FLRA just added some clarity to the issue of when are employees entitled to back pay.  In NTEU, 66 FLRA 1024 the employee had been denied the right to work overtime because there was a pending investigation of his conduct. There was no dispute about his performance, just conduct and just one incident. This was a very big deal because the employee was in a job where employees could and regularly did earn up to $35,000 a year in overtime.

The union grieved the management decision to deny him overtime and took it to an arbitrator who agreed that the agency was wrong to take the employee off overtime. However, the arbitrator refused to give the employee back pay for the overtime he missed; rather he ordered management to give the employee more OT in the future than he is normally entitled to until he earns the amount of OT he was wrongly denied. In other words, the arbitrator wanted to take OT that should go to other employees in the future and give it to this employee.

NTEU immediately filed an exception to the arbitration award with FLRA arguing that the law “required” that the arbitrator grant back pay rather than take money out of other employees’ pockets to make up for management’s blunder. In its decision, FLRA acknowledge that it has upheld arbitration awards that only require make up overtime opportunities in the future rather than back pay for OT missed. It confirmed that it prefers to give arbitrators “great latitude” in fashioning remedies.

But then is wrote the following which makes in crystal clear when law requires back pay, “When the Authority determines that an arbitrator’s findings support and award of back pay under the BPA (Back Pay Act), the Authority precedent supports finding that the arbitrator was required to award back pay.” There can be little doubt about what the word “required” means, and as FLRA promptly showed after stating that it will override an arbitrator and award back pay if the arbitrator fails to grant the money.

In this case, FLRA looked for the same two things it does in any back pay case, namely (1) was the employee affected by an unjustified and unwarranted personnel action, and (2) did that action directly result in the withdrawal or reduction of the grievant’s pay, allowances or differentials. FLRA found that a violation of even an agency’s own regulation constitutes and unjustified personnel action. It also found words in the arbitrator’s award, although not clear and unambiguous words, that it considered to show that the arbitrator saw a “causal connection” between the violation of the agency regulation and the lost OT.

So, if you run across a case where the agency is arguing for a remedy other than back pay, be sure to reread this case and follow its roadmap.

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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