57 FLRA No. 150

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 an exception to the award of Arbitrator Russell C. Neas filed by the Union under § 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 exception, and an addendum discussing an additional case relied on by the Union. Approximately three months after the Agency filed its opposition documents, the Union also filed an addendum with a different arbitration decision included as an attachment. In the addendum, the Union generally argues that the attachment, which resolved a similar grievance, should be considered by the Authority in resolving this matter. [n1] 

      In this case, the Arbitrator found that the Agency had violated the parties' collective bargaining agreement by failing to properly offer the grievant two separate opportunities to work overtime. However, he determined that the appropriate remedy was an award entitling the grievant to work the next two available overtime opportunities, rather than awarding the grievant backpay under the Back Pay Act. The Union filed an [ v57 p716 ] exception contending that the award is contrary to the Back Pay Act. For the following reasons, we conclude that the Union's exception fails to establish that the award is deficient under § 7122(a) of the Statute. Accordingly, we deny the exception.

II.     Background

      The parties stipulated to the following issue:

Did management improperly bypass the grievant for overtime opportunities occurring on Sunday, 29 October 2000 and Saturday, 4 November 2000 (8 hours each day for a total of 16 hours) in violation of the 2000 Local Supplement Agreement (LSA)? If so, what shall the remedy be?

Award at 4.

      After review, the Arbitrator determined that the grievant was improperly bypassed for overtime opportunities on both dates in violation of the parties' LSA. [n2]  Award at 12. However, the Arbitrator also noted that the Union had not "offered proof that [the grievant] actually suffered a monetary loss" stemming from the contractual violation. Id. at 8. Accordingly, the Arbitrator rejected the Union's contention that only backpay was appropriate and instead determined that under Article 9, Section I of the LSA, the appropriate remedy was to direct the Agency to give the grievant the opportunity to work the next available sixteen hours of overtime. [n3]  Id. at 9.

      In fashioning his remedy for the contract violation, the Arbitrator relied on what he characterized as the "unrefuted" testimony of the Agency's chief negotiator, who stated that under Article 9, Section I of the LSA, the parties' had specifically eliminated language from a prior agreement which had stated that the "sole remedy" for such a violation would have been backpay under the Back Pay Act. Id. Accordingly, the Arbitrator found that awarding the grievant the opportunity to work the next available sixteen hours of overtime under the circumstances was an appropriate remedy for the contractual violation and would "make the grievant whole." Id.

III.     Positions of the Parties

A.     Union's Exception

      The Union argues that the sole remedy available based on the Arbitrator's findings was backpay pursuant to the Back Pay Act and claims that the Arbitrator interpreted and applied the Back Pay Act in a manner inconsistent with law when he stated, "I can find nothing in the Back Pay Act which requires that the remedy must be `money'." Award at 9; Exception at 4. Specifically, it contends that the grievant met the criteria to receive backpay under the Back Pay Act because the contract violation amounted to an unjustified or unwarranted personnel action and the Authority has previously stated that "missed overtime constitutes a withdrawal or reduction of pay." Id. at 3, citing United States Dep't of the Treasury, United States Customs Serv., El Paso, Tex., 55 FLRA 553, 559 (1999) (El Paso). [n4]  Further, it argues that only pay is appropriate under the Back Pay Act and not the mere opportunity to work for that pay. Exception at 4; citing United States v. Testan, 424 U.S. 392 (1974).

      Finally, the Union argues that under 5 C.F.R. § 550, Subpart H, where, as here, an arbitrator directs the correction of an unjustified or unwarranted personnel action, "the employee shall be deemed to have performed the service for the agency during the period covered by the corrective action." Exception at 5.

B.     Agency's Opposition

      The Agency argues that the Arbitrator did not err by determining that the Back Pay Act did not preclude the remedy ultimately awarded in this matter. Opposition at 6. Rather, the Agency notes that the award is based on the Arbitrator's determination that under Article 9 of the parties' LSA, an appropriate remedy for loss of an overtime opportunity would be an offer to work the next available overtime. Id. at 2.

      The Agency offers rebuttal to each of the Union's specific legal arguments. First, the Agency questions the Union's reliance on El Paso, arguing that it differs from the present matter in that there the arbitrator specifically determined that the employee had suffered a loss in overtime pay. Addendum at 2. Second, the [ v57 p717 ] Agency argues that the causal nexus test applies to refusal to bargain cases as opposed to grievances. Opposition at 3-4. Third, the Agency states that Testan does not mandate an award of backpay in this matter but rather stands for the proposition that "the Court itself was `not persuaded' that `the violation of any statute or regulation relating to federal employment automatically creates a cause of action against (the Agency) for money damages.'" Id. at 5, citing Testan, 424 U.S. at 401. Finally, the Agency argues that in light of the Arbitrator's determination that the grievant did not demonstrate that the Agency's contract violation resulted in a withdrawal or reduction in pay, and because there is no legal presumption of harm where there is simply a loss of an overtime opportunity, the Back Pay Act was not violated. Opposition at 4, 6.

IV.     Analysis and Conclusions

      When an exception involves the award's consistency with law, the question of law raised by the arbitrator's award and the exception must be reviewed de novo. NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States 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 NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

      Under the Back Pay Act, in order for an arbitrator to authorize backpay, the arbitrator must find that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; and (2) the personnel action directly resulted in the withdrawal or the reduction of an employee's pay, allowances or differentials. See United States Dep't of Health and Human Services, 54 FLRA 1210, 1218 (1998). A violation of a collective bargaining agreement constitutes an unjustified or unwarranted personnel action under the Act. See United States Dep't of Defense, Dep't of Defense Dependents Schools, 54 FLRA 773, 785 (1998).

      As the exception also touches upon the Arbitrator's chosen remedy for a contractual violation, we note that the Authority has found that "arbitrators have great latitude in fashioning remedies." See NTEU, Chapter 68, 57 FLRA 256, 257 (2001) (Chapter 68); Dep't of the Air Force, Warner Robins Air Logistics Center, Robins Air Force Base, Ga., 25 FLRA 969, 971 (1987) (arbitrator substituted make-up overtime as a remedy for a contract violation in the absence of a clear showing by the grievant of a monetary loss).

      Here, while the Arbitrator determined that the Agency violated the parties' agreement, the Arbitrator found that the Union failed to offer any proof that the grievant "actually suffered a monetary loss." Award at 8. Based on this finding, to which we defer, we conclude that the award does not violate the Back Pay Act in that the Arbitrator expressly concluded that there was no evidence that the Agency's violation of the parties' agreement resulted in a loss of the affected employee's pay, allowance, or differential. [n5]  We note that the second requirement under the Back Pay Act is only met where there is a causal connection between a violation of the parties' collective bargaining agreement and a withdrawal or reduction in pay, allowances or differentials. However, this connection is shown only where "it is clear that the violation of the parties' collective bargaining agreement resulted in the loss of some pay." United States Dep't of the Air Force, Travis Air Force Base, Ca., 56 FLRA 434, 437-38 (2000); see also United States Dep't of the Treasury, Customs Serv., South Central Region, New Orleans, La., 43 FLRA 337, 340 (1991). Accordingly, as the second requirement under the Back Pay Act has not been met, the Arbitrator's denial of backpay is not deficient. [n6]  Id. at 340.

      Finally, with respect to the validity of the remedy awarded in light of the Union's argument that the Arbitrator fashioned this remedy based on the Back Pay Act, we note that the remedy here is based on the Arbitrator's interpretation of Article 9, Section I of the parties' LSA. [n7]  Accordingly, as the remedy was based on the Arbitrator's interpretation and application of the parties' agreement, and not on an erroneous application of the Back Pay Act, the Union's exception again provides no basis for finding that the award is contrary to law. See generally Professional Airways, 56 FLRA at 125; see also Chapter 68, 57 FLRA at 257.

V.     Decision

      The Union's exception is denied.

   The Agency's addendum was filed within thirty days of the date of service of the Union's exception, and accordingly, was timely. See 5 C.F.R. § 2425.1(c). The Union's addendum, however, was untimely, and the Union was not granted special leave to file it. Therefore, it will not be considered. See 5 C.F.R. §§ 2425.1(b); 2429.26(a).

   Neither party excepts to this determination.

   Article 9, Section I of the LSA reads in pertinent part:

When it is determined through the grievance or arbitration process, that the grievant, or grievants, had been denied the opportunity for overtime work in violation of this article, the grievant shall be made whole in accordance with 5 USC 5596.

   In this respect, the Union states that the Back Pay Act "does not require that employees bear an insurmountable burden of demonstrating `but for'" when seeking relief, but rather, that the employee must merely show that there is a "likelihood of a [causal] nexus" between the unjustified or unwarranted personnel action and the withdrawal or reduction of pay. Exception at 3; citing AFGE, SSA, Council 220 v. FLRA, 840 F.2d 925 (D.C. Cir. 1988).

   We note that in the Union's cited case, El Paso, 55 FLRA at 559, the Authority explicitly reiterated that the second requirement under the Back Pay Act must be satisfied prior to an award of backpay under the Act.

   Contrary to the Union's contention, satisfying this second requirement is also necessary under 5 C.F.R. § 550.804(a) before backpay may be authorized.

   To the extent that the Union contends that the Arbitrator's statement, "I can find nothing in the Back Pay Act which requires that the remedy must be `money'," is a violation of the Back Pay Act in fashioning this remedy, we disagree. There is nothing in the Back Pay Act that requires a monetary award for every unjustified or unwarranted personnel action.