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53:1426(129)AR - - VA Medical Center, Coatesville, PA and NAGE Local R3-35 - - 1998 FLRAdec AR - - v53 p1426

[ v53 p1426 ]
The decision of the Authority follows:

53 FLRA No. 129















February 27, 1998


Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

Decision by Chair Segal for the Authority.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Kinard Lang 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 Regulations. The Union filed an opposition to the Agency's exceptions.

The Arbitrator mitigated the Agency's suspension of the grievant from 14 to 2 days. The Arbitrator ordered the Agency to assign the grievant sufficient overtime work to earn the amount of back pay lost by the improper suspension, and retained jurisdiction for the exclusive purpose of entertaining a timely petition for attorney fees.

For the following reasons, we conclude that the award is deficient under section 7122(a)(1) of the Statute. Accordingly, we set aside the award and remand this case to the parties with the direction that, absent settlement, the remedy issue should be submitted to the Arbitrator. We deny the Agency's exception regarding attorney fees.

II. Background and Arbitrator's Award

The grievant was suspended for 14 days for insubordination and for disclosing confidential patient information in violation of the Privacy Act. Looking to the just cause provision, and related provisions, of the parties' agreement,(1) the Arbitrator found, based upon the grievant's employment history and the record in this case, that the 14-day disciplinary suspension should be reduced to 2 days because it lacked sufficient cause and, hence, "was not for the good of the Agency." Award at 16.

To remedy the improper suspension, the Arbitrator ordered that the Agency assign the grievant sufficient overtime work to earn an amount equivalent to the gross compensation lost during the 12 days that he was improperly suspended. The Arbitrator also retained jurisdiction for the purpose of entertaining a timely petition for attorney fees.

III. Positions of the Parties

A. Agency

The Agency argues that the Arbitrator's award of "restitutional overtime" violates management's rights to assign work and assign employees under sections 7106(a)(2)(A) and (B) of the Statute by "ignor[ing] the basic premise" that "management has the right to determine employee assignments, to determine the qualifications which employees must meet to be eligible for overtime assignments and to make judgments as to whether an employee meets said qualifications." Exceptions at 2. Additionally, the Agency claims that the award violates Articles 13 and 14 of the parties' agreement,(2) which the Agency asserts gives to management "the right to determine the hours of work, the basic workweek and the scheduling of tours of duty and overtime for its employees." Id.

Finally, according to the Agency, an award of attorney fees would not comply with the requirements 5 U.S.C. § 7701(g)(1), because, among other things, the grievant was not the "prevailing party" in this case, and because such an award would not be "in the interest of justice." Id. at 3.

B. Union

The Union states that it is uncertain of the grounds on which the Agency's "restitutional overtime" exception is based. The Union assumes that this exception is based on the arguments that: (1) the award fails to draw its essence from the collective bargaining agreement; and (2) the award is contrary to law.

The Union argues that the award does not fail to draw its essence from the collective bargaining agreement. The Union asserts that arbitrators have wide latitude to fashion remedies, and that remedies identical to the one fashioned here were allowed to stand in both U.S. Department of the Navy, U.S. Marine Corps Logistics Base, Albany, Georgia and American Federation of Government Employees, Local 2317, 39 FLRA 576, 579 (1991)(hereinafter "Marine Corps") and Department of the Air Force, Warner Robins Air Logistics Center, Robins Air Force Base, GA. and American Federation of Government Employees, Local 987, 25 FLRA 969, 971 (1987) (hereinafter "Warner Robins"). The Union also argues that the Agency has failed to demonstrate that the award is contrary to law, rule, regulation, or Authority precedent.

Regarding the Agency's exception as to attorney fees, the Union asserts that the exception is interlocutory in nature, as the Union has not yet argued an entitlement to attorney fees.

IV. Discussion

1. The Award is Deficient Because It Fails to Reconstruct What the Agency Would Have Done Had It Acted in Accordance with the Parties' Agreement

As the Agency's exception involves the award's consistency with law, we review the questions of law raised by its exception and the Arbitrator's award de novo. See National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)).

The Authority's framework for resolving exceptions alleging that an award violates management's rights under section 7106 of the Statute is set forth in U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and National Treasury Employees Union, Chapter 201, 53 FLRA 146, 151-54 (1997) (BEP). Under prong I of this framework, the Authority examines whether the award provides a remedy for a violation of either applicable law, within the meaning of section 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to section 7106(b) of the Statute. Id. at 153. If the award provides such a remedy, the Authority will find that the award satisfies prong I of the framework and will then address prong II. Under prong II, the Authority considers 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. Id. at 154. If the arbitrator's remedy reflects such a reconstruction, the Authority will find that the award satisfies prong II.

With respect to prong I, the Arbitrator's mitigation of the grievant's suspension was grounded on Article 45 of the parties' agreement, which requires that the Agency discipline its employees "only for just cause and in a fair manner." There is no contention that this provision is unenforceable. Moreover, the Authority has previously held that collective bargaining provisions establishing general standards, such as "just and sufficient cause" or "to promote the efficiency of the service," to guide the exercise of management's right to discipline are arrangements that do not abrogate the exercise of this management's right; such provisions are viewed as having been negotiated under section 7106(b)(3) of the Statute.(3) See U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Cumberland, Maryland and American Federation of Government Employees, Council of Prisons Local 4010, 53 FLRA 278, 284 (1997); VAMC, Birmingham, 51 FLRA at 273. Accordingly, the first prong of BEP is satisfied in this case.

With respect to prong II, the Agency does not dispute the Arbitrator's mitigation of the grievant's suspension. As the Authority has previously explained, "where an arbitrator vacates or mitigates a disciplinary action taken in violation of a contractual just cause provision, that award operates in effect to reconstruct what management would have done had the provision been followed." VAMC, Birmingham, 51 FLRA at 274. The Agency takes issue here only with the restitutional relief the Arbitrator ordered -- that the Agency schedule the grievant to work make-up overtime.

Had the Agency not improperly suspended the grievant for 14, rather than 2, days, he would have been paid for those 12 days. The Arbitrator did not explain the basis for awarding restitutional overtime to make up this difference. Moreover, there is no assertion, or other basis on which to conclude, that the Agency would have, in essence, placed the grievant on unpaid leave for 12 days and assigned him overtime work for an equivalent amount of time. Thus, the award fails to reconstruct what the Agency would have done had it initially acted properly. Consequently, the award does not satisfy prong II of BEP and, as a result, is deficient.(4)

Awarding the grievant backpay for 12 days would more directly make him whole for the days he was improperly suspended. However, we are unable to determine whether the Arbitrator's remedy of restitutional overtime reflects his decision that a backpay remedy was inappropriate. We note, in this regard, that nothing in the Back Pay Act precludes an arbitrator from denying backpay as part of a decision to mitigate an agency-imposed penalty. Department of the Air Force, Headquarters, San Antonio Air Logistics Center, Kelly Air Force Base and American Federation of Government Employees, Local No. 1617, 32 FLRA 513, 515 (1988) (citing American Federation of Government Employees Local 2718 v. Department of Justice, 768 F.2d 348, 351 (Fed. Cir. 1985)).

In these circumstances, setting aside the award and remanding it to the parties for resubmission to the Arbitrator, if necessary, is warranted. This will permit the parties to resolve the dispute on their own and, absent such resolution, will require the Arbitrator to determine whether an award of backpay -- or some other remedy -- is warranted. Accordingly, we remand this case to the parties with the direction that, absent settlement, the remedy issue should be submitted to the Arbitrator.(5)

2. Attorney Fees

It is well established that under the Back Pay Act, 5 U.S.C. § 5596, and implementing regulations, 5 C.F.R. Part 550, an arbitrator may retain jurisdiction after issuing an award for the purpose of considering requests for attorney fees. See Alabama Association of Civilian Technicians and U.S. Department of Defense, Alabama State Military Department, Alabama National Guard, 51 FLRA 1262, 1263 (1996); see also, U.S. Department of the Treasury, U.S. Customs Service, Nogales, Arizona and National Treasury Employees Union, Chapter 116, 48 FLRA 938, 940 (1993). As the Arbitrator merely retained jurisdiction for such purpose, and did not make any determination on the merits, the Agency's attorney fee exception is premature. Accordingly, we dismiss this exception without prejudice.

V. Decision

This case is remanded to the parties with the direction that, absent settlement, the remedy issue should be submitted to the Arbitrator. The Agency's exception regarding attorney fees is dismissed without prejudice.


Articles 13 and 14 of the parties' Master Agreement provide, in pertinent part:


Section 1

The . . . basic workweek will normally consist of five eight hour days. . . .

. . . .


Section 1

The Employer agrees that overtime assignments shall be made in keeping with applicable regulations, instructions, and workload requirements. Overtime work shall be paid for in accordance with laws and regulations of higher authority.

Section 2

Overtime work shall be distributed fairly and equitably among qualified employees with consideration being given to such factors as the character of the work, qualifications, availability, and organizational location of employee; knowledge of the particular type of work involved; and health/fatigue limitations.

Section 3

. . . .

Management will endeavor to avoid overtime of more than

4 hours at the end of an 8 hour shift.

Section 4

If a heavy and/or emergency workload situation exists, each employee is expected to work overtime when required by the employer. An employee may request release from an overtime assignment. An employee will be relieved in those instances where another qualified employee in the same work unit is readily available for the assignment and willing to work. The Employer retains the right to direct an employee to work overtime consistent with Section 3 of this article if there are no qualified volunteers in the same work unit. The method of scheduling distribution of overtime will be subject to negotiations in local supplemental agreements.

. . . .

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

1. The just cause provision of the parties' agreement (Article 45, Section 3) provides, in pertinent part, as follows:

It shall be the policy of the Employer to effect discipline only for just cause and in a fair manner. Discipline shall be consistent with the punishable act, the degree of severity of the act, the employment record of the employee, and the principle of consistency of discipline . . . .

Award at 8.

The Arbitrator also looked to the preamble of the Agency's "Table of Penalties," which states, in pertinent part, that consideration will be given to:

. . . .

e.       (1) The degree of harm or interference the offense has caused with respect to efficient operation of the VA . . . . [and]

(2) The circumstances surrounding the offense . . . .

Award at 15.

2. The pertinent provisions of Articles 13 and 14 are set forth in the Appendix.

3. To determine whether an award enforces a provision of the collective bargaining agreement negotiated pursuant to section 7106(b)(3), the Authority applies the framework of Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309, 313-14 (1990). Under that framework, the Authority determines whether the collective bargaining provision enforced by the arbitrator: (1) constitutes an arrangement under section 7106(b)(3) of the Statute, and (2) does not abrogate the exercise of a management right. See BEP, 53 FLRA at 153 n.8; see also U.S. Department of Veterans Affairs, Medical Center, Birmingham, Alabama and American Federation of Government Affairs, Local 2207, 51 FLRA 270, 273-74 (1995) (hereinafter "VAMC, Birmingham").

4. In this regard, the Union cites Marine Corps, 39 FLRA at 579, and Warner Robins, 25 FLRA at 971, for the proposition that the Authority has upheld arbitral awards of make-up overtime in the past. Although these cases predate BEP, and therefore do not apply its framework, they both involved make-up overtime as a remedy for overtime work improperly denied. Accordingly, the remedies there arguably did constitute a proper reconstruction under the BEP analysis. As such, Marine Corps and Warner Robins are not inconsistent with the analysis herein.

5. Given our finding that the award is deficient on Section 7106 grounds, we need not resolve the Agency's exception asserting that the award fails to draw its essence from the parties' agreement.