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60 FLRA No. 88
NTEU, Chapter 98 and U. S. Dept. of the Treasury, IRS, Memphis Accounting Management Center, Memphis, Tennessee (Kaplan, Arbitrator) 0-AR-3815 (Decided November 30, 2004)
The Authority concluded that the award was not contrary to the Back Pay Act. In this case, the Arbitrator determined that the Agency violated Article 24, Section 2A of the parties' agreement when it denied certain employees the opportunity to work overtime. However, the Arbitrator made no finding that the agreement violation resulted in a loss of pay to those employees. In fact, the Arbitrator found specifically that the Union failed to sustain its burden to prove that payment of backpay was the appropriate remedy.
The Authority noted that it has never required an arbitrator to award backpay under the Back Pay Act to remedy an agreement violation, particularly where, as here, no finding of a loss of pay was made. In fact, the Authority has specifically held that nothing in the Back Pay Act that requires a monetary award for every unjustified or unwarranted personnel action. In this regard, the Authority has also upheld awards of future overtime, in lieu of backpay.
The Authority further stated that it has held that arbitrators are not required to award backpay and the Federal Circuit has held that backpay is required in only limited circumstances. The Authority also rejected the allegation that the award failed to draw its essence from the agreement.