American Federation of Government Employees, Local 1441 (Union) and United States, Department of the Army, U.S. Army Corps of Engineers, St. Paul District (Agency)

[ v61 p201 ]

61 FLRA No. 39

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1441
(Union)

and

UNITED STATES
DEPARTMENT OF THE ARMY
U.S. ARMY CORPS OF ENGINEERS
ST. PAUL DISTRICT
(Agency)

0-AR-3943

_____

DECISION

August 31, 2005

_____

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 Richard John Miller filed by the Agency and the Union under § 7122 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, and the Agency filed an opposition to the Union's exceptions. [n2] 

      The Arbitrator found that the Agency violated the parties' collective bargaining agreement and the grievant's seasonal employment agreement, and failed to comply with regulations governing reductions-in-force (RIFs), by failing to provide the grievant with a layoff notice and by releasing the grievant from work prior to completing the winter work season without applying RIF procedures.

      For the following reasons, we remand this matter to the parties for resubmission to the Arbitrator, absent settlement. To the extent that an award of backpay remains after the Arbitrator makes additional findings, the Arbitrator is directed to award interest on any remaining backpay and to award any leave to which the grievant would be entitled. The remaining exceptions are denied.

II.     Background and Arbitrator's Award

      The grievant is a permanent, seasonal employee who has a seasonal employment agreement with the Agency. [n3]  The grievant works several months of the year and is subject to annual layoff during the winter.

      Prior to 2003, the grievant received a written layoff notice each November, even if he subsequently was asked to extend his employment agreement and work through the winter. When the grievant did not receive a written layoff notice in November 2003, he asked his second-line supervisor about it. The supervisor told the grievant that there was available work and asked whether the grievant would be able to work through the winter, as he had done in previous years. The grievant agreed to do so.

      In December 2003, due to budgetary restraints, the Agency decided to place seasonal employees held over for the winter into a non-pay, non-duty status. As a result, the grievant was released from work for fourteen weeks, until the spring season began.

      The grievant filed a grievance, which was unresolved and submitted to arbitration. The Arbitrator framed the issue, in pertinent part, as follows: "Did the Agency violate the Parties' Labor Agreement, federal regulation(s) and/or past practice by laying off the Grievant . . .? If so, what is the appropriate remedy?" Award at 3.

      The Arbitrator found that, in every year but 2000 -- his first year working for the Agency -- the grievant had been asked, and agreed, to extend his employment agreement and work through the winter. In addition, the Arbitrator found that, in every year but the year at issue here, the grievant had received a written layoff notice, as required by Article 20 of the parties' agreement. [n4] 

      [ v61 p202 ] The Arbitrator determined that, based on the Agency's past practice and the grievant's experience, "the [g] rievant had reasonable expectations of working the entire year[]" in the circumstances of this case, and that the grievant had "agreed to extend his Seasonal Employment Agreement and work through the winter of 2004[.]" Id. at 6. As the Agency released the grievant from work before the end of the winter season, the Arbitrator found that the release was not in accordance with the grievant's seasonal employment agreement.

      The Arbitrator determined that releasing the grievant in a manner inconsistent with his seasonal employment agreement was a furlough that triggered the grievant's right to have RIF procedures apply, and that the Agency "failed to follow RIF procedural requirements." Id. at 15. The Arbitrator also determined that the Agency violated 5 C.F.R. § 340.402(a), which states, in pertinent part, that "[s]easonal employment may not be used as [a] substitute for full-time employment or as a buffer for the full-time workforce." Specifically, the Arbitrator determined that, by laying off the grievant while work was available, the Agency effectively "buffered the full-time work force from possible layoffs[.]" Id. at 20.

      Further, the Arbitrator found that the Agency's failure to provide the grievant with a written layoff notice was inconsistent with the parties' collective bargaining agreement. Specifically, the Arbitrator determined that, under Article 20, Section 2, the proper procedure would have been for the Agency to give the grievant a written layoff notice and then ask him to stay on to perform work over the winter season.

      As a remedy, the Arbitrator awarded the grievant 552 hours of backpay, finding that the Union's request for that amount was "a reasonable request based upon the evidence." Id. at 21. The Arbitrator denied the Union's request that the grievant receive "the return of 33 days annual leave that the [g]rievant would not have taken had he expected to be laid off so early in the season." Id. at 22. In this regard, the Arbitrator found that the requested amount was "inconsistent with the amount Agency records show he used[.]" Id. at 23. Further, the Arbitrator determined that the grievant was notified of the pending layoff on or before December 29, 2003, but proceeded to take 33.5 hours of leave from December 30, 2003 through January 7, 2004. The Arbitrator concluded that the Agency was not responsible for restoring the grievant's leave.

III.     Positions of the Parties

A.      Agency Exceptions

      The Agency argues that the Arbitrator "made incorrect [factual] determinations" that contributed to his finding that the grievant's release was not in accordance with his seasonal employment agreement. Agency Exceptions at 7. Specifically, the Agency contends that the Arbitrator erred in finding that the Agency had a past practice of retaining the grievant year-round and that, as a result, the Arbitrator erroneously "afford[ed] the [g]rievant de facto non-seasonal employment rights that go far beyond what is addressed in" the grievant's seasonal employment agreement. Id. at 8.

      The Agency also argues that 5 C.F.R. § 340.402(d) did not require the use of RIF procedures because the grievant was released after the obligations of the seasonal employment agreement had been satisfied. The Agency also argues that the award is contrary to 5 C.F.R. § 340.402(b) insofar as that regulation encourages utilizing seasonal employees during a projected layoff period. In this connection, the Agency asserts that, "[i]f the Arbitrator's logic in his decision is followed," then "keeping a seasonal employee . . . on longer than the maximum expected season would be a violation of the seasonal employment agreement and 5 CFR Section 340." Id. at 4. The Agency also asserts that providing work for seasonal employees during the off season is an Agency policy and is consistent with the seasonal employment agreement and Office of Personnel Management (OPM) guidance.

      Additionally, the Agency claims that the award is inconsistent with management's rights to determine the Agency's budget and organization, as well as the rights to layoff, hire, and assign work. According to the Agency, the award affects management's rights because it requires the Agency to "go through the exercise" of issuing written layoff notices to employees, "only to immediately return them to duty." Id. at 6.

      Finally, the Agency argues that the award fails to draw its essence from the agreement because it "fails to reconstruct an appropriate personnel action." Id. Specifically, the Agency asserts that the grievant was the only Agency employee in his particular job classification, and thus, if RIF procedures had applied, then the grievant would have been furloughed and would not have received his full salary for 552 hours. [ v61 p203 ]

B.     Union Opposition

      With regard to the Agency's claim that the Arbitrator made incorrect factual determinations, the Union contends that the Agency has not demonstrated that the award is based on a nonfact. With regard to the Agency's citation to 5 C.F.R. § 340.402(b), the Union contends that the award does not interfere with the Agency's ability to retain seasonal employees in off seasons.

      The Union asserts that the Agency has not demonstrated that the award is contrary to management's right to determine the Agency's budget. In addition, the Union notes the Arbitrator's finding that the Agency failed to follow RIF regulations as well as the collective bargaining agreement, and claims that Articles 20 and 21 of the agreement are appropriate arrangements under § 7106(b)(3) of the Statute.

      Finally, the Union disputes the Agency's claim that the award fails to draw its essence from the agreement because it fails to reconstruct what would have occurred if RIF procedures had been followed. In particular, the Union asserts that if the Agency had followed RIF procedures, then the grievant would have received a sixty-day written notice of the layoff, absent unforeseeable circumstances where the Agency could have received OPM approval to provide a thirty-day notice. According to the Union, under RIF procedures, the grievant could not have been released until after the beginning of the spring work season.

C.     Union Exceptions

      The Union argues that the award is contrary to the Back Pay Act, 5 U.S.C. § 5596, because the Arbitrator failed to award interest on the award of backpay. In addition, the Union claims that the Arbitrator failed to direct the Agency to recredit the grievant with the leave that he would have accrued on the 552 hours of backpay. Further, the Union claims that the Arbitrator's decision not to restore the leave taken by the grievant after being notified of his layoff is based on a nonfact. In this regard, the Union asserts that it accidentally requested 33 days, rather than 33.5 hours, of leave before the Arbitrator, and that the award is based on this error. The Union contends that the Arbitrator was required to make the grievant whole, and that but for the Agency's violations, the grievant would not have taken the 33.5 hours of leave.

D.     Agency Opposition

      With respect to the Union's claim for interest and the recrediting of leave that the grievant would have earned, the Agency acknowledges that, if its own exceptions are denied, then "it is difficult to envision a circumstance in which the back pay awarded to the [g]rievant should not be calculated under the terms of the Back Pay Act, as the Union requests." Agency Opp'n at 3. With regard to restoring the leave taken by the grievant after being notified of the layoff, the Agency asserts that, regardless of any mathematical error, the Arbitrator would not have restored that leave. In particular, the Agency claims that the Arbitrator denied the request for leave restoration because the grievant used that leave after being notified of the pending layoff.

IV.     Analysis and Conclusions

A.      Agency Exceptions

1.      The Arbitrator did not err in finding a past practice.

      The Agency contends that the Arbitrator erred in finding that the Agency had a past practice of retaining the grievant year-round, which resulted in the Arbitrator erroneously "afford[ing] the [g]rievant de facto non-seasonal employment rights that go far beyond what is addressed in" the grievant's seasonal employment agreement. Agency Exceptions at 8.

      We construe the Agency's claim that the Arbitrator erred in finding a past practice as an argument that the award is based on a nonfact or, alternatively, that the award fails to draw its essence from the seasonal employment agreement. [n5]  In this connection, where a party challenges an arbitrator's determination that a past practice exists, the Authority construes that challenge as raising a nonfact argument. See AFGE, Local 2128, 58 FLRA 519, 522 n.9 (2003). By contrast, where the issue is whether "the arbitrator failed to consider the significance or meaning of a past practice in connection with a particular matter, the Authority considers the issue one of contract interpretation subject to the essence test." Id.

     a.     Nonfact

      To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. United States DHS, Customs & Border Prot. Agency, N.Y., N.Y., 60 FLRA 813, 816 (2005) (DHS). The Authority [ v61 p204 ] will not find an award deficient on the basis of an arbitrator's determination of any factual matter that the parties disputed at arbitration. Id.

      At arbitration, the parties disputed whether the Agency had a past practice of retaining the grievant year-round. See Union Opp'n, Attachments, Tab 3 (Agency Post-Hearing Brief) at 10 (disputing Union's past practice claim). Accordingly, consistent with Authority precedent, the Agency's claims do not demonstrate that the award is based on a nonfact, and we deny the exception. See, e.g., AFGE, Local 2128, 58 FLRA at 522-523.

     b.      Essence

      The Authority will find that an arbitration award is deficient as failing to draw its essence from an agreement when the appealing party establishes that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990). The Authority and the courts defer to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. at 576.

      The Agency quotes wording from the grievant's seasonal employment agreement providing that: "Permanent seasonal employees are subject to seasonal layoff at the end of the working season and recall at the start of the next working season[;]" "the working season is expected to be six from (6) to eight (8) months per year[;]" and "Notification procedures and policies on order of layoff will be [in accordance with] negotiated procedures." Agency Exceptions at 7.

      The Agency does not explain how the Arbitrator's finding of a past practice of retaining the grievant year-round is inconsistent with the above-quoted wording. In this regard, nothing in the above-quoted wording precludes the Agency from extending the grievant's seasonal employment beyond the six to eight month period provided. Accordingly, the Agency does not demonstrate that the Arbitrator's finding of a past practice is irrational, unfounded, implausible, or evidences a manifest disregard of the seasonal employment agreement, and we deny the exception.

2.     The award is consistent with 5 C.F.R. § 340.402, but must be remanded for
        further findings.

      The Agency argues that the award is contrary to law in various respects. 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.

     a.      5 C.F.R. § 340.402

      The Agency argues that seasonal employees who work beyond the end of their usual seasonal employment period are not entitled to RIF procedures. In this connection, the Agency cites 5 C.F.R. § 340.402(d), which provides, in pertinent part:

A seasonal layoff is not subject to the procedures for furlough prescribed in parts 351 and 752 of this title. Reduction in force or adverse action procedures, as applicable, are required for a seasonal layoff that is not in accordance with the employment agreement, for example, if an agency intends to have an employee work less than the minimum amount of time specified in the employment agreement. However, an agency may develop a new employment agreement to reflect changing circumstances.

      Section § 340.402(d) clearly provides that RIF procedures apply where a seasonal layoff is "not in accordance with the employment agreement." As discussed previously, the Agency has not demonstrated that the Arbitrator erred in finding that the Agency had a past practice of employing the grievant year-round. Further, the Arbitrator found that the Agency specifically requested that the grievant extend his seasonal employment agreement for the period at issue here, which supports the Arbitrator's conclusion that the grievant's seasonal layoff was not in accordance with his employment agreement, as extended.

      Further, the Agency's claim that RIF procedures apply only where the Agency intends to have the employee work less than the minimum amount of time specified in the employment agreement is inconsistent with the terms of the regulation, which lists this situation as one -- not the only -- "example" of a situation [ v61 p205 ] where RIF procedures apply. Thus, the Agency's reliance on § 340.402(d) does not demonstrate that the award is deficient.

      The Agency also cites 5 C.F.R. § 340.402(b), which provides, in pertinent part: "To minimize the adverse impact of seasonal layoffs, an agency may assign seasonal employees to other work during the projected layoff period." According to the Agency, the effect of the award is to preclude the Agency from doing this. However, the Arbitrator did not hold that the Agency was precluded from assigning seasonal employees to other work during the period of a projected seasonal layoff. Thus, the Agency's claim regarding § 340.402(b) -- as well as its related claims concerning Agency policy and OPM guidance -- is based on a misinterpretation of the award and does not provide a basis for finding the award deficient.

      For the foregoing reasons, the Agency has not demonstrated that the award is contrary to 5 C.F.R. § 340.402(d) and (b), Agency policy, or OPM guidance. Accordingly, we deny the exceptions concerning those issues.

     b.     Management's rights under § 7106 of the Statute

      The Agency claims that the award is contrary to several management rights under § 7106 of the Statute. In resolving whether an arbitrator's award violates management's rights under § 7106, the Authority first determines whether the award affects management's rights. United States Small Bus. Admin., 55 FLRA 179, 184 (1999). If the award affects management's rights, then the Authority applies the two-prong test established in the Authority's decision in United States Dep't of the Treasury, Bureau of Engraving & Printing, Wash., D.C., 53 FLRA 146 (1997) (BEP).

      Under prong I of BEP, where the affected management right is set forth in § 7106(a)(1), the Authority examines whether the award provides a remedy for a violation of a contract provision that was negotiated pursuant to § 7106(b) of the Statute. See, e.g., SSA, 60 FLRA 150, 152-53 (2004) (Member Pope dissenting on other grounds). Where the affected management right is set forth in § 7106(a)(2), the Authority examines whether the award provides a remedy for a violation of either a provision negotiated under § 7106(b), or an applicable law within the meaning of § 7106(a)(2) of the Statute. See, e.g., United States Dep't of Commerce, Patent & Trademark Office, 60 FLRA 839, 841-42 (2005) (PTO). If the award satisfies prong I of BEP, then under prong II, the Authority examines whether the arbitrator's remedy reflects a reconstruction of what management would have done if management had not violated the law or contractual provision at issue. BEP, 53 FLRA at 154.

          i.     Right to determine budget under § 7106(a)(1)

      The Authority's test for determining whether a proposal affects management's right to determine its budget under § 7106(a)(1) of the Statute is set forth in AFGE, AFL-CIO, 2 FLRA 604 (1980), enforced as to other matters, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied, 455 U.S. 945 (1982) (Wright-Patterson). Under the Wright-Patterson test, if a proposal prescribes either the particular programs to be included in an agency's budget, or the amount to be allocated in the budget, then the award affects the agency's right to determine its budget. United States Dep't of the Treasury, United States Customs Serv., El Paso, Tex., 55 FLRA 553, 557 (1999). Alternatively, if the agency makes a substantial demonstration that an increase in costs is significant and unavoidable and is not offset by compensating benefits, then the Authority will find that the proposal affects the agency's right to determine its budget. Id. at 557-58.

      The award does not prescribe either the particular programs to be included in the Agency's budget, or any amount to be allocated in that budget. Further, the Arbitrator found that the district where the grievant works has more than a $178 million budget, and the Agency does not explain how any increase in costs resulting from the award is significant relative to that. Additionally, the Agency does not address whether any increase in costs is offset by compensating benefits. Accordingly, the Agency has not demonstrated that the award affects management's right to determine the Agency's budget, and we deny the exception.

          ii.     Right to determine organization under § 7106(a)(1)

      The right to determine organization encompasses the right to determine the administrative and functional structure of the agency, including the relationship of personnel through lines of authority and the distribution of responsibilities for delegated and assigned duties. United States FDA, Detroit Dist., 59 FLRA 679, 682 (2004). The right also includes the authority to determine how an agency will structure itself to accomplish its mission and functions and the right to determine how the agency will be divided into organizational entities such as sections. Id. Finally, the right to determine organization encompasses the right to determine where, organizationally, certain functions shall be established [ v61 p206 ] and where the duty stations of the positions providing those functions shall be maintained. Id.

      The award does not interfere with management's ability to determine how the Agency will be structured to accomplish its mission and function, or where organizationally or geographically certain functions shall be established and performed. Accordingly, the Agency has not demonstrated that the award affects management's right to determine the Agency's organization, and we deny the exception.

          iii.     Right to layoff under § 7106(a)(2)(A)

      Management's right to layoff employees includes the right to conduct a RIF and to exercise its discretion in determining which positions will be abolished and retained in a RIF. NTEU, 60 FLRA 219, 222 (2004). Management's rights under § 7106 include the right to refrain from acting as well as the right to act. PTO, 60 FLRA at 841.

      The Arbitrator found that, in order to place the grievant in a non-duty, non-pay status, the Agency was required to apply RIF procedures. In effect, the Arbitrator found that the Agency was required to exercise its right to conduct a RIF. Consistent with the above-cited precedent, the award affects management's right to layoff employees under § 7106(a)(2)(A) of the Statute.

          iv.     Prong I of BEP

      As discussed previously, an award affecting management's rights under § 7106(a)(2) of the Statute will satisfy prong I of BEP if it provides a remedy for a violation of an applicable law. United States Dep't of the Navy, Naval Undersea Warfare Ctr., Newport, R.I., 55 FLRA 687, 690-91 (1999), decision after remand, 56 FLRA 938 (2000). The Arbitrator was enforcing, among other things, the RIF regulations set forth in 5 C.F.R. Part 451. Thus, if those regulations constitute "applicable laws" within the meaning of § 7106(a)(2), then prong I of BEP is satisfied. [n6] 

      The Authority has held that a regulation is an applicable law where that regulation has "the force and effect of law." Id. at 690. Regulations have the force and effect of law where they: (1) affect individual rights and obligations; (2) were promulgated pursuant to an explicit or implicit delegation of legislative authority by Congress; and (3) were promulgated in conformance with any procedure requirements imposed by Congress. Id.

      The first requirement -- that a regulation affects individual rights -- is satisfied where the regulation is mandatory and establishes the obligations of agencies and the rights of employees. Id. 5 C.F.R. Part 351, the regulations concerning RIF, include mandatory provisions and establish the obligations of agencies and the rights of employees. See, e.g., 5 C.F.R. § 351.204 ("Each agency covered by this part is responsible for following and applying the regulations in this part when the agency determines that a reduction in force is necessary[]"); §§ 351.701-351.705 (setting forth employees' "bump and retreat" rights). Accordingly, 5 C.F.R. Part 351 satisfies the first requirement.

      With regard to the second requirement, there is an explicit delegation of legislative authority by Congress for OPM to enact RIF regulations. Specifically, 5 U.S.C. § 3502(a) provides, in pertinent part: "The Office of Personnel Management shall prescribe regulations for the release of competing employees in a reduction in force . . . . " Thus, the second requirement is met.

      Finally, with regard to the third requirement, the current version of 5 C.F.R. Part 351 resulted from notice-and-comment rulemaking. See 51 Fed. Reg. 318-01. There is no assertion, and no basis for concluding, that the regulations in Part 351 were not promulgated in conformance with any procedure requirements imposed by Congress. Accordingly, there is no basis for finding that the third requirement is not met.

      For the foregoing reasons, we find that the regulations set forth in 5 C.F.R. Part 351 are applicable laws within the meaning of § 7106(a)(2) of the Statute. [n7]  Consequently, the award satisfies prong I of BEP. [ v61 p207 ]

          v.     Prong II of BEP

      The Arbitrator awarded the grievant 552 hours of backpay. However, the record does not indicate whether the grievant would have received a full 552 hours of backpay if the Agency had applied RIF procedures. In this connection, it is undisputed that the grievant is the only person in his job classification and that, as a result, the grievant would have been released from his competitive level and furloughed. Although 5 C.F.R. § 351.801 requires that each competing employee selected for release from a competitive level "is entitled to a specific written notice [of] at least 60 full days before the effective date of [the] release[,]" the award of 552 hours' backpay is greater than an award of sixty days' backpay. Further, the record does not indicate whether the Agency would have delayed the beginning of the sixty-day period or otherwise continued to employ the grievant for the full 552 hours if it had complied with the RIF regulations.

      As there is no basis in the record for determining whether the grievant would have continued to work for 552 hours if the Agency had complied with the RIF regulations, we are unable to determine whether the backpay remedy reconstructs what management would have done if it had complied with those regulations. Accordingly, we remand this matter to the parties for resubmission to the Arbitrator, absent settlement, for further findings in this regard. See AFGE, AFL-CIO, Local 3614, 60 FLRA 601, 604-05 (2005) (Authority remanded where it was unable to determine if remedy satisfied legal requirements).

B.     Union Exceptions

1.     To the extent that an award of backpay remains after the Arbitrator makes
        additional findings, the Arbitrator is directed to award interest and any leave
        that the grievant would have accrued absent the layoff.

      The Union argues that the Arbitrator's failure to award interest and failure to award the grievant the leave that he would have accrued absent the layoff is contrary to the Back Pay Act. The Agency concedes that, if the award is not set aside, then these remedies would be appropriate. See Agency Opp'n at 3 (noting, in connection with these requested remedies, that if the Agency's exceptions are denied, then "it is difficult to envision a circumstance in which the back pay awarded to the [g]rievant should not be calculated under the terms of the Back Pay Act, as the Union requests."). In these circumstances, we direct that, on remand, the Arbitrator award the grievant interest and leave relative to whatever amount of backpay remains after the Arbitrator makes further findings. We note, with regard to interest, that the Authority has held that under the provisions of the Back Pay Act, interest must be paid on backpay awards. AFGE, Local 3134, 56 FLRA 983, 984 (2000).

2.     The award is not based on a nonfact.

      The Union argues that the Arbitrator's denial of the remedy to restore the annual leave taken by the grievant from December 30, 2003 through January 7, 2004 is based on a nonfact. Specifically, the Union claims that it accidentally requested 33 days, rather than 33.5 hours, of annual leave before the Arbitrator, and that the Arbitrator would have reached a different conclusion but for the Union's error.

      As discussed previously, to establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. DHS, 60 FLRA at 816. The Authority will not find an award deficient on the basis of an arbitrator's determination of any factual matter that the parties disputed at arbitration. Id. Further, the Authority will not find an award to be based on a nonfact where the parties are responsible for the arbitrator's misapprehension. United States DOD, Army & Air Force Exch. Serv., 45 FLRA 674, 681-82 (1992).

      As noted above, the Union concedes that it was responsible for the Arbitrator's misapprehension regarding the number of hours of annual leave requested. Thus, consistent with Authority precedent, the Union's exception provides no basis for finding the award to be based on a nonfact, and we deny the exception. See id at 682.

V.     Decision

      The award is remanded to the parties for resubmission, absent settlement, to the Arbitrator. To the extent that an award of backpay remains after the Arbitrator makes additional findings, the Arbitrator is directed to award interest on any remaining backpay and to award any leave to which the grievant would be entitled. The remaining exceptions are denied. [ v61 p208 ]


Concurring opinion of Chairman Cabaniss:

      I write separately to discuss an aspect of the Authority's precedent that bears on the outcome reached here. I first note, however, that I agree that the Office of Personnel Management regulations at issue here constitute an "applicable law."

      In United States Dep't of the Navy, Naval Undersea Warfare Ctr., Newport, R.I., 55 FLRA 687, 690 (1999), decision after remand, 56 FLRA 938 (2000), the Authority relied on its earlier decision in NTEU, 42 FLRA 377, 391-92 (1991), enforcement denied on other grounds, 996 F. 2d 1246 (D.C. Cir. 1993) (NTEU) for the holding that "a regulation is an `applicable law' where that regulation has `the force and effect of law.'" The Authority, in its NTEU decision 42 FLRA at 389, noted that it did not construe the phrase "applicable laws" to be limited to just "relevant provisions" of law. Put another way, the Authority seems to have decided to not give any meaning to the "applicable" part of that phrase and instead chose to come up with an open-ended definition that includes non-relevant as well as relevant laws within its meaning.

      I tend to believe that Congress meant the word "applicable" to have some relevance in deciding which laws should be considered as a limitation upon an agency's rights under § 7106(a)(2). I note the Authority earlier attempted to impose the same kind of open-ended meaning in the analogous circumstances of § 7103(a)(9)(C)(ii) regarding the phrase "law, rule, or regulation affecting conditions of employment." In United States Dep't of the Treasury, United States Customs Serv. v. FLRA, 43 F.3d 682 (D.C. Cir. 1994) (Customs Service), the court addressed the question of whether the Authority had properly interpreted that phrase to include "a statute governing international trade which could hardly be thought to have been crafted with any regard for Customs Service employees." Id. at 689. In reversing that Authority determination, the court noted that laws, rules, or regulations "affecting conditions of employment" meant that the legal authority at issue "was fashioned for the purpose of regulating the working conditions of employees." Id. at 690, 691. As such, the court rejected the Authority's attempt to provide an open-ended meaning to that phrase. I would find that the Authority in its NTEU decision has also improperly ascribe the same type of open-ended meaning to the phrase "applicable laws."

      To be sure, the court in its discussion noted that the "applicable laws" language in § 7106(a)(2) "might well include laws that compel certain personnel actions but which are by no means directed to working conditions. Therefore, an `applicable law' could easily have a much broader subject matter scope than a `law, rule, or regulation affecting conditions of employment[.]'" Id. at 690. However, while the phrase "applicable laws" may be broader than the "law, rule, or regulation affecting conditions of employment" language in § 7103(a)(9)(C)(ii), I would find that an "applicable" law under § 7106(a)(2) has a more limited meaning than the Authority ascribed to it in its NTEU decision. I would find that the phrase is meant to be limited to just those laws having some connection or relevancy to an agency's conduct of its personnel management system. I would resist the effort to ascribe a broad definition to "applicable laws" for the same reason the court rejected the Authority's proposed broad definition for laws, rules, or regulations "affecting conditions of employment."

The very preclusion of judicial review suggests powerfully that Congress could not have contemplated, let alone intended, that all or any part of American law would be definitively interpreted by the FLRA on review of one or a series of cases originally put to arbitration. To give any administrative tribunal such final authority to construe any or all statutes or treaties of the United States would be a staggering delegation, which surely would have provoked considerable congressional debate. That Congress would entrust such sweeping authority to [the FLRA] is, when one ponders the matter, utterly inconceivable.

Customs Service, 43 F.3d at 689-90. Accordingly, I would limit the meaning ascribed to what constitutes an "applicable law" under § 7106(a)(2). In doing so, however, I would find that Office of Personnel Management regulations would clearly constitute an "applicable" law (or, in this case, a regulation having the force and effect of law).

     



Footnote # 1 for 61 FLRA No. 39 - Authority's Decision

   Chairman Cabaniss' concurring opinion is set forth at the end of this decision.


Footnote # 2 for 61 FLRA No. 39 - Authority's Decision

   In its opposition, the Union argues that the Agency's exceptions are untimely. Subsequent to the filing of the Union's opposition, the Authority's Case Control and Legal Publications Office resolved this issue by finding and notifying the parties that the Agency's exceptions were timely filed. See April 14, 2005 Order. Accordingly, we do not address the Union's argument further.


Footnote # 3 for 61 FLRA No. 39 - Authority's Decision

   The seasonal employment agreement states that permanent, seasonal employees are subject to annual, seasonal layoff and recall and that the working season can be expected to be six to eight months per year. See Award at 4. The agreement further provides that it is the Agency's "policy" to provide "year-round employment to seasonal employees, when feasible[,]" but that "[o]ff- season work is not guaranteed." Id at 5.


Footnote # 4 for 61 FLRA No. 39 - Authority's Decision

   Article 20, Section 2 of the parties' agreement provides, in pertinent part: "Employees will be provided as much advance notice as possible of seasonal layoff and recall. Layoff notices will be in writing, and will normally be provided at least two weeks in advance . . . ." Agency Exceptions, Attachment ("Article 20 - Seasonal Layoff") at 47.


Footnote # 5 for 61 FLRA No. 39 - Authority's Decision

   Although the status of the seasonal employment agreement is unclear, there is no basis in the record to conclude that any standard other than the "essence" standard should apply.


Footnote # 6 for 61 FLRA No. 39 - Authority's Decision

   Member Pope notes that the Authority has never held in any context that the term "applicable laws" includes laws that are not relevant to the management right being addressed. The concurrence's statement to the contrary reflects a complete misreading of NTEU, 42 FLRA 377, 389 (1991) (NTEU), enforcement denied on other grounds, 996 F.2d 1246 (D.C. Cir. 1993), where the Authority held that the term "applicable laws" includes "but is not limited to, relevant provisions of the United States Code or other lawfully enacted statutes", only in clarifying that the term also includes other applicable provisions of "law in it's generic sense," including controlling judicial decisions and regulations having the force and effect of law.


Footnote # 7 for 61 FLRA No. 39 - Authority's Decision

   Given this finding, we find it unnecessary to address whether the award affects other management rights under § 7106(a)(2).