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55 FLRA No. 17
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 186
(Union)
and
U.S. DEPARTMENT OF THE INTERIOR
BUREAU OF INDIAN AFFAIRS
OFFICE OF INDIAN EDUCATION PROGRAMS
FLANDREAU INDIAN SCHOOL
FLANDREAU, SOUTH DAKOTA
(Agency)
0-AR-3032
_____
DECISION
January 8, 1999
_____
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. [n1]
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator John J. Flagler filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.
The Arbitrator declined to award backpay to a grievant who had been subjected to a reduction-in-force (RIF) where the Agency's notification of the RIF violated 5 C.F.R. §§ 351.801, 351.802. [n2] For the following reasons, we conclude that the Union has failed to established that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.
II. Background and Arbitrator's Award
On February 5, 1997, the Agency notified the grievant that, effective April 11, 1997, she would lose her teaching position due to a RIF. On April 3, 1997 -- 57 days after receiving the notice -- the Agency orally notified the grievant that her RIF notice was canceled. On April 11, 1997, the grievant was informed that she was being RIF'd effective immediately. The grievant filed a grievance, requesting "backpay and benefits to return her to the status quo ante." Union's Brief to Arbitrator at 1 (attached to Union's Exceptions to Award). [n3]
The Arbitrator concluded that the Agency committed "procedural error" when it notified the grievant that the February RIF notice was canceled and then subsequently reversed the cancellation. Award at 8. The Arbitrator found that this procedural error -- "fail[ing] to provide the [g]rievant with a full 60 day RIF notification period" prior to separation from employment -- violated 5 C.F.R. §§ 351.801, 351.802. Award at 10. The Arbitrator determined that this procedural error was "harmful" because: "but for the erroneous cancellation of the February 5, 1997 RIF notice, the result would have been that the [g]rievant's full 60 day notice would have tolled without interruption;" and "the error caused the [g]rievant to lose some part of that mandatory 60 day notification period during which she could have actively pursued alternative employment both within the school, public or private schools, or even a career change." Id. at 9 (emphasis added).
The Arbitrator also concluded that the grievant was not entitled to backpay and benefits. Specifically, the Arbitrator concluded that he did not have the authority to vacate the RIF and restore the grievant to employment because she had not proven that the procedural error in notification caused her to lose a position which she otherwise would have been entitled to claim. The Arbitrator concluded that the Union's request for such relief was "unduly vague and speculative[,]" since the grievant offered no evidence or argument to show that there was an available position for which she was qualified and entitled. Award at 10. The Arbitrator rejected the grievant's argument that, due to the procedural notification error, she was denied the opportunity to claim the English teacher position for which she was qualified. The Arbitrator concluded that the grievant could not establish that she was denied the opportunity to claim this position due to the procedural error, where the evidence showed that she was not qualified for the available English teacher position. In addition, the Arbitrator noted that the grievant offered no probative evidence that she had lost any other job offer or opportunity dur- [ v55 p60 ] ing the time period between the cancellation of the RIF notice and the RIF. Finally, the Arbitrator determined that the RIF was based on a lack of funds and would have occurred with or without the procedural error in notification.
Accordingly, the Arbitrator concluded that the "sole remedy . . . consists of the finding of . . . harmful error and the notice hereby, that any further procedural error in the RIF notification timeline warrants appropriate economic remedy to the extent that any future grievant can prove damage." Id. at 12.
III. Positions of the Parties
A. Union's Exceptions
The Union argues that the award is contrary to the Back Pay Act because the requirements for a back pay award under that statute were met. Specifically, the Union asserts that the grievant "never received a valid notice on April 11, 1997." Exceptions at 1. The Union contends that the Agency's failure to provide the grievant a valid notice constituted an unjustified and unwarranted personnel action, that the action directly resulted in the withdrawal of pay, and that but for the Agency's wrongful action, the grievant would not have suffered the withdrawal of pay.
The Union also asserts that the Arbitrator erred in his evaluation of evidence. According to the Union, the evidence showed that the grievant was qualified to work in a variety of positions that the Agency failed to offer her. [n4]
The Union requests that the Authority either overturn the award or remand it for a decision in accordance with the Back Pay Act. The Union argues that, if the grievant had received the required notice period, then "she would have had at least 60 more paid days at the Agency." Exceptions at 11. In addition, the Union argues that if the Agency had not committed the procedural error in notification, then the grievant could have exercised her substantive RIF rights to obtain another job at the school. Accordingly, the Union asserts that the grievant "is entitled to be placed in the teaching position she would have occupied absent the improper notice and to get back pay and benefits in accordance with that position." Id. at 12.
B. Agency's Opposition
The Agency argues that the award is not deficient because the grievant did not have any substantive right to another teaching position, as the other available teaching positions were in another competitive level. According to the Agency, because there was no available teaching position to which the grievant was entitled, the results of the RIF would have remained the same even if the grievant had been given a second 60-day notice. With regard to back pay, the Agency argues that the grievant is not entitled to back pay because she remained in a pay status "during the 60-day notice" and received severance pay. Opposition at 9.
IV. Analysis and Conclusions
A. The award is not based on a nonfact
To establish that an award is based on a nonfact, the appealing party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993). The Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties disputed at arbitration. Id. at 594 (citing Mailhandlers v. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)).
We construe the Union's argument that the Arbitrator erroneously evaluated the evidence concerning the grievant's qualifications for other positions as a claim that the award is based on a nonfact. This factual issue was contested before the Arbitrator. Accordingly, the Union's assertion that the Arbitrator's finding on this issue is erroneous does not demonstrate that the award is deficient as based on a nonfact.
We, therefore, deny the Union's exception that the award is based on a nonfact.
B. The award is not contrary to the Back Pay Act
Under the Back Pay Act, 5 U.S.C. § 5596(b)(1)(A)(i), 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 resulted in the withdrawal or reduction of the grievant's pay, [ v55 p61 ] allowances or differentials. See U.S. Department of Health and Human Services and National Treasury Employees Union, 54 FLRA 1210, 1218 (1998).
With regard to the first requirement, a violation of an applicable law, rule, regulation or provision of a collective bargaining agreement constitutes an unjustified or unwarranted personnel action. U.S. Department of the Army, Pine Bluff Arsenal, Arkansas and American Federation of Government Employees, Local 953, 47 FLRA 626, 629 (1993). The Arbitrator found that the Agency violated 5 C.F.R. §§ 351.801, 351.802 in failing to provide the grievant with the 60-day notice prior to the RIF. Accordingly, the Agency committed an unjustified or unwarranted personnel action.
With regard to the second requirement, the Arbitrator determined that the grievant suffered no loss of pay or benefits as a result of the Agency's procedural error in notification. The Authority defers to arbitrators' underlying factual findings. See U.S. Department of the Treasury, U.S. Customs Service, Portland, Oregon and National Treasury Employees Union, Chapter 156, 54 FLRA 764, 770 (1998).
Consistent with the previous analysis of the Union's nonfact exception, the Arbitrator's factual finding that the grievant was not deprived of other positions is not deficient. In addition, as discussed below, the Union has not shown that the grievant suffered any other loss, or offered support for concluding that a loss automatically results from a shortened notification period.
The Union claims that, "if the Agency had not deprived [the grievant] of the required period, [then] she would have had at least 60 more paid days at the Agency." Exceptions at 11. This claim is unsupported. To begin with, the grievant received 57 consecutive days' notice. Even in situations where backpay is provided by the MSPB to compensate for a loss of pay resulting from a shortened notice period, the backpay is only for the difference between the actual notice received and that provided. See, e.g., Stephen v. Department of the Air Force, 47 M.S.P.R. 672, 687-90 (1991) (Stephen) (employee terminated after receiving and being compensated for only 13 days of required 30-day notice period under 5 U.S.C. § 7513, was entitled only to additional 17 days of pay, not to additional 30 days of pay). More importantly, backpay is provided only where a loss of pay resulted from the shortened notice. In Callery v. Department of Justice, 50 M.S.P.R. 158 (1991), an employee was suspended after receiving only 24 days' -- instead of the required 30 days' --notice. [n5] The MSPB held that, although the Agency erred in failing to provide the required notice, the employee lost no pay as a result of the shortened notice period: "[t]he only effect of the agency's correction of its error would be that the effective date of the suspension would be 6 days later than it otherwise would have been." Id. at 163. Thus, the MSPB refused to provide the employee backpay even though the employee received less than the required notice.
In this case, the grievant received pay for 65 days after the date of the RIF notice. Moreover, as stated previously, the Arbitrator made a finding of fact -- to which we defer --that the grievant lost no pay as a result of the shortened notice. No authority is provided for concluding that, in this situation, the grievant suffered a loss as a result of the shortened notice period. [n6]
Based on the foregoing, the Agency's error did not result in a loss of the grievant's pay, allowances, or differentials. As such, the requirements for an award of backpay under the Back Pay Act have not been satisfied and the Arbitrator's refusal to award backpay is not deficient.
V. Order
The Union's exceptions are denied.
Member Wasserman, dissenting:
I would remand this case, rather than deny the exception. Although the Union identifies the issue presented in its exception as whether the award failed to comply with the Back Pay Act, the underlying issue is captured in the Union's opening paragraph, as follows:
[ v55 p62 ] [The Grievant] never received a valid notice on April 11, 1997 under either 5 C.F.R. § 351.801 (1997), which required the Agency to provide [her] a full 60 day notice period, or 5 C.F.R. § 351.802 (1997), which governs the content of any RIF notice.
Exceptions at 1.
As a fundamental matter, I think the Agency's actions were contrary to law -- it canceled the RIF notice, and then failed to give the employee her full 60 day notice, as required by 5 C.F.R. § 351.801(a). While I understand the parties' references to "harmful procedural error," I think that phrase tends to detract from the fact that the Agency did not follow the regulatory requirements, and the Arbitrator did not fully enforce the law. We typically set aside awards that do not comply with law, and I would do so here, for the purpose of remanding to the Arbitrator for proper application of the legal requirements.
In general agreement with the Union in this case, I think that the Back Pay Act provides a basis for a monetary award. However, because this case involves a teacher whose pay may have been affected by the academic school year, the matter should be remanded for a determination as to the application of the Back Pay Act to the facts of this case.
The Arbitrator found that the Grievant was issued a RIF notice on February 5, 1997. On April 3, 1997, the chief school administrator orally "canceled the notice." Award at 3. On April 4, 1997, the administrator confirmed in writing that the Grievant's notice had been canceled. Id. The Arbitrator determined that the Agency committed "harmful error" in its handling of th[e] notice. Id. at 9. These findings are sufficient to support the determination that an unjustified personnel action occurred.
While the Arbitrator was correct in determining that the deficient notice did not warrant returning the employee to her position permanently, he was wrong in concluding that there was no remedy that he could provide. The Grievant was entitled to a full 60 day notice, and the Agency was obligated to provide her with a new notice when it determined to subject her to a second RIF action, after the cancellation of the first such action. The Union contends that the Grievant "would have had at least 60 more paid days at the Agency." Exceptions at 11. Since RIF notice requirements are designed to give federal employees a paid notice period, it is likely that the Union's contention is correct. While the Union's statement is not supported by a proffer of specific facts regarding the Grievant's pay status, it is certainly supported by the regulatory requirement that employees receive 60 days notice of a RIF. Accordingly, the second requirement of the Back Pay Act would be satisfied, insofar as the unjustified personnel action appears to have resulted in a loss of pay for the Grievant.
I do not think that the MSPB precedent cited by the majority requires another result. Callery v. Department of Justice, supra, involves a shortened notice period in an adverse action proceeding. The typical remedy for such an error is an order for compensation for the remainder of the entire 30 day notice period. Id. at 162. Here, we do not have a notice period that was shorter than was required; instead, the RIF was actually canceled. The majority does not cite any MSPB case involving actions subsequent to the cancellation of an adverse action notice. To the extent Callery is helpful to the analysis, I think that it supports the general proposition that an employee is entitled to a full notice period. Contrary to the view of the majority, I do not think that the Grievant received 65 days notice. Her RIF was canceled prior to April 11, 1997, and when she received notice on April 11 that she was being separated effective immediately, she actually received zero days notice.
The application of the full notice period, as it relates to the Grievant's pay status in this case, is unclear from the record. I note that there are both "[s]chool term and year long contract education employees[.]" Opposition, Exhibit 10, Section 11.49. It is not clear whether the Grievant was paid year-round, or only during the academic year. We have not been presented with enough information to know whether an additional 60 day notice period would have necessarily occurred while the Grievant was in a paid status. As a result, I would remand to the parties for settlement, if possible, or for submission to the Arbitrator for a determination of the amount of back pay due, if any, for the required, new 60 day notice.
Footnote # 1 for 55 FLRA No. 17
Member Wasserman's dissenting opinion is set forth at the end of this decision.
Footnote # 2 for 55 FLRA No. 17
Section 351.801 provides that employees subject to a RIF are "entitled to a specific written notice at least 60 full days before the effective date of release." Section 351.802 sets forth the required contents of a RIF notice.
Footnote # 3 for 55 FLRA No. 17
In its brief to the Arbitrator, the Union did not explain the specific relief it was requesting. In its Exceptions, the Union explains that the grievant is "entitled to be placed in the teaching position she would have occupied absent the improper notice and to get back pay and benefits in accordance with that position." Exceptions at 11-12.
Footnote # 4 for 55 FLRA No. 17
The Union also claims that the Arbitrator "wrongly held that he had no authority to award back pay . . . ." Exceptions at 14. This claim is based on a misreading of the award, where the Arbitrator stated:
The grievant's request for backpay and benefits assumes that the Arbitrator has the authority to vacate the RIF and restore her to employment. I have no such power unless and until the [g]rievant proves that the procedural error in the notification process caused her to lose a position which she otherwise would have been entitled to claim.
Award at 10.
Footnote # 5 for 55 FLRA No. 17
Stephen and Callery concerned the 30-day notice period required by 5 U.S.C. § 7513 for proposed actions under 5 U.S.C. § 7512. In contrast, this case concerns a proposed RIF for which there is a 60-day notice requirement. However, we discern no reason for interpreting and applying different principles of law to these notice periods. We also find no support for our dissenting colleague's suggestion that these cases do not apply because the RIF notification was canceled in this case.
Footnote # 6 for 55 FLRA No. 17
In this regard, the dissent correctly points out that the general rule is that an employee is entitled to compensation for the entirety of a required notice period. See, e.g., Hawkins v. Department of the Navy, 49 M.S.P.R. 501, 504 (1991) (employee "was entitled, under 5 U.S.C. § 7513(b)(1), to be retained in a duty status with compensation for the full 30-day advance notice period of . . . removal action"). Thus, if an employee is separated from employment after expiration of a shortened notice period, then the employee is entitled to backpay for the difference between the notice required and the notice received. See, e.g., Stephen, 47 M.S.P.R. at 687. In this case, however, the grievant was not separated at the expiration of a shortened notice period; the grievant was retained and, ultimately, received compensation for more than the required 60-day period.
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