25:0629(51)AR - DOD Dependents Schools, Panama Region and the Panama Canal Federation of Teachers, Local 29 -- 1987 FLRAdec AR



[ v25 p629 ]
25:0629(51)AR
The decision of the Authority follows:


 25 FLRA No. 51
 
 DEPARTMENT OF DEFENSE DEPENDENTS
 SCHOOLS, PANAMA REGION
 Agency
 
 and
 
 THE PANAMA CANAL FEDERATION
 OF TEACHERS, LOCAL 29
 Union
 
                                            Case No. 0-AR-1215
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator James J. Sherman filed by the Agency under section 7122(a) of
 the Federal Service Labor-Management Authority's Rules and Regulations.
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    The dispute before the Arbitrator concerned the grievant's contention
 that she was not paid the proper rate for her part-time teaching
 position.  The grievant contended that her duties, which consisted of
 three classes plus a lunch period and required time before and after
 classes, were at least two-thirds those of a full-time teacher, yet she
 was paid only a half-time salary.  The Arbitrator stated the issue to be
 whether the Agency violated the collective bargaining agreement by
 paying one-half instead of two-thirds of the normal salary for the
 approximately five months the grievant was employed.
 
    The Arbitrator found that salaries for teachers were set by an Agency
 wage board but that the board had not addressed the matter of salaries
 for employees who worked less than full-time and more than half-time.
 He agreed with the Agency that he had no authority to establish a salary
 rate in the absence of wage board guidelines.  On the other hand, he
 found that the school principal failed to fully inform the grievant at
 the beginning of her employment exactly what her salary would be and
 that the principal failed to comply with a contractual obligation to
 conduct an orientation session to inform the grievant of the terms of
 her employment.  He concluded that if an orientation session had been
 held and the grievant had been informed that she would receive only
 one-half the full rate of pay she would have had the option of either
 accepting that rate or refusing the position.  He ruled that the
 grievant was not entitled to compensation at the rate of two-thirds of
 the full-time rate but that she had a resonable expectation that she
 would receive 60 percent.  The Arbitrator emphasized that he was not
 setting a new salary rate of 60 percent for all part-time assignments
 such as the grievant's.  As his award, the Arbitrator ordered the Agency
 to pay the grievant the difference between a 60 percent salary and what
 she actually received.  He also ordered the Agency to pay interest on
 that amount at the rate of 8 percent.
 
                           III.  FIRST EXCEPTION
 
    A.  Contentions
 
    In its first exception, the Agency contends the award is contrary to
 the Back Pay Act, 5 U.S.C. Section 5596, because it orders backpay
 without the requisite finding that there was an unwarranted or
 unjustified personnel action that directly resulted in the withdrawal or
 reduction in pay that the grievant otherwise would not have suffered.
 Particularly, the Agency maintains that the Arbitrator made no finding
 that but for the Agency's failure to conduct an orientation session as
 required by the agreement, the grievant would have received more pay.
 The Union argues that the Arbitrator clearly and correctly found that
 the grievant was not properly paid.
 
    B.  Analysis and Conclusions
 
    We agree with the Agency that the Arbitrator's award does not comply
 with the legal requirements for an award of backpay.  The Authority has
 consistently held that in order for an award of backpay to be authorized
 under the Back Pay Act, the arbitrator must determine that the aggrieved
 employee was affected by an unjustified or unwarranted personnel action,
 that the personnel action directly resulted in the withdrawal or
 reduction of the grievant's pay, allowances or differentials, and that
 but for such action, the grievant otherwise would not have suffered the
 withdrawal or reduction.  For example, National Marine Fisheries
 Service, Northeast Region, National Oceanic and Atmospheric
 Administration, United States Department of Commerce, Gloucester,
 Massachusetts and International Organization of Masters, Mates, and
 Pilots, AFL-CIO, Boston, Massachusetts, 22 FLRA No. 43 (1986).  In this
 case, the Arbitrator found that the principal's failure to conduct an
 orientation session and to inform the grievant of her salary rate was a
 violation of the parties' agreement.  However, he did not find that the
 grievant would have been entitled to receive more than the half-time
 rate even if the orientation session had been conducted.  The Arbitrator
 conceded that he did not have the authority to set the salary rate for
 more than half-time employment in the absence of guidelines by the wage
 board and he specifically ruled that the grievant would have been
 entitled only to one-half normal salary and no more if she had been
 properly informed and accepted the position.  Consequently, we conclude
 that the Arbitrator's award of backpay is contrary to the Back Pay Act.
 
    Although we are compelled to find the award deficient in this manner,
 we agree with the Arbitrator's finding that the grievant was misled by
 the principal's failure to inform her at the beginning of her employment
 what the salary rate would be and that she could not expect to receive
 more than half-time compensation even though she would be required to
 work more than half-time.  As a matter of simple fairness and improved
 employee-management relations, the Agency should ensure that newly-hired
 employees are informed completely of the terms of their employment in a
 timely fasion so that misunderstandings such as this one will not occur
 in the future.
 
                           IV.  SECOND EXCEPTION
 
    A.  Contentions
 
    In its second exception, the Agency contends that the award is
 contrary to the Back Pay Act because it requires the payment of interest
 to the grievant.  The Union contends that the payment of interest is
 lawful.
 
    B.  Analysis and Conclusions
 
    The Agency's exception has merit.  The Authority has adopted the
 settled rule that interest is not available against the Federal
 Government unless authorized by an express provision in a relevant
 statute or contract and has determined that interest is not available in
 awards of backpay under the Back Pay Act.  Portsmouth Naval Shipyard and
 Federal Employees Metal Trades Council, 7 FLRA 30 (1981).  Consequently,
 the award of interest is deficient.
 
                               V.  DECISION
 
    For the above reasons, the award is set aside.  
 
 Issued, Washington, D