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55 FLRA No. 38
U.S. DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT, GRAND RAPIDS, MICHIGAN
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 700
February 26, 1999
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 Lawrence M. Cohen 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 sustained the grievance challenging the Agency's suspension of the grievant from the credit hours program and awarded her 239.96 credit hours to compensate her for the suspension. For the reasons that follow, we deny the Agency's exceptions.
II. Background and Arbitrator's Award
The Union and the Agency negotiated an Alternative Work Schedule (AWS) Program for bargaining unit employees. This dispute arose after the grievant took a 15-minute break while working credit hours under the AWS program. Following the grievant's action, the Agency denied the grievant's requests to work credit hours and suspended the grievant from the credit hours program, because she "engag[ed] in [an] activity other than work while earning credit hours" in violation of the Agency's AWS program. Award at 3. The grievant grieved the suspension, alleging that her credit hours privileges had been suspended unjustly.
The Arbitrator held that the grievant's suspension from the AWS program was unwarranted. The Arbitrator ordered that the grievant be given the same opportunity accorded other bargaining unit employees to participate in the credit hours program. The Arbitrator declined to award back pay because the grievant did not suffer any loss in pay. The Arbitrator concluded, however, that the grievant suffered an injury that should be remedied. The Arbitrator calculated that the grievant would have earned a monthly average of 17.14 credit hours during each month of her suspension, for a total of 239.96 credit hours. Therefore, the Arbitrator awarded the grievant 239.96 credit hours. The Arbitrator placed the following limits on the use of the credit hours awarded: (1) the credit hours awarded could not be converted into their monetary equivalent; and (2) the grievant was only permitted to use 24 hours of the awarded credit hours in any pay period.
III. Positions of the Parties
A. Agency's Position
The Agency challenges only the remedy awarded by the Arbitrator.
First, the Agency excepts to the award of credit hours in general, arguing that it fails to draw its essence from the parties' agreement. The Agency asserts that the agreement's definition of credit hours, in section 17.02(5), [n1] contemplates that such hours are to be accumulated only for hours worked. The Agency asserts that the Arbitrator's award of credit hours for which the grievant did not work is contrary to section 17.02.
Second, the Agency excepts to the number of credit hours awarded, arguing that it is contrary to law and fails to draw its essence from the parties' agreement. With regard to the former, the Agency argues that the award of 239.96 credit hours is contrary to 5 U.S.C. § 6126, which provides that an employee may not accumulate more than 24 credit hours for carryover from one biweekly pay period to the next. [n2] With regard to the latter, the Agency argues that the award is contrary to section 17.04(2)(a)(4) of the agreement, which, combined [ v55 p220 ] with a Staff Bulletin, prohibits employees from accumulating more than 24 credit hours at any time. [n3]
B. Union's Position
The Union argues that the award of credit hours is not contrary to 5 U.S.C. § 6126 because the award does not permit the grievant to "accumulate" more than 24 credit hours. Opposition at 7. According to the Union, the award of credit hours constitutes make-whole relief that is not prohibited by section 6126. The Union similarly argues that the award of credit hours draws its essence from section 17.04(2)(a)(4) of the bargaining agreement because the award does not permit the employee to accumulate more credit hours than the agreement permits. The Union asserts that it is irrelevant that the grievant did not work the hours for which the award provides credit hours. In support of this argument, the Union relies on the Back Pay Act, which, according to the Union, provides for awards of backpay for employees wrongfully discharged or suspended, despite the fact that the employees subjected to such actions did not work during the discharge or suspension.
IV. Analysis and Conclusions
A. The award is not contrary to 5 U.S.C. § 6126
Because the Agency alleges that the award is contrary to law, the Authority will review the legal question de novo. U.S. Department of the Treasury, U.S. Customs Service, Portland, Oregon and National Treasury Employees Union, Chapter 156, 54 FLRA 764, 769 (1998). In applying a standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. Id. at 769-70. In making that assessment, the Authority defers to the arbitrator's underlying factual findings. Id. at 770.
We reject the Agency's argument that the award in this case is contrary to 5 U.S.C. § 6126 because it permits the grievant to accumulate credit hours in excess of the limit in that section. Section 6126, as plainly worded, precludes an employee from accumulating more than 24 credit hours for carryover. Section 6126 contains no limit on what an arbitrator can do to remedy an unjustified or unwarranted personnel action. In this case, the Arbitrator awarded the hours; the grievant did not accumulate them. [n4] We note that, when Congress wanted to limit leave accrual as a remedy, it did so clearly. Specifically, in 1975, Congress amended the Back Pay Act to permit restoration of unlimited leave. Prior to that amendment, the Back Pay Act limited an employee who had experienced an unjustified or unwarranted personnel action to a remedy of 30 days of annual leave. S. Rep. No. 536, 94th Cong., 1st Sess. 2, reprinted in 2 U.S.C.C.A.N. 2105, 2106 (1975). No similar limitation is contained in section 6126.
The legislative history to section 6126(a) provides evidence of Congress's intent in limiting the number of credit hours that may be accumulated. In particular, the legislative history states that the limitation was "necessary to ensure that credit hours are not accumulated and used as a basis for long term leave." S. Rep. No. 365, 97th Cong., 2nd Sess. 12, reprinted in 1982 U.S.C.C.A.N. 565, 574. The award in this case will not result in the use of credit hours in a manner contrary to the purpose of the limitation. In this regard, the Arbitrator limited the awarded credit hours available for use by the grievant in any pay period to 24 hours, finding the limit "consistent with the credit hour program condition" contained in the Staff Bulletin, which is the same 24-hour limitation found in section 6126(a). Award at 15. The Arbitrator imposed this limit specifically to prevent the grievant from taking unlimited credit hours in any pay period, which "would be unfair to the Agency and inconsistent with the credit hour policy[.]" Id.
In sum, we find that the award in this case is not contrary to section 6126. In so doing, we note that the remedy awarded by the Arbitrator is a make-whole remedy. "[T]he purpose of a make-whole remedy is to place individuals who have been adversely affected by an improper action in the situation they would have been if the improper action had not occurred." National Federation of Federal Employees, Local 1827 and Catherine Bratton, 49 FLRA 738, 748 (1994). We also note that awarding the grievant the total number of credit hours she would have earned but for the Agency's unwarranted suspension of the grievant from the credit- [ v55 p221 ] hours program is consistent with the practice of the Merit Systems Protection Board (MSPB) in cases involving awards of leave under the Back Pay Act. See, e.g., Wilkins v. U.S. Postal Service, 56 M.S.P.R. 648, 652 (1993) (MSPB awarded retroactive annual leave in excess of amount appellant could have carried over in absence of improper removal, explaining that the appellant was not given the option of using or accumulating annual leave during the time that she was removed); Hawkins v. U.S. Postal Service, 56 M.S.P.R. 633, 639 (1993) (same).
Based on the foregoing, we deny the Agency's exception that the award is contrary to 5 U.S.C. § 6126.
B. The award does not fail to draw its essence from the parties' bargaining agreement.
To demonstrate that an award fails to draw its essence from a collective bargaining agreement, a party must show that the award: (1) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; or (2) does not represent a plausible interpretation of the agreement; or (3) cannot in any rational way be derived from the agreement, or evidences a manifest disregard of the agreement. United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990).
For the reasons discussed below, we conclude that the Agency has not shown that the award fails to draw its essence from the parties' bargaining agreement.
1. The award does not fail to draw its essence from section 17.04(2)(a)(4) of the agreement.
Section 17.04(2)(a)(4) of the parties' agreement, in combination with a Staff Bulletin, prohibits employees from accumulating more than 24 credit hours at any time. The Arbitrator considered the 24-hour limitation and concluded that "[i]t would . . . be inconsistent with the credit hour policy" to permit the grievant to take unlimited credit hours in any pay period. Award at 15. The Arbitrator determined that limiting the grievant to using a maximum of 24 awarded credit hours in a pay period was consistent with the credit-hour limitation contained in the Staff Bulletin. Id. The Agency has not shown that this interpretation of the contract provision, in combination with the Staff Bulletin, is implausible or irrational. Accordingly, we deny this exception.
2. The award does not fail to draw its essence from section 17.02(5) of the parties' agreement.
The Agency argues that the award of credit hours to the grievant without her having worked to earn them amounts to a "windfall" to the grievant which was not contemplated by the agreement. Exceptions at 6. However, the Agency has provided no support for the argument that the Arbitrator could not have reasonably interpreted the agreement as permitting a remedy of credit hours in this case, where management's wrongful action prohibited the employee from performing the work necessary to earn the credit hours. The Agency, therefore, has failed to show that the award of 239.96 credit hours was implausible or irrational. Accordingly, we deny this exception.
The Agency's exceptions are denied.
Footnote # 1 for 55 FLRA No. 38
Section 17.02(5) provides: (5) Credit hours. Credit for work performed by an employee in excess of his/her regularly scheduled eight-hour tour of duty on any workday in order to vary the length of a subsequent workday. Such work is compensated by an equal amount of time off (i.e., one . . . hour of work in excess of the employee's regularly scheduled eight- hour tour of duty is compensated by one . . . hour off on a subsequent workday). Work performed for credit hours is differentiated from overtime work, which is ordered or directed by Management. Work performed for credit hours is not compensated as, nor is it subject to the rules and regulations governing, overtime work.
Footnote # 2 for 55 FLRA No. 38
5 U.S.C. § 6126 provides, in relevant part: (a) Subject to any limitation prescribed by the Office of Personnel Management or the agency, a full-time employee on a flexible schedule can accumulate not more than 24 credit hours . . . for carryover from a biweekly pay period to a succeeding biweekly pay period for credit to the basic work requirement for such period.
Footnote # 3 for 55 FLRA No. 38
Footnote # 4 for 55 FLRA No. 38
We note, in this regard, that the dictionary defines "accumulate" as "to pile up, collect, or gather together, especially over a period of time[.]" Webster's New World Dictionary (3rd ed. 1988) at 9. In this case, the grievant did not work to amass the credit hours in the award; the Arbitrator awarded the credit hours in a lump sum.