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39 FLRA No. 127

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

FEDERAL EMPLOYEES METAL TRADES COUNCIL

LOCAL 831

(Union)

and

U.S. DEPARTMENT OF THE NAVY

LONG BEACH NAVAL SHIPYARD

LONG BEACH, CALIFORNIA

(Agency)

0-AR-1973

DECISION

March 26, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Spencer M. Howard filed by the Agency pursuant to section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union did not file an opposition to the Agency's exceptions.

The grievance involved in this case alleged that the Agency violated an agreement between the parties by improperly placing certain employees on enforced leave. The Arbitrator sustained the grievance and ordered that the Agency provide backpay and restore leave to each of the employees who had been placed on enforced leave for the pay and leave they had lost as the result of the Agency's violation.

For the following reasons, we find that the award of backpay to all employees who were placed on enforced leave is deficient. We will, therefore, modify the award to require the Agency to provide backpay to only those employees who would not have been placed on enforced leave but for the Agency's violation of the parties' agreement.

II. Background and Arbitrator's Award

On November 10, 1988, the Agency issued NAVSHIPYDLBEACH Notice 5450, which established a Special Projects Shop to provide work for certain employees whose normal work was temporarily interrupted. On March 1, 1989, the Agency and Union negotiated a memorandum of agreement concerning the procedures for selecting employees in Shop 56 of the Agency's facility to be placed on enforced leave if work was unavailable. Thereafter, on March 6, 1989, the Agency placed a group of employees from Shop 56 on enforced leave, and on March 14, 1989, the Agency placed a second group of employees from that shop on enforced leave. A grievance was filed over the selection and placement of employees on enforced leave. The grievance was not resolved and was submitted to arbitration.

The Arbitrator stated that the issue before him was: "Did [m]anagement reach an agreement with [the Union] and subsequently violate the intent of that agreement when the aggrieved employees were placed on forced leave which commenced on March 6, 1989?" Award at 1.

The Arbitrator concluded that the Agency "did not follow the ground rules set up in the [a]greement or the Special Projects Shop memo #5450." Id. at 3. The Arbitrator found that the first group of employees was selected in a manner contrary to the agreement and the second group was selected in accordance with the agreement but was not sent to the Special Projects Shop in accordance with the Agency's notice. As a remedy the Arbitrator ordered that "those employees placed on forced leave March 6, 1989 and the second group placed on forced leave March 14, 1989 be made whole, and all leave be reinstated." Id.

III. Agency's Exceptions

The Agency does not except to the Arbitrator's findings that the Agency violated the parties' agreement. Rather, the Agency disputes only that part of the Arbitrator's award which compensates the employees who were placed on enforced leave. According to the Agency, the remedy violates the Back Pay Act, 5 U.S.C. º 5596.

Specifically the Agency argues that the award is contrary to the Back Pay Act "because the [A]rbitrator failed to find which particular employees would have been placed on enforced leave but for the violation of the agreement." Exception at 2. The Agency maintains that the Arbitrator's finding that "all the employees in the two groups should not have been placed on enforced leave does not constitute the requisite finding as to which particular employees in the two groups would have been placed on enforced leave." Id. at 3. Accordingly, the Agency asserts that "the award, by ordering back pay, including leave reinstatement, for all employees placed on enforced leave regardless of whether some employees would have been placed on enforced leave had the contract been followed, is deficient as contrary to the Back Pay Act." Id. In conclusion, the Agency requests that the Arbitrator's award be set aside.

IV. Analysis and Conclusions

The Agency does not except to the Arbitrator's finding that the Agency violated the parties' agreement in the method of selecting employees to be placed on enforced leave. The Agency asserts only that the Arbitrator's award violates the Back Pay Act because the Arbitrator did not make a specific finding as to which aggrieved employees would not have been placed on enforced leave and, by ordering that all the employees placed on enforced leave be made whole, the Arbitrator may be awarding backpay to employees who would have been on enforced leave had the agreement been followed.

In order for an award of backpay to be authorized under the Back Pay Act, an arbitrator must determine that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; (2) the personnel action resulted in the withdrawal or reduction of all or part 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. See American Federation of Government Employees, Local 1857 and U.S. Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 35 FLRA 325 (1990).

In this case the Agency does not dispute that it violated the parties' agreement. Moreover, the Agency does not claim that all of the employees placed on enforced leave in violation of the parties' agreement would not have worked had the agreement been followed. Rather, the Agency appears to concede that some of those employees would not, indeed, have been placed on enforced leave. Thus, it is not disputed by the Agency that, because of the Agency's violation of the parties' agreement, some of the employees are entitled to backpay.

Contrary to the Agency's contentions, we conclude that the Arbitrator made the findings required by the Back Pay Act for an authorized award of backpay. In this respect, the Arbitrator concluded that the aggrieved employees were affected by the Agency's violation of the agreement regarding selection procedures for enforced leave, that employees suffered a loss of pay as a result of the Agency's violation of the agreement and that, but for the violation of the agreement, the aggrieved employees would not have been placed on enforced leave. The Agency cites no provision of the Back Pay Act or its implementing regulations, and none is apparent to us, that would require the Arbitrator, after finding the specific circumstances giving rise to an entitlement to backpay, to identify the specific employees who would not have been placed on enforced leave had the Agency abided by the parties' agreement. Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 13 FLRA 386 (1983).

We find, however, in agreement with the Agency, that the award of backpay to all the individuals placed on enforced leave does not satisfy the requirements of the Back Pay Act. The Arbitrator did not determine how many of the employees would not have been placed on enforced leave and would have worked had the Agency complied with the parties' agreement. Further, the Arbitrator did not specifically find that all the employees on enforced leave would have worked if the Agency had not violated the agreement. As such, the Arbitrator's award of backpay to all of the employees placed on enforced leave is deficient.

Section 7122(a) of the Statute provides that if the Authority finds that an arbitration award is deficient, the Authority may, among other things, "take such action . . . as it considers necessary . . . ." In the circumstances of this case, noting specifically the Agency's acknowledgement that it violated the parties' agreement, we conclude that it is necessary and appropriate to modify the Arbitrator's award to provide backpay to only those employees who would not have been placed on enforced leave had the Agency not violated the parties' agreement. See, for example, 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, 367 (1990) (Authority ordered backpay to be paid to a specific individual grievant who would have worked overtime instead of remedy of backpay to three grievants as ordered by Arbitrator, noting that the agency acknowledged that it had violated the parties' agreement); U.S. Department of Veterans Administration, Medical Center, Houston, Texas and American Federation of Government Employees, Local 1633, 36 FLRA 122, 128-29 (1990) (Authority substituted the remedy of priority consideration for a deficient backpay award, noting that the arbitrator found a violation of the collective bargaining agreement); Local 12, American Federation of Government Employees, AFL-CIO and U.S. Department of Labor, 24 FLRA 134, 137 (1986) (Authority substituted the remedy of priority consideration for a deficient backpay award, noting that the arbitrator found a violation of the collective bargaining agreement and citing the corrective action provisions of FPM chapter 335). Accordingly, as neither party disputes that some employees would not have been placed on enforced leave, we will modify the award to require the Agency to provide those employees with backpay to compensate them for the hours they would have worked but for the Agency's violation of the parties' agreement. We will direct the parties to determine the identity of the specific employees who would not have been selected for enforced leave had the parties' agreement been followed. Any unresolved disputes as to which employees are entitled to receive backpay may be resolved in accordance with the grievance and arbitration procedures of the parties' collective bargaining agreement.

V. Decision

The Arbitrator's award is modified to require the Agency to provide only those employees who would not have been placed on enforced leave with backpay to compensate them for the hours they would have worked but for the Agency's violation of the parties' agreement. The parties are directed to determine which employees would have worked during periods of enforced leave in accordance with the parties' agreement. Any unresolved disputes as to which employees are entitled to receive backpay under this decision may be resolved in accordance with the grievance and arbitration procedures of the parties' collective bargaining agreement.

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

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