United States Department of Justice, Federal Bureau of Prisons, U.S. Penitentiary, Atwater, California (Agency) and American Federation of Government Employees, Council of Prison Locals, Local 1242 (Union), 0-AR-4794
| Decision Date | 19 June 2012 |
| Docket Number | 0-AR-4794 |
| Citation | 66 FLRA No. 137 |
| Parties | UNITED STATES DEPARTMENT OF JUSTICE FEDERAL BUREAU OF PRISONS U.S. PENITENTIARY ATWATER, CALIFORNIA (Agency) and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES COUNCIL OF PRISON LOCALS LOCAL 1242 (Union) |
| Court | Federal Labor Relations Authority Decisions |
Before the Authority: Carol Waller Pope, Chairman, and Thomas M Beck and Ernest DuBester, Members
This matter is before the Authority on exceptions to an award of Arbitrator Joe H. Henderson filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority’s Regulations. The Union filed an opposition to the Agency’s exceptions.
In an initial award (merits award), the Arbitrator awarded backpay for the Agency’s violations of the overtime provisions of the parties’ collective bargaining agreement (CBA). And he directed the parties to meet and determine which employees were entitled to backpay and the amount owed them. When the parties were unable to agree, the Arbitrator directed in a second award (remedy award) that the Agency pay a lump sum of backpay divided equally among certain employees.
For the reasons that follow, we deny the Agency’s exceptions.
In the merits award, the Arbitrator found that the Agency violated Article 18, Section P of the CBA when it failed to: (1) distribute and rotate overtime opportunities fairly and equitably; and (2) retain overtime records for a two-year period.[1] Remedy Award at 2 (quoting Merits Award). The Arbitrator ordered the parties to meet within thirty calendar days of his decision to determine to whom and in what amount the Agency owed backpay for its violations. Id. He retained jurisdiction to assist the parties with any disputes. Id. at 3. When the parties were unable to mutually agree on which employees were due backpay or the amount owed to them, they requested the Arbitrator’s assistance.
In the remedy award, the Arbitrator found, in relevant part, that information provided by the Union in the form of “[a]ppendices” was “sufficient to establish the [b]argaining [u]nit [employees] who would have been available for [overtime] work assignment[s] and be[en] paid” during times that overtime records were not available.[2] Id. at 12-13. He incorporated the “[a]ppendices, ” into his award and ordered the following remedy:
For the period . . . where “overtime offers” and “sign up list” records were not provided, the Agency pursuant to Append[ices] B and C . . . will disburse the aggregate of $200, 000 in back pay. . . . Each employee listed in Appendix C shall receive an amount equal to $200, 000, divided by the total number of “qualified employees” listed in Appendix C.
Id. at 14.[3]
The Agency claims that the backpay award is contrary to: (1) the Back Pay Act (BPA), 5 U.S.C. § 5596;[4] and (2) 5 C.F.R. § 550.111, “Authorization of overtime pay.”[5] Exceptions at 3.
As to the BPA, the Agency states that, although employees need not have actually worked overtime in order to recover backpay, a union must show that the grievants would have worked the overtime had the agency not engaged in improper conduct. Id. at 4 (citation omitted). The Agency claims that the BPA requires arbitrators to find that grievants affected by an unwarranted personnel action “actually suffered a monetary loss.” Id. (citation and internal quotation marks omitted). In this regard, the Agency asserts that an award of backpay is “contrary to law” unless “it is clear that the violation of the parties’ [CBA] resulted in the loss of some pay.” Id. at 4-5 (citations and internal quotation marks omitted).
According to the Agency, in this case, the Arbitrator improperly substituted his “own sense of equity” for the legal requirements of the BPA, and the award “lacks any factual foundation” in the record. Id. at 5. Specifically, the Agency argues that there is neither evidence that the employees “awarded a proportionate share” of the overtime money were actually “ready, willing[, ] and able” to work the overtime assignment, nor any indication of how much overtime they actually would have worked. Id. at 5-6. As such, the Agency asserts that this case is similar to U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Beckley, West Virginia, 64 FLRA 775, 776 (2010) (Beckley). According to the Agency, in that case, the Authority found an award contrary to the BPA where the arbitrator awarded backpay despite finding that “‘there [wa]s no certain way’” to know which employees would have worked overtime. Exceptions at 6 (quoting Beckley, 64 FLRA at 776). The Agency argues that there is similarly “no certain way” to determine which employees would have worked overtime in this case. Id. According to the Agency, a lump-sum overtime award distributed among a number of employees based on a lack of records is “legally insufficient, speculative, and must be set aside.” Id. at 6.
The Union contends that the Authority should deny the Agency’s exceptions as untimely. Opp’n at 5-6. The Union asserts that rather than excepting to the Arbitrator’s remedy award, the Agency’s exceptions challenge the Arbitrator’s merits award. Id. at 5. As the Agency did not file timely exceptions to the merits award, the Union maintains that it became final and binding. Id. at 6. According to the Union, as there is no new finding in the remedy award regarding entitlement to backpay, the Agency’s exceptions are untimely. Id.
Assuming the Agency’s exceptions are timely, the Union argues that the remedy award is not contrary to the BPA because the evidence and testimony presented at the hearing and in the parties’ reply briefs convinced the Arbitrator that the employees were entitled to backpay. Id. at 7. The Union further claims that Beckley is distinguishable from this case because there, unlike here, the arbitrator found that there was “‘no certain way to know’” which employees would have received overtime. Id. at 8 (quoting Beckley, 64 FLRA at 776).
The Union claims that the Agency’s exceptions challenge the merits award and not the remedy award. Opp’n at 5-6. As the period for filing exceptions to the merits award expired, the Union asserts that the Agency’s exceptions are untimely. Id.
The time limit for filing exceptions to a final arbitration award “is thirty (30) days after the date of service of the award.” 5 C.F.R. § 2425.2(b). An award is final when an arbitrator orders backpay, even if the arbitrator directs the parties to meet and determine the appropriate payment of backpay, and retains jurisdiction to assist the parties in resolving any dispute. See, e.g., U.S. Dep’t of Justice, Fed. Bureau of Prisons, USP Admin. Maximum (ADX), Florence, Colo., 64 FLRA 1168, 1170 (2010), recons. denied, 65 FLRA 76 (2010). Thus, the merits award is final.
But the merits award’s finality does not establish that the Agency’s exceptions are untimely. The situation here is analogous to when a party seeks clarification of an award, and the arbitrator in rendering the clarification “modifies [the] award so as to give rise to the deficiencies alleged in the exceptions.” U.S. Dep’t of the Army, Corps of Eng’rs, Nw. Div. & Portland Dist., 60 FLRA 595, 596 (2005) (Army). In such a situation, the filing period begins with service of the modified award. Id. Thus, the question here is whether the remedy award gave rise to the deficiency alleged in the Agency’s exceptions.
In the remedy award, the Arbitrator found that the Union provided sufficient evidence to determine which employees would have been available for the overtime assignments, and, for the first time, he ordered the Agency to pay a $200, 000 lump-sum payment divided equally among the affected employees. Remedy Award at 12-13. In its exceptions, the Agency claims that the lump-sum award is “legally insufficient, speculative, and must be set aside.” Exceptions at 6.
As the deficiency claimed in the Agency’s exceptions – the lump-sum award’s legal sufficiency – arises only from the Arbitrator’s remedy award, the period for filing exceptions began with service of the remedy award. See Army, 60 FLRA at 596. As there is no dispute that the Agency filed its exceptions within thirty days of service of the remedy award, we find that the Agency’s exceptions are timely.
When exceptions involve an award’s consistency with law, the Authority reviews any question of law raised by the exceptions and the award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing U.S. Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether an arbitrator’s legal conclusions are consistent with the applicable standard of law. See U.S. Dep’t of Def., Dep’ts of the Army & the Air Force, Ala. Nat’l Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator’s underlying factual findings unless the appealing party establishes that those factual findings are deficient as nonfacts. See, e.g., AFGE, Local 1164, 66 FLRA 74, 78 (2011) (Local 1164).
The Agency argues that the award is contrary to 5 C.F.R. § 550.111. Exceptions at 3. Section 2425.6(e)(1) of the Authority’s Regulations provides that an exception “may be subject to dismissal or denial if . . . [t]he excepting party fails to raise and support a ground” listed in 5 C.F.R. § 2425.6(a)-(c). 5 C.F.R. § 2425.6(e)(1); AFGE, Local 405, 66 FLRA 437, 437 n.1 (2012). As the Agency does not provide...
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