United States Department of the Army, Fort Carson, Colorado (Agency) and American Federation of Government Employees, Local 1345 (Union)

 
65 FLRA No. 119             
 
UNITED STATES
DEPARTMENT OF THE ARMY
FORT CARSON, COLORADO
(Agency)
 
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1345
(Union)
 
0-AR-4711
_____
DECISION
February 25, 2011
_____
Before the Authority: Carol Waller Pope, Chairman, and Thomas M. Beck and Ernest DuBester, Members
 
I.        Statement of the Case
        This matter is before the Authority on an exception to an award of Arbitrator Dorothy A. Fallon 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 exception. 
        The Arbitrator found that: (1) the Agency did not have just cause to issue the grievant a Letter of Reprimand and (2) the Agency had not issued the Letter of Reprimand within a reasonable period of time after the occurrence of the alleged offense. Award at 11-14. Accordingly, she ordered that: (1) the Letter of Reprimand be removed from the grievant’s personnel file and (2) the Agency pay the grievant the “lost overtime and premium pay [that the grievant] would likely have earned for the period from [the date that the letter should have issued] up to the date he was returned to his normal assignments.” Id. at 14. For the reasons set forth below, we deny the Agency’s exception.
 
II.      Background and Arbitrator’s Award
        The grievant, a civilian police officer, works in the Department of Emergency Services at Fort Carson, Colorado. Id. at 2. The grievant’s assignments primarily involve escorting Absent Without Leave (AWOL) military personnel to their required locations. Id. During one such assignment, the person whom the grievant was escorting escaped. Id. at 5-6.
        The Agency conducted an investigation into the incident. Id. at 6-7. While the incident was being investigated, the grievant “was assigned to administrative duties and restricted from his normal prisoner transport duties.” Id. at 7. After completing its investigation, the Agency drafted a Letter of Reprimand in late November; however, the letter was not finalized and issued to the grievant until early January. Id. at 6-7. The grievant was then returned to his prisoner transport duties. Id. at 13.
        The Union presented a grievance alleging that the Letter of Reprimand was not issued for just cause and that the Agency committed “an unjust and unwarranted action” by removing the grievant from his normal duties for three months before issuing the letter. Id. at 7. The grievance was unresolved and submitted to arbitration. Id. at 1-2. The issue before the Arbitrator was: “Did the Agency have just cause to issue a Letter of Reprimand when it did so [in January]? If not, what shall be the remedy?” Id. at 2. 
        The Arbitrator determined that the Agency failed to prove that the grievant had acted improperly during his transport of the prisoner. Id. at 11. The Arbitrator also found that the Agency violated Article 20, Section 2 of the parties’ agreement, which requires that “‘[]notices will be given to the employee within a reasonable period of time after the occurrence of the alleged offense[.]’” Id. at 11-12 (quoting parties’ agreement). The Arbitrator found that the record showed that the investigation and draft Letter of Reprimand were completed by the last week in November; however, the grievant was not issued the letter until early January. Id. at 12. The Arbitrator found that the grievant’s “discipline was delayed for no acceptable reason and caused [the grievant] harm beyond the” letter itself – “a more punitive financial result.” Id. at 12-13. 
        In this regard, the Arbitrator found that, had the grievant been issued the letter in late November -- “a reasonable period from the date” of the incident -- “he would have been returned to his normal duties” and worked the “typical overtime required of all members of the unit.” Id. at 13; see also id. at 7 (noting that grievant’s assignment to administrative duties “resulted in his loss of all overtime opportunities while awaiting a decision on the level of discipline being imposed for the incident”). Although noting that overtime is not “guaranteed,” the Arbitrator found that “officers of the AWOL unit are regularly required to transport prisoners over great distances, make regular determinations about how to go about their duties, and are regularly required to work beyond a normal forty-hour week.” Id. at 13.
        Accordingly, the Arbitrator sustained the grievance and ordered that: (1) the Letter of Reprimand be removed from the grievant’s personnel file and (2) the Agency pay the grievant the “lost overtime and premium pay [that the grievant] would likely have earned for the period from [the date that the letter should have issued] up to the date he was returned to his normal assignments.” Id. at 14. 
III.   Agency’s Exception
        The Agency contends that the award is contrary to the Back Pay Act, excepting only to “the [A]rbitrator’s award of an undetermined quantum of back overtime and premium pay for lost opportunity, rather than for any overtime actually worked.”[*] Exception at 3. The Agency notes that an award of backpay is authorized under the Back Pay Act only when an arbitrator finds that: (1) an employee was “affected by an unwarranted personnel action” and (2) the “unwarranted action directly resulted in the withdrawal or reduction of overtime pay that the employee[] would otherwise have received.” Id. at 3 (quoting Immigration & Naturalization Serv., U.S. Dep’t of Justice, 18 FLRA 412, 414 (1985)). 
        The Agency contends that, because the Arbitrator “did not find that the grievant would have been offered specific overtime assignments[,]” or that, even if he had been offered the work, he “would have been available to perform it or would have worked the amount of time necessary to receive overtime pay during the relevant time period[,]” the award of overtime pay fails to satisfy the second requirement of the Back Pay Act. Id. Citing United States Departm