61 FLRA No. 5

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

I.      Statement of the Case

      This case is before the Authority on exceptions to an award of Arbitrator Charles H. Frost filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition.

      The grievance concerns the Agency's transfer of a Union steward from the second shift to the first shift. The Arbitrator found that the Agency violated the parties' agreement by transferring the steward and ordered that he be made whole.

      For the following reasons, we deny the Agency's exceptions.

II.      Background and Arbitrator's Award

      The grievant in this case is a Union steward and, at the time of the events underlying this grievance, was the senior steward on the second shift. The Agency eliminated his work unit on that shift and transferred him to the first shift.

      In responding to the grievance regarding the shift change, the Agency stated that the transfer was within its rights under the parties' agreement. According to the Agency, it complied with the agreement by conferring with the Union president prior to the transfer and obtaining the Union's concurrence. However, noting that the Union desired the steward's representational services on the second shift, the Agency agreed to reassign the steward to a different work unit on the second shift and to provide such training as management determined to be necessary. The Agency maintained that the steward was not qualified to operate the equipment used by the work unit on the second shift and did not reassign him until he had completed appropriate training. The Agency denied any other relief.

      The steward worked approximately 5 months on the first shift while being trained and before being returned to the second shift. Because the steward received a shift differential for working on the second shift, the parties discussed, but were unable to reach an agreement as to, back pay for the steward during this period. [n1]  The Union submitted the grievance to arbitration alleging that the steward should be made whole for the period he spent on the first shift.

      According to the Arbitrator, the parties stipulated the issue as follows:

Did management violate the negotiated agreement when it changed the shift of the Chief Steward? If so, what will the proper remedy be?

Award at 3.

      The Arbitrator cited Article 7, Section 4 of the parties' agreement which provides, in relevant part, as follows:

. . . [T]he Union representative(s) will be the last employee(s) within his job rating and level to be transferred or changed to another work week or shift and the first returned. Changes affecting such Union representatives will be discussed with the Union in advance in a continuing effort to avoid misunderstandings as to the reasons for the Employer's action. The intent of this section is to avoid, to the maximum extent possible, the transfer of such Union representatives from one area of their responsibilities, shift, or workweek, to another.

Exceptions, Enclosure 1 at 6 (quoted in Award at 6-7 (emphasis omitted)). [ v61 p39 ]

      Applying this provision to the facts of the grievance, the Arbitrator found that the Agency eliminated the steward's work unit, but not "the entire second shift." Award at 7. The Arbitrator also found that not "all Wage Grade 11 machinists were eliminated from the second shift." Id. Further, noting testimony as to the training given the steward and the Agency's response to the grievance over the shift change, the Arbitrator found that the response did not state that the steward's "transfer back to the second shift [was] contingent upon the completion [of], or indeed even exposure to, these (or any other) training programs." Id. Finally, the Arbitrator found that the record of the Agency's meeting with the Union president prior to the transfer of the steward "was too general and unspecific to be accorded significant weight." Id. at 7-8.

      Based on these considerations, the Arbitrator concluded that the Agency violated the parties' agreement when it changed the steward's shift and ordered that the steward "be made whole for the pay and benefits he lost" during the period when he "was improperly transferred from the second shift to the first shift." Id. at 9.

III.      Positions of the Parties

A.      Agency's Exceptions

      The Agency claims that the award impermissibly conflicts with the Agency's rights to assign employees and assign work under § 7106(a)(2) of the Statute. The Agency asserts that the right to assign employees includes the right to determine the qualifications and skills necessary to perform the work of a position and to assess whether a particular employee possesses those qualifications and skills. The Agency maintains that in order to enforce a contractual provision that affects management's right to assign employees or assign work, or any other management right under § 7106(a), an arbitrator must determine, "as a matter of law," whether the provision is a procedure or an appropriate arrangement and the Arbitrator in this case did not make that determination. Exceptions at 7 (citing United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Transfer Ctr., Oklahoma City, Okla., 58 FLRA 109 (2002). The Agency claims that enforcement of the award would "abrogate a management right" and, thus, that the award is unlawful. Exceptions at 6.

      Secondly, the Agency acknowledges that a violation of a collective bargaining agreement is "the functional equivalent" of an unjustified or unwarranted personnel action for purposes of an award of back pay under the Back Pay Act, 5 U.S. § 5596. Id. at 8. The Agency maintains, however, that the Back Pay Act requires a causal connection between the contract violation and the loss of pay, allowances, or differentials. The Agency argues that such a causal connection is missing in the circumstances of this case. The Agency contends that the Arbitrator's failure to make the requisite finding of a causal connection renders the award contrary to law.

B.      Union's Opposition

      The Union states that the Agency provides no support for its claim that the award is contrary to § 7106. According to the Union, the award is consistent with management's rights because the Arbitrator found that the Agency had the option to assign the steward to any of four other work units on the second shift. The Union asserts that the Agency has consistently agreed to the inclusion of Article 7, Section 4 in the agreement without alleging that it violated management's rights. The Union contends that the Arbitrator properly applied the Back Pay Act in this case.

IV.      Analysis and Conclusions

      The Authority reviews questions of law raised by exceptions to an arbitrator's award 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.

      In resolving whether an arbitrator's award violates management's rights under § 7106 of the Statute, the Authority applies the framework established in United States Dep't of the Treasury, Bureau of Engraving & Printing, Wash., D.C., 53 FLRA 146 (1997) (BEP). Upon finding that an award affects a management right under § 7106(a), the Authority applies a two-prong test to determine if the award is deficient. Under prong I, the Authority examines whether the award provides a remedy for a violation of either applicable law, within the meaning of  § 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to § 7106(b) of the Statute. BEP, 53 FLRA at 152-53. Under prong II, the Authority considers whether the arbitrator's remedy reflects a reconstruction of what management would have done if it had not violated the law or contractual provisions at issue. id. at 154.

      The Agency raises for the first time in its exceptions its claim that the decision to transfer the steward [ v61 p40 ] from the second shift to the first shift affects management's right to assign employees under § 7106(a)(2)(A). There is no indication in the record that the Agency presented this argument to the Arbitrator. In particular, the Agency argued to the Arbitrator that its actions constituted an exercise of its rights to assign work, determine the mission of the Agency, and take whatever actions might be necessary to carry out the mission of the Agency in an emergency. The Agency made no reference to the right to assign employees. Because the issue was not presented to the Arbitrator, it is not properly before the Authority under § 2429.5 of the Authority's Regulations. See, e.g., United States Dep't of the Army, The Adjutant General, Missouri Nat'l Guard, Bridgeton, Mo., 56 FLRA 1104, 1106 (2001).

      Regarding the Agency's exception based on the right to assign work, we note that the Agency stated before the Arbitrator, and also in its exceptions, that Article 7, Section 4 affects management's right to assign work under
§ 7106(a)(2)(B) of the Statute. However, neither before the Arbitrator nor in its exceptions did the Agency explain how the limits imposed by Article 7, Section 4 on management's ability to assign the steward to a different shift involved the exercise of its right to assign work. Thus, the Agency's statements are nothing more than bare assertions. Under Authority case precedent, bare assertions provide no basis for finding an award deficient. See, e.g., United States Dep't of Veterans Affairs, VA Reg'l Office, St. Petersburg, Fla., 58 FLRA 549, 552 n.3 (2003) (Member Pope concurring); United States Dep't of the Treasury, United States Customs Serv., El Paso, Tex., 55 FLRA 553, 558 n.3 (1999).

      With respect to the Agency's back pay exception, the Authority has consistently held that, under the Back Pay Act, 5 U.S.C. § 5596(b)(1)(A)(i), 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 United States Dep't of Health & Human Servs., 54 FLRA 1210, 1218-19 (1998). The Back Pay Act requires, in this regard, that on correction of an unjustified or unwarranted personnel action, the employee is entitled to receive for the period for which the personnel action was in effect "an amount equal to all or any part of the pay, allowances, or differentials, as applicable which the employee normally would have earned or received during the period if the personnel action had not occurred[.]" See United States Dep't of Veterans Affairs, Med. Ctr., Ann Arbor, Mich., 56 FLRA 216, 224 (2000) (quoting 5 U.S.C. § 5596(b)(1)(A)(i)).

      The Agency contends that the Arbitrator's award is deficient under the Back Pay Act because it fails the second part of the Authority's test, namely, that the Arbitrator did not find a causal connection between that personnel action and his make whole remedy. The Authority has held, in this regard, that a finding of a causal connection may be implicit from the record and the award. See, e.g., United Stated Dep't of the Army, Anniston Army Depot, Anniston, Ala., 46 FLRA 974, 976 (1992). Moreover, as noted above, when arbitrators correct an unwarranted or unjustified personnel action, they are authorized, under the Back Pay Act, to order the payment of any compensation, allowances, or differentials that the affected employee normally would have earned or received during the period if the personnel action had not occurred.

      The Arbitrator found that the Agency violated Article 7, Section 4 of the parties' agreement when it transferred the Union steward from the second shift to the first shift. There is no dispute that the steward suffered the loss of the second shift differential during the period that he was improperly assigned to the first shift. The Arbitrator's make whole award implicitly found that the steward suffered a loss as a result of the Agency's violation of the parties' agreement and the record confirms that the loss was the amount of second shift differential he did not receive during the time of his assignment to the first shift. Consequently, the award establishes the causal connection between the unjustified and unwarranted personnel action and the loss suffered as result of that action. The award, therefore, is consistent with the Back Pay Act. See, e.g., United States Dep't of Hous. & Urban Dev., Reg'l Office, Atlanta, Ga., 41 FLRA 520, 524-26 (1991); Veterans Admin. Med. Ctr., Leavenworth, Kan., 24 FLRA 902, 904-05 (1986).

V.      Decision          

      The Agency's exceptions are denied.

   According to the Agency, "[t]here is a 7% pay differential for employees working the second (swing) shift." Exceptions at 2 n.1.