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45:1282(129)AR - - Navy, Military Sealift Command, Atlantic, Bayonne, NJ and Marine Engineers Beneficial Association, National Maritime Union, Unlicensed Division, District No.1 - - 1992 FLRAdec AR - - v45 p1282


[ v45 p1282 ]
The decision of the Authority follows:

45 FLRA No. 129

















September 29, 1992


Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Mary P. Bass 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 to the Agency's exceptions.

The Arbitrator awarded compensation to employees to remedy the Agency's failure to provide them adequate living accommodations. For the reasons discussed below, we conclude that this case must be remanded to the parties for resubmission to the Arbitrator.

II. Background and Arbitrator's Award

The Union filed a grievance alleging that living accommodations for certain unit employees aboard the USNS COMFORT, an Agency hospital ship, were inadequate during the Persian Gulf crisis. When the matter was not resolved, it was submitted to arbitration. The issue before the Arbitrator was:

whether the [Agency] violated the collective bargaining agreement . . . between the parties with respect to the payment of quarters allowance for [employees] who were required to live . . . aboard the USNS COMFORT during the period August 9, 1990 through April 15, 1991, and if so, what is the appropriate remedy.

Award at 1-2 (footnote omitted).

The Arbitrator determined that the living accommodations aboard the USNS COMFORT "were not adequate" within the meaning of section 1a of the relevant article of the parties' agreement.(1)

Id. at 9. Accordingly, she concluded that the Agency violated that section of the contract and she granted the grievance.

As for the remedy, the Arbitrator noted the Union's argument that an "appropriate remedy is a quarters allowance." Id. at 7. More particularly, the Union requested, as an "appropriate quarters allowance," an award of "$40 per diem, the allowance provided in the 1990-1994 agreement between the Union and various dry cargo companies . . . ." Id. at 7-8. As "fall back" positions, the Union requested either $20 per day for each affected employee or the "per diem $13 Room Allowance provided for in their Agreement . . . ." Id. at 8. The Agency argued that, "no remedy [was] available irrespective of whether the accommodations . . . were adequate, because no remedy is provided under the contract." Id.

The Arbitrator concluded, at the outset of her discussion of an appropriate remedy, that section 2 of the relevant article was "inapplicable" here. Id. at 10. In this connection, the Arbitrator found that, with respect to periods when a ship is at sea, including the periods involved in this case, section 2 encompasses "only claims relating to noise due to repairs[,]" an issue that was "not a claim" in this case. Id. However, the Arbitrator rejected the Agency's claim that references in the grievance to section 2(a) and (b) had a "significant impact" in the case. Id. Although the Arbitrator found that "neither the violation alleged nor the remedy sought [was] based on ° 2[,]" the Arbitrator also found that the Agency was not "misled" by the references in the grievance, which were "nothing more than the attempt to meet a filing requirement." Id. at 11.

The Arbitrator also rejected the Agency's argument that the parties' agreement to specify remedies in section 2 for certain situations indicated their intention to exclude remedies for violations of section 1a. According to the Arbitrator:

The specific remedial provisions of °2a. and b. are obviously intended as "liquidated damages" clauses for commonly occurring problems. There is no statement in °2 or any implication therein that inadequacies in living accommodations arising in violation [of] °1 and not mentioned in °2 are to go unremedied.

Id. On a related point, the Arbitrator stated that the parties' agreement to arbitrate disputes such as the one in this case "means that the formulation of remedies for violations of the Agreement was intended[.]" Id.

The Arbitrator concluded as follows:

The remaining issue is what the remedy should be. The remedy must take into account the fact that the men were not out-of-pocket for alternative quarters. This makes the $40 per diem the Union seeks inappropriate, in addition to the fact that the figure comes from an Agreement to which the Employer is not a party. The Employer suggests in its brief that if the grievance is granted, the per diem room allowance rate called for in the Agreement, $13, is appropriate. . . .

I find that the appropriate rate is the $13 room allowance rate negotiated in the Agreement. This figure was arrived at in 1979. Cost of living increases since then dilute this figure to the extent that it now constitutes an appropriate make-whole remedy for the . . . personnel assigned to open berthing area on the USNS COMFORT.

Id. at 12. Accordingly, as her award, the Arbitrator directed the Agency to provide each affected employee "the amount of $13 per diem . . . for each day of . . . assignment during the period August 9, 1990 through April 15, 1991." Id.

III. Agency's Exceptions

The Agency contends that the award is inconsistent with the Back Pay Act, 5 U.S.C. ° 5596(b), because the Arbitrator "did not find that 'but for' the [A]gency's violation of the agreement, the grievants would have received the compensation in question." Exceptions at 12. The Agency asserts that the Arbitrator's remedy is "not based on a contractual requirement that employees receive compensation when 'adequate' living quarters are not provided" but, rather, on the Arbitrator's "conception of her general remedial powers under the arbitration clause of the parties' . . . agreement." Id. at 11.

Further, the Agency argues that the award directly interferes with management's right under section 7106(a)(2)(D) of the Statute to take whatever actions may be necessary to carry out the Agency mission during emergencies. The Agency contends that the "only way the [A]gency could have improved living accommodations to meet the [A]rbitrator's conception of the contractual requirement at issue would have been to withhold the COMFORT from [duty] while modifications were made." Id. at 18. Finally, the Agency asserted that the award is not "valid as an enforcement of an `appropriate arrangement'" under section 7106(b)(3). Id. at 19.

IV. Union's Opposition

The Union asserts that the Agency's arguments under the Back Pay Act and section 7106(a)(2)(D) and (b)(3) of the Statute "must be disregarded because they were not raised before the Arbitrator." Opposition at 3. The Union also asserts that the award is not contrary to the Back Pay Act. The Union contends that, "'but for' [the Agency]'s failure to abide by the collective bargaining agreement," the grievants either "would have had adequate living conditions or the contractual quarters allowance." Id. at 8.

The Union also argues that the award is not inconsistent with section 7106(a)(2)(D) of the Statute because the Agency was not prevented from dispatching the USNS COMFORT to the Persian Gulf on schedule. Alternatively, the Union asserts section 1a of the parties' agreement constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. Finally, the Union requests that the Authority award it attorney fees.

V. Preliminary Matter

We reject the Union's contention that the Agency's exceptions should be dismissed because they raise issues that were not presented to the Arbitrator. The exceptions address whether the Arbitrator's award is deficient under section 7122(a) of the Statute and, as such, could not have been presented to the Arbitrator. Compare U.S. Department of Veterans Affairs, National Memorial Cemetery of the Pacific and International Association of Machinists and Aerospace Workers, Hawaii Federal Lodge 1998, 45 FLRA No. 116, slip op. at 6 (1992) (exception denied where issue was raised by the union for the first time in its exceptions to the award). Accordingly, we will consider the Agency's exceptions.

VI. Analysis and Conclusions

We reject, at the outset, the Agency's argument that the award is inconsistent with its right under section 7106(a)(2)(D) to carry out its mission in an emergency because the Arbitrator's interpretation of "adequate living accommodations" in section 1a of the parties' agreement precludes it from acting in an emergency. Nothing in section 1a, as interpreted by the Arbitrator, precludes the Agency from taking whatever actions it finds necessary to fulfill its mission in an emergency. See National Treasury Employees Union, Chapter 22 and Department of the Treasury, Internal Revenue Service, 29 FLRA 348, 349 (1987) ("only proposals which either directly interfere with agency action or prevent the agency from taking the emergency action are inconsistent with section 7106(a)(2)(D)"). As we find no direct interference with management's right under section 7106(a)(2)(D), it is unnecessary to address the Agency's argument concerning section 7106(b)(3).

Under the Back Pay Act(2), an arbitrator may award pay, allowances, or differentials if the arbitrator determines that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; (2) the personnel action directly resulted in the withdrawal or reduction of the grievant's pay, allowances, or differentials; and (3) but for such action, the grievant otherwise would not have suffered the withdrawal or reduction. U.S. Department of Health and Human Services, Family Support Administration, Washington, D.C. and National Treasury Employees Union, Local 250, 42 FLRA 347, 359 (1991).

In this case, the Arbitrator satisfied the first requirement of the Back Pay Act when she found that the Agency violated the parties' agreement by failing to provide adequate living accommodations aboard the USNS COMFORT. See U.S. Department of the Air Force, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 42 FLRA 1342, 1347 (1991). However, we are unable to determine whether the two remaining requirements have been satisfied.

In this regard, the Arbitrator appears to have concluded that the $13 room allowance provided in section 2 of the relevant article does not apply in this case. As noted above, the Arbitrator specifically stated that "neither the violation alleged nor the remedy sought is based on °2." Award at 11. The Arbitrator also stated, in this connection, that the "'liquidated damages'" set forth in section 2 applied to the "commonly occurring problems" set forth in that section, including lack of heat or repair-related noise. Id. If section 2 does not apply and affected employees were not entitled, in the circumstances of this case, to the $13 allowance specified therein, then the Agency's actions would not directly result in the withdrawal or reduction of the affected employees' allowances. In this situation, an award of such an allowance would not satisfy the second requirement of the Back Pay Act. For example, National Association of Government Employees, Local R1-109 and Veterans Administration Medical Center, Newington, Connecticut, 35 FLRA 206, 211 (1990).

On the other hand, the Arbitrator appears to have concluded that, by virtue of the Agency's actions in this case, affected employees were entitled to the $13 allowance specified in section 2. Indeed, according to the Arbitrator, the Agency itself suggested that the "allowance rate called for in the Agreement, $13, is appropriate." Award at 12. Moreover, the Arbitrator specifically stated that the "appropriate" remedy was the "$13 room allowance rate negotiated in the Agreement." Id. If affected employees were entitled, under the parties' agreement, to the $13 allowance specified in section 2, then the connection between the Agency's violations of the agreement and a reduction in affected employees' allowances would be established. For example, Veterans Administration Medical Center, Palo Alto, California and American Federation of Government Employees, Local 2110, 36 FLRA 98, 109 (1990).

As we are unable to determine the basis of the Arbitrator's award, we will remand this case to the parties for resubmission to the Arbitrator for clarification of the award. For example, American Federation of Government Employees, Local 916 and U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 44 FLRA 247, 251 (1992).(3)

VII. Decision

The award is remanded to the parties for further action consistent with this decision.

(If blank, the decision does not have footnotes.)

1. The article, entitled "Quarters, Equipment, and Living Conditions," provides, in relevant part:


a. Adequate living accommodations shall be provided the . . . [p]ersonnel covered by the Agreement . . . .

. . . .


When board is not furnished as required, unlicensed members of the crew shall receive the following allowances:

. . . .

Room allowance $13.00

. . . .

a. Cash in lieu of quarters: When other comparable quarters have not been furnished in kind, room allowance shall be paid:

(1) When the ship is in port.

(a) When heat is not furnished.

. . . .

(2) When the ship is at sea.

(a) When repair work . . . is performed the following shall apply: Except for forward of 100 feet and aft of 100 feet of the ship's house, work causing noise . . . shall not commence until 1100. If such work is performed before 1100, quarters allowance in the amount of $6.50 shall be paid to those men who stood watches between midnight and 0800 and who present claims . . . .

Award at 6-7.

2. Although the parties disagree over whether the requirements of the Back Pay Act have been satisfied in this case, they do not dispute that the Act applies to the compensation awarded by the Arbitrator. Moreover, the Union does not assert any other authority, and we are aware of none, which would authorize the Arbitrator to award compensation for inadequate quarters.

3. Attorney fees are authorized in cases such as this one only in conjunction with an award of pay, allowances, or differentials. American Federation of Government Employees, Local 216, National Council of EEOC Locals and Equal Employment Opportunity Commission, 42 FLRA 319, 320 (1991). Moreover, where the Back Pay Act requirements are met, the arbitrator is the appropriate authority to resolve a request for attorney fees. U.S. Department of the Army, White Sands Missile Range, White Sands Missile Range, New Mexico and National Federation of Federal Employees, Local 2049, 38 FLRA 1532, 1538 (1991). Accordingly, we do not address further the Union's request for attorney fees.