09:1029(143)AR - IRS, Fresno Regional Center and NTEU Chapter 97 -- 1982 FLRAdec AR

 9 FLRA No. 143
 
 INTERNAL REVENUE SERVICE,
 FRESNO REGIONAL CENTER
 Activity
 
 and
 
 NATIONAL TREASURY EMPLOYEES
 UNION, CHAPTER 97
 Union
 
                                            Case No. O-AR-248
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR ROBERT G. MEINERS FILED BY THE AGENCY UNDER SECTION 7122(A)
 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE)
 AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS.  THE UNION FILED
 AN OPPOSITION.
 
    THE DISPUTE IN THIS MATTER AROSE WHEN THE ACTIVITY FAILED TO RECALL
 THE GRIEVANT FROM A FURLOUGH ON TIME AND THUS HAD HER IMPROPERLY IN A
 FURLOUGH STATUS FOR A PERIOD OF TWO WEEKS.  THE ACTIVITY ADMITTED THAT
 ITS ACTIONS CONSTITUTED A VIOLATION OF THE PARTIES' COLLECTIVE
 BARGAINING AGREEMENT.  HOWEVER, IT REFUSED TO GIVE THE GRIEVANT BACKPAY,
 CONTENDING INSTEAD THAT THE OPPORTUNITY TO MAKE UP WORK WAS THE PROPER
 REMEDY.  A GRIEVANCE WAS FILED AND THE MATTER WAS ULTIMATELY SUBMITTED
 TO ARBITRATION.
 
    THE ISSUE BEFORE THE ARBITRATOR WAS WHETHER OFFERING THE GRIEVANT THE
 OPPORTUNITY TO MAKE UP WORK THE NEXT TIME SHE WAS SCHEDULED TO BE
 FURLOUGHED OR RECALLED WOULD MAKE THE GRIEVANT WHOLE SO THAT SHE WOULD
 NOT HAVE SUFFERED A WITHDRAWAL OR REDUCTION OF PAY.  THE ARBITRATOR
 EMPHASIZED THAT THE GRIEVANT HAD CHANGED JOBS WITHIN THE ACTIVITY SINCE
 THE TIME OF THE CONTRACT VIOLATION AND THAT THE RECORD WAS SILENT
 REGARDING THE FURLOUGH AND RECALL POSSIBILITIES IN HER PRESENT POSITION.
  CONSEQUENTLY, THE ARBITRATOR CONCLUDED THAT THE OPPORTUNITY TO MAKE UP
 WORK WAS NOT A FEASIBLE REMEDY IN THESE CIRCUMSTANCES AND AWARDED
 BACKPAY FOR THE PERIOD DURING WHICH THE GRIEVANT WAS IMPROPERLY
 FURLOUGHED.
 
    IN ITS EXCEPTION THE AGENCY CONTENDS THAT THE ARBITRATOR'S AWARD IS
 DEFICIENT BECAUSE IT IS CONTRARY TO THE BACK PAY ACT OF 1966, 5 U.S.C.
 5596(1976 AND SUPP. IV 1980).  IN SUPPORT OF THIS EXCEPTION THE AGENCY
 ALLEGES THAT BECAUSE THE GRIEVANT COULD HAVE HAD THE OPPORTUNITY TO MAKE
 UP THE WORK AT SOME FUTURE TIME THERE WAS NO WITHDRAWAL OR REDUCTION IN
 PAY SO AS TO QUALIFY HER FOR BACKPAY UNDER THE BACK PAY ACT.
 
    THE AGENCY'S EXCEPTION FAILS TO PROVIDE A BASIS FOR FINDING THE AWARD
 DEFICIENT.  THE AGENCY HAS NOT SHOWN THAT THE ARBITRATOR'S AWARD OF
 BACKPAY TO THE GRIEVANT AS THE PROPER REMEDY FOR THE CONCEDED CONTRACT
 VIOLATION IS IN ANY MANNER CONTRARY TO THE BACK PAY ACT.  THE ARBITRATOR
 SPECIFICALLY FOUND THAT AN AWARD OF BACKPAY COVERING THE TWO-WEEK PERIOD
 THE GRIEVANT WOULD HAVE WORKED BUT FOR THE CONTRACT VIOLATION WAS THE
 ONLY REMEDY THAT WOULD MAKE THE GRIEVANT WHOLE IN THE CIRCUMSTANCES OF
 THIS CASE.  THE AGENCY'S RELIANCE ON THE OPPORTUNITY TO MAKE UP THE WORK
 AS INDICATIVE THAT THERE WAS NO REDUCTION IN PAY IS MISPLACED.  THE
 REDUCTION IN PAY OCCURRED AT THE TIME OF THE CONTRACT VIOLATION, AND IT
 WAS THIS REDUCTION THE ARBITRATOR WAS REMEDYING, SPECIFICALLY FINDING
 THAT THE GRIEVANT'S CHANGED CIRCUMSTANCES PRECLUDED APPLYING THE
 ACTIVITY'S PROPOSED REMEDY OF MAKE-UP WORK.  THUS, THE AGENCY'S
 EXCEPTION ESSENTIALLY CONSTITUTES AN ATTEMPT TO HAVE ITS OWN REMEDY
 SUBSTITUTED FOR AND PREVAIL OVER THE REMEDY ACTUALLY FORMULATED BY THE
 ARBITRATOR AND CONSEQUENTLY PROVIDES NO BASIS FOR FINDING THE AWARD
 DEFICIENT.  VETERANS ADMINISTRATION HOSPITAL, NEWINGTON, CONNECTICUT AND
 'NATIONAL ASSOCIATION OF GOVERNMENT NEWINGTON.  CONNECTICUT AND NATIONAL
 ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R1-109, 5 FLRA NO. 12(1981).
 THE AGENCY'S EXCEPTION IS THEREFORE DENIED.
 
    ISSUED, WASHINGTON, D.C., AUGUST 20, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY