National Association of Air Traffic Specialists, NAGE, SEIU (Union) and United States, Department of Transportation, Federal Aviation Administration (Agency)

[ v61 p558 ]

61 FLRA No. 106

NATIONAL ASSOCIATION
OF AIR TRAFFIC SPECIALISTS
NAGE, SEIU
(Union)

and

UNITED STATES
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
(Agency)

0-AR-4022

_____

DECISION

May 4, 2006

_____

Before the Authority: Dale Cabaniss, Chairman and Carol Waller Pope, Member

I.     Statement of the Case

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

      The Arbitrator found that the Agency violated the parties' collective bargaining agreement (CBA) and Memorandum of Agreement (MOA) by denying certain employees the use of duty time to pursue career transition activities after they received reduction-in-force (RIF) notices. The Arbitrator found that the CBA and MOA entitled employees to duty time to engage in activities, but did not entitle them to any pay. Accordingly, the Arbitrator denied the Union's request for a monetary remedy.

      For the following reasons, we deny the exception.

II.     Background and Arbitrator's Award

      As relevant here, the Agency announced that it would conduct a RIF affecting certain employees. It then denied some of those employees' requests for duty time to engage in career transition activities. The employees were subsequently separated from employment. The Union filed a grievance alleging that the denial of duty time violated Article 108 of the CBA and Section 8 of the MOA. [n1]  When the grievance was unresolved, it was submitted to arbitration, where the Arbitrator framed the issues, in pertinent part, as: "Whether the Agency violated Article 108 of the [CBA] and Section 8 of the MOA when a minimum of 32 hours of duty time per pay period to pursue career transition activities was denied to [certain] displaced employees . . .; and if so, what is the appropriate remedy?" [n2]  Award at 7-8.

      The Arbitrator determined that the employees covered by the grievance were entitled, under Article 108 of the CBA and Section 8 of the MOA, to thirty-two hours of duty time per pay period to pursue career transition activities. The Arbitrator also determined that the Agency violated Article 108 and Section 8 by denying the employees such duty time.

      However, the Arbitrator found that "the contractual right to pursue career transition activities during duty hours does not obtain unless and until an employee uses the duty time for such purpose." Id. at 14. In this regard, the Arbitrator determined that "[t]he contractual right extends to the activities, as opposed to any pay. If the employees no longer are employed by the Agency, the passage of time precludes an aware of the requested remedy." Id. Thus, the Arbitrator denied the Union's requested remedy of thirty-two hours of pay per pay period for the employees.

III.     Positions of the Parties

A.     Union Exception

      The Union argues that the award is "legally deficient[]" because it fails to provide a remedy for the Agency's violation of the CBA and MOA. Exception at 4. The Union contends that the Arbitrator had broad authority to formulate remedies "in order to reach a fair solution of a problem[,]" but the Arbitrator failed to do so. Id. at 5 (quoting United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 597 (1960) (Steelworkers).

      The Union contends that although the employees "did not, admittedly, suffer a loss of pay[,]" they "did suffer the loss of a crucial benefit -- the opportunity, on a timely basis, to pursue other job opportunities, at [Agency] expense, prior to being terminated[.]" Exception at 4. The Union claims that, to the extent that the Arbitrator believed he was constrained by the Back Pay Act, 5 U.S.C. § 5596, Section 8 of the MOA provides that management may approve requests for credit hours [ v61 p559 ] in lieu of use of duty time to pursue career transition activities. [n3]  Thus, the Union asserts, the Arbitrator "could easily have concluded that the employees" earned thirty-two credit hours per pay period, for which they are now entitled to recover under the Back Pay Act. Exception at 7 n.4. The Union contends that, even if the Back Pay Act does not permit a monetary remedy, then the Arbitrator could have concluded that 49 U.S.C. § 40122(g)(2), which exempts the Agency from certain provisions of title 5 of the United States Code, removed any legal obstacle caused by the Back Pay Act. [n4] 

      The Union also argues that arbitrators have "inherent power under a contract to award monetary damages to place the parties in the position they would have been in had there been no violation[,]" and that it is a "fundamental tenet of arbitral practice" that a party shall not be unjustly enriched. Exception at 5. For support, the Union cites Elkouri & Elkouri, How Arbitration Works (Elkouri and Elkouri). The Union also cites the Authority's decisions in AFGE, Local 987, 57 FLRA 551 (2001) (Local 987) (Chairman Cabaniss dissenting), and United States DOD, Dep'ts of the Army & the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37 (1998) (DOD).

B.     Agency Opposition

      The Agency asserts that the Arbitrator did not err by denying the Union's request for a monetary remedy, "which was the only remedy requested by the [U]nion at hearing[.]" Opp'n at 3. In this connection, the Agency contends that the employees were paid for the time during which they worked and, thus, did not suffer a loss of pay.

IV.     Analysis and Conclusion

      The Union alleges that the award is contrary to law. The Authority reviews questions of law raised by an arbitrator's award and exceptions to it de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995). In applying a de novo standard of 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.

      As an initial matter, the Authority has held that arbitrators have broad discretion in fashioning appropriate remedies, and an arbitrator is not required to provide a remedy for every violation of a collective bargaining agreement. See, e.g., United States Dep't of Veterans Affairs, Cleveland Reg'l Office, Cleveland, Ohio, 59 FLRA 248, 252 (2003) (Chairman Cabaniss concurring and Member Pope dissenting on other grounds). However, where law requires a particular remedy, an arbitrator's failure to award that remedy is contrary to law. See, e.g., AFGE, Local 3134, 56 FLRA 983, 984 (2000) (failure to award interest on backpay found contrary to Back Pay Act). Accordingly, we address the Union's asserted reasons that the Arbitrator was required, by law, to award monetary damages.

      The Union cites the United States Supreme Court's decision in Steelworkers, 363 U.S. 593. Although the Steelworkers decision stated that an arbitrator "is to bring his [or her] informed judgment to bear in order to reach a fair solution of a problem[,]" id. at 597, it did not hold that an arbitrator is required to grant a requested remedy where, as here, the arbitrator finds that the contract does not provide for such a remedy. Additionally, Steelworkers addressed the discretion of arbitrators in private sector disputes. Unlike private sector arbitrators, it is well-established that Federal sector arbitrators' discretion to provide monetary awards is limited by the requirement that there be an unequivocal, statutory waiver of the government's sovereign immunity. See, e.g., United States Dep't of HHS, FDA, 60 FLRA 250, 252 (2004). There is no such waiver in this case. For these reasons, Steelworkers does not provide a basis for finding that the Arbitrator's failure to award a remedy is contrary to law.

      With regard to the Back Pay Act, 5 U.S.C. § 5596, the Authority has held that an award of backpay 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 has resulted in the withdrawal or reduction of the grievant's pay, allowances, or differentials. See, e.g., United States Dep't of HHS, Gallup Indian Med. Ctr., Navajo Area Indian Health Serv., 60 FLRA 202, 211 (2004) (Chairman Cabaniss and Member Pope dissenting in part on other grounds). Assuming that the first Back Pay Act requirement is met, the Arbitrator determined that the right provided by the contract did not entitle the grievants to any pay, and the Union concedes that the employees "did not, admittedly, suffer a loss of pay[.]" Exception at 4. Although the Union asserts that the Arbitrator could have concluded that the employees earned credit hours for which they are entitled to recover under the Back Pay Act, the Union does not claim that employees have a right to such payment. Further, the Union does not assert, and the Arbitrator did [ v61 p560 ] not find, that any employees made "advance request[s]" to management for credit hours under Section 8 of the MOA. Award at 4. Accordingly, there is no basis for finding that the Back Pay Act compels a monetary remedy here.

      Further, although the Union argues that 49 U.S.C. § 40122(g)(2) removed any legal obstacle caused by the Back Pay Act, the Union does not claim, and there is no basis for concluding, that § 40122(g)(2) compels a monetary remedy here. Accordingly, the Union's reliance on that statute is misplaced. Similarly, with regard to Elkouri and Elkouri, the Union does not assert, and there is no basis for concluding, that it constitutes a "law." Further, there is nothing in the passage from that treatise cited by the Union indicating that sovereign immunity principles do not apply in cases where the federal government is a party. Thus, the Union's reliance on it provides no basis for finding the award deficient.

      Finally, the Union relies on the Authority's decisions in Local 987, 57 FLRA 551, and DOD, 55 FLRA 37. In Local 987, the Authority held that the arbitrator relied on an erroneous interpretation of law in finding that he was precluded from addressing a claim for damages and remanded the award for the arbitrator to address the merits of the claim. See 57 FLRA at 557. In DOD, the Authority set aside an arbitrator's remedy and remanded the award for consideration of an alternative remedy. See 55 FLRA at 42.

      Unlike Local 987, in the instant case the Union has not demonstrated that the Arbitrator relied on an erroneous interpretation of law in reaching his conclusions. Further, unlike DOD, in this case the Authority is not setting aside a remedy chosen by the Arbitrator; the Authority is reviewing the Arbitrator's determination that the Union's sole requested remedy is inappropriate. Thus, neither Local 987 nor DOD supports a conclusion that the Arbitrator was required to grant a remedy in this case, particularly where he found that the remedy requested by the Union was not warranted under the parties' CBA and MOA.

      For the foregoing reasons, none of the authority cited by the Union demonstrates that the Arbitrator was required to grant the Union's requested remedy. Accordingly, the Union has not demonstrated that the award is contrary to law, and we deny the exception.

V.     Decision

      The Union's exception is denied.



Footnote # 1 for 61 FLRA No. 106 - Authority's Decision

   Article 108 of the CBA and Section 8 of the MOA both provide, in pertinent part, that "[d]isplaced employees will be given a minimum of thirty-two (32) hours of duty time per pay period to pursue career transition activities." Award at 2 & 4.


Footnote # 2 for 61 FLRA No. 106 - Authority's Decision

   The Arbitrator also resolved an issue regarding the timeliness of the grievance, which is not at issue here.


Footnote # 3 for 61 FLRA No. 106 - Authority's Decision

   The pertinent wording of Section 8 of the MOA states that "[u]pon advance request in lieu of the aforementioned duty time, management may approve the earning of credit hours for those hour(s) an employee may use to pursue activities covered in this section." Award at 4.


Footnote # 4 for 61 FLRA No. 106 - Authority's Decision

   49 U.S.C. § 40122(g)(2) provides that, with certain exceptions not relevant here, "[t]he provisions of title 5 [of the United States Code] shall not apply to the new personnel management system" at the Agency.