Portsmouth Naval Shipyard (Activity) and Federal Employees Metal Trades Council (Union)

 

 7 FLRA No. 9
 
 PORTSMOUTH NAVAL SHIPYARD
 Activity
 
 and
 
 FEDERAL EMPLOYEES METAL
 TRADES COUNCIL
 Union
 
                                            Case No. O-AR-133
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR WILLIAM J. FALLON FILED BY THE AGENCY UNDER SECTION 7122(A)
 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
 7122(A)) (THE STATUTE).
 
    ACCORDING TO THE ARBITRATOR, THIS MATTER AROSE WHEN THE ACTIVITY
 NOTIFIED THE GRIEVANTS THAT THEY WERE BEING TRANSFERRED FROM THE SECOND
 SHIFT, FOR WHICH EMPLOYEES RECEIVED A SHIFT PREMIUM, TO THE FIRST SHIFT,
 FOR WHICH THERE WAS NO PREMIUM.  GRIEVANCES WERE FILED AND ULTIMATELY
 SUBMITTED TO ARBITRATION CLAIMING THAT THE ACTIVITY IMPOSED THE SHIFT
 CHANGE AS A DISCIPLINARY ACTION IN VIOLATION OF THE PARTIES' COLLECTIVE
 BARGAINING AGREEMENT.  THE ARBITRATOR AGREED THAT THE SHIFT CHANGE
 VIOLATED THE AGREEMENT AND SUSTAINED THE GRIEVANCES.  WITH RESPECT TO A
 REMEDY, THE ARBITRATOR DETERMINED THAT "(O)NLY BY REQUIRING INTEREST ON
 THE DENIED SHIFT PREMIUM CAN THE EMPLOYEES BE MADE FULLY WHOLE."
 ACCORDINGLY, THE ARBITRATOR MADE THE FOLLOWING AWARD:
 
    THE GRIEVANCES ARE SUSTAINED.  THE EMPLOYER IS DIRECTED TO FORTHWITH
 TRANSFER THE GRIEVANTS
 
    TO THE SECOND SHIFT, AND COMPENSATE THEM FOR THE LOSS OF SHIFT
 PREMIUM FROM AUGUST 13, 1979,
 
    WITH INTEREST AT THE RATE PAID ON SAVINGS BY THE FEDERAL CREDIT
 UNION.
 
    PURSUANT TO SECTION 7122(A) OF THE STATUTE /1/ AND PART 2425 OF THE
 AUTHORITY'S RULES AND REGULATIONS (5 CFR PART 2425), THE AGENCY FILED AN
 EXCEPTION TO THAT PORTION OF THE AWARD DIRECTING THE PAYMENT OF
 INTEREST.  THE UNION FILED AN OPPOSITION.  /2/
 
    IN ITS EXCEPTION TO THE AWARD OF INTEREST, THE AGENCY CONTENDS THAT
 SUCH AN AWARD IS CONTRARY TO LAW.  IN SUPPORT OF THIS EXCEPTION, THE
 AGENCY ARGUES THAT IT IS WELL ESTABLISHED THAT UNLESS AUTHORIZED BY
 STATUTE, INTEREST MAY NOT BE RECOVERED ON CLAIMS AGAINST THE FEDERAL
 GOVERNMENT.  CLAIMING THAT THE ONLY APPLICABLE STATUTE, THE BACK PAY ACT
 OF 1966, DOES NOT AUTHORIZE THE AWARD OF INTEREST, THE AGENCY ASSERTS
 THAT THE AWARD IN THIS CASE IS CONTRARY TO LAW.
 
    IN OPPOSITION THE UNION GENERALLY DISPUTES THAT INTEREST IS
 ORDINARILY UNAVAILABLE ON CLAIMS AGAINST THE FEDERAL GOVERNMENT AND
 ATTEMPTS TO DISTINGUISH THE CASES CITED BY THE AGENCY IN SUPPORT OF ITS
 EXCEPTION.  PRIMARILY, HOWEVER, THE UNION ARGUES THAT BY VIRTUE OF THE
 ENACTMENT OF THE STATUTE AND THE AMENDMENTS TO THE BACK PAY ACT MADE BY
 THE CIVIL SERVICE REFORM ACT OF 1978, THE ARBITRATOR WAS EXPRESSLY
 EMPOWERED TO AWARD INTEREST ON THE COMPENSATION GRANTED THE GRIEVANTS.
 
    PURSUANT TO SECTION 7122(A)(1) OF THE STATUTE, THE AUTHORITY WILL
 FIND AN ARBITRATION AWARD DEFICIENT WHEN IT HAS BEEN SHOWN THAT THE
 AWARD IS CONTRARY TO LAW.  FOR THE REASONS THAT FOLLOW, THE AUTHORITY
 FINDS THAT THE AWARD OF INTEREST BY THE ARBITRATOR IN THIS CASE IS
 CONTRARY TO LAW AND THAT IT MUST BE MODIFIED ACCORDINGLY.
 
    THE RULE IS SETTLED THAT UNLESS AUTHORIZED BY AN EXPRESS PROVISION IN
 A RELEVANT STATUTE OR CONTRACT, INTEREST IS NOT AVAILABLE AGAINST THE
 FEDERAL GOVERNMENT.  UNITED STATES V. ALCEA BAND OF TILLAMOOKS, 341 U.S.
 48(1951);  UNITED STATES V. THAYER-WEST