Arbitrator M. David Vaughn (the Arbitrator) issued a second remedial award setting forth a methodology for determining remedies in response to his charge in the remedial and final award (the first remedial award) that: “[t]he Union may petition to show cause that named individual bargaining[-unit] members have incurred material economic losses.”^[1] We must determine six substantive questions.

 

                First, we must determine whether the second remedial award is contrary to the Back Pay Act (BPA)^[2] insofar as it requires the parties to utilize formulae “similar to” those proposed by the Union at arbitration, or those set forth in an award issued by Arbitrator Susan R. Meredith (the Meredith award) in a separate matter between these same parties. Because the Authority ruled that the formulae contained in the Meredith award are not contrary to the BPA,^[3] we deny this exception.

 

                Third, we must determine whether the second remedial award is contrary to law because it relies on an Authority decision that is currently pending on appeal before the U.S. Court of Appeals for the D.C. Circuit.^[4] Because Authority decisions are binding unless they have been reversed by an appropriate authority, we deny this exception.

 

                Fourth, we must determine whether the second remedial award is contrary to the Customs Officer Pay Reform Act (COPRA)^[5] and the Antideficiency Act^[6] because it compensates employees for work that was not actually performed on Sundays, holidays, or at night. Because COPRA and the Antideficiency Act do not prohibit an award of backpay for work not actually performed on Sundays, holidays, or at night, we deny this exception.

 

 

This dispute involves the Agency’s Revised National Inspectional Assignment Policy (RNIAP).^[7] The RNIAP replaced an earlier National Inspectional Assignment Policy (NIAP) that had been negotiated by the Agency and the Union and that provided for local bargaining of certain matters, including permissive subjects of bargaining. In contrast, the RNIAP stated that the Agency would no longer bargain at the local level or be bound by any locally bargained assignment policies. After implementing the RNIAP, the Agency made changes to local assignment policies at various Agency ports without providing the Union with notice or an opportunity to bargain, at the national level (the level of recognition), over the impact and implementation of those changes. The Union filed a grievance, which was unresolved, and the parties proceeded to arbitration.^[8]

 

 

 

 

The Arbitrator stated that any remedy should “make whole individual employees who lost wages and benefits as a result of the Agency’s improper action.”^[10]  He further found that the Union had established the necessary causal nexus between the Agency’s violation and losses to employees and was “entitled to make its case to establish losses suffered by individual employees and for [such] employees . . . to be awarded monetary compensation.”^[11]  To this end, the Arbitrator granted, in part, the Union’s motion to compel the Agency to disclose documents necessary for the Union to ascertain and demonstrate individual employees’ lost wages and benefits.  In addition, he set forth detailed instructions concerning the process by which the parties would share information and determine individual employees’ entitlement to backpay.  The parties stipulated that the Arbitrator would retain jurisdiction for purposes of enforcement.

The Agency filed exceptions to the interim award and the first remedial award with the Authority, and the Union filed an opposition to the Agency’s exceptions. The Authority denied the Agency’s exceptions in U.S. DHS, CBP.^[12] 

The Agency proposed a claims procedure by which the Agency would notify eligible grievants of their ability to make a claim and, “once the claim was received, the Agency would determine whether there was a loss in pay as a result of the Agency’s scheduling policies.”^[14] The Agency would then notify the Union “of claims not paid and [the Union] would be permitted to submit those claims to arbitration.”^[15]

 

While the Agency “acknowledge[d] that employees covered by the grievance may have been affected by an unwarranted or unjustified personnel action,” it argued that “the Union failed to produce sufficient evidence that [the Agency’s] action[] necessarily resulted in the withdrawal or reduction of pay, allowances[,] or differentials.”^[16] Specifically, the Agency claimed that the Union failed to prove: (1) “that employees suffered actual losses of pay and not merely potential losses or the ‘expectation of work;’”               (2) “specifically calculated amounts of lost pay;” and     (3) “that employees who might have been eligible for such work would have in fact performed the overtime work and received overtime pay.”^[17] The Agency further argued that “the Union’s reliance on [NTEU, Chapter 231 (Scobey)^[18]] to support a broad finding that all of the employees covered by the . . . grievance are entitled to back[p]ay is erroneous.”^[19]

The Arbitrator rejected all of the Agency’s arguments as an “attempt to relitigate the issue of whether the BPA is applicable . . . and whether             [the grievants] are entitled to [backpay],” a matter that was already addressed in his prior awards.^[20] The Arbitrator also rejected the Agency’s claim that “the evidence of actual loss by identified employees [wa]s insufficient to meet the BPA requirements.”^[21] On this point, the Arbitrator found that, “but for the unjustified and unwarranted actions of the Agency, employees in the bargaining unit would not have suffered . . . losses        [in pay, allowances, or differentials].”^[22]  

 

The Arbitrator concluded that the Union proved that the Agency’s unilateral change to the assignments of affected employees had “the effect of reducing the overtime hours and wages to which they otherwise would have been entitled.”^[23] As a remedy, he ordered the Agency to “provide to all employees[,] on a facility-wide basis for all periods covered by the grievance[,] a detailed list of all changes made to [the] RNIAP at each facility or facilities to which each such employee was assigned.”^[24] The Arbitrator further ordered the parties to “jointly design procedures and . . . claims forms” for individual grievants to use.^[25]

“In those circumstances in which the [Agency] has provided full and accurate records and documentation of schedules and assignments made prior to [the] RNIAP and changes made after [the] RNIAP” to the Union, the Arbitrator ordered individual grievants to “assert their entitlement to wages and benefits lost by filing individual claims, using agreed standard claim forms.”^[26] In cases where the Agency cannot or does not provide such records and documentation with respect to a grievant, the Arbitrator ordered the Union to “assert covered employees’ entitlement to wages and benefits lost on an individual or group basis . . . us[ing formulae] to estimate actual damages, similar to the procedures it proposed in its post-hearing brief and to those adopted in” the Meredith award.^[27]

 

 

                Although the Authority’s Regulations do not provide for the filing of supplemental submissions, § 2429.26 of those Regulations provides that the Authority may, in its discretion, grant leave to file “other documents” as it deems appropriate.^[28] The Authority has granted leave to file other documents where the supplemental submission responds to issues that could not have been addressed previously.^[29] Conversely, where a party seeks to raise issues that it could have addressed in a previous submission, the Authority ordinarily denies requests to file supplemental submissions concerning those issues.^[30]

 

                In Section IV.C. of its exceptions, the Agency argues that the award is contrary to law because it relies on Scobey, which, at the time, was on appeal to, and awaiting a decision from, the U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit).^[31] In its supplemental submission, the Agency notes that, subsequent to the filing of the Agency’s exceptions to the second remedial award, the D.C. Circuit remanded Scobey to the Authority for reconsideration of the Agency’s motion for reconsideration.^[32] In its supplemental submission, the Agency clarified “that the case is now pending review by the Authority.”^[33] 

 

                However, after the Agency’s supplemental submission, the Authority reconsidered its decision in Scobey, but still denied the Agency’s motion for reconsideration.^[34] The Agency appealed the Authority’s decision, and that case is currently pending before the D.C. Circuit.^[35] Therefore, the supplemental submission is now moot, and we dismiss it as such.

 

 

                Under §§ 2425.4(c) and 2429.5 of the Authority’s Regulations, the Authority will not consider any arguments that could have been, but were not, presented to the arbitrator.^[36]   In its exceptions, the Agency argues that the remedy is contrary to public policy.^[37]  The Agency could have raised this argument at arbitration, but did not do so. The Agency argues that the remedy is contrary to public policy because it permits awards of backpay that “significantly exceed the amounts [that] employees normally would have earned or received during the period if the personnel action had not occurred”^[38] using “a formulaic approach to estimate actual damages.”^[39] But because the Union requested a formulaic remedy at arbitration, the Agency could have raised this argument to the Arbitrator.  And because it failed to do so, we find that §§ 2425.4(c) and 2429.5 of the Authority’s Regulations bar this exception.^[40]

 

 

                The Agency argues that the second remedial award is contrary to law because it: (1) grants the grievants compensation in violation of the BPA and       (2) the doctrine of sovereign immunity; (3) relies on Scobey; and (4) “improperly found that the Agency’s proposed remedy would unlawfully bypass the Union.”^[41] When an exception involves an award’s consistency with law, the Authority reviews any questions of law raised by the exception and the award de novo.^[42] In applying the standard of de novo review, the Authority determines whether an arbitrator’s legal conclusions are consistent with the applicable standard of law.^[43] 

 

 

                The Agency contends that the second remedial award is contrary to the BPA to the extent the Arbitrator ordered the Union to compute economic losses using formulae “similar to” those proposed in the Union’s   post-hearing brief, or to those found in the Meredith award.^[44] 

 

                In U.S. DHS, U.S. CBP (CBP II), the Authority found that the formulae set forth in the Meredith award do not violate the BPAwhen an arbitrator has determined that the Agency’s unwarranted and unjustified personnel actions resulted in a loss to the grievants.^[45]  In that case, the Authority held that using formulae to compute economic losses is permissible so long as the arbitrator “sufficiently identifies the specific circumstances under which employees are entitled to backpay.”^[46] Here, the Arbitrator found that, as a result of its unilateral changes to employees’ work assignments under the RNIAP, bargaining unit employees were harmed by unjustified or unwarranted personnel actions.^[47] We find, consistent with our decision in CBP II,that the second remedial award is not contrary to the BPA insofar as it requires the parties to apply formulae similar to those contained within the Meredith award.^[48] 

 

 

                As set forth above, generally, under                  §§ 2425.4(c) and 2429.5 of the Authority’s Regulations, the Authority will not consider any evidence or arguments that could have been, but were not, presented to the arbitrator.^[49]  However, the Authority has declined to apply §§ 2425.4(c) and 2429.5 to bar claims regarding sovereign immunity because such claims may be raised at any time.^[50]  Therefore, even though the record does not indicate that the Agency presented its                 sovereign-immunity argument to the Arbitrator, §§ 2425.4(c) and 2429.5 do not preclude the Agency from raising this claim before the Authority.^[51]

                The Agency argues that the second remedial award is contrary to law because the remedy does not fall within the BPA’s waiver of sovereign immunity.^[52] The Agency asserts that the “possibility of working overtime does not provide employees with an entitlement to overtime assignments at appropriate overtime rates of pay, and as such, is not . . . ‘pay, allowances, and differentials’ recoverable under the [BPA].”^[53] The Agency also cites Sanford v. Weinberger^[54] for the proposition that “overtime pay, or any monetary remedy, is not appropriate in the case of [§] 6101(a)(3) violations.”^[55] In Sanford, the court noted that a “fundamental precept of law holds that no monetary damages can be awarded against the United States unless some provision of law commands the payment of same.”^[56] Relying on Sanford, the Agency argues that “[n]o provision of law exists that commands the payment of overtime in situations where an employee did not actually work an overtime assignment.”^[57]

 

                But this argument is unavailing. Under Authority precedent, even if employees do not actually work overtime, they may receive backpay under the BPA if an unjustified or unwarranted personnel action precluded them from working overtime.^[58] And when a party’s sovereign-immunity claim depends on an argument that an arbitration award is contrary to the BPA, and the Authority finds that the award is consistent with the BPA, the Authority will deny the          sovereign-immunity claim.^[59] Consistent with our finding above that the award is consistent with the BPA, the Agency’s sovereign-immunity claim does not establish that the award is contrary to law. 

 

                The Agency also argues that awarding the grievants backpay would violate the U.S. Supreme Court’s decision concerning sovereign immunity in United States v. Testan.^[60]  In Testan, federal employees claimed that they should receive backpay as compensation for the alleged misclassification of their positions,^[61] but the Court found that the employees had no “substantive right . . . to backpay” under the BPA “for the period of their claimed wrongful classifications.”^[62]  The Authority has previously held that Testan is inapposite to backpay claims that are not based on alleged classification errors.^[63]  Consequently, as the employees here are not seeking backpay due to classification errors, the Agency’s argument regarding Testan does not demonstrate that the award is contrary to law.^[64]

 

 

                The Agency further argues that the second remedial award is contrary to law because “it improperly relies on [Scobey]”which is still pending appeal and is not binding precedent.^[65] As explained above, the appeal of Scobey currently pending before the D.C. Circuit is not the same appeal cited in the Agency’s exceptions. Nonetheless, the Agency’s argument – that an Authority decision is not binding precedent while it is pending appeal – is still applicable, regardless of the change in Scobey’sprocedural posture. 

 

                The Agency presents no legal authority to support this proposition.^[66] To the contrary, “[p]ublic policy dictates that the decisions of the Authority must be enforced unless and until they are reversed by appropriate authority.”^[67] Thus, it was proper for the Arbitrator to rely on Scobey even while the case was pending appeal.^[68] Accordingly, we deny this exception.

 

 

                The Agency also argues that the second remedial award is contrary to COPRA and the Antideficiency Act.^[69]  The Agency asserts that COPRA premium pay is allocated when customs officers actually perform work on Sundays, holidays, or at night.^[70] Thus, the Agency claims that awarding COPRA premium pay for work not performed is a violation of the Antideficiency Act, which prohibits federal agencies from disbursing funds for anything other than the specific “expenditure or obligation” that has been appropriated by Congress.^[71] 

 

                However, the Authority has previously recognized that, under the Agency’s own              COPRA-implementing regulations, compensation may be awarded under COPRA “for work not performed, which includes . . . awards made in accordance with back[p]ay settlements,” such as the award in this case.^[72] Accordingly, we deny the Agency’s argument that the second remedial award is contrary to COPRA and the Antideficiency Act.

 

                The Agency argues that the second remedial award is contrary to law because the Arbitrator wrongfully found that the Agency’s proposed remedy would illegally bypass the Union.^[73] However, the Arbitrator relied on separate and independent grounds in deciding not to adopt the Agency’s proposed claims process. An arbitrator’s remedy is based on separate and independent grounds when more than one ground independently would support the remedy.^[74] The Authority has held that when an arbitrator bases an award on separate and independent grounds, the excepting party must establish that all of the grounds are deficient in order for the Authority to find the award deficient.^[75] If the excepting party has not demonstrated that the award is deficient on one of the grounds relied on by the arbitrator, and the award would stand on that ground alone, then it is unnecessary to address exceptions to the other grounds.^[76]

 

                Here, the Arbitrator found that the Agency’s proposed claims process was “burdensome for individual employees to utilize,” and that it did not require the Agency to provide “assistance to employees to establish their losses.”^[77] The Arbitrator also noted that the Agency’s proposed process was inadequate because the burden of determining damages “must be shared by the Agency and individual employees.”^[78] Moreover, the Arbitrator rejected the Agency’s proposed process because it was “unduly burdensome” insofar as it required employees to prove “to a certainty that they would have worked specific hours or overtime.”^[79] These findings constitute separate and independent grounds for the Arbitrator’s decision not to adopt the Agency’s proposed remedy. As the Agency has not demonstrated that these findings are deficient, the second remedial award would stand on these grounds alone. Consequently, it is unnecessary to address whether the Arbitrator erred in finding that the Agency’s proposed remedy constituted an illegal bypass of the Union.

 

 

                The Agency argues that the second remedial award is based on a nonfact.^[80]  To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result.^[81] However, the Authority will not find an award deficient on the basis of an arbitrator’s determination of any factual matter that the parties disputed at arbitration.^[82] Moreover, disagreement with an arbitrator’s evaluation of evidence, including the determination of the weight to be given such evidence, provides no basis for finding the award deficient.^[83] 

 

                Here, the Agency argues that the second remedial award is based on a nonfact because the Arbitrator found that the Agency’s proposed remedy would improperly bypass the union.^[84] The Agency argues that its proposed remedy would not bypass the Union because it “did not require such           management-employee dealings that would exclude the Union from participation.”^[85] However, this issue was disputed by the parties at arbitration.^[86] Accordingly, we find that the Agency’s exception does not demonstrate that the second remedial award is based on a nonfact.

 

---