Postal service delayed backpay and refused an advance on it twice.

1. REGULAR ARBITRATION
____________________________________
In the Matter of the Arbitration ) Grievant: Latonia Waites
)
Between ) Post Office: North County, MO
)
UNITED STATES POSTAL SERVICE ) USPS Case No: J16N-4J-C 21027175
)
And )
) NALC No.: 1214-343-20
NATIONAL ASSOCIATION OF )
LETTER CARRIERS, AFL-CIO )
____________________________________)
BEFORE: Arbitrator Rafael Gely
APPEARANCES:
For the U.S. Postal Service: Arthur Neal
For the Union: Patrick Baker
Place of Hearing: St. Louis P&D Center, St. Louis, MO
Date of Hearing: June 24, 2021
AWARD: The grievance is sustained.
DATE OF AWARD: August 23, 2021
PANEL: NALC Region 5/USPS Great Lakes Regular
Award Summary
The grievance is sustained. The Arbitrator orders the Service to cease and desist from violating
the terms of the National Agreement regarding the timely processing of backpay awards. The
Arbitrator also orders the Service to make a $1000 payment to the Grievant. Finally, the Arbitrator
finds that to the extent that the Grievant has not been paid interest on the amount of the backpay
award already, she should receive additional interests at the Federal Rate for the period starting on
August 2, 2020, to the date when payment was made on March 26, 2021.
________________________
Rafael Gely

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I. Issue
The parties agreed to the statement of the issue as it appears in the Dispute Resolution
Team (DRT) file: Did management violate the National Agreement under Articles 3, 8, 15, and 19
when denying the Grievant’s request for backpay advance and further delaying the Grievant’s
receipt of her entitled back pay? If so, what shall be the remedy?
II. Relevant Contractual Provisions
The parties referred to the following contractual provisions during the hearing and in the
documentation provided as part of the record. In the interest of brevity, the Arbitrator lists the
various provisions without extensively quoting their content.
National Agreement (Joint Exhibit 1)
• Article 3 (Management Rights)
• Article 15 (Grievance-Arbitration Procedure)
• Article 19 (Handbooks and Manuals)
JCAM (Joint Exhibit 2)
• Page 3-1 (Article 3)
• Page 15-1 (Article 15)
• Page 19-1 (Handbooks and Manuals)
Manuals and Handbook
Employee and Labor Relations Manual (Joint Exhibit 3)
• Section 436 (Back Pay)
• Section 436.1 (Corrective Entitlement)
• Section 426.41 (Statements by Local Official)
• Section 436.7 (Interest on Back Pay)
• Section 436.71 (Purpose)
• Section 436.73 (Determination of Rate of Interest
USPS Manual, Management Instruction EL-430-2015-4 (Union Exhibit 1)
• Page 1 (Back Pay)
• Page 2 (Overview: Hours Calculation)
• Page 5 (Compliance Requirements, MSPB, EEOC, Arbitration and Court Awards)
• Pages 6-10 (Back Pay Coordinator)
• Pages 11-17 (Procedures, Back Pay Coordinator)

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Memoranda of Understanding (Joint Exhibit 3)
• Re: Article 15 – ELM – Back Pay
• M-0517 (Arbitration Award Compliance)
III. Background
The grievance involves the United States Postal Service, North County Branch in Missouri
(Postal Service, Service, or Management), and Union Branch 343 of the National Association of
Letter Carriers, AFL-CIO (Union). The Grievant is Latonia Waites.
On October 11, 2019, the Service returned the Grievant to work after an absence of about
three and a half years. On October 25, and as part of a pre-arbitration settlement on a grievance
that the Grievant had filed regarding her time away from work, the parties agreed that the Grievant
was entitled to back pay for the period of June 13, 2016, to October 10, 2019. The pre-arbitration
settlement letter advised the Grievant that the processing of the back pay required the Grievant’s
participation by completing PS Forms 8038 and 8039, in accordance with Employee and Labor
Relations Manual (ELM) Section 436. The letter also indicated that after the Grievant completed
PS Form 8038, the Service would then complete PS Form 8039 “as soon as administratively
possible.” The letter finally noted that after all forms were completed, they will be “submitted
expeditiously to the USPS Eagan IT/ASC Financial Processing Unit “for timely processing.”
(Joint Exhibit 3, p.26).
The record indicates that the Grievant signed PS Form 8038 on February 15, 2020, and that
by May 13, 2020, the Grievant had signed all other necessary forms (e.g., PS Form 8039) and
returned them to the Service. Management in turned completed PS Form 8039 and submitted it to
Accounting Services on June 2, 2020. (Joint Exhibit 3, pp. 2, 24-25). Per normal procedure, the
Accounting Services Office was then expected to perform the Step Analysis which involves

4. 4
evaluating different factors that could affect the backpay award such as any overtime that the
employee might have worked during the period the employee was off duty.
On August 3, 2020 (62 days after the form had been signed by the appropriate Management
representative), the Grievant requested an advance of her back pay as provided on the MOU Re:
Article 15 – ELM – Back Pay (Backpay Memorandum). (Joint Exhibit 3, pp. 24-25). On August
30, the Accounting Services Office contacted the Back Pay Coordinator asking for some additional
information.
On September 3, 2020, the Union initiated a different grievance arguing that the Service
had violated the terms of the National Agreement by failing to process the back pay in a timely
manner and by not honoring the Grievant’s request for an advance. That grievance proceeded
through the grievance process and on October 30, 2020, the DRT resolved the grievance in favor
of the Union finding that the Service had violated the terms of the National Agreement. The DRT
awarded the Grievant a one-time lump sum payment of $350. The DRT stated, “The file indicates
the grievant asked for an advance, and it was improperly denied. Management will abide by the
language found in ELM 436, and if the backpay award is not processed within 60 days of
submission of the PS 8039, to Eagan, the affected employee is entitled to an advance per the above
language.” (Joint Exhibit 3, pp. 24-25). While that grievance was being processed, the Grievant
submitted a second request for an advance under the terms of MOU Re: Article 15 – ELM – Back
Pay, on September 30, 2020. (Joint Exhibit 3, p. 41).
The Union then filed the instant grievance on November 6. The parties met on November
14 for the Informal Step A meeting. The Grievant was then appealed to the Formal Step A Level
on December 10. (Joint Exhibit 3, pp. 19-23). At the Formal Step A Level, the Union contended
that the Grievant had requested an advance in accordance with the appropriate MOU and that the

5. 5
Service had failed to provide the advance. The Union noted that under the terms of the MOU, if
the Service disagreed on a portion of the backpay amount, they were required to at least provide
the advance on the portion of the backpay award that was not under contention. (Joint Exhibit 3,
pp. 46-47). The Service’s response at the Step A Level indicated that local management had
contacted the Back Pay Coordinator and that they were waiting for the coordinator’s response.
(Joint Exhibit 3, pp. 43, 48). The parties failed to reach an agreement at the Formal Step A, so the
grievance was forwarded to the Step B level on December 10, 2020.
While the grievance waited to be considered by the DRT, on February 6, 2021, PS Forms
8038 and 8039 were resubmitted to the Accounting Services Office. On February 9, the DRT
reached an impasse at the Step B level. (Joint Exhibit 3, pp. 1-18). The grievance was forwarded
to arbitration. On March 19, between the time that the DRT reached impasse and the date of the
arbitration hearing, the forms regarding the Grievant’s backpay award, including an overtime
analysis were completed and payment was processed on March 26.
The arbitration hearing was held on June 24, 2021, in person at the St. Louis Post Office.
Having agreed that the issued was procedurally proper before the Arbitration, the parties made
opening statements. No witnesses were called. The parties agreed to provide written briefs. The
briefs were received by the Arbitrator on August 9, 2021, at which time the record was closed.
IV. Positions of the Parties
A. Position of the Union
The Union acknowledges that the burden is initially on the Union to prove by the
preponderance of the evidence that the Service violated the terms of the National Agreement. The
Union notes that once this initial burden is met, the burden then shifts to the Service to establish

6. 6
whether there were mitigating circumstances justifying its actions. Case No. F94N-4F-C
96019290 (Snow, 2000). The Union contends that the evidence shows that the Service violated
the terms of Article 15 by taking an unreasonable amount of time in processing the Grievant’s
backpay award. The Union also contends that the Service violated the terms of Memorandum Re:
Article 15 – ELM – Back Pay when it refused to provide the Grievant an advance on 70% of the
approved award or 70% of the amount not in dispute. The Union submits that the Service failed
to introduce any evidence establishing that there were legitimate reasons for the delay.
Accordingly, the Union requests that the grievance be upheld.
The Union initially makes a “new argument/evidence” claim. Particularly, the Union
contends that several of the arguments made by the Service’s representative at the Step B Level
should be ignored as new arguments or new evidence. The Union points to the statements made
by Supervisor Etolia Marie Bonner, who represented the Service at the Step A level. (Joint Exhibit
3, p. 19). According to the Union, at the Step A level, Bonner argued exclusively that the
settlement was not dated, that the Service needed more time, and that she had called the Back Pay
Coordinator. (Joint Exhibit 3, pp. 43 and 46). The Union notes that Bonner did not challenge the
amount in dispute, the Service’s ability to process the award, or whether the Grievant qualified for
an advance. Thus, the Union asks the Arbitrator to ignore the Step B Level’s representative
argument that the Grievant had failed to submit the necessary PS Forms. The Union also asks the
Arbitrator to ignore the argument that it was difficult to calculate the Grievant’s award given the
amount at stake or that the Service did not have the ability to comply with an award involving a
large amount of money. The Union contends that all these arguments should be disregarded as the
Service failed to raise any of them at the Step A Level. Case No. N8-W-0406 (Mittenthal, 1981);
Case No. J16N-4E-D 19249741 (MacLean, 2019); Case No. Gl1N-4G-C 14377095 (Simon, 2016)

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Regarding the substance of the grievance, the Union first claims that the Service
improperly delayed the payment of the backpay settlement. The Union notes that the backpay
award was agreed to on October 25, 2019, and that the Grievant had signed all the necessary forms
by March 2020. The Union also notes that the National Agreement, the JCAM, as well as the
relevant manual, instructions, and memoranda, all make clear that backpay awards should be
processed and paid on a timely fashion. Yet, there is no evidence in the record, argues the Union,
to justify the delay of multiple months in processing the Grievant’s backpay award.
The Union next argues that in addition to violating the terms of the National Agreement by
unreasonably delaying payment of the backpay award, the Service also violated the Grievant’s
rights under the National Agreement by failing to fulfill the Grievant’s requests for an advance on
August 3, 2020, and September 30, 2020. The Union notes that this claim is undisputed and that
in fact it was already settled at the Step B Level on October 30, 2020. The Union also notes that
the language of the Memorandum Re: Article 15 – ELM – Back Pay clearly provides that where
the employee does not receive payment on a backpay award within 60 days of the submission of
the required documentation, the employee can request and the Service will provide, an advance
“equivalent to seventy (70) percent of the approved adjustment” and where disagreement exists
over the amount due, “seventy (70) percent of the sum not in dispute.” (Joint Exhibit 3, p.10).
The Union notes that there is no evidence indicating that there was any dispute on the amount, but
that even if there was, the dispute was not over the entire amount, and thus, the Service could have
complied with the terms of the Memorandum. Case No. F11N-4F-A 15055330 (Armendariz,
2016). The Union also notes that in a prior arbitration case heard by this Arbitrator, the Service
had taken the position that in cases involving delay in payments of a backpay award, the

8. 8
appropriate response by the employee is to seek a pay advance under the terms of Article 15. Case
No: J16N-4J-C 20413486 (Gely, 2021).
The Union requests the following remedies. First, the Union requests the Arbitrator to
order the Service to cease and desist the untimely processing of backpay awards and to cease and
desist failing to process requests under Memorandum Re: Article 15 – ELM – Back Pay. Next,
the Union requests that the Grievant receive a $500 payment for Management’s refusal to grant
the advance and an additional $500 to incentivize the Service to comply with future similar
requests. The Union justifies these remedies on the grounds that the Service has repeatedly failed
to process backpay awards in a timely manner as evidenced by prior settlements in the same
installation (Joint Exhibit 3, pp. 29-30, 32-35) involving Memorandum Re: Article 15 – ELM –
Back Pay (Joint Exhibit 3, pp. 28-28), and on the very situation involving this Grievant, failing to
comply with the October 30, 2020, settlement. In cases involving unreasonably long delays and
repeated violations, arbitrators have found monetary remedies appropriate. Case No. K16N-4K-
C 19239415 (Nixon, 2020); Case No. G16N-4G-C 18224523 (August, 2019); Case No. J16N-4J-
C 19066208 (Gely, 2020); Case No. C16N-4C-C 18076785 (Barrett, 2019); Case No. C16N-4C-
C 18291916 (Roberts, 2019).
The Union asks finally for interest at the Federal Judgment Rate starting on August 2, 2020,
until the date payment was received. The Union argues that August 2 is the reasonable date by
which the payment should have been processed. The Union argues that the payment of interest is
appropriate because the Grievant was denied the usage and benefit of the money, while the money
sat in the Service’s account. Case No. F06N-4F-C 08274456 (Ames, 2008); Case No. E01N-4E-
C 07023009 (Dilts, 2007).

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B. Position of the Postal Service
The Service reminds the Arbitrator that this being a contract interpretation case, the burden
of proof rests solely with the Union. The Service contends that the Union failed to meet its burden.
The Service further argues that it did not violate any of the provisions of the contract, handbook,
or postal manuals.
The Service initially notes that in evaluating the Union’s contention regarding the
timeliness of the processing and payment of the backpay award, the Arbitrator must consider two
factors: the amount of the backpay award itself and the fact that at the time the award was being
processed there had been a change in personnel at the labor relations office. As to the amount of
the award, the Service submits that while most backpay awards involve periods of a few months,
the Grievant’s award spanned over three years. The Service notes that calculation of backpay
awards involves a series of calculations such as the overtime that the Grievant would have worked
had she been at work. Those calculations are complicated as they involve comparing the grievant
to other employees with the Grievant’s history. As a result, such calculations take time. In fact,
the Service points that the Back Pay Coordinator called the Grievant to ask for information about
overtime work, which resulted in the Grievant receiving a larger award.
Regarding the change in personnel, the Service asks the Arbitrator to consider the fact that
such changes could result in delay in the regular course of business. In this situation, the Service’s
advocate, Arthur Neal, become the Back Pay Coordinator in charge of processing this award, and
it just took time for him to process the necessary paperwork.
The Service next contends that the evidence indicates that despite those difficulties, the
Service acted in a timely manner. The Service notes that the initial forms (PS Forms 8038 and
8039) were processed within a few weeks from each other. The Grievant completed signing all

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forms on May 13, 2020, and the Human Resources Office signed PS Form 8039 on June 2, 2020.
The Service then notes that although it took then several months for Accounting Services to
complete all the calculations, once those calculations were completed, the Service processed the
payment quickly. In particular, the Service notes that after the Overtime Analysis was submitted
on March 19, 2021, it only took the Service about 7 days (until March 26) to issue the backpay
award. Thus, the Service argues that given the context, the Service acted in a timely manner in
processing the award.
The Service next challenges the Union’s contention that the Service violated the terms of
the National Agreement by failing to honor the Grievant’s request for an advance under
Memorandum Re: Article 15 – ELM – Back Pay. The Service contends that the Back Pay MOU
provides that the advance is appropriate if the award is not paid within 60 days “of submission of
the required documentation.” The Service submits that “required documentation” refers not to the
submission by the Grievant of PS Forms 8038 and 8039, but instead refers to the documentation
that the Service must prepare before the paperwork is sent by the Accounting Office to the Eagan
Office for processing payment. In this case, argues the Service, that condition was not satisfied
until March 19, 2021, after the Overtime Analysis was completed. Given that the backpay award
payment notice was processed a few days after March 19, the Service contends, the terms of the
contract were not violated.
In short, the Postal Service contends that the Union failed to show that the Service violated
the terms of the National Agreement, handbook, manual, or memorandum of understanding. The
Service requests that the grievance be denied in its entirety.
While, as noted above, the Service contends that the grievance should be denied, the
Service also argues that if the Arbitrator was to find in favor of the Union, the Arbitrator should

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deny several of the remedies the Union requested. The Service first reminds the Arbitrator that
awards in labor arbitration “should be limited to the amount necessary to make the injured
employees whole.” Case No. H7C-NA-C 36 (Mittenthal, 1994). The Service also reminds the
Arbitrator that Article 15 makes it clear, that arbitrators may not alter, amend, or modify the terms
of the National Agreement. Under this principle, the Service notes that even in situations where
the employer has engaged in egregious or deliberate violations, “care should be exercised to ensure
that the remedy is corrective and not punitive.” Case No. G11N-4G-C 14356664 (Chapdelaine,
2015). The Service points to Arbitrator Braverman’s opinion, finding that an interest award
requested by a union in a case involving delay in payment was not permitted under the terms of
the National Agreement. Case No. C98N-4C-C 00282676 (Braverman, 2004).
V. Discussion
The parties agree that this being a contract interpretation case, the party claiming the
violation - the Union in this case - has the burden of proving by the preponderance of the evidence
that the terms of the National Agreement were violated. Case No. C06N-4C-C 10229275
(Braverman 2011). In the instant case, the Union needs to establish that the Postal Service violated
the terms of the National Agreement by delaying the processing of the Grievant’s backpay award
and by failing to respond to the Grievant’s request for an advance under the terms of the MOU Re:
Article 15 – ELM – Back Pay. As the Union notes, once the Union meets this burden, the Service
can advance evidence explaining the reason for the delay.
The Union argues that the Service violated the terms of the National Agreement, first by
failing to process the backpay award on a timely manner and second by failing to process the
Grievant’s request for an advance under the MOU Re: Article 15 – ELM – Back Pay.

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As an initial matter, the Arbitrator acknowledges that the process for calculating backpay
awards involves some degree of complexity and a fairly intricated process, involving multiple
documents and the input of several parties including the employee, local management, the Back
Pay Coordinator, the Human Resources Office, Accounting Services, and the Eagan IT/ASC
Financial Processing Unit. The Arbitrator also acknowledges that the Grievant’s backpay award
is likely to have been particularly complex given that it covered a period of over three years.
Finally, the Arbitrator recognizes that at the time the award was being processed, the Labor
Relations Office at the St. Louis Post Office was going through some personnel transition which
might have affected the processing of the award.
In evaluating the Union’s contentions, we start by looking at the terms of the ELM 436 and
the MOU Re: Article 15 – ELM – Back Pay, the Management Instruction EL-430-2015-4, the M-
01517, and the JCAM.1
The terms of these documents make it abundantly clear that the processing
of backpay awards should be conducted in a timely manner. The MOU states that “A pay
adjustment … will be completed promptly …” Section 436.41 of the ELM prompts local officials
to correct any discrepancies between PS Forms 8038 and 8039 prior to submission, to avoid any
unnecessary delay. Management Instruction EL-430-2015-4 encourages the postmaster or
installation head to comply with awards “within a reasonable time” and directs the Back Pay
Coordinator to act “as soon as possible” after receiving notice of a settlement regarding a backpay
award. M-01517 requires compliance with arbitration awards and grievance settlements “in a
timely manner.” Finally, the JCAM provides in page 16-3 that “all grievance settlements …
1
The Arbitrator notes that the Union also made a “new argument/evidence” contention, asking the
Arbitrator to ignore any arguments regarding the Grievant’s failure to submit the necessary forms, the level
of difficulty in calculating the Grievant’s award, or that the Service did not have the ability to comply with
an award of such a large amount. Because the Arbitrator finds in favor of the Union even considering those
“new arguments”, the Arbitrator does not need to decide whether those arguments need to be excluded
under Article 15.

13. 13
providing for a monetary remedy should be promptly paid.” In short, there is no question that the
Service is expected and required to process backpay awards in a timely and prompt manner.
It is also true, however, that there are no provisions in the National Agreement or the
relevant handbooks, manuals, or instructions that define what timely means. There is language in
the MOU Re: Article 15 – ELM – Back Pay and in the Management Instruction EL-430-2015-4,
that suggests that a 60-day period is relevant in determining what timely and prompt means. The
Back Pay Memorandum allows the Grievant to request an advance if payment has not been made
within 60 days from the “submission of the required documentation.” Management Instruction
EL-430-2015-4 provides on page 17 that Accounting Services must disburse funds due to the
employee “Within 60 days of receipt of the completed package.”
While these provisions might be reasonably understood to define what timely and prompt
means regarding the payment of backpay awards, the fact remains that the parties have chosen not
to define what constitutes timely and prompt payment. The Arbitrator is cognizant of the limits
impose by Article 15.4.A.6 that arbitral awards “shall be limited to the terms and provisions of this
Agreement” and that in no event may those terms and provisions “be altered, amended, or modified
by the arbitrator.” Thus, the Arbitrator is reluctant to incorporate a specific time limit regarding
the processing of back pay awards.
However, the terms of the National Agreement as reflected in the various handbooks and
memoranda, make clear that the parties expect a certain degree of promptness in the processing of
backpay awards. It is the responsibility of the Arbitrator to decide if that expectation was met in
this case.
Even when no specific time-period is included in the National Agreement regarding the
time that it might take to process a backpay award, there is a point in time at which a delay becomes

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unreasonable. Multiple arbitral awards support that proposition. In Case No. K16N-4K-C
19239415 (2020), Arbitrator Nixon found that a delay of five years in processing a backpay award
was unreasonable. In Case No. E01N-4-E-C 07023009 (2007), Arbitrator Dilts found a seven-
month delay in processing a backpay award to constitute an unreasonable delay. In Case No.
G16N-4G-C 1849980, Arbitrator Holley found that a five-month delay was “excessive,” although
he found in favor of the Service because the delay had been caused by the grievant. While the
delay in this case was not as extensive as that in the situation in Arbitrator Nixon’s case, the ten-
month delay in this case falls on the excessive side of the ledger as compared to the facts in the
cases decided by Arbitrator Dilts and Arbitrator Holley.
Thus, considering the various contractual provisions requiring the Service to process
backpay claims on a timely fashion and considering the circumstances of this grievance as well as
what other arbitrators have concluded to be unreasonable delays, the Arbitrator finds that the delay
in processing the Grievant’s backpay award was excessive and not in compliance with the
Service’s contractual obligation to process promptly backpay awards.
Regarding the Service’s failure to process the advance requested by the Grievant, as noted
above, the MOU Re: Article 15 – ELM – Back Pay allows an employee to request an advance on
a backpay award where no payment has been made within 60 days of “submission of the required
documentation.” (Emphasis added). Where such request is made, the employee is entitled to 70
percent of the award in the form of an advance. The Memorandum further provides that if there
is disagreement as to the amount, the Service must pay the employee 70 percent of the amount not
in dispute.
The Union contends that the Grievant submitted the required documentation in May 2020
after completing PS Form 8038 and helping local management to complete PS Form 8039. Given

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that there are no contentions that the Grievant did anything wrong in completing the forms, and
that both PS Form 8038 and PS Form 8039 were submitted to the Back Pay Coordinator, the Union
argues that at that time the Grievant had submitted all the “required documentation” and thus,
under the MOU Re: Article 15 – ELM – Back Pay, the 60 day-period started to run. The Grievant
waited over 60 days to request the advance, which was denied not once, but twice by the Service.
The Service contends that the phrase “required documentation” must be interpreted to refer
not to the submission of PS Forms 8038 and 8039, but instead it should be interpreted to refer to
the documentation that is created after the Back Pay Coordinator and Accounting Services review
the paperwork before sending the documentation to the Eagan IT/ASC Financial Processing Unit.
The Service’s contention is based on the argument that it is common for issues to arise when the
Back Pay Coordinator is reviewing the documentation. Resolution of those issues requires
additional research which involves additional time. The Service also notes that the review
performed by the Accounting Offices is complex and might require additional time as well.
The Arbitrator finds the Service’s contentions unconvincing and concludes that the
language of the MOU Re: Article 15 – ELM – Back Pay instead supports the Union’s
interpretation. First, the Arbitrator points to the language in the MOU Re: Article 15 – ELM –
Back Pay which requires the pay adjustment to be “completed promptly upon the receipt of the
documentation required by ELM Part 436.4 Documentation in Support of Claim.” (Emphasis in
the original). Section 436.4 of the ELM in turn refers the information that the employee needs to
provide when completing PS Form 8038 and the information the local management needs to
provide when completing PS Form 8039. Section 436.4 makes no reference to information or
decisions that are made by the Back Pay Coordinator or the Accounting Office. Thus, the language
of the MOU Re: Article 15 – ELM – Back Pay does not support the Service’s contention that the

16. 16
required documentation includes documentation that is generated after the employee and local
management have turned in PS Forms 8038 and 8039.
Second, the Service’s interpretation is also inconsistent with the intent of the MOU Re:
Article 15 – ELM – Back Pay. When read in conjunction with Section 436 of the ELM,
Management Instruction EL-430-2015-4 and M-01517, it is clear that the intent of the Back Pay
Memorandum is to provide employees relief in the form of an advance where there is a delay by
the Service in processing a backpay award. That is, the various provisions clearly show that the
parties wanted backpay awards to be processed timely and promptly. Although, as noted above,
the parties did not include a specific number of days by which a backpay award needed to be
processed, they agreed that after 60 days, employees who had submitted the required
documentation were entitled to receive a percentage of the award in the form of an advance. The
parties also accounted for a situation where disputes might exist regarding the amount of the award,
by providing that in those cases, the advance would be based on the portion of the award that was
not in dispute. In either case, however, the goal of these provisions is to provide employees with
relief when, after doing their part in starting the backpay award process, the Service takes too long
to complete processing the payment. If as the Service contends, the “required documentation”
language is interpreted to refer to documentation that depends entirely on the Service’s actions,
the provisions of the Back Pay Memorandum become potentially useless for employees. Making
the right of an employee to request an advance contingent on the actions of the Service in
processing payment - actions over which employees have no control - will defeat what is clearly
the intent of the Memorandum.

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Thus, the Arbitrator finds that the Service violated the terms of the National Agreement
when it failed to provide the Grievant with the advance requested under the provisions of the MOU
Re: Article 15 – ELM – Back Pay on August 3, 2020, and again on November 5, 2020.
Having found that the Service violated the terms of the National Agreement, the Arbitrator
addresses the question of remedies. As noted above, the Union requests that the Service: (1) be
ordered to cease and desist violating the terms of the National Agreement; (2) pay $500 to the
Grievant for the Service’s refusal to grant the advance and an additional $500 to incentivize the
Service to comply with future similar requests; and (3) be ordered to pay additional interest at the
Federal Judgment Rate on the backpay award that the Grievant should have received starting on
August 2, 2020, and ending when payment was received on March 26, 2021. The Union contends
that these remedies are justified given the Service repeated failure to process backpay awards in a
timely manner, particularly after having been ordered to pay the advance at the Step B Level. As
to the interest rate, the Union argues that the payment of interest is appropriate because the
Grievant was denied the usage and benefit of the money, while it sat in the Service’s account.
The Arbitrator concludes that the Grievant is entitled to the various remedies requested by
the Union. Although the Arbitrator has been generally reluctant to award cease-and-desist orders
and monetary remedies such as the two-$500 payment requested by the Union, the Arbitrator
concludes that in this case such remedies are appropriate. The Union introduced sufficient
evidence to establish that regarding the processing of backpay awards, the Service has been laxed
in following the timely and prompt expectations of the MOU Re: Article 15 – ELM – Back Pay
and the Management Instructions. The DRT file prepared with the consent of both parties, includes
four grievances involving the St. Louis Installation in which unreasonable delays occurred in the
processing of backpay awards. (Joint Exhibit 3, pp. 27-35). In addition, in this very case, the

18. 18
Service failed to comply with a DRT order to provide the Grievant an advance under the terms of
the Back May Memorandum. The fact that the Service failed to comply with that very clear order
justifies both the cease-and-desist order and the monetary remedy of $1000 to be paid to the
Grievant.
The Arbitrator recognizes that generally remedies for violation of the collective bargaining
agreement “should be limited to the amount necessary to make the injured employees whole.”
Case No. H7C-NA-C 36 (Mittenthal, 1994). Arbitrator Mittenthal’s decision establishes the
principle that in general escalation remedies are extraordinary. However, arbitrators have awarded
escalating remedies cases of repeated violations and where no legitimate explanation is provided
for the repeated behavior. While the Service arguably provided an explanation for the delay in
processing the award (i.e., the complexity of the award and the personnel transition at the Labor
Relations Office), the Service provided no explanation for the failure to provide the Grievant the
requested advance.
Finally, the Arbitrator finds that to the extent that the Grievant has not been paid interest
on the amount of the backpay award already, she should receive additional interests at the Federal
Rate for the period starting on August 2, 2020, to the date when payment was made on March 26,
2021. The Arbitrator selects August 2, 2020, as the starting date because it represents a reasonable
period (about 10 months) from when the parties agreed to bring the Grievant back to work and
award her back pay, to when payment should have been made. As detailed above, the Service’s
actions resulted in an unreasonable delay in the processing of the Grievant’s backpay award.
Further, by denying the Grievant’s request for an advance, the Service denied the Grievant of a
sum of money that rightly belonged to her. When that happens, the affected employee is entitled

19. 19
to be “made whole” by recovering for the lost time value of money. Case No. E01N-4E-C
07023009 (Dilts, 2007).
VI. Award
The Arbitrator grievance is upheld. The Arbitrator orders the Service to cease and desist
from violating the terms of the National Agreement regarding the timely processing of backpay
awards. The Arbitrator also orders the Service to make a $1000 payment to the Grievant. Finally,
the Arbitrator finds that to the extent that the Grievant has not been paid interest on the amount of
the backpay award already, she should receive additional interests at the Federal Rate for the period
starting on August 2, 2020, to the date when payment was made on March 26, 2021.
_______________
Rafael Gely, Arbitrator
August 23, 2021