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55 FLRA No. 12
U.S. DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3979
December 31, 1998
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
Decision by Member Wasserman for the Authority.
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator Gary L. Axon 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 exception.
The Arbitrator found that the Agency had violated the parties' collective bargaining agreement by failing to distribute and rotate overtime opportunities equitably among qualified employees. He remanded to the parties the issue of the appropriate financial compensation for individual employees. We conclude that the Agency fails to establish that the award is deficient. Accordingly, we deny the Agency's exception.
II. Background and Arbitrator's Award
The Union filed a grievance, which claimed that the Agency was violating Article 18, Section (n) of the parties' collective bargaining agreement [n1] by the manner in which it distributed overtime opportunities among employees. The Arbitrator sustained the grievance. The Arbitrator found that the Agency had failed to distribute and rotate overtime opportunities equitably among qualified employees. He ruled that management violated the agreement by the system used to schedule overtime and by its failure to maintain overtime records.
At arbitration, management described the system to schedule and distribute overtime as one where employees had the opportunity to sign up on a list for overtime and where the first qualified person on the list was offered the opportunity to work overtime. The Arbitrator found that the system resulted in an inequitable distribution of overtime opportunities to employees. In addition, he rejected the Agency's argument that the grievance should be denied because the Union failed to provide sufficient information to identify any employees who had been denied the opportunity to work overtime. He refused to allow the Agency to avoid liability on the basis of its own failure to comply with its contractual obligations to maintain accurate and complete overtime records.
The Arbitrator specifically disagreed with the Agency's allegation that no employee had been harmed by the manner in which it distributed overtime opportunities. The Arbitrator ruled that even without evidence of individual economic losses, the Agency's violation of the agreement constituted an unjustified and unwarranted personnel action that had deprived employees of the ability to work specific overtime assignments, which justified backpay for those employees wrongly denied the opportunity to earn overtime compensation. He remanded to the parties the calculation of appropriate monetary relief for individual employees. He specifically directed that those employees be paid for the overtime they would have earned had the overtime opportunities been distributed and rotated equitably among qualified employees, as required by the collective bargaining agreement.
III. Positions of the Parties
A. Agency's Exception
The Agency contends that the award is contrary to the Back Pay Act, 5 U.S.C. § 5596 (Act). The Agency argues that the award of backpay is deficient under the Act because the Arbitrator failed to identify any instance where an employee suffered a loss of pay as a result of the violation of the collective bargaining agree [ v55 p29 ] ment. The Agency claims that due to the system by which overtime was distributed, it is virtually impossible to determine who would have worked overtime. Consequently, the Agency maintains that the Arbitrator was unable to show that as a result of the violation of the agreement, specific individuals would have been offered overtime assignments, performed overtime work, and received overtime pay.
B. Union's Opposition
The Union contends that the Arbitrator made sufficient findings to warrant remand to the parties to determine appropriate backpay. The Union claims that it was the irresponsibility of the Agency in failing to properly maintain overtime records that prevented evidence of individual economic loss. The Union argues that the Agency should not be rewarded for its repudiation of its contractual obligations.
Analysis and Conclusions
A. Standard of Review
When an appealing party's exception involves whether the award is consistent with law, we review the questions of law raised by the exception and the award de novo. See, e.g., National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995). In applying a standard of de novo review, we assess whether the arbitrator's legal conclusions are consistent with the applicable standard of law. In making that assessment, we defer to the arbitrator's underlying factual findings. See, e.g., U.S. Department of Health and Human Services and National Treasury Employees Union, 54 FLRA 1210 (1998) (HHS).
B. Requirements of the Back Pay Act
An award of backpay is authorized under the Act only when an unjustified or unwarranted personnel action has resulted in the reduction of an employee's pay, allowances, or differentials. See HHS, 54 FLRA at 1218-19 (Authority clarified that a requirement that the pay loss would not have occurred but for the unwarranted action is not a separate, independent requirement of the Act, but merely amplifies the causal connection requirement of the Act). A violation of a collective bargaining agreement constitutes an unjustified or unwarranted personnel action under the Act. See U.S. Department of Defense, Department of Defense Dependents Schools and Federal Education Association, 54 FLRA 773, 785 (1998).
C. Application of Requirements
The Arbitrator's finding that the Agency violated Article 18, Section (n) of the collective bargaining agreement satisfies the requirement of an unjustified or unwarranted personnel action, and the Agency does not dispute it. Instead, the Agency disputes whether the Arbitrator made sufficient findings that the Agency's overtime assignment practice had resulted in a loss of overtime pay to any individual employee to allow him to award backpay and remand to the parties to determine the recipients and the amount. We conclude that the Arbitrator made the necessary findings.
The Arbitrator expressly found that the Agency's violation of the agreement constituted an unjustified and unwarranted personnel action that had deprived employees of the ability to work specific overtime assignments and that backpay was justified for those employees wrongly denied the opportunity to work overtime. We find that consistent with the Act, the Arbitrator sufficiently identified the specific circumstances under which employees were entitled to backpay. There is no additional requirement for him to have identified specific employees. See Federal Employees Metal Trades Council, Local 831 and U.S. Department of the Navy, Long Beach Naval Shipyard, Long Beach, California, 39 FLRA 1456, 1459 (1991) (Long Beach Naval Shipyard) (when an arbitrator has found the specific circumstances giving rise to an entitlement to backpay, there is no requirement in the Act or its implementing regulations for the arbitrator to identify the specific employees entitled to backpay as a result of the unwarranted action); Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 13 FLRA 386, 387 (1983) (arbitrator made the necessary findings for an award of backpay because he determined that when overtime had been assigned in violation of the collective bargaining agreement, unit employees were available to perform such work; there is no requirement under the Act to identify any specific employees).
The terms of the award further assure its consistency with the Act. Pursuant to the award, no employee will receive backpay unless the employee would have worked an overtime assignment but for the Agency's distribution system. The Agency's complaint about the difficulty in identifying these employees does not implicate the requirements of the Act, but rather implicates a matter of compliance and implementation. The Arbitrator's direction to the parties in this case is no different than the Authority's own direction to the parties in Long Beach Naval Shipyard. See 39 FLRA at 1460. Accordingly, we deny the Agency's exception.
The Agency's exception is denied.
Footnote # 1 for 55 FLRA No. 12
Opportunities for overtime shall be distributed and rotated equitably among qualified employees. Specific procedures . . . may be negotiated locally. . . . Overtime records including sign-up lists, offers made by the Employer for overtime, and overtime assignments, will be monitored by the Employer and the Union to . . . ensure equitable distribution of overtime assignments to members of the unit.
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