IRS Fresno Regional Center and NTEU Chapter 97 (Authority decision, August 20, 1982)

Final FLRA decision. The Authority resolves exceptions to an arbitral award under 5 U.S.C. § 7122. Judicial review under 5 U.S.C. § 7123(a)(1) generally does not extend to orders involving arbitral awards unless an order involves an unfair labor practice under § 7116. This order does not decide an unfair labor practice.

Plain-English summary

The Fresno IRS center recalled an employee two weeks late from furlough and conceded that it breached the labor agreement. An arbitrator awarded backpay because later make-up work was not a workable remedy for the employee’s changed circumstances. The Authority held that the pay loss occurred when the recall was delayed and that the agency had not shown the award conflicted with the Back Pay Act. It denied the exception.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a).
• Outcome: Agency exception denied; two-week backpay award upheld.
• Key point: A hypothetical later chance to work did not erase the earlier pay loss.

Full text (FLRA public release)

[ v09 p1029 ]

09:1029(143)AR

The decision of the Authority follows:

9 FLRA No. 143

INTERNAL REVENUE SERVICE,
FRESNO REGIONAL CENTER
Activity

and

NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 97
Union

Case No. O-AR-248

DECISION

THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
ARBITRATOR ROBERT G. MEINERS FILED BY THE AGENCY UNDER 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 FILED
AN OPPOSITION.

THE DISPUTE IN THIS MATTER AROSE WHEN THE ACTIVITY FAILED TO RECALL
THE GRIEVANT FROM A FURLOUGH ON TIME AND THUS HAD HER IMPROPERLY IN A
FURLOUGH STATUS FOR A PERIOD OF TWO WEEKS. THE ACTIVITY ADMITTED THAT
ITS ACTIONS CONSTITUTED A VIOLATION OF THE PARTIES' COLLECTIVE
BARGAINING AGREEMENT. HOWEVER, IT REFUSED TO GIVE THE GRIEVANT BACKPAY,
CONTENDING INSTEAD THAT THE OPPORTUNITY TO MAKE UP WORK WAS THE PROPER
REMEDY. A GRIEVANCE WAS FILED AND THE MATTER WAS ULTIMATELY SUBMITTED
TO ARBITRATION.

THE ISSUE BEFORE THE ARBITRATOR WAS WHETHER OFFERING THE GRIEVANT THE
OPPORTUNITY TO MAKE UP WORK THE NEXT TIME SHE WAS SCHEDULED TO BE
FURLOUGHED OR RECALLED WOULD MAKE THE GRIEVANT WHOLE SO THAT SHE WOULD
NOT HAVE SUFFERED A WITHDRAWAL OR REDUCTION OF PAY. THE ARBITRATOR
EMPHASIZED THAT THE GRIEVANT HAD CHANGED JOBS WITHIN THE ACTIVITY SINCE
THE TIME OF THE CONTRACT VIOLATION AND THAT THE RECORD WAS SILENT
REGARDING THE FURLOUGH AND RECALL POSSIBILITIES IN HER PRESENT POSITION.
CONSEQUENTLY, THE ARBITRATOR CONCLUDED THAT THE OPPORTUNITY TO MAKE UP
WORK WAS NOT A FEASIBLE REMEDY IN THESE CIRCUMSTANCES AND AWARDED
BACKPAY FOR THE PERIOD DURING WHICH THE GRIEVANT WAS IMPROPERLY
FURLOUGHED.

IN ITS EXCEPTION THE AGENCY CONTENDS THAT THE ARBITRATOR'S AWARD IS
DEFICIENT BECAUSE IT IS CONTRARY TO THE BACK PAY ACT OF 1966, 5 U.S.C.
5596(1976 AND SUPP. IV 1980). IN SUPPORT OF THIS EXCEPTION THE AGENCY
ALLEGES THAT BECAUSE THE GRIEVANT COULD HAVE HAD THE OPPORTUNITY TO MAKE
UP THE WORK AT SOME FUTURE TIME THERE WAS NO WITHDRAWAL OR REDUCTION IN
PAY SO AS TO QUALIFY HER FOR BACKPAY UNDER THE BACK PAY ACT.

THE AGENCY'S EXCEPTION FAILS TO PROVIDE A BASIS FOR FINDING THE AWARD
DEFICIENT. THE AGENCY HAS NOT SHOWN THAT THE ARBITRATOR'S AWARD OF
BACKPAY TO THE GRIEVANT AS THE PROPER REMEDY FOR THE CONCEDED CONTRACT
VIOLATION IS IN ANY MANNER CONTRARY TO THE BACK PAY ACT. THE ARBITRATOR
SPECIFICALLY FOUND THAT AN AWARD OF BACKPAY COVERING THE TWO-WEEK PERIOD
THE GRIEVANT WOULD HAVE WORKED BUT FOR THE CONTRACT VIOLATION WAS THE
ONLY REMEDY THAT WOULD MAKE THE GRIEVANT WHOLE IN THE CIRCUMSTANCES OF
THIS CASE. THE AGENCY'S RELIANCE ON THE OPPORTUNITY TO MAKE UP THE WORK
AS INDICATIVE THAT THERE WAS NO REDUCTION IN PAY IS MISPLACED. THE
REDUCTION IN PAY OCCURRED AT THE TIME OF THE CONTRACT VIOLATION, AND IT
WAS THIS REDUCTION THE ARBITRATOR WAS REMEDYING, SPECIFICALLY FINDING
THAT THE GRIEVANT'S CHANGED CIRCUMSTANCES PRECLUDED APPLYING THE
ACTIVITY'S PROPOSED REMEDY OF MAKE-UP WORK. THUS, THE AGENCY'S
EXCEPTION ESSENTIALLY CONSTITUTES AN ATTEMPT TO HAVE ITS OWN REMEDY
SUBSTITUTED FOR AND PREVAIL OVER THE REMEDY ACTUALLY FORMULATED BY THE
ARBITRATOR AND CONSEQUENTLY PROVIDES NO BASIS FOR FINDING THE AWARD
DEFICIENT. VETERANS ADMINISTRATION HOSPITAL, NEWINGTON, CONNECTICUT AND
'NATIONAL ASSOCIATION OF GOVERNMENT NEWINGTON. CONNECTICUT AND NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R1-109, 5 FLRA NO. 12(1981).
THE AGENCY'S EXCEPTION IS THEREFORE DENIED.

ISSUED, WASHINGTON, D.C., AUGUST 20, 1982

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY