Click here to view the decision.
57 FLRA No. 151
United States Department of the Treasury, United States Customs Service, Port of New York and Newark and National Treasury Employees Union, Chapter 161 (Simmelkjaer, Arbitrator), 0-AR-3384 (Decided March 20, 2002)
The Authority found, contrary to the arbitrator, that the agency provided the union with adequate notice under the Statute of a change in overtime policy. Furthermore, the Authority found that the union waived its right to bargain when it failed to request negotiations after being notified of the pending change in conditions of employment.
Because exceptions challenged the award's consistency with law, the Authority applied a standard of de novo review in making its determination, but deferred to the arbitrator's underlying factual findings.
In its analysis, the Authority described the agency's burden of establishing that the exclusive representative received adequate notice of the change. The Authority found that the agency's notice apprised the exclusive representative of the scope and nature of the proposed change in conditions of employment, the certainty of the change, and the planned timing of the change.
In its discussion of the standards it applies in reviewing an arbitrator's interpretation of a contract, the Authority elaborated on the circumstances in which a contract provision mirrors, or is intended to be interpreted in the same manner as the Statute. The Authority noted that he union did not contend that the notice requirements under the parties' contract are different from the notice requirements under the Statute. In the absence of any claim to the contrary, the Authority found that the contractual notice requirements were intended to be interpreted in the same manner as the statutory notice requirements. Accordingly, since there was not a violation of the Statute, the Authority concluded that the Arbitrator's finding of a contractual violation could not stand.
The Authority found, in the circumstances of this case, that since there was not a violation of the Statute, there was not an unjustified or unwarranted personnel action that resulted in the withdrawal or reduction of an employee's pay, allowances or differentials under the Back Pay Act. Accordingly, award of backpay under the Back Pay Act was found to be deficient.