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60 FLRA No. 138
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
UNITED STATES PENITENTIARY
OF GOVERNMENT EMPLOYEES
COUNCIL OF PRISON LOCALS
March 14, 2005
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Robert G. Stein filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union did not file an opposition to the Agency's exceptions.
The Arbitrator determined that the Agency did not violate the parties' collective bargaining agreement when it temporarily reassigned the grievant pending an investigation. Despite his conclusion that there was no violation of the agreement, the Arbitrator ordered the Agency to make the grievant whole for his losses by paying the grievant the difference in what he would have made had he not been reassigned and what he made while reassigned, including missed overtime pay and differential pay for shifts, holidays and Sundays.
For the following reasons, we set aside the award because it is contrary to the Back Pay Act.
On August 28, 2003, the grievant was removed from his regular night duties in the Correctional Services Department and placed on home duty as a security measure based upon allegations involving the grievant. Award at 3. The grievant was then temporarily reassigned to the Inmate Systems Mailroom where he remained until October 29, 2003 when he was returned to his former assignment. Id. The Agency investigated the allegations and ultimately determined that there was no security concern involving the grievant and another correctional officer or the inmates. Id.
As a result of the temporary reassignment, the grievant filed a grievance alleging that the Agency violated the parties' agreement and that he lost overtime opportunities as well as differential pay and holiday pay when he was temporarily reassigned pending investigation. Id. at 4. The parties were unable to resolve the grievance and it proceeded to arbitration. The Arbitrator defined the issue as, "[w]hen reassigned to the Inmate Systems Department, did the Employer violate the Master Agreement when it denied the [g]rievant holiday pay, night differential, overtime, and Sunday differential? If so, what shall the remedy be?" Id. at 2.
The Union argued that the temporary assignment of the grievant resulted in the grievant being denied overtime and holiday pay as well as shift differential. Id. at 3-4. According to the Union, the grievant would have received overtime, holiday pay and shift differential in his previous assignment. Id. The Union alleged that the Agency's treatment of the grievant and the "fact no adverse findings were established" violated Articles 6 and 18 of the parties' agreement. Id.
The Agency argued that the work environment of a correctional facility has unique internal security concerns. Award at 5. The Agency then addressed its management right to determine internal security practices as well as its right to assign work. Id. According to the Agency, its right to assign work includes the right to assign overtime and to determine when the overtime will occur. Id. Based on these management rights, the Agency argued that it had the right to temporarily reassign the grievant in accordance with the parties' agreement.
The Agency contended that it reassigned the grievant based on allegations of "misconduct which related to the security and safety of [the] institution." Id. The Agency explained that the parties' agreement establishes the Agency's right to reassign employees within certain parameters. Id. at 6. The Agency alleged that the reassignment of the grievant was within the parameters set forth in the agreement and that the Union failed to prove the Agency violated the parties' agreement when it temporarily reassigned the grievant. Id.
Addressing holiday and differential pay, the Agency asserted that the issue was not raised until the hearing and therefore should not be arbitrable. Id. In addition, the Agency argued that differential and holiday pay are not part of an employee's base pay and that an employee must meet certain criteria to qualify for holiday and differential pay. Id. Accordingly, the [ v60 p729 ] Agency concluded that it has the right to reassign and employees are on notice that they may be reassigned and not receive holiday or differential pay. Id.
Considering the issue of missed overtime, the Agency argued that it has the right to determine internal security practices and the right to assign work, both of which are incorporated into the parties' agreement. Id. Based on its right to assign work, the Agency contended that it has the right to determine the qualifications required for overtime assignments. Id. In addition, according to the Agency, the grievant was not denied overtime, but rather those overtime opportunities were temporarily postponed and the postponement was based on legitimate business and security reasons. Id. at 7. Based on the above, the Agency asserted that the Union failed to prove it violated the parties' agreement when it temporarily reassigned the grievant.
The Arbitrator concluded that the Agency did not violate the parties' agreement when it temporarily reassigned the grievant because the Agency had authority to do so under the terms of the agreement. Award at 7-8. The Arbitrator based his conclusion on Article 30, section g of the parties' agreement stating, "[t]he Employer retains the right to respond to an alleged offense by an employee . . . [and] may elect to reassign the employee to another job within the institution . . . pending investigation and resolution of the matter, in accordance with applicable laws, rules, and regulations." Id. at 7. The Arbitrator determined that the Agency had reasonable grounds to investigate the allegations concerning the grievant because of the possible safety concerns. Id. at 7-8.
After determining that the Agency did not violate the agreement, the Arbitrator stated that the real focus of the case was what happened once the Agency concluded there was insufficient evidence to support the allegations against the grievant. Id. at 8. The Arbitrator explained that the parties' agreement was silent as to losses incurred by an employee as a result of a reassignment under Article 30 when an investigation finds no fault and the employee is returned to her former position without formal charges being filed. Id. According to the Arbitrator, "but for the temporary transfer, the [g]rievant would have been employed in his former position." Id. at 8.
The Arbitrator stated that the parties' stipulated issue included the words, "what shall the remedy be?" thereby giving the Arbitrator authority to fashion a remedy. Id. at 10. The Arbitrator explained that the parties' agreement is silent concerning remedy and therefore, the Arbitrator has "ample discretion" to fashion a remedy, including monetary damages, to make whole a party affected by a violation. Id. at 9 (citations omitted). In addition, the Arbitrator determined that "just cause" also allows the Arbitrator to restore an employee to his/her position and address any losses. Id.
The Arbitrator rejected the Agency's claim that the issue of remedy was not arbitrable because the Union did not address it in its grievance. Award at 10-11. Addressing the Union's claim for lost overtime, the Arbitrator found that the parties' agreement states that employees shall be treated fairly and equitably in "all aspects of personnel management" and that this includes "being denied the opportunity to work a desired shift and its attending benefits when it was determined there was insufficient evidence to substantiate allegations made against an employee." Id. at 11. According to the Arbitrator, when the allegations that are the basis for reassigning the grievant prove to be unsubstantiated, the Agency has an obligation to return the grievant to his previous position and make the grievant whole for his losses. Id. at 11-12.
Based on his conclusions, the Arbitrator sustained the grievance and ordered the Agency to pay the grievant the difference of what he would have made if he had not been reassigned and what he made while working in the Inmate Services Department, including all differential pay during that time to which he would have been eligible. Id. at 13. In addition, the Arbitrator ordered the Agency to pay the grievant overtime based on the number of overtime hours he worked during the same period the previous year.
III. Agency's Exceptions
The Agency argues that the award violates the Back Pay Act because the Arbitrator did not find an unwarranted or unjustified personnel action. Exceptions at 7-8. The Agency further alleges that even if the Arbitrator had found that the reassignment of the grievant was an unjustified or unwarranted personnel action, the award would violate the Back Pay Act because there was no causal connection between the reassignment and the award of back pay. Id. at 8. The Agency contends that nothing in the record supports a finding that "but for" the reassignment, the grievant would have worked the same number of overtime hours as he did the previous year. [n1] Id.
The Agency also alleges that the Arbitrator exceeded his authority by resolving a matter not submitted for arbitration and that the award is contrary to law because it is based on equitable principles rather than Congressional authority. [ v60 p730 ]
IV. Analysis and Conclusions
The Agency challenges the award's consistency with the Back Pay Act. We review the question of law raised by the exception de novo. See, e.g., United States Dep't of the Navy, Commander, Military Sealift Command, Wash., D.C., 57 FLRA 930, 931 (2002); AFGE, Local 1203, 55 FLRA 528, 530 (1999). In applying a de novo standard of review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
An award is deficient under § 7122(a)(1) of the Statute if it is contrary to the Back Pay Act. See, e.g., United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Complex, Beaumont, Tex., 59 FLRA 466, 467 (2003). The Authority has long held that, under the Back Pay Act, 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 has resulted in the withdrawal or reduction of the grievant's pay, allowances, or differentials. See, e.g., United States Dep't of Health and Human Servs., 54 FLRA 1210, 1218-19 (1998) (HHS).
Unless an arbitrator finds that an aggrieved employee was affected by an unjustified or unwarranted personnel action, an award of backpay is deficient. Id. A violation of a collective bargaining agreement provision constitutes an unjustified or unwarranted personnel action. See AFGE, Local 916, 57 FLRA 715, 717 (2002) (citing United States Dep't of Defense, Dep't of Defense Dependents Schools, 54 FLRA 773, 785 (1998)).
In this case, the Arbitrator made no finding that the grievant was affected by an unjustified or unwarranted personnel action. In fact, the Arbitrator specifically stated, "I find no violation of the [agreement] occurred when the [Agency] initiated" the disputed reassignment. Award at 7. Based on the Arbitrator's explicit finding that there was no violation of the parties' agreement in this regard and the absence of a finding of any other unwarranted or unjustified personnel action, we conclude that the award of backpay is unauthorized. HHS, 54 FLRA at 1218-19. Due to the lack of an unauthorized or unjustified personnel action, we do not address the Agency's argument that even if there was an unjustified or unwarranted personnel action, the personnel action did not result in the withdrawal or reduction of the grievant's pay, allowances, or differentials.
V. Decision [n2]
The award is set aside because it is contrary to the Back Pay Act.
Footnote # 1 for 60 FLRA No. 138 - Authority's Decision
The Agency explains that the overtime award was based on the number of overtime hours the grievant worked the previous year without considering if the same number of overtime hours were available or if the grievant would have been available to work those overtime hours. Exceptions at 9.
Footnote # 2 for 60 FLRA No. 138 - Authority's Decision
Because setting aside the award as contrary to the Back Pay Act disposes of this case, it is unnecessary to address the Agency's exceptions alleging the Arbitrator exceeded his authority and that the award is contrary to law because it is based on equitable principles.