - Authority's Decision

   5 C.F.R. § 550.112(g), in relevant part, is set forth in the appendix.


Footnote # 3 for 60 FLRA No. 56 - Authority's Decision

   Article 42, Section 1E provides:

If the Employer determines that travel on a non-workday is the most effective and efficient means for accomplishing the mission of the Agency and the scheduling of the meeting that the employee has to attend is outside the control of the FDA, then the employee may be required to travel on a non-workday. If the meeting is within the control of the Employer, and it is administratively feasible, the FDA has determined that it will reschedule the meeting to avoid required travel on non-workdays. This Section does not apply to travel associated with foreign inspections and investigations or emergency travel, which may require travel on non-workdays.

Footnote # 4 for 60 FLRA No. 56 - Authority's Decision

   Member Pope notes that consistent with DOJ Beaumont and DOJ Carswell, it is unnecessary to address whether the award would be remanded under