U.S. Department of Defense, Education Activity, Arlington, Virginia (Agency) and Federal Education Association (Union)
[ v56 p779 ]
56 FLRA No. 130
U.S. DEPARTMENT OF DEFENSE
FEDERAL EDUCATION ASSOCIATION
September 28, 2000
Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Joseph A. Sickles 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 Regulations. The Union filed an opposition to the Agency's exceptions.
This case is related to three prior arbitration awards (Arbitrators Bloch, Hockenberry and Popular), other issued decisions, and several other arbitration cases pending before the Authority regarding payment of interest on arbitration awards. Two of the underlying arbitration cases (Hockenberry and Popular) were also before the Authority regarding payment of attorney fees pursuant to the Back Pay Act. The payment of interest on the award of backpay was not at issue in those cases. The underlying background is set forth in detail in U.S. Department of Defense, Education Activity, Arlington, Virginia and Federal Education Association, 56 FLRA No. 119 (September 26, 2000) (DODEA, Arlington) and will be referred to where necessary in this decision.
In this case, Arbitrator Sickles sustained a grievance alleging that the Agency failed to properly pay 24 employees monies due them, and failed to pay interest on the backpay. For the reasons that follow, we deny the exceptions.
II. Background and Arbitrator's Award
In the summer of 1994, the U.S. Government temporarily closed the Agency's schools at Guantanamo Bay, Cuba and, as relevant here, reassigned employees (teachers) to Agency schools. After a return of U.S. military personnel to Guantanamo Bay in 1995, the Agency schools were reopened on January 29, 1996. The mid-year reassignment of teachers (and other administrative and support personnel to the schools) "resulted in numerous payroll problems, in part because different payroll offices were responsible for maintaining records and paying the teachers prior to their transfers to Cuba." Award at 3-4. According to the Arbitrator, the Agency had numerous payroll problems worldwide, dating back to a reorganization and centralization of the payroll functions sometime before 1994.
The Agency conducted audits to uncover the pay discrepancies and subsequently began paying the teachers retroactively for improper annual pay adjustments (called retro pay), step increases, pay lanes, underpaid living quarter allowances, and lack of pay for special workshops they were required to attend. However, disagreement arose over whether all monies due had been paid to the teachers. When the parties were unable to resolve their differences, the Union filed a grievance, and subsequently arbitration was invoked.
The Arbitrator framed the issue as follows:
Were the 24 named teachers who were assigned to Guantanamo Bay schools in January 1996 properly and timely paid between January 1, 1996, and October 31, 1997? If not, is the Agency required to pay interest on any back pay due teachers?
Id. at 3.
The Arbitrator first addressed the issue of interest and then employees' individual claims. As relevant to the issue, the Arbitrator applied Article 2, Section 2A, Article 27, and "[r]elevant provisions of the Back Pay Act[.]" Id. at 5.
The Arbitrator considered and rejected the Agency's argument that the delay in payment of the employees' monies did not constitute an unjustified or unwarranted personnel action under the Back Pay Act, 5 U.S.C. § 5596, so as to require the payment of interest. In so doing, the Arbitrator considered several cases cited by the Agency in support of its position, including United States v. Testan, 424 U.S. 392 (1976) (Testan), Bell v. United States, 23 Cl. Ct. 73 (1991) (Bell), and Bradley v. United States, 42 Fed. Cl. 333 (1998) (Bradley). The Arbitrator distinguished the cited cases from the instant case.
The Arbitrator also rejected the Agency's claim that there was no unjustified or unwarranted personnel [ v56 p780 ] action under the Back Pay Act because: (1) the Agency was not required under Article 25 of the parties' agreement or the terms of an Agency regulation, DOD Directive 1400.13, to take any of these pay actions by a specific time, and (2) the teachers received all monies to which they were entitled. The Arbitrator found "no provision in the [Back Pay Act] or associated regulations that there must be a `date certain' when payments are due before the law applies." Award at 10-11. According to the Arbitrator, there is a "general understanding" that employers are expected to pay employees promptly. Id. Beyond this, the Arbitrator found that "the [collective bargaining agreement] . . . makes it clear . . . that payment must be made by a time certain." [n1] Id. at 11.
Citing U.S. Department of Defense, Marine Corps Logistics Base, Barstow, California and American Federation of Government Employees, Local 1492, 37 FLRA 796 (1990), the Arbitrator stated that despite the Agency's assertion that mere administrative delay does not invoke the interest provisions of the Back Pay Act, Authority decisions have found to the contrary. According to the Arbitrator, if there is a delay in payment arising from a nondiscretionary or mandatory provision of a collective bargaining agreement, statute, or policy, the Back Pay Act provides for interest. The Arbitrator found that "all of the required elements are present in this case to invoke the [Back Pay Act]," including: a statute, Defense Department overseas Teachers Pay and Personnel Practices Act (DOD Pay Act); a regulation, DOD Directive 1342.6; Agency policies and past practices; and a collective bargaining agreement "mandating all items of pay involved in this case." Award at 12 (emphasis in original).
The Arbitrator further rejected the Agency's challenge to the validity of the Office of Personnel Management's Regulation, 5 C.F.R. § 550.803, which defines an unjustified or unwarranted personnel action as including "personnel actions and pay actions (alone or in combination)." The Arbitrator found that Article 2, Section 2A of the parties' agreement requires that the parties "be governed by laws and Government-wide regulations." [n2] Id. (quoting Article 2, Section 2(A)). He additionally found that arbitration was not the proper forum for challenging the validity of the regulation.
The Arbitrator further examined the Bloch, Hockenberry, and Popular awards mentioned above, and the more recent award of Arbitrator Robert Moore. He found that the four prior arbitrations involved the same parties as here and the same issue of "whether interest is due under the [Back Pay Act] for delayed payments" by the Agency of certain monies owed to its employees. Id. at 13. Arbitrator Sickles recognized that prior arbitration decisions are not binding precedents, but can be "accorded significant weight" in a case such as here, where the "essential issues are virtually identical to the ones previously considered by [the above-named arbitrators]" Id. at 15. Consequently, he stated that he was "persuaded that [the four arbitrators'] reasoning and interpretation of the law, the regulations, and the collective bargaining agreement were sound" and that he was "in full agreement with their findings" that the payment of interest in the circumstances presented was required under the Back Pay Act. Id.
He concluded, therefore, that the payments involved in this case were nondiscretionary and that any delays in payment in excess of 30 days were unjustified or unwarranted personnel actions. He further determined that when individual teachers presented a legitimate claim that payment of principal was not made within the 30-day grace period, he would award interest on back pay; and that where delayed payment of the claimed principal had been paid but without interest, he would award interest on the interest that should have been paid in accordance with 5 C.F.R. § 550.806(g).
Turning to the individual claims for back pay of principal, the Arbitrator agreed with the Agency that the "burden of proof . . . rests with the [Union]." Id. at 16. However, the Arbitrator determined that the Agency "has access to all of the payroll and personnel records related to these claims, and has an obligation to produce them as evidence." Id. Arbitrator Sickles further determined that none of the claims were outrageous and that the Agency has not disputed the underlying claims, but instead was expecting the teacher to prove that he or she was not paid for the claimed event. The Arbitrator found that the Agency had concluded as a result of an audit, that as of July 31, 1999, all 24 teachers had been fully paid the amounts authorized by their SF-50's. [n3] However, according to the Arbitrator, most of the teachers' claims are for specific items of pay, such as retro [ v56 p781 ] pay or payment for a workshop or step increase. The Arbitrator found that at best, the audit, the accuracy of which was challenged by the Union, demonstrated that the teachers were paid what the received SF-50s authorized, but were not necessarily proof that the teachers were paid correctly. Arbitrator Sickles then decided the claims made by the 24 teachers.
The Arbitrator found that as of the mid-January 1999 hearing, 24 teachers still had one or more unresolved claims and that a total of 66 individual problems were presented to the Arbitrator. The Arbitrator stated that the parties were able to agree on about half of the claims for principal sums owed but the Agency refused to pay interest. The Arbitrator discovered "gaps and deficiencies in the record" for some claims in that, while the Union was making specific claims for specific types of payments, the Agency was responding in gross amounts paid for the year. Id. at 21. He, therefore, requested the parties to meet with him to discuss supporting evidence related to each claim. As the Agency declined to meet with him, the Arbitrator stated that he had to decide the claims based on the record evidence, without the benefit of further discussion with the parties. In deciding the claims, the Arbitrator accepted a claim as accurate if a teacher made a specific claim for a dollar amount and the Agency did not refute it. Also, if he was unable to identify in the record that the Agency had already paid a claim, he accepted the claim as accurate and ordered payment, but with the proviso that if the Agency could subsequently demonstrate that payment had been made the amount would be reduced accordingly. The Arbitrator then determined the monies owed to each claimant. [n4]
Based on the above, Arbitrator Sickles concluded that the Agency had "violated the collective bargaining agreement, which incorporates existing laws and Government-wide regulations, by failing to pay certain teachers [involved in this dispute] in a timely fashion and by failing to pay interest on such payments subsequently made that were paid more than 30 days late." Award at 67. Therefore, he ordered the Agency to pay the principal claims and interest, and make other corrections and remedies as directed in the decision.
III. Positions of the Parties
A. Agency's Exceptions
The Agency does not challenge the Arbitrator's determination that grievants are entitled to "receive various forms of pay for the period in question" but challenges the award to the extent that the Arbitrator finds that the monetary relief constitutes back pay under the Back Pay Act on the grounds discussed below. Exceptions at 3.
1. Contrary to Law
The Agency asserts that the award exceeds the scope of the Back Pay Act, 5 U.S.C. § 5596, and therefore, violates the sovereign immunity of the United States, the language of the Federal Personnel Manual 1984 edition (FPM) that defines a mandatory policy, and requires the Agency to use its appropriations for purposes for which they were not appropriated. [n5]
The Agency argues that the Back Pay Act is a limited waiver of sovereign immunity that must be narrowly construed. The Agency asserts that a narrow construction of the Back Pay Act precludes treating pay delays, per se, as unjustified or unwarranted personnel actions. According to the Agency, the Back Pay Act generally excludes administrative errors and pay delays from the definition of an unjustified or unwarranted personnel action. The Agency contends that the 1978 amendment to the Back Pay Act, which provided for coverage of omissions, did not include administrative errors or pay delays, where the issue of entitlement is not in question, as the type of omission that would provide a basis for an unjustified or unwarranted personnel action. The Agency relies on several Comptroller General and court decisions, including United States v. Testan, 424 U.S. 392 (1976).
The Agency asserts that the 1978 amendment to the Back Pay Act was limited to "`include . . . omission[s] with respect to nondiscretionary provision [sic] of law, Executive Order, regulation or collective bargaining agreement.'" Id. at 11 (quoting 1978 U.S. Code Cong. Admin. News, 92 Stat. 2837). Thus, according to the Agency, with the 1978 amendment, "Congress was not opening the door to all forms of omissions, but was [ v56 p782 ] limiting the [Back Pay Act] to those . . . circumstances where the personnel action, or the omission of a personnel action, could be said to be mandatory." Id. at 11-12. The Agency argues that no such mandatory or nondiscretionary actions were involved in this case, and that "no evidence" was presented establishing that the "last discretionary personnel action or pay action was taken to authorize [the grievants'] pay." [n6] Id. at 20, 26. Additionally, the Agency contends that Arbitrator Sickles disregarded the definition of mandatory policy in the FPM, which narrowly limits the scope of a personnel action including the omission of failure to take an action involving pay. Moreover, according to the Agency, the teachers have been paid as confirmed by the audits, which the Arbitrator found to have limited value. [n7]
The Agency also asserts that there is no basis for concluding that administrative delays by the Defense Finance and Accounting Office (DFAS) in making payments constituted an unjustified or unwarranted personnel action.
Based on the above, the Agency argues that as there is no unjustified or unwarranted personnel action, the Back Pay Act is not implicated and no interest is due.
2. OPM Regulations
The Agency asserts that the OPM regulations implementing the Back Pay Act overreach the "scope" of the Act. Exceptions at 23. The Agency contends that the definition of an unjustified or unwarranted personnel action promulgated in OPM's regulations at 5 C.F.R. § 550.803 expands the scope of the Back Pay Act. [n8] The Agency asserts that there is no justification within the Act for OPM's extension of the definition to pay actions as an independent basis for finding an unjustified or unwarranted personnel action. In support, the Agency references an opinion from the Department of Justice.
Additionally, the Agency contends that the OPM guidance is susceptible to a permissive interpretation that permits pay actions to be considered personnel actions under the Back Pay Act, but only where the matter had been sufficiently processed to the point that entitlement to payment was nondiscretionary. The Agency asserts that in the present matter, however, the grievants' entitlement to payment had not become nondiscretionary in nature. Accordingly, payment would be inconsistent with the OPM regulations.
The Agency further argues that Arbitrator Sickles' reliance on the Bloch and Hockenberry awards, in support of his application of the OPM regulation to the facts of this case to find an unjustified or unwarranted personnel action, is misplaced. The Agency asserts that prior arbitral awards are not "stare decisis." Id. at 22. Additionally, the Agency asserts that Arbitrator Sickles' reliance on the Bloch, Hockenberry, and Popular award lacks legal support and must be rejected because, as stated above, the Back Pay Act does not permit the interpretation that the omission of a pay action alone always causes an unjustified or unwarranted personnel action.
3. Burden of Proof
The Agency contends that Arbitrator Sickles improperly placed the burden of proof on it to prove that payment had been made to the subject grievants and that its audit procedures were proper and the data was presented in a form acceptable to the employee or Arbitrator. According to the Agency, in order to challenge an audit, the burden is on the grievant to establish that the Agency failed to follow requisite audit procedures. The Agency asserts that the grievants argued that the audit did not break out their pay so they could determine whether they received pay as an allowance or as salary, or for some other payment and that the Arbitrator determined that the audits were of "limited value" because they did not address all the items raised by the teachers. Id. at 20. The Agency asserts that the audits are "probative according to Rule 4, Proof of Official Records, of the Federal Rules of Civil Procedure." Id. The Agency contends that the audits proved that the teachers were paid all the pay due for each specific school year and the teachers "produced no evidence to the contrary." Id.
The Agency contends that Arbitrator Sickles improperly interpreted Article 27 of the parties' agreement as establishing a pay date for pay matters involved [ v56 p783 ] in this case. The Agency argues that this provision does not establish a date certain or otherwise specify conditions under which pay is required. We construe the Agency's contention as an exception that the award fails to draw its essence from the parties' agreement.
B. Union Opposition
1. Contrary to Law
The Union asserts that the Agency's exception is merely an attempt to avoid paying interest on Back Pay awards for as long as possible. According to the Union, the exception amounts to a "mere disagreement with Arbitrator Sickles' studied interpretation and application of the Back Pay Act." Opposition at 6. The Union contends that this disagreement does not constitute a basis for reviewing the award and that the exception is nothing but an effort to relitigate the issue.
The Union contends that many of the sources relied on by the Agency regarding the payment of interest were issued prior to the amendments of the Back Pay Act that provided coverage for act of omission and pay action. The Union states that Congress amended the Back Pay Act to include a waiver of sovereign immunity for interest. Moreover, the Union contends that some of the cases relied on by the Agency to support its position as well as Comptroller General decisions cited by the Agency actually support the Union's position. The Union also distinguished certain cases cited by the Agency. The Union also asserts that the Agency's contention concerning the appropriations clause lacks merit because payment of monies owed to the grievants is authorized under the Back Pay Act and various Defense Appropriations Acts.
The Union further asserts that the Agency "mischaracterizes or fails to understand the distinction between `discretionary' and `nondiscretionary' functions within the scope of the Back Pay Act." Id. at 22. According to the Union, the Arbitrator found that the Agency's action in paying the employees was nondiscretionary.
As to the Agency's contention that there is no established day on which the Agency is required to pay employees, the Union asserts that the clear intent of the parties' agreement is to the contrary and further the Back Pay Act contains no date certain requirement.
With respect to the Agency's argument concerning discretionary action, the Union states that the act of a certifying principal is due in accordance with the DOD Pay Act and involves no discretion or exercise of judgment. According to the Union, taken to its logical conclusion, this argument would also lead to a result in which the Agency would never have to pay its teachers as long as a payroll officer never certified the payment.
2. OPM Regulation
The Union contends that like the Bloch, Hockenberry, and Popular award, this award concerns a unit grievance. The Union asserts that it is not arguing that the Bloch, Hockenberry, and Popular award are stare decisis. However, according to the Union, these awards are "`precedent-setting'" in that they involved the same parties and issue as here, were based on the parties' agreement, and were filed on behalf of all bargaining unit members. Id. at 7.
3. Burden of Proof
The Union asserts that "spreadsheets with no explanations are not audits." Id. at 14. According to the Union, the spreadsheets offered little in the way of explanations for pay received by the grievants. The Union asserts that it presented testimony and documentary evidence regarding the different pay problems and how much back pay was owed the grievants. The Union contends that the Agency "had control of all the records" and could have disputed the grievants' claims but refused to do so despite the Arbitrator's repeated attempts to get the Agency to do so. Id. at 13. The Union argues, therefore, that the burden was on the Agency to dispute the specific claims.
The Union does not respond to this exception.
IV. Analysis and Conclusions
A. The Award Is Not Contrary to Law, Regulation or Sovereign Immunity
When a party's exception challenges an arbitration award's consistency with law, rule, or regulation, the Authority reviews the questions of law raised in the exception and the arbitrator's award de novo. See National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1709 (1998). When applying a de novo standard of review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. Id. at 1710. In making that assessment, the Authority defers to the arbitrator's factual findings. See National Treasury Employees Union, Chapter 50 and U.S. Department of the Treasury, Internal Revenue Service, [ v56 p784 ] Carolina District, Charlotte, North Carolina, 54 FLRA 250, 253 (1998).
Under the Back Pay Act, 5 U.S.C. § 5596(b)(1)(A)(i), an award of backpay is authorized only when an arbitrator finds that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; and (2) the personnel action resulted in the withdrawal or reduction of the employee's pay, allowances or differentials. See U.S. Department of Health and Human Services and National Treasury Employees Union, 54 FLRA 1210, 1218 (1998). A violation of a collective bargaining agreement constitutes an unjustified or unwarranted personnel action under the Back Pay Act. See, U.S. Department of Defense, Department of Defense Dependents Schools and Federal Education Association, 54 FLRA 773, 785 (1998).
Here, Arbitrator Sickles found the Agency violated a contractual right to receive timely payment for the sums owed the grievants. This is sufficient to constitute an unjustified or unwarranted personnel action. Id.
The Agency's Back Pay Act arguments in this case are encompassed by the Back Pay Act arguments made by it in U.S. Department of Defense, Education Activity, Arlington, Virginia and Federal Education Association, 56 FLRA No. 119 (September 26, 2000) (DODEA, Arlington). Here, as there, three interrelated and overlapping arguments are being made: (1) the Back Pay Act does not come into play where the obligation to pay the underlying amount is not in question; (2) delay or omission does not fall under the Back Pay Act unless there is some law, rule or regulation that makes the payment nondiscretionary and by a specific date; and (3) omission or mere delay is not per se an unjustified or unwarranted personnel action.
In the present matter, we have examined the Agency's Back Pay Act arguments, the legal precedent cited in support thereof, and the underlying arbitral record. We conclude, for the same reasons set forth in DODEA, Arlington, that the Agency has not shown that Arbitrator Sickles' award in this case is contrary to the Back Pay Act.
As noted in DODEA, Arlington, slip op. at 18, the administrative or clerical error rule is set forth in Comptroller General precedent. That rule specifically recognizes that an error or delay in making payment can constitute an unjustified or unwarranted personnel action under the Back Pay Act. Moreover, the rule recognizes that such error or delay may constitute an unjustified or unwarranted personnel action even where the obligation to pay the underlying amount is not in question, and even where there is no nondiscretionary law, rule, or regulation mandating action in accordance with specific criteria or by a specific date. Also, as in DODEA, Arlington, there is no arbitral finding in the present case that omission or delay is, per se, an unjustified or unwarranted personnel action. Rather, Arbitrator Sickles made his finding of an unjustified or unwarranted personnel action based upon a violation of a contractual obligation to make the required payments to these employees in a timely manner, which he determined was nondiscretionary. The Authority has found the violation of such a contractual obligation to constitute an unjustified or unwarranted personnel action. See U.S. Department of Defense, Dependents Schools, Bulzbach Elementary School, Bulzbach, Germany and Federal Education Association, 56 FLRA 208, 212 (2000) (Bulzbach Elementary School).
We further find the Agency's reliance on the 1984 edition of the FPM does not provide a basis for finding the award deficient. [n9] Even assuming the FPM was applicable, the award would not be deficient because the Arbitrator specifically found that the parties' agreement required the Agency to make the required payments to the subject employees in a timely manner.
Accordingly, we find that Arbitrator Sickles's award is not contrary to law and deny the Agency's exception.
B. OPM Regulations Implementing the Back Pay Act May Not Be Challenged in this Proceeding
The Agency's argument regarding the OPM regulations implementing the Back Pay Act, set forth at 5 C.F.R. Part 550, in effect ask the Authority to review and construe this OPM regulation to find that a pay action is an inadequate basis to constitute an unjustified or unwarranted personnel action.
Section 7105 of the Statute enumerates the powers and duties of the Authority, none of which relate to passing judgment on rules or regulations that OPM or any other Federal agency has enacted. See 5 U.S.C. § 7105; American Federation of Government Employees, AFL-CIO v. FLRA, 794 F.2d 1013, 1015 (5th Cir. 1986) (Congress did not intend for the Authority to sit in review of other agencies' regulations). If the Agency wishes to challenge the validity of the OPM regulations implementing the Back Pay Act, the Authority is not the [ v56 p785 ] correct forum. See Bulzbach Elementary School, 56 FLRA at 212. If the validity of these OPM regulations is in question, the issue must be raised by an interested party in another forum.
To the extent that the Agency asserts that Arbitrator Sickles erred in relying on Arbitrators' Bloch and Hockenberry awards to support his finding that the Agency's action constituted an unjustified or unwarranted personnel action under the OPM regulations, such contention provides no basis for finding the award deficient. See American Federation of Government Employees, Local 2459 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Texarkana, Texas, 51 FLRA 1602, 1606-08 (1996) (although an arbitrator is not bound by another arbitrator's award, an arbitrator has the discretion to decide that an earlier award is binding).
We deny, therefore, the exception.
C. The Arbitrator Did Not Improperly Place the Burden of Proof on the Agency
It is well-established under Authority precedent that if a standard of proof is set forth in law, rule, regulation or a collective bargaining agreement, an arbitrator's failure to apply the prescribed standard will constitute a basis for finding the award deficient as contrary to law, rule, regulation, or as failing to draw its essence from the agreement. See American Federation of Government Employees, Local 2250 and U.S. Department of Veterans Affairs, Medical Center, Muskogee, Oklahoma, 52 FLRA 320, 323-24 (1996). However, in the absence of a specified standard of proof, arbitrators have the authority to establish whatever standard they consider appropriate and the Authority will not find an award deficient because a party claims that an incorrect standard was used. Id. at 324.
In this case, the Agency fails to demonstrate that the Arbitrator was required to apply a prescribed standard. Moreover, the Arbitrator agreed with the Agency that the burden of proof for the individual claims rests with the Union. However, the Arbitrator also found that the Agency had access to all of the payroll and personnel records related to these claims and, therefore, had an obligation to produce them as evidence. The Arbitrator examined the evidence before him including the audit, which was challenged by the Union and further requested the parties to meet with him to discuss supporting evidence on the individuals claims; the Agency declined. The Arbitrator, therefore, based his conclusion on the evidence in the record. Consequently, rather than placing the burden of proof on the Agency, the Arbitrator simply found that the Agency's assertion that the subject claims had been paid was not supported by the evidence.
Accordingly, this exception provides no basis for finding the award deficient.
D. The Award Does Not Fail to Draw Its Essence from the Parties' Agreement
The Agency contends that Arbitrator Sickles improperly interpreted Article 27 of the parties' agreement as establishing a pay date for pay matters involved in this case. We construe this contention as an exception that the award fails to draw its essence from the parties' agreement.
In order for an award to be found deficient as failing to draw its essence from the collective bargaining agreement, it must be established that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purpose of the collective bargaining agreement as to "manifest an infidelity to the obligation of the arbitrator"; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. U.S. Department of the Navy, Naval Surface Warfare Center, Indian Head, Maryland and American Federation of Government Employees, Local 1923, 55 FLRA 596, 599 (1999); United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990).
Arbitrator Sickles concluded that the collective bargaining agreement required that payment must be made by a certain date, and he referenced findings in Arbitrator Moore's award that there are statutes, rules, and regulations and the collective bargaining agreement that establish a date certain for pay. Arbitrator Sickles' conclusion that the parties' agreement provides for established pay days and pay periods is based on his interpretation and application of the agreement. The Agency's argument that the Arbitrator imposed a condition not provided by the agreement amounts to a disagreement with the Arbitrator's interpretation of the parties' agreement, which does not establish that the award fails to draw its essence from the collective bargaining agreement under any of the tests recognized by the Authority. Accordingly, we deny this exception. [ v56 p786 ]
E. The Award Is Not Based on a Nonfact
In this case, the Agency the Agency argues that no such mandatory or nondiscretionary actions were involved in this case, and that "no evidence" was presented establishing that the "last discretionary personnel action or pay action was taken to authorize the grievants pay. The Agency also asserts that the audits confirm that the teachers have been paid. We construe these contentions as claims that the award is based on nonfacts.
To establish that an award is based on a nonfact, the appealing party must demonstrate that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. See, e.g., U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993) (Lowry AFB); General Services Administration, Region 2 and American Federation of Government Employees, Local 2431, 46 FLRA 1039, 1046-47 (1992). However, the Authority will not find an award deficient on the basis of an arbitrator's determination of any factual matter that the parties disputed at arbitration. Lowry AFB, 48 FLRA at 593.
Moreover, an arbitrator's legal conclusions cannot be challenged on the grounds of nonfact. See, e.g., National Federation of Federal Employees, Local 561 and U.S. Department of the Army, U.S. Army Corps of Engineers, Mobile, Alabama, 52 FLRA 207, 210-11 (1996); U.S. Department of the Navy, Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 39 FLRA 590, 605 (1991).
Arbitrator Sickles determined that the Agency's action to pay the grievants was nondiscretionary and that the Agency owed interest on the monies owed the subject grievants. The Agency's exception is not based on nonfacts, but rather on the legal conclusions reached by the Arbitrator concerning the applicability of the Back Pay Act and its authorization for the payment of interest. Further, the Agency's contention that the audits show that the subject employees have been paid was disputed by the parties at arbitration. Hence, this contention provides no basis for finding the award deficient. We therefore deny this exception.
The Agency's exceptions are denied.
Article 27 of the Parties' Agreement provides in pertinent part as follows:
EXTRA CURRICULAR ACTIVITIES
Members of the bargaining unit are encouraged to notify the Employer at the school of any interest they might have with regard to filling extracurricular positions which might become available. . . .
Unit employees who accept an extra duty assignment shall sign a written agreement with the principal indicating duties, rate of pay and length of activity when such duties must be performed outside the workday. A copy of the agreement shall be provided to the unit employee. (Use form in DS Regulation 5550.9 attached at the end of this Article.)
. . . .
(The form provides, in pertinent part, that "As soon as the activity is completed, I will notify the Principal and he/she shall arrange that I be paid by separate check not later than the next regular pay period for employees.") Exceptions, Attachment C.
Footnote # 1 for 56 FLRA No. 130
From the context, it is apparent that the collective bargaining agreement provisions to which the Arbitrator referred include Article 27. The relevant text of Article 27 is set forth in the Appendix to this decision.
Footnote # 2 for 56 FLRA No. 130
In the administration of all matters covered by this Agreement, the parties shall be governed by laws and Government-wide regulations in effect on September 18, 1989.
Award at 5.
Footnote # 3 for 56 FLRA No. 130
Footnote # 4 for 56 FLRA No. 130
Footnote # 5 for 56 FLRA No. 130
In its exceptions, the Agency states that the Arbitrator "exceeded his authority under the FLSA, and violated the scope of the [Back Pay Act]." Exceptions at 27. As the Agency did not explain what FLSA means, we construe this contention also as a claim that the Arbitrator exceeded the scope of his authority under the Back Pay Act, and that this merely rephrases the Agency's claim that the award is contrary to law, rather than setting forth a separate exception.
Footnote # 6 for 56 FLRA No. 130
This allegation could be construed as a nonfact as well and is discussed below. Also, we note that, as mentioned above, this case concerns 24 grievants rather than the named grievant that the Agency inadvertently references in its exceptions. See Exceptions at 27.
Footnote # 7 for 56 FLRA No. 130
Footnote # 8 for 56 FLRA No. 130
an act of commission or an act of omission (i.e., failure to take an action or confer a benefit) that an appropriate authority subsequently determines, on the basis of substantive or procedural defects, to have been unjustified or unwarranted under applicable law, Executive order, rule, regulation, or mandatory personnel policy established by an agency or through a collective bargaining agreement. Such actions include personnel actions and pay actions (alone or in combination).
Footnote # 9 for 56 FLRA No. 130
The provision of the FPM referenced by the Agency was provisionally retained in the FPM through December 31, 1994, when the FPM sunset. Thereafter OPM incorporated certain pay administration rules contained in the FPM into the Code of Federal Regulations. See OPM Sunset Document at 72, Summary Table at 5, and 50 Fed. Reg. 66,629 (1994).