31:0754(49)AR - Defense Logistics Agency and AFGE Local 2501 -- 1988 FLRAdec AR



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31:0754(49)AR
The decision of the Authority follows:


 31 FLRA NO. 49
 31 FLRA 754 (1988)
    09 MAR 1988

DEFENSE LOGISTICS AGENCY

                   Agency

        and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL No. 2501

                   Union

Case No. 0-AR-1456

ORDER DISMISSING EXCEPTION

     This matter is before the Authority on an exception to the
award of Arbitrator Ralph C. Barnhart filed by the Agency under
section 7122(a) of the Federal Service Labor - Management
Relations Statute (the Statute) and part 2425 of the Authority's
Rules and Regulations. Because the Arbitrator's award concerns a
removal from service, we find that we are without jurisdiction to
review the Agency's exception.

     The Agency removed the grievant from Federal service because
he had been intoxicated while on duty twice and absent without
leave once. The Arbitrator found that the grievant's removal
violated the parties' collective bargaining agreement. As his
award, the Arbitrator: (1) rescinded the grievant's removal and
reduced the penalty to a 5-day suspension; (2) restored the
grievant to his former position; and (3) granted the grievant
backpay with interest at 9 percent for the time lost.

     The Agency filed an exception only to that portion of the
Arbitrator's award which directed the payment of interest to the
grievant. The Union did not file an opposition.

     Section 7122(a) of the Statute provides, in pertinent
part:

     Either party to arbitration under this chapter may file with
the Authority an exception to any arbitrator's award pursuant to
the arbitration (other than an award relating to a matter
described in section 7121(f) of this title). 

     The matters described in section 7121(f) of the Statute
include adverse actions (such as removals) under 5 U.S.C. 7512.
Review of arbitration awards relating to such matters, like
review of decisions of the Merit Systems Protection Board, may be
sought by appeal to the U.S. Court of Appeals for the Federal
Circuit in accordance with 5 U.S.C. 7703. Because the
Arbitrator's award concerns a matter covered by 5 U.S.C. 7512,
that is, the removal of the grievant from service, an exception
to the award may not be filed with the Authority under section
7122(a) of the Statute. The Authority, therefore, is without
jurisdiction to review the Agency's exception. U.S. Department of
Transportation, Federal Aviation Administration Eastern Region
and Professional Airways Systems, MEBA, AFL - CIO, 28 FLRA  345
(1987). Accordingly, the Agency's exception is dismissed.

     We also note, for the information of the parties and others
in the Federal labor-management relations community, that 5
U.S.C. 5596(b) (the Back Pay Act) was amended on December 22,
1987, to provide for the payment of interest on awards of backpay
to Federal employees. The text of that amendment, which can be
found in the Continuing Appropriations Act of 1988, Pub. L. No.
100-202, 1988 U.S. Code Cong. & Admin. News (101 Stat.) 1329-1,
1329-428--1329-429, is as follows:

     Sec. 623. Interest On Back Pay For Federal Employees.--(a)
In General.--Section 5596(b) of title 5, United States Code is
amended--

     (1) by redesignating paragraphs (2) and (3) as paragraphs
(3) and (4), respectively, and

     (2) by adding after paragraph (1) the following:

     "(2)(A) An amount payable under paragraph (1)(A)(i) of this
subsection shall be payable with interest.

     "(B) Such interest--

     "(i) shall be computed for the period beginning on the
effective date of the withdrawal or reduction involved and ending
on a date not more than 30  days before the date on which payment
is made; 

     "(ii) shall be computed at the rate or rates in effect under
section 6621(a)(1) of the Internal Revenue Code of 1986 during
the period described in clause (i); and

     "(iii) shall be compounded daily.

     "(C) Interest under this paragraph shall be paid out of
amounts available for payments under paragraph (1) of this
subsection."

     (b) Effective Date.--

     (1) Generally. --Except as provided in paragraph (2), the
amendments made by subsection (a) shall take effect on the date
of the enactment of this Act, and shall apply with respect to any
employee found, in a final judgment entered or a final decision
otherwise rendered on or after such date, to have been the
subject of an unjustified or unwarranted personnel action, the
correction of which entitles such employee to an amount under
section 5596(b)(1)(A)(i) of title 5, United States Code.

     (2) Exception.--

     (A) Cases In Which A Right To Interest Was Reserved.--The
amendments made by subsection (a) shall also apply with respect
to any claim which was brought under section 5596 of title 5,
United States Code, and with respect to which a final judgment
was entered or a final decision was otherwise rendered before the
date of the enactment of this Act, if, under terms of such
judgment or decision, a right to interest was specifically
reserved, contingent on the enactment of a statute authorizing
the payment of interest on claims brought under such section
5596.

     (B) Method Of Computing Interest.--The amount of interest
payable under this paragraph with respect to a claim shall be
determined in accordance with section 5596(b)(2)(B) of title 5,
United States Code (as amended by this section). 

     (C) Source.--An amount payable under this paragraph shall be
paid from the appropriation made by section 1304 of title 31,
United States Code, notwithstanding section 5596(b) (2) (C) of