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56 FLRA No. 129
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2608
SOCIAL SECURITY ADMINISTRATION
SAN JUAN TELESERVICE CENTER
SAN JUAN, PUERTO RICO
September 28, 2000
Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.
Decision by Chairman Wasserman for the Authority.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Sue Olinger Shaw 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 a cross-exception to the award and an opposition to the Agency's exceptions.
For the reasons that follow, we remand this matter to the parties for resubmission to the Arbitrator, absent settlement, for a determination as to whether an alternative remedy is appropriate. The Union's cross-exception is denied.
II. Background and Arbitrator's Award
The management of the building in which the Agency's office is located announced that the building would be closed during a labor strike (hereinafter "the emergency closing"). On a different occasion, the Agency decided to close its office in order to install a new computer system (hereinafter "the administrative closing"). On both occasions, the Agency informed employees that they could either use annual leave or work at nearby field offices during the closings. Some employees utilized annual leave, while others worked at the field offices.
The Union filed a grievance alleging that the Agency acted improperly by not granting employees excused absences during both closings. When the grievance was unresolved, it was submitted to arbitration, where the parties stipulated to the following issue:
Did [the Agency] violate the Collective Bargaining Agreement, existing regulations and its own Security Action Plan when it did not provide excused absence to bargaining unit employees after it made the decision to close its facility [during the emergency closing] and [the administrative closing]? If so, what shall be the remedy?
Award at 1-2.
The Arbitrator found that Article 31, Section 3.E of the parties' agreement requires the Agency to grant employees excused absences when the Agency closes the workplace due to an emergency. [n1] The Arbitrator determined that the Agency violated that provision by not granting employees excused absences during the emergency closing. The Arbitrator directed the Agency to restore the annual leave of employees who had utilized such leave during the emergency closing. The Arbitrator further awarded "compensatory time in the form of credit hours" for the employees who worked in the field offices during the emergency closing. Id. at 15.
With regard to the administrative closing, the Arbitrator found that, as there was "no emergency[,]" the Agency had the right to redeploy the employees without granting excused absences. Id. at 14. She denied the grievance in this respect.
III. Positions of the Parties
A. Agency's Exceptions
The Agency contends that the remedy of compensatory time in the form of credit hours for employees who worked during the emergency closing is contrary to law for three reasons. First, the Agency asserts that the [ v56 p777 ] remedy is contrary to the Back Pay Act, 5 U.S.C. § 5596. [n2] According to the Agency, employees who worked at the nearby field offices during the emergency closing were paid for that work, and thus, they did not suffer a withdrawal of pay, allowances, or differentials. Second, the Agency claims that the award of credit hours is inconsistent with Federal law and regulations because credit hours are dependent on the existence of a flexible work schedule. Third, the Agency contends that compensatory time is available only to employees who have worked overtime, and as this case does not involve overtime, the remedy of compensatory time is improper.
B. Union's Opposition
According to the Union, the Arbitrator's remedy is not contrary to law, regulation, or the parties' agreement.
C. Union's Cross-Exception
The Union asserts that the Arbitrator's denial of the grievance with regard to the administrative closing fails to draw its essence from Article 31, Section 3.E.2 of the parties' agreement. According to the Union, the Arbitrator erred in interpreting that provision as entitling employees to excused absences only in emergency situations. The Union argues that the same remedies that were provided with regard to the emergency closing should be provided in connection with the administrative closing.
IV. Analysis and Conclusions
A. The Award Is Not Contrary to the Back Pay Act
The Authority reviews the questions of law raised by the award and the Agency's exceptions 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)). 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, based on the underlying factual findings. See National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In conducting that assessment, the Authority defers to the Arbitrator's underlying factual findings. See id.
An award of pay, allowances, or differentials is authorized under the Back Pay Act when an arbitrator finds that: (1) an aggrieved employee was affected by an unjustified or unwarranted personnel action; and (2) the personnel action resulted in the withdrawal or the reduction of the employee's pay, allowances, or differentials. See U.S. Department of Veterans Affairs, Medical Center, Ann Arbor, Michigan and American Federation of Government Employees, Local 2092, 56 FLRA 216, 223 (2000).
As for the first requirement, the Authority has held that a violation of a collective bargaining agreement constitutes an unjustified or unwarranted personnel action within the meaning of the Back Pay Act. See U.S. Department of Defense, Department of Defense Dependents Schools and Federal Education Association, 54 FLRA 773, 785 (1998). The Arbitrator found, and the Agency does not dispute, that the Agency violated Article 31, Section 3.E of the parties' agreement. Thus, the first requirement of the Back Pay Act has been met.
As for the second requirement, the Authority has held that a loss of administrative leave constitutes a withdrawal of pay, allowances, or differentials. See National Association of Government Employees, Local R4-6 and U.S. Department of the Army, Fort Eustis, Virginia, 52 FLRA 1522, 1528 (1997). The Authority has traditionally considered the term "excused absence[s]" for employees, Award at 11, as a reference to administrative leave. See, e.g., Department of Veterans Affairs Medical Center, Asheville, North Carolina, 51 FLRA 1572, 1576 (1996) (noting that "FPM chapter 630, subchapter 11 provided guidance to agencies in granting excused absences, commonly called administrative leave."). As such, the Arbitrator's finding that employees suffered a denial of "excused absences" effectively constitutes a finding that they were denied administrative leave. As the Arbitrator found, and the Agency does not dispute, that the denial of administrative leave resulted from the Agency's violation of Article 31, Section 3.E of the parties' agreement, the second requirement of the Back Pay Act has been met.
Accordingly, we conclude that the award is not contrary to the Back Pay Act. [ v56 p778 ]
B. The Award Is Contrary to Chapters 55 and 61 of Title 5
Compensatory time is a substitute for overtime pay. See 5 U.S.C. § 5543. [n3] There is no finding that the employees worked overtime or were otherwise entitled to overtime pay. As a result, there is no basis for concluding that the employees are entitled to receive compensatory time under chapter 55 of title 5, and the award is deficient in this regard.
In addition, the Agency correctly asserts that employees may receive credit hours only pursuant to an established credit hours program pursuant to chapter 61 of title 5. See 5 U.S.C. §§ 6121 and 6122. [n4] There is no evidence that the award was made pursuant to a credit hours program for the aggrieved employees. As a result, there is no basis for concluding that the employees are entitled to receive credit hours under chapter 61 of title 5, and the award is deficient in this regard also.
Thus, we conclude that the remedy is contrary to chapters 55 and 61 of title 5. In cases where the Authority sets aside an entire remedy, but upholds an arbitrator's finding of an underlying violation, the Authority remands the award to determine whether a different remedy would be appropriate. See, e.g., U.S. Department of Defense, Departments of the Army and the Air Force, Alabama National Guard, Northport, Alabama and Alabama Association of Civilian Technicians, 55 FLRA 37, 41-42 (1998); Social Security Administration, Office of Hearings and Appeals, Orlando, Florida and American Federation of Government Employees, Local 3627, 54 FLRA 609, 614 (1998). Accordingly, we remand this matter to the parties for resubmission to the Arbitrator, absent settlement, for a determination as to whether any alternative remedy is appropriate. [n5]
C. The Award Draws its Essence from the Parties' Agreement
In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential standard of review that Federal courts apply in reviewing arbitration awards in the private sector. See 5 U.S.C. § 7122(a)(2); American Federation of Government Employees, Council 220 and Social Security Administration, Baltimore, Maryland, 54 FLRA 156, 159 (1998). Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the collective bargaining agreement when the appealing party establishes that the award: (1) cannot in any rational way be derived from the agreement; (2) 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; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990).
The Union argues that the award fails to draw its essence from Article 31, Section 3.E.2 of the parties' agreement because the Arbitrator interpreted that provision as requiring excused absences for employees only when the office is closed due to emergency conditions. The Union's argument fails to account for Article 31, Section 3.E.1, which is quoted in the award. That section provides, in pertinent part, that a decision to close an office "will be based on the Agency's concern for the health and safety of its employees weighed against the mission of the Agency," and that the decision "will be as a result of hazardous conditions that the majority of employees might face reporting to their workplace or returning home." Award at 5. That provision supports the Arbitrator's conclusion that Article 31, Section 3.E applies only when the Agency closes the workplace "due to an emergency involving potentially hazardous conditions for the employees." Id. at 15. As such, the cross-exception does not demonstrate that the Arbitrator's interpretation of Article 31, Section 3.E.2 fails to draws its essence from the agreement, and we deny the cross-exception.
The award of compensatory time in the form of credit hours is set aside and remanded to the parties for resubmission to the Arbitrator, absent settlement, for a determination as to whether an alternative remedy is appropriate. The Union's cross-exception is denied.
Footnote # 1 for 56 FLRA No. 129
1. . . . The decision to close the office or open it late will be based on the Agency's concern for the health and safety of its employees weighed against the mission of the Agency . . . . The decision to close the office will be as a result of hazardous conditions that the majority of employees might face reporting to their workplace or returning home. . . .
2. When a decision is made to close a work place . . . due to inclement weather or other conditions warranting such closing, employees not required to work . . . will not be charged leave . . . .
Award at 5.
Footnote # 2 for 56 FLRA No. 129
The Back Pay Act provides, in pertinent part, that an employee is entitled to backpay where the employee "is found by appropriate authority . . . to have been affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of all or part of the pay, allowances, or differentials of the employee[.]" 5 U.S.C. § 5596(b)(1).
Footnote # 3 for 56 FLRA No. 129
Footnote # 4 for 56 FLRA No. 129
Section 6121 of title 5 provides, in pertinent part, that "'credit hours' means any hours, within a flexible schedule established under section 6122 of this title, which are in excess of an employee's basic work requirement and which the employee elects to work[.]" 5 U.S.C. § 6121. Section 6122 of title 5 provides, in pertinent part, that "each agency may establish, in accordance with this subchapter, programs which allow the use of flexible schedules[.]" 5 U.S.C. § 6122.
Footnote # 5 for 56 FLRA No. 129
In so doing, Chairman Wasserman notes the prior finding that the Arbitrator was effectively remedying the Agency's improper denial of administrative leave. The Authority has upheld awards of administrative leave. See, e.g., U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California and International Federation of Professional and Technical Engineers, Planners, Estimators, Progressmen & Schedulers Association, Local 5, 48 FLRA 1372, 1377-78 (1994).