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51 FLRA No. 133

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1286

COUNCIL OF PRISON LOCALS

(Union)

and

U.S. DEPARTMENT OF JUSTICE

FEDERAL BUREAU OF PRISONS

FEDERAL CORRECTIONAL INSTITUTION

ASHLAND, KENTUCKY

(Agency)

0-AR-2670

_____

DECISION

July 25, 1996

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator John J. Murphy filed by both the Agency and the Union under section 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 exceptions. The Union did not file an opposition to the Agency's exceptions.

The Arbitrator sustained a grievance by seven grievants claiming that the Agency violated the parties' collective bargaining agreement by assigning overtime work to another employee. The Arbitrator issued the following award: "A sum equal to 8 times the hourly wage of the highest paid of the seven grievants shall be paid by the [Agency] and distributed equally among the seven grievants." Award at 13.

For the following reasons, we conclude that the award is deficient under section 7122(a) of the Statute because it is contrary to the Back Pay Act. Accordingly, we set aside the award.

II. Background and Arbitrator's Award

The Agency has several departments, including UNICOR and Facilities. During a snowstorm, the Agency's Warden authorized a UNICOR employee to remove snow, and the UNICOR employee worked 8 hours of overtime doing so. At the time of the authorization, several Facilities employees were still at work, including two Facilities employees who "did in fact work overtime . . . in connection with the snow removal effort." Award at 11.

Seven Facilities employees filed a grievance claiming that the 8 hours of overtime worked by the UNICOR employee should have been offered to Facilities because Facilities normally performed that work. The grievance claimed that the Agency's action violated Article 18, Section (n) of the parties' master agreement.⁽¹⁾ As a remedy, the grievants requested "[e]qual compensation to the overtime pay for each qualified facilities staff", id. at 3; that is, 8 hours of overtime pay for each of the seven grievants. The grievance was not resolved and submitted to arbitration.

The Arbitrator stated that the issue before him was whether the Agency violated Article 18, Section (n) of the agreement, and, if so, what should the remedy be. He determined that the provision requires the Agency to distribute and rotate opportunities for overtime equitably among qualified employees and that it establishes a duty on the Agency to maintain records so that equitable distribution of overtime assignments may be monitored. The Arbitrator found that the grievants could not have been considered for equitable rotation and distribution because no overtime assignment list was maintained for them. Therefore, he concluded that the Agency failed to fulfill its duties under the agreement provision.

The Arbitrator found that the Union's request for a remedy that required each of the seven grievants to be paid 8 hours of overtime was punitive. He further found that "the harm was to the members of the Facilities Department represented in this case by the seven named grievants; the harm was not to just one of the seven grievants." Id. at 13. Accordingly, "in the interest of providing a remedy which is not punitive against the Employer, and in the interest of bringing this dispute to final decision," he "formulated" the following award: "A sum equal to 8 times the hourly wage of the highest paid of the seven grievants shall be paid by the [Agency] and distributed equally among the seven grievants." Id.

III. Exceptions

A. Union's Contentions

The Union contends that the Arbitrator's remedy fails to draw its essence from the parties' agreement because the Arbitrator should have awarded 8 hours of backpay to each of the seven grievants. The Union also argues that the award is based upon a nonfact.

B. Agency's Contentions

The Agency argues that the award is inconsistent with the Back Pay Act because the Arbitrator failed to find that "but for" the Agency's violation of Article 18, Section (n), a Facilities' employee would have worked the overtime. Exceptions at 14. In opposing the Union's exception alleging that the award is deficient because the Arbitrator should have awarded each of the grievants 8 hours of backpay, the Agency argues that such a remedy would "merely compound", id. at 17, the violation of the Back Pay Act and would also violate the Back Pay Act for the reasons discussed in U.S. Department of the Army, Aviation Applied Technology Directorate, Fort Eustis, Virginia and National Association of Government Employees, Local R4-6, 38 FLRA 362, 366 (1990) (Army, Fort Eustis).

The Agency further contends that the remedy violates 5 U.S.C. § 5542(a)(1), fails to draw its essence from the master agreement, and directly interferes with the exercise of management's rights to assign work and to determine the type of personnel by which its operations are to be conducted as provided for by section 7106(a)(2)(B) of the Statute.

IV. Analysis and Conclusions

Under the Back Pay Act, an award of backpay is authorized if: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; (2) the personnel action directly resulted in the withdrawal or reduction of the grievant's pay, allowances or differentials; and (3) but for such action, the grievant otherwise would not have suffered the withdrawal or reduction. E.g., American Federation of Government Employees, Local 31 and U.S. Department of Veterans Affairs, Medical Center, Cleveland, Ohio, 41 FLRA 514, 517 (1991). A violation of a collective bargaining agreement provision constitutes an unjustified or unwarranted personnel action under the Back Pay Act. E.g., U.S. Department of Justice, Immigration and Naturalization Service and American Federation of Government Employees, National Immigration and Naturalization Service Council, 42 FLRA 222, 232 (1991).

Because the second and third requirements of the Back Pay Act require evidence of a causal relationship between the violation and a loss or reduction in pay, allowances, or differentials, backpay is authorized only where the violation found by the arbitrator resulted in such a loss or reduction. See U.S. Department of the Treasury, Customs Service, South Central Region, New Orleans, Louisiana and National Treasury Employees Union, Chapter 168, 43 FLRA 337, 340-41 (1991). Moreover, where an arbitrator finds that an agency violated an agreement provision in the method of assigning overtime and awards backpay to several grievants, but does not determine which of the grievants would have received the overtime assignment, or that all of them would have been assigned overtime, had the agency complied with the agreement, an award of backpay to all of the grievants violates the Back Pay Act and is deficient. Army, Fort Eustis, 38 FLRA at 366.

Although the Arbitrator found that the Agency violated Article 18, Section (n) of the parties' agreement, he did not find that this violation resulted in the denial of overtime pay to all of the grievants. Even assuming, without deciding, that the violation of Article 18, Section (n) constituted an unjustified or unwarranted personnel action in satisfaction of the first requirement of the Back Pay Act and that the award is not deficient on any other basis, the record does not support a conclusion that the violation of the agreement provision resulted in a loss of pay to all the grievants. As such, the award of backpay to all of the grievants violates the Back Pay Act and is, therefore, deficient as contrary to law under section 7122(a) of the Statute. See id. In light of this determination we need not address the Agency's and Union's other contentions.

V. Decision

The Arbitrator's award is set aside.⁽²⁾

APPENDIX

Article 18 - Hours of Work

Section n. Opportunities for overtime shall be distributed and rotated equitably among qualified employees. Specific procedures regarding overtime assignments may be negotiated locally. Nothing in this Section is meant to restrict the Employer's management of overtime costs. Overtime records including sign-up lists, offers made by the Employer for overtime, and overtime assignments, will be monitored by the Employer and the Union to determine the effectiveness of the overtime assignment system and ensure equitable distribution of overtime assignments to members of the unit. Records will be retained by the Employer for a minimum of 2 years from the date of said record.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Article 18, Section (n) is set forth in the Appendix to this decision.

2. The Union does not request the Authority to modify the award to grant backpay to any particular grievant, and the record in this case does not warrant doing so. Cf. Army, Fort Eustis, 38 FLRA at 367 (the Authority modified the award of backpay to three grievants by ordering the agency to pay backpay to only one of the grievants; the Authority noted specifically that the agency acknowledged that it had violated the parties' agreement and that one of the grievants was entitled to backpay, and found that the record demonstrated which grievant would have been assigned to work the overtime).

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