United States Department of Justice, Federal Bureau of Prisons, Federal Correctional Complex, Pollock, Louisiana (Agency) and American Federation of Government Employees, Council of Prison Locals #33, Local 1034 (Union) (Authority decision, June 26, 2015)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority involving reconsideration of an arbitral award under 5 U.S.C. § 7122. Judicial review under 5 U.S.C. § 7123(a) generally does not extend to an order involving an arbitral award unless the order involves an unfair labor practice under 5 U.S.C. § 7116. This order concerns backpay for lost overtime and does not state that it involves an unfair labor practice.

Plain-English summary

A correctional officer lost overtime opportunities while the Pollock prison complex investigated an inmate's accusation against him. An arbitrator awarded backpay, but the Authority had set the award aside because the arbitrator did not find that the agency violated a law, rule, regulation, or contract provision, as the Back Pay Act requires. The union sought reconsideration, arguing that the Authority had misread the award and should have asked the arbitrator for clarification. The Authority found that its earlier ruling was clear and that the union had not shown extraordinary circumstances. It denied reconsideration, leaving the backpay award set aside.

Decision snapshot

• Authority: 5 U.S.C. §§ 5596, 7122, and 7123(a); 5 C.F.R. § 2429.17
• Outcome: The Authority denied the union's request to reconsider its earlier decision setting aside backpay.
• Key point: A backpay award needs a finding of an unjustified or unwarranted personnel action under the Back Pay Act.

Full text (FLRA public release)

68 FLRA No. 114

UNITED STATES

DEPARTMENT OF JUSTICE

FEDERAL BUREAU OF PRISONS

FEDERAL CORRECTIONAL COMPLEX

POLLOCK, LOUISIANA

(Agency)

and

AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES

COUNCIL OF PRISON LOCALS #33

LOCAL 1034

(Union)

0-AR-4942

(68 FLRA 151 (2014))

_____

ORDER DENYING

MOTION FOR RECONSIDERATION

June 26, 2015

_____

Before the Authority: Carol Waller Pope, Chairman, and

Ernest DuBester and Patrick Pizzella, Members

I. Statement of the Case

Arbitrator Joann T. Donovan sustained the Union’s grievance and awarded the grievant backpay. The Agency filed exceptions to the Arbitrator’s award. In U.S. DOJ, Federal BOP, Federal Correctional Complex, Pollock, Louisiana (BOP),[1] the Authority granted the Agency’s contrary‑to‑law exception. The Authority set aside the Arbitrator’s award of backpay because the award did not satisfy the requirements of the Back Pay Act (BPA).[2] Specifically, the Authority found, the award “does not include a finding that the Agency committed an unjustified or unwarranted personnel action as required by the BPA.”[3] The Union then filed this motion for reconsideration of the Authority’s decision in BOP.

The question before us is whether the Union establishes extraordinary circumstances to warrant reconsidering BOP. Because the Union’s motion is based on a misinterpretation of BOP, and on Authority precedent that does not apply, the answer is no.

II. Background

The facts are set forth in detail in BOP and are only briefly summarized here. The grievant is a correctional officer at a federal prison. An inmate accused the grievant of physical abuse. The Agency initiated an investigation of the alleged abuse, reassigned the grievant to a position with minimal inmate contact, and denied the grievant overtime for approximately eighteen months. As the Arbitrator found, it was finally determined that “there was no offense by [the grievant] on the occasion in question.”[4]

The Union filed a grievance challenging the Agency’s decision to deny the grievant overtime, which was unresolved and submitted to arbitration. The Arbitrator sustained the grievance. As relevant here, the Arbitrator addressed the BPA’s requirement that to receive backpay, an aggrieved employee must be affected by an unjustified or unwarranted personnel action. The Arbitrator found in this regard that “where there in fact was no offense [by an employee], personnel actions that cause loss of pay and benefits are, in my opinion, unjustified and/or unwarranted.”[5] As a remedy, the Arbitrator ordered the Agency to pay the grievant backpay, for the overtime that he would have otherwise received during the approximately eighteen‑month period he served in his reassigned position.

The Agency filed exceptions to the Arbitrator’s award arguing, as relevant here, that it was contrary to law because the Arbitrator awarded backpay but failed to make the requisite findings under the BPA. The Authority agreed. Referring to the BPA’s requirements, the Authority found that “the award does not include a finding that the Agency committed an unjustified or unwarranted personnel action as required by the BPA” because “the Arbitrator did not find that the Agency violated any applicable law, rule, regulation, or provision of the parties’ collective‑bargaining agreement.”[6] Accordingly, the Authority concluded that “the Arbitrator did not have any basis under the BPA to award the grievant backpay,”[7] and set aside the award.

The Union then filed this motion for reconsideration of the Authority’s decision.

III. Analysis and Conclusion: The Union does not establish extraordinary circumstances that warrant reconsidering BOP.

Section 2429.17 of the Authority’s Regulations permits a party to request reconsideration of an Authority decision if it can establish extraordinary circumstances for doing so.[8] A party seeking reconsideration bears the heavy burden of establishing that extraordinary circumstances exist to justify this unusual action.[9] The Authority has found that errors in its conclusions of law or factual findings constitute extraordinary circumstances that may justify reconsideration.[10]

The Union’s request for reconsideration is based on a misinterpretation of the Authority’s decision. The Union claims that the Authority erred when it determined that the Arbitrator “implicit[ly found] that there was no violation of law or the parties’ agreement by the Agency.”[11] However, the Authority did not make such a determination. Instead, the Authority simply determined that “the Arbitrator did not find that the Agency violated” law or the parties’ agreement and that, therefore, “the award does not include a finding that the Agency committed an unjustified or unwarranted personnel action as required by the BPA.”[12] Accordingly, this claim does not provide a basis for reconsidering the Authority’s decision in BOP.

The Union’s request for reconsideration also relies on inapplicable precedent. The Union argues that we should reconsider BOP because it is inconsistent with the Authority’s U.S. Department of the Army, U.S. Army Aviation & Missile Research Division, Redstone Arsenal, Alabama (Redstone Arsenal)decision.[13] However, Redstone Arsenal is not applicable. In Redstone Arsenal, the Authority remanded an arbitrator’s award “for further findings regarding the basis of the backpay award.”[14] The Authority took this action because, in the circumstances of that case, it was “unable to determine” whether the award satisfied one of the BPA’s requirements for an award of backpay.[15] The requirement at issue in Redstone Arsenal was that an unjustified or unwarranted personnel action must result in the withdrawal or reduction of a grievant’s pay, allowances, or differentials for backpay to be awarded.[16] The Authority was “unable to determine” whether the arbitrator in Redstone Arsenal made such a finding.[17] Accordingly, the Authority remanded the award for further findings and clarification.[18]

Unlike Redstone Arsenal, the Authority in this case was not “unable to determine” whether the Arbitrator failed to satisfy one of the BPA’s requirements for an award of backpay. In contrast to Redstone Arsenal, the Authority concluded that “the award did not include a finding that the Agency committed an unjustified or unwarranted personnel action.”[19] Because the award was not ambiguous in this regard, the Authority did not remand the award for further findings or clarification. BOP is therefore not inconsistent with Redstone Arsenal.

The Union’s related argument, that the award should be remanded to clarify whether the Arbitrator did, or did not, find that the Agency violated the parties’ agreement, also does not provide a reason for reconsidering BOP.[20] As discussed above, because the Authority found the award unambiguous, there was no need for a remand for clarification.

Accordingly, the Union has not established extraordinary circumstances that merit reconsidering BOP.[21]

IV. Decision

We deny the Union’s motion for reconsideration.

[1] 68 FLRA 151, 152 (2014) (Member DuBester dissenting).

[2] 5 U.S.C. § 5596.

[3] BOP, 68 FLRA at 152.

[4] Id. at 151 (quoting Award at 5).

[5] Id. (quoting Award at 5).

[6] Id. at 152.

[7] Id.

[8] 5 C.F.R. § 2429.17; see also, e.g., U.S. DHS, U.S. CBP, 66 FLRA 1042, 1043 (2012) (CBP).

[9] CBP, 66 FLRA at 1043; U.S. Dep’t of the Treasury, IRS, Wash., D.C., 56 FLRA 935, 936 (2000); U.S. Dep’t of the Air Force, 375th Combat Support Grp., Scott Air Force Base, Ill., 50 FLRA 84, 85 (1995) (Scott Air Force Base).

[10] E.g., U.S. DOJ, Fed. BOP, U.S. Penitentiary, Atwater, Cal., 65 FLRA 256, 257 (2010); Scott Air Force Base, 50 FLRA at 86-87.

[11] Motion at 2.

[12] BOP, 68 FLRA at 152 (emphasis added).

[13] Motion at 3 (citing Redstone Arsenal, 68 FLRA 123 (2014)).

[14] Redstone Arsenal, 68 FLRA at 124.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] BOP, 68 FLRA at 152.

[20] Motion at 2.

[21] While Member DuBester reaffirms his dissent in BOP, he agrees that the Union has not established extraordinary circumstances that merit granting reconsideration, and therefore joins in the decision denying the Union’s motion.