[ v25 p71 ]
25:0071(4)CA
The decision of the Authority follows:
25 FLRA No. 4
UNITED STATES DEPARTMENT OF
THE TREASURY, INTERNAL REVENUE
SERVICE AND UNITED STATES
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, AUSTIN
SERVICE CENTER, AUSTIN, TEXAS
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
AND NATIONAL TREASURY EMPLOYEES UNION,
CHAPTER 72
Charging Party
Case No. 6-CA-50349
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had not engaged
in the unfair labor practices alleged in the complaint, and recommending
that the complaint be dismissed in its entirety. Thereafter, the
General Counsel and the Charging Party filed exceptions to the Judge's
Decision and supporting briefs. The Respondent filed an opposition to
the exceptions of the General Counsel and Charging Party and filed
cross-exceptions.
Pursuant to Section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), we have reviewed the rulings of the Judge made at
the hearing and find that no prejudicial error was committed. The
rulings are hereby affirmed. Upon consideration of the Judge's
decision, the exceptions and cross-exceptions to that Decision, and the
entire record, we adopt the Judge's findings, conclusions, and
recommended Order that the complaint be dismissed.
In agreement with the Judge, we find that the adequacy of compliance
with an arbitration award will be determined by whether the Respondent's
construction of the award is reasonable, which would depend on whether
the construction is consistent with the entire award and consistent with
applicable rules and regulations. See Tidewater Virginia Federal
Employees Metal Trades Council, AFL-CIO, 15 FLRA 296, 305 (1984).
The complaint in Case No. 6-CA-50349 is dismissed.
Issued, Washington, D.C., January 8, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 6-CA-50349
UNITED STATES DEPARTMENT OF THE
TREASURY, INTERNAL REVENUE SERVICE
and UNITED STATES DEPARTMENT OF THE
TREASURY, INTERNAL REVENUE SERVICE,
AUSTIN SERVICE CENTER, AUSTIN, TEXAS
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION and
NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 72
Charging Party
William F. Burbach, Esquire
On Brief: David L. Jordan, Esquire
Gary A. Anderson, Esquire
For the Respondent
Anne Ellzey, Esquire
On Brief: M. Kathryn Durham, Esquire
For the Charging Party
Christopher J. Ivits, Esquire
For the General Counsel
Before: William B. Devaney
Administrative Law Judge
DECISION
Statement of the Case
This proceeding, under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C.
Section 7101, et seq., /1/ and the Final Rules and Regulations issued
thereunder, 5 C.F.R. Section 2423.1, et seq., concerns compliance with
an Arbitration Award. Respondent asserts that it has complied fully
with the Arbitration Award while the Complaint alleges, and General
Counsel and the Charging Party assert, that Respondent has failed and
refused to comply with the Award. The Award was, "Grievant is restored
to her job without back pay but without loss of other benefits" (G.C.
Exh. 3, p. 13); it is conceded that grievant was restored to her job;
grievant had been removed on January 28, 1984, and was restored to her
job, pursuant to the Award "without back pay", on October 3, 1984; it
is conceded that Respondent restored to grievant the amount of sick
leave (grievant had been paid for all annual leave accumulated prior to
January 28, 1984); but Respondent has not given grievant annual leave
or sick leave for the period from January 28 through October 2, 1984,
when she had been removed from the payroll and for which period she was
denied backpay by the Award; and her service computation date
(continuous service) was adjusted from December 28, 1976, to March 1,
1977, to reflect the time in excess of six months for which she was not
paid. For reasons set forth hereinafter, I conclude that Respondent has
not failed or refused to comply with the Arbitration Award and that the
Complaint must be dismissed.
This case was initiated by a charge filed on April 10, 1985 (G.C.
Exh. 1(a)) and a Complaint and Notice of Hearing issued on August 6,
1986 (G.C. Exh. 1(d)) and fixed the hearing the hearing for October 16,
1985. By Order dated October 3, 1985, pursuant to the timely motion of
the General Counsel with which the other parties concurred, the hearing
was rescheduled for December 3, 1985 (G.C. Exh. 1 (j)). On November 12,
1985, an Amended Complaint and Notice of Hearing issued (G.C. Exh. (1)),
which also set the hearing for December 3, 1985, in Austin. Texas,
before the undersigned.
All parties were represented at the hearing, were afforded full
opportunity to be heard, to introduce evidence bearing on the issues
presented, to examine and cross-examine witnesses and were afforded the
opportunity to present oral argument. At the conclusion of the hearing,
January 3, 1986, was fixed as the date for mailing post-hearing briefs,
which time was subsequently extended, upon timely motion of the Charging
Party, with which Respondent joined and to which General Counsel did not
object, to January 17, 1986. Respondent Charging Party and General
Counsel each timely mailed a brief, received on, or before January 21,
1986. Subsequently General Counsel filed a Motion to Strike Portions of
Respondent's Post-Hearing Brief, dated January 24, 1986 and received on
January 27, 1986, to which Respondent filed a Response, dated February
3, 1986, and received on February 6, 1986. Upon the entire record, I
make the following findings and conclusions:
Preliminary Matters
A. General Counsel's Motion to Strike Portions of Respondent's Post
Hearing Brief.
1. General Counsel has moved to strike that portion of Respondent's
post-hearing brief on page 5, line 23 to page 6 line 5 which states,
"In the arbitration proceedings before Dean White, there was no
discussion concerning the mitigation of Ms. Ilse's removal in
terms of a specific suspension with or without leave and seniority
accruing during the term of that suspension. Indeed, there was no
discussion of any specific remedy other than upholding the removal
or reinstating Ms. Ilse with full backpay and complete benefits
during the period she was removed."
General Counsel asserts that the foregoing is improper because,
". . . no evidence was presented at the hearing as to what
occurred during the arbitration and, therefore, the Respondent's
brief offers facts outside the record."
Respondent, in its Response to General Counsel's Motion to Strike
asserts that,
". . . the General Counsel introduced Dean White's Arbitration
decision and award into evidence. G.C. Exh. 3. In that exhibit
the arbitrator defines the issue of the arbitration. . . . In
doing so he makes no mention of any remedy sought by the Charging
Party, other than full reinstatement with back-pay and all
entitlements. . . ." (Response, p. 3).
If Respondent's reference had been to the arbitration decision and
award I would summarily deny General Counsel's Motion to Strike; but
clearly Respondent's statement goes wholly beyond the arbitrator's
decision to asserted discussions in the arbitration proceedings as to
which no evidence or testimony was offered. Accordingly, General
Counsel's motion is granted and I shall not consider line 23, page 5 to
line 5, page 6 of Respondent's Brief; however, the arbitration
decision, which was introduced as an exhibit, will be considered in its
entirety.
2. General Counsel has moved to strike that portion of Respondent's
post-hearing brief on page 6, line 15 to line 22, which states,
"The view of the arbitrator that the award was 'incomplete and
indefinite' is to be viewed with import (citation omitted). Dean
White clearly so viewed that portion of his award dealing with
'other benefits.' . . . Further, when the arbitrator has
expressed his/her intention as to what the award is to mean, that
intention should control."
In addition, General Counsel has moved to strike that portion of
Respondent's post-hearing brief on page 22 line 22 to line 23, which
states,
"The arbitrator's award, by his own admission, was stated with
less than pristine clarity."
As to the last sentence which General Counsel seeks to strike, the
only position which, under any view, would properly be subject to
objection is the phrase, "by his own admission" which will be considered
together with the statements, set forth above, on page 6 lines 15 to 22.
General Counsel is quite correct that the statements on page 6, lines
15 to 22 and the phrase "by his own admission" on page 22 refer to a
rejected exhibit (Respondent's Exhibit 1 for identification).
Respondent Exhibit 1 was, and is, the affidavit of Arbitrator Dean A. A.
White, dated November 26, 1985. Dean White is conceded to be seriously
ill and unable to attend the hearing as a witness. I rejected his
proffered affidavit for the reason that it was obtained by Respondent ex
parte without notice to the Union or the General Counsel and, of course,
without opportunity for either to be present. I adhere to that ruling.
At the hearing I stated,
". . . I am going to reject Respondent's Exhibit No. 1. But I
am going to bear in mind the fact that he did make a
clarification, which I am going to take note of only for the fact
that the arbitrator seemed to feel that there was some ambiguity
concerning the language he used in his original decision." (Tr.65)
Respondent's statements on page 6, lines 15-22 go well beyond the
mere fact that the arbitrator did make a clarification and General
Counsel's motion to strike page 6, lines 15-22 is granted. General
Counsel's motion to strike language appearing on page 22 of Respondent's
Brief is denied.
Upon further reflection, I have concluded that it is unnecessary to
consider that the arbitrator did make a clarification and, accordingly,
I shall not. As I further stated at the hearing,
"My concern is whether the award is or is not ambiguous. If it
is not ambiguous, then I am not going to go behind it for any
purpose. It is a question of whether or not it has been complied
with.
"And if it is clear what he required and there is no reasonable
room for doubt, then I think there is a violation. If it is
ambiguous and if it would appear that a reasonable construction is
that which Respondent has placed on it, then I am not going to
find a violation. It is going to be just that simple." (Tr. 68).
B. Testimony by attorney of record.
Ms. Anne Ellzey, Assistant Counsel, National Treasury Employees
Union, entered her appearance for the Charging Party and was then called
as a witness by the General Counsel. Respondent objected to Ms. Ellzey
testifying on the basis of disciplinary Rule 5-102(A) of the Texas Code
of Professional Responsibility and in its Brief urges that all documents
filed by the attorney/witness should be stricken, including all
documents emanating therefrom which would include the complaint and
amended complaint (Respondent's Brief, p. 22).
I am well aware that non-lawyers regularly enter appearances and then
testify as witnesses. Where they do not examine witnesses, present oral
argument, or otherwise participate as a representative in the conduct of
the hearing, no objection is made to their having entered an appearance
and then testifying as a witness. Where the representative, whether an
attorney or a non-attorney, seeks to do both, he/she must recognize that
his/her credibility may be compromised. It is poor practice to attempt
to be both an advocate and a witness in the same proceeding, and should
be avoided to the extent possible. Nevertheless, nothing in our Rules
and Regulations prohibits such practice nor renders such testimony
incompetent.
Attorneys are subject to higher standards than non-attorneys and Ms.
Ellzey may well have violated the Texas Code of Professional
Responsibility had this been a proceeding litigated in a court subject
to the Texas Code, and it is even possible that, as a member of the
Texas Bar, she violated the Code of Professional Resonsibility by her
conduct in this case; but this is not the forum to determine that
issue. Ms. Ellzey entered her appearance as attorney for the Charging
Party and was called as General Counsel's first witness. She took no
part in the examination of witnesses, made no objections and presented
no oral argument. Her testimony was wholly uncontroverted.
Consequently, her testimony was fully admissable and credibility is not
at issue.
Findings
1. Sandra Ilse, a GS-7 tax examiner at the Austin Service Center,
was arrested for possession and sale of hashish; pleaded guilty; was
sentenced to ten years probation and fined. On December 15, 1983, Ilse
received notice of proposed removal. Ilse, inter alia, on two occasions
sold and delivered illegal drugs; a third sale was aborted because her
supplier of drugs was out of town; she misrepresented facts to her
supervisor on two occasions; and she gave her IRS telephone number as a
point of contact which number was used by the purchaser, who in fact was
an undercover agent, to contact Ilse for the purchase of illegal drugs.
2. Effective January 28, 1984, Ilse was removed from duty. The
Union, National Treasury Employees Union, Chapter 72, contested Ilse's
removal and invoked arbitration. On September 27, 1984, Arbitrator A.
A. White issued his decision and award (G.C. Exh. 3). His Award was as
follows:
AWARD
"I attach much importance to many years of good, competent,
trustworthy service. To me it is more controlling than aberations
that, looked at in isolation, are pretty damaging. I suspect if
all of us who have committed jail time offenses, had served time
for them, the prisons would be much more crosded (sic) than they
are. I am convinced, based on the total facts here recorded, that
removing Grievant from her job did not promote the efficiency of
the service, and that it was disparate treatment to do so.
"While I am strong on protecting jobs, I am weak on granting
back pay to wrongdoers, particularly where, as here, there is no
evidence of interim earnings. Grievant is a wrongdoer -- a
serious wrongdoer, and this award should not provide her a basis
for saying that she is not. I am saying only that: in light of
her long and good past record, the sanctions in other drug and
misrepresentation cases, and the restricted nature of her offense,
it was unreasonable to remove her from the service.
"Grievant is restored to her job without back pay but without
loss of other benefits." (G.C. Exh. 3, pp. 12-13).
3. No exceptions to the Award were filed with the Authority; and on
October 3, 1984, Respondent returned Ilse to her position at the Austin
Service Center without back pay. On, or about, January 28, 1984,
Respondent had reimbursed Ilse for the amount of annual leave that she
had accumulated prior to January 28, 1984, and annual leave prior to
January 28, 1984, is not at issue. The parties stipulated, as relevant,
as follows:
"17) Since on or about October 3, 1984, Respondent has provided
Ilse with the amount of sick leave that had accumulated prior to
January 28, 1984.
"18) Since on or about October 3, 1984, Respondent restored to
Ilse the amount of credittable (sic) service she had accumulated
up to January 28, 1984.
"19) Respondent has taken the position that it does not have to
provide Ilse with the amount of annual leave which would have
accrued from January 28, 1984 through October 2, 1984. It is
Respondent's position that it will not provide Ilse with said
leave.
"20) Respondent has taken the position that it does not have to
provide Ilse with the amount of sick leave which would have
accrued from January 28, 1984 through October 2, 1984. It is
Respondent's position that it will not provide Ilse with said
leave.
"21) . . . Respondent has changed Ilse's service computation
date to March 1, 1977. Immediately prior to Ilse's removal on
January 28, 1984, Ilse's service computation date was set at
December 28, 1976.
"22) Respondent and (sic) failed and refused and continues to
fail and refuse to maintain July 24, 1984, as the date on which
Ilse's within-grade increase waiting period ended. Respondent has
changed Ilse's within-grade increase waiting period ending date to
on or about March 13, 1985." (Tr. 11-12).
4. On October 11, 1984, Ms. Ellzey learned in a telephone call from
Ms. Darla Pittman, now Manager, Report Branch, and then tax examiner,
entity control and President of Chapter 72 (Tr. 37, 52), of Respondent's
position concerning Ilse's sick leave, annual leave and service
computation date /2/ as more fully set forth in the Stipulations of the
parties. (Tr. 38). Within a day or two after October 11, 1984, Ms.
Ellzey also learned of Respondent's position concerning Ilse's
within-grade increase waiting period (Tr. 40). Notwithstanding that the
Union knew by October 11th or 13th, 1984, that Respondent's
interpretation of the meaning of the phrase, "without loss of other
benefits" in the Award differed from its interpretation of the meaning
of the phrase, the Union did not seek clarification of the Award and
neither Respondent nor the Union filed an exception to the Award.
Conclusions
This is not a case where the agency has refused to comply with an
arbitrator's award. Cf. Department of Defense, Department of the Navy,
United States Marine Corps, United States Maring Corps Air Station,
Cherry Point, North Caroline, 15 FLRA No. 137, 15 FLRA 686 (1984); U.S.
Customs Service, Washington, D.C. and U.S. Customs Service, Northeast
Region, Boston, Massachusetts, 20 FLRA No. 51, 20 FLRA 450 (1985 ). To
the contrary, Respondent contends that it has fully and properly
complied with the arbitrator's award, albeit that the General Counsel
and the Union disagree.
I am well aware that, when court enforcement of an arbitration award
is sought, the award must be certain, definite and free from ambiguity;
and an award which is ambiguous will be denied enforcement and remanded
for clarification by the arbitrator. United Steelworkers of America v.
Enterprise Whell & Car Corporation, 363 U.S. 593 (1960); Bell Aerospace
Company, Division of Testron, Inc. v. Local 516 International Union,
United Automobile, Aerospace and Agricultural Implement Workers of
America (UAW), 500 F.2d 921 (2d Cir. 1974); Hart v. Overseas National
Airways, Inc., 541 F.2d 386 (3d Cir. 1976); United Transportation Union
v. Southern Pacific Transportation Company, 529 F.2d 691 (5th Cir.
1976).
Under the Statute, arbitration awards are not subject to direct
enforcement, either by the courts or by the Authority. However, either
party to an arbitration may file an exception to the arbitrator's award
with the Authority, pursuant to Section 22 of the Statute, which further
provides that,
". . . If upon review the Authority finds that the award is
deficient --
. . .
the Authority may take such action and make such recommendations
concerning the award as it considers necessary, consistent with
applicable laws, rules, or regulations." (5 U.S.C. Section
7122(a)).
The Authority may sustain the award, Kelly Air Force Base, 7 FLRA No.
84, 7 FLRA 553 (1982); may modify the award, The Adjutant General,
State of Oklahoma, Air National Guard, 8 FLRA No. 23, 8 FLRA 112 (1982);
may set the award aside, Watervliet Arsenal, Department of the Army, 10
FLRA No. 112, 10 FLRA 670 (1982); or may remand the award to the
parties with the direction that they resubmit the award to the
arbitrator for clarification, Norfolk Naval Shipyard, Portsmouth,
Virginia, 9 FLRA No. 63, 9 FLRA 538 (1982); Federal Correctional
Institution, 7 FLRA No. 50, 7 FLRA 315 (1981), 12 FLRA No. 8, 12 FLRA 34
(1983). Decisions of the Authority pursuant to Section 22 may be
subject to review pursuant to Section 23 of the Statute, see Federal
Correctional Institution, supra; and the United States Court of Appeals
for the Federal Circuit reviewed, and sustained, an arbitration award,
presumable pursuant to 5 U.S.C. Section 7703, in American Federation of
Government Employees, Local 2718 v. Department of Justice, Immigration
and Naturalization Service, 768 F.2d 348 (Fed.Cir. 1985 ).
Nevertheless, compliance with arbitration awards is enforceable only
pursuant to the unfair labor practice provisions of the Statute, i.e., a
failure to comply with a final arbitration award constitutes an unfair
labor practice in violation of Sections 16(a)(1) and (8), in the case of
an agency or activity, or of Sections 16(b)(1) and (8), in the case of a
labor organization. Here, of course, the Complaint alleges that
Respondent violated Sections 16(a)(1) and (8) by its failure and
refusal, ". . . to comply with the arbitrator's award. . . by not
restoring to Ilse the other benefits to which she was entitled during
the period of time she had been removed from her position." (Amended
Complaint, G.C. Exh. 1(e), Paragraphs 8(h) and 10).
As set forth earlier, the Award concluded,
"Grievant is restored to her job without back pay but without
loss of other benefits. (G.C. Exh.3) (Emphasis supplied).
Ilse was discharged, i.e., removed from service on January 28, 1984,
and was restored to her job, pursuant to the Award, on October 3, 1984.
The Award specifically provided that she was "restored to her job
without back pay" and, obviously the Award, while it restored Ilse to
her job, left her uncompensated for the period from the date of her
discharge to the date of her restoration. During the period from the
date of her discharge to the date she was restored to her job, she
performed no service for Respondent and, of course, received no
compensation. In the context of the Award without back pay, what does
the phrase, "but without loss of other benefits" mean? General Counsel
and the Union contend that it is clear from the Award that Ilse,
notwithstanding that she neither performed any service nor recieved any
compensation for service for the period from her discharge, on January
28, 1984, to the date she was restored to her job, on October 3, 1984,
accrued sick leave and annual leave for the full period and that Ilse is
entitled to credit for continuous service for the entire period. I do
not find the Award either clear or fully supportive of the position of
the General Counsel and the Union. To the contrary, the Arbitrator
stated, "Grievant is a wrongdoer -- a serious wrongdoer . . ." and with
specific notice that there was ". . . no evidence of interim earnings"
ordered grievant ". . . restored to her job without backpay. . . .",
which does not suggest or imply that he intended anymore than, as he
stated, "Grievant is restored to her job without back pay but without
loss of other benefits" (Emphasis supplied), i.e., that he put her back
to work, without back pay, and that she should not lose benefits which
she had. The Arbitrator further stated, "While I am strong on
protecting jobs, I am weak on granting back pay to wrongdoers. . . ."
which also does not suggest or imply that Ilse should gain anything for
the period from the date of her discharge to the date of her restoration
to her job.
Respondent construed the Award to mean that Ilse be restored to her
job without back pay, and it restored her to her job on October 3, 1984;
that Ilse be given the sick leave she had accrued to January 28, 1984,
which it restored to her; that Ilse be given credit for service only
for six months following January 28, 1984, which it granted her by
fixing her service computation date as March 1, 1977, (the change from
December 28, 1976, to March 1, 1977, constituting the period of time in
excess of six months that she had been removed); and that the waiting
period for within-grade increase be extended from July 24, 1984, to
March 13, 1985, to reflect the period of time from Ilse's discharge to
her restoration to her job. Although each party, i.e., the Union and
Respondent, was well aware by October 13, 1984, that their respective
constructions of the Arbitration Award were seriously at odds, neither
filed an exception to the Award, each being secure in its conviction
that the Award clearly meant what each construed it to mean. In short,
neither the Union nor Respondent viewed the Award as either ambiguous or
lacking in clarity.
As the United States Court of Appeals for the District of Columbia
Circuit has stated,
"(a) contract is not ambiguous simply because the parties
disagree on its interpretation." Clayman v. Goodman Properties,
Inc., 518 F.2d 1026, 1034 (D.C. Cir. 1973). . . Rather, the
'standard for determining ambiguity (that) appears to be in fairly
general use by American courts' is whether the contract is
"'reasonably susceptible of different constructions or
interpretation.'" Lee v. Flinkote Co., 593 F.2d 1275, 1282 (D.C.
Cir. 1979. . . ." Papago Tribal Utility Authority v. Federal
Energy Regulatory Commission, 723 F.2d 950, 955 (D.C. Cir. 1983),
cert denied, 104 S. Ct. 3511 (1984).
To like effect, see also, Wards Company v. Stamford Ridgeway
Association, 761 F.2d 117, 121 (2d Cir. 1985); Ohio Casualty Group of
Insurance Companies v. Gray, 746 F.2d 381, 383 (7th Cir. 1984); South
Hampton Co. v. Stinnes Corp. 733 F.2d 1108, 1114 (5th Cir. 1984);
Casteneda v. Dura-Vent Corporation, 648 F.2d 612, 619 (9th Cir. 1981);
Mellon Bank, N.A. v. Aetna Business Credit, Inc., 619 F.2d 1001, 1111
(3d Cir. 1980). The same standard applies to an arbitration award.
Galt v. Libbey-Owens-Ford Glass Company, 397 F.2d 439, 442 (7th Cir.
1968) cert. denied. 393 U.S. 925 (1968); Bell Aerospace Company,
Division of Textron, Inc. v. Local 516, International Union, United
Automobile Aerospace and Agriculture Implement Workers of America (UAW),
500 F.2d 921 (2d Cir. 1974).
It is obvious that the parties disagreed as to the interpretation of
the Arbitration Award and it is equally obvious that the Arbitration
Award is possible susceptible of different constructions or
interpretations, although, for reasons set forth hereinafter, I have
serious reservations as to whether General Counsel's and the Union's
construction is reasonable in light of the provisions of the Federal
Personnel Manual and the total absence of illuminating guidance from the
Award. Nevertheless, accepting both constructions or interpretations as
reasonable and concluding that the phrase "without back pay but without
loss of other benefits" is ambiguous does not answer the question as to
whether Respondent is guilty of an unfair labor practice. Rather, the
test to be applied in resolving the unfair labor practice allegation is
whether Respondent's construction of the Award is reasonable. While,
broadly, "reasonable" includes all considerations, I view the term as
consisting of two somewhat different elements namely whether
Respondent's construction of the Award is: (a) reasonable; and (b)
consistent with applicable rules and regulations.
At the hearing, I repeatedly asked, wholly apart from any award, what
was the status of a person vis-a-vis seniority during the period that
that person is not on the payroll? General Counsel's response at the
hearing that, ". . . she should have been employed at that time, because
of the wrongful removal" (Tr. 64) is no answer because the Arbitrator
made no such finding or award; but, to the contrary, found that
grievant was a wrongdoer, "a serious wrongdoer", and denied back pay for
the period of her removal from service, which necessarily meant that he
did not find that Ilse should have been employed "at that time", i.e.
from the date of her discharge to the date she was restored to her job.
Neither General Counsel nor the Union in their post-hearing briefs have
seen fit to address the question; however, Respondent has, as set forth
hereinafter responded at length and has shown that its construction of
the Award is fully in conformance with the requirements of the Federal
Personnel Manual. Of course, I agree with the Union that if the award
had been different, for example, that if the award had been "Grievant is
restored to her job without loss of benefits: (Union Brief, p. 4), such
award would have been very different, indeed, than the Award actually
made, and, pursuant to the Union's example, it is entirely possible that
back pay plus all related benefits would have been required; but I do
not agree that, assuming that "restored to her job without loss of
benefits" meant both back pay and all related benefits, by insertion of
"without back pay", it becomes obvious that the award directs the agency
to provide the benefits in dispute." (Union Brief, p. 4). To the
contrary, the Award must be read as a whole as written and by the denial
of back pay for the period from her discharge, removal from service, to
the date of her restoration to service, the Award created, or left, a
hiatus in her employment which "but without loss of other benefits" does
not answer and the decision and award of the Arbitrator otherwise
provides no guidance. I am well aware that Congress has by statute as
to military service, beginning with the Selective Service and Training
Act of 1940, provided that seniority shall accrue during periods of
absence on military duty, Fishgold v. Sullivan Drydock a Repair
Corporation, 328 U.S. 275 (1946); Accardi v. The Pennsylvania Railroad
Company, 383 U.S. 225 (1966), and that this is fully reflected by the
Federal Personnel Manual, Chapter 353, Section 5-1(a)(1); and that in
like manner special and specific provision is made for absence while
receiving workmen's compensation, Peace Corps of VISTA service,
temporary employment in another governmental agency, and state and local
government sharing, Federal Personnel Manual Chapter 531.
Was Respondent's construction of the Award reasonable? A reasonable
construction necessarily means that it must be consistent with the
Award. A party may not change, alter or ignore an unequivocal provision
of an award as the agency did in changing an award which ordered that an
employee be reimbursed for four paid workdays to reimbursement for only
two workdays, notwithstanding that the seven day suspension had covered
only five workdays and the arbitrator had found a three day suspension
was proper. Department of Justice, U.S. Immigration and Naturalization
Service, Washington, D.C., 16 FLRA No.118, 16 FLRA 840 (1984). Here,
the Award provided, "Grievant is restored to her job without back pay
but without loss of other benefits", Respondent restored all benefits
which Ilse had to the date of her discharge, or removal from service,
including sick leave and seniority. Moreover, Respondent gave Ilse
service credit for retirement purposes for six months of the period she
was not in service. Nothing in the Award implied or suggested that Ilse
was to "gain" any benefit for the period during which she had been
removed from service but, rather, that she not "lose" benefits which
reasonably meant that she not lose benefits which she had prior to her
removal. removal. Accordingly, Respondent's construction of the Award
was reasonable.
Was Respondent's construction of the Award consistent with applicable
rules and regulation? Neither the General Counsel nor the Union has
suggested, or pointed to, any provision of the Agreement (G.C. Exh. 2)
or established practice to support their construction of the Award.
Respondent has shown that its construction is both consistent with and
pursuant to the provisions of the Federal Personnel Manual /3/ as
follows: (a) Within-grade increase waiting period. Time in non-pay
status is creditable up to 80 hours per year; after that time, the
waiting period is extended for all additional time the employee is in a
non-pay status. Federal Personnel Manual Supp. 990-2, Book 531,
S-4a(3). Certain exceptions are listed, e.g., military service, absence
while receiving workmen's compensation, etc., none of which applies to
Ilse. (b) Credit toward retirement. The Federal Personnel Manual
provides, as applicalbe to Ilse:
"j. . . . Restoration after erroneous removal or suspension. .
. If restoration is without pay, retirement credit is allowed for
as much of the intervening period without pay as odes not exceed
six months in any calendar year." (Federal Personnel Manual
Supplement 831-1, S-3-4j)
(c) Annual and sick leave. After an employee is in a non-pay status
for 80 hours, no leave is earned for each succeeding increment of 80
hours in which the employee remains in a non-pay status during that
leave year. Federal Personnel Manual 630, S-2-3. (d) Service
Computation Date. ". . . Nonpay time in excess of six months in the
aggregate in any calendar year . . . reduces the amount of service
credit the employee receives, as illustrated below:
Total Amount of Nonpay Time
..... in Calendar Year ........ 00-07-11
Excess Time in Calendar Year
..... (7 mos., 11 days, less
..... 6 mos.) ................. 00-06-00
............................... 00-01-11
SCD at Beginning of Year ...... 61-05-18
Plus Excess Nonpay Time ....... 00-01-11
Adjusted SCD .................. 61-06-29
............................... 06-29-61
No exception applies to Ilse.
Accordingly, as Respondent has shown, and neither General Counsel nor
the Union contest, it construed and implemented that portion of the
award, "without loss of benefits" in compliance with the provisions of
the Federal Personnel Manual and Respondent's construction is". . . a
clear and compelling interpretation of the award". Bell Aeronautics
Company, Division of Textron, Inc. v. Local 516, Internationsl Union,
etc., supra, 500 F.2d at 924); its construction of the Award was
reasonable; and I conclude that Respondent has fully complied with the
Award.
Therefore, it is recommended that the Authority adopt the following:
ORDER
The Complaint in Case No. 6-CA-50349 be, and the same is hereby,
dismissed.
/s/ WILLIAM B. DEVANEY
Administrative Law Judge
Dated: May 1, 1986
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) For convenience of reference, sections of the Statute hereinafter
are, also, referred to without inclusion of the initial "71" of the
statutory reference, e.g., Section 7116(a)(8) will be referred to,
simply, as Section 16(a)(8)."
(2) The initial question of most pressing concern was whether Ilse
would have to pay health insurance premiums for the entire period she
was off duty. Ms. Ellzey stated that Ilse did not want insurance
coverage for that time period and did not want to pay the premiums.
This was resolved by the parties (Tr. 39) and is not at issue.
(3) If the Personnel Manual had, for example, provided that in the
event of restoration to service when back pay was denied, service
credit, for the purposes of retirement, should nevertheless be given for
the entire period, an interpretation which, for the same reasons present
here with respect to the Award might be reasonable, denied service
credit without limitation would not be consistent with applicable
regulations and would not be found reasonable because inconsistent with
applicable regulations.