U.S. Department of Defense, Education Activity, Arlington, Virginia (Agency) and Federal Education Association (Union)

[ v56 p880 ]

56 FLRA No. 147

U.S. DEPARTMENT OF DEFENSE
EDUCATION ACTIVITY
ARLINGTON, VIRGINIA
(Agency)

and

FEDERAL EDUCATION ASSOCIATION
(Union)

0-AR-3299

_____

DECISION

September 29, 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 Hugh D. Jascourt 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.

      Arbitrator Jascourt sustained a grievance finding that the Agency's delayed payments to the grievant of her Living Quarters Allowance (LQA) constituted an unjustified and unwarranted personnel action pursuant to the Back Pay Act, and therefore ordered the grievant be paid interest on the amount payable.

      For the reasons that follow, we conclude that the Agency has not established that the award is deficient under section 7122(a) of the Statute. Therefore, we deny the Agency's exceptions.

II.     Background and Arbitrator's Award

A.     Background

      The grievant is a kindergarten teacher employed by the Agency in Germany and is entitled to a Living Quarters Allowance, which she receives in her normal bi-weekly paycheck. Award at 2. The grievant filed the appropriate forms on November 8, 1995, May 30, 1997, and January 30, 1998, to receive increased LQA. Id. All three increase requests were processed by a pay technician and it is undisputed that the grievant expected to receive the increased LQA by the second paycheck in February of 1998. [n1] 

      On May 18, 1998, the grievant filed a grievance because she had not been paid any of her LQA and she had to pay interest on the amounts due her landlord. Id. The grievant received partial payment on August 27, 1998, and on December 20, 1999, the parties stipulated that the grievant was still owed $102.25 in entitlements dating back to 1995. The grievance, especially as to the payment of interest, was never resolved and the matter proceeded to arbitration.

B.     Arbitrator's Award

      The parties stipulated the following issues for arbitration:

1.     Did the Agency violate laws, rules, regulations, past practice, the negotiated agreement, Agency Decisions and/or earlier FLRA/Arbitration decisions by failing to pay the Grievant her LQA in a timely manner and by failing to pay interest on the back pay? If so, what shall the remedies be?
2.     In regard to [the grievant]:
a.     Did the Agency fail to take necessary actions to timely and properly pay the Grievant? If not, is interest due and if so, what are the Interest Accrual Dates?
b.     Did the Agency's failure to take the necessary actions constitute an Unwarranted or Unjustified Personnel Action[ ]?
c.     Should the Agency be forced to comply with the Popular Arbitration? [ v56 p881 ]
d.     Should the Agency be forced to pay correct backpay and/or interest, in accordance with the Back Pay Act, accompanied by an audit demonstrating correct payment?
e.     Should the Arbitrator retain jurisdiction in order to ensure compliance and hear a motion for attorneys' fees and costs?

Award at 3.

      Arbitrator Jascourt first looked at whether or not the grievant's claim was within the scope of the Back Pay Act. Id. at 6. He noted that for a withdrawal or reduction in pay to qualify for the payment of interest under the Back Pay Act, an unjustified or unwarranted personnel action must be implicated. Id. He also noted that "[t]he Agency [did] not argue that a pay action associated with a personnel action such as a promotion is not encompassed from the intent of the Act. It [did] argue that a LQA is not dependent upon a personnel action." Id. The Arbitrator also cited to Comptroller General case law which he felt stood for the proposition that a failure (omission) to carry out a non-discretionary Agency regulation or policy, which resulted in the denial of pay or allowances, constituted an unjustified or unwarranted personnel action. Id. He also stated that the Agency's reliance on Bell v. U.S., 23 Ct. Cl. 73 (1991) was unpersuasive because the Court stated it was not an appropriate authority under the Back Pay Act to determine if an unjustified or unwarranted personnel action had been committed. Id. Finally, the Arbitrator stated that 5 C.F.R. § 550.803 defines a unjustified or unwarranted personnel action to include personnel and pay actions and that "the Agency apparently views this as guidance when it is a government-wide regulation with the force of law." Id. As such, Arbitrator Jascourt found the grievant's claim to be within the scope of the Back Pay Act.

      Arbitrator Jascourt next looked at the Agency's argument that there could not be a "delay" in payment amounting to an unjustified or unwarranted personnel action since payment was not required to be made by a date certain. Id. The Arbitrator stated the grievant was relying on being paid by the second paycheck in February (1998) and that there was "nothing in the record to show the [g]rievant had an unwarranted expectation." Id. He also found unbelievable the Agency's assertion that there was no time limit by which it had to pay the grievant before incurring liability, even the general standard of a reasonable time, especially in light of the Bloch, Popular and Hockenberry awards. Id. at 7. Based on the absence of a showing to the contrary by the Agency and in light of the grievant's "warranted expectations," Arbitrator Jascourt found that the Agency should have effectuated payment of the LQA no later than 30 days after the pay technician processed the claim. Id. As such, he found that because the Agency exceeded the 30 day limit in paying the grievant, "there was a violation which satisfies the threshold basis for a UUPA [unjustified or unwarranted personnel action]." Id.

      Arbitrator Jascourt next found, based on the Agency's concession that the grievant's LQA claim had been processed for payment, that the only thing left to be done was the ministerial act of actually issuing the payments, and that this also shows that there was an unjustified or unwarranted personnel action. Id. He also stated that the Agency's argument, that there was merely an unintended delay in making payment and that this does not mean an unjustified or unwarranted personnel action was committed, was not persuasive. Id. The Arbitrator dismissed the case law cited by the Agency for this proposition as unpersuasive. Id. at 7-8. He then stated that FLRA precedent establishes that a delay due to administrative error can constitute an unjustified or unwarranted personnel action. Id. at 8.

      On the issue of interest, Arbitrator Jascourt found that the Back Pay Act was specifically amended in 1987 to require the payment of interest on backpay, and that the FLRA has found interest to be an inseparable element of back pay. [n2] 

      The Arbitrator next found unpersuasive the Agency's argument that it is not responsible for the actions of DFAS. He stated that it is a fundamental proposition of law that a principal is responsible for the actions of its agents. Award at 9.

      Arbitrator Jascourt also discussed the precedential effect of the Bloch, Hockenberry and Popular awards. He stated that the Union was incorrect that these awards prevent the Agency from raising the same issues again in front of different arbitrators. However, he pointed out that while estoppel does not apply to arbitration decisions, prior decisions involving the same parties may still be used as persuasive authority. Id.

      Finally, Arbitrator Jascourt set the accrual date for the purpose calculating interest as March 4, 1998. He did, however, retain jurisdiction to allow the Union to argue for a different date if it believed the evidence allowed for it. [ v56 p882 ]

III.     Positions of the Parties

A.     Agency Exceptions

1.     OPM Regulations

      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 improperly expands the scope of the Back Pay Act to always include the omission of a "pay action" as the basis of an unjustified or unwarranted personnel action. [n3]  Exceptions at 24. The Agency argues that "[t]here is no justification within the [Back Pay Act] for including every pay action or every procedural error as an independent basis for a [unjustified or unwarranted personnel action]." Id.

2.     Contrary to Law

      The Agency asserts that the Arbitrator's award exceeds the scope of the Back Pay Act, 5 U.S.C. § 5596, and therefore violates the sovereign immunity of the United States and requires the Agency to use its appropriations for purposes for which they were not appropriated. [n4] 

      The Agency argues that the Back Pay Act is a limited waiver of sovereign immunity that must be narrowly construed. As such, the Agency asserts, a narrow construction of the Back Pay Act would exclude pay delays, per se, as unjustified or unwarranted personnel actions. According to the Agency, the Back Pay Act generally excluded administrative error and pay delay 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 error or pay delay as the type of omission that would provide a basis for an unjustified or unwarranted personnel action. The Agency relies on an opinion from the Department of Justice and several court decisions, including United States v. Testan, 424 U.S. 392 (1976) (Testan).

      The Agency argues that the delay in payment of the LQA to the grievant was an administrative error and "[t]he administrative error did not violate the specific provisions of any law, rule, regulation or CBA." Exceptions at 12-13. As such, the Agency claims the administrative error does not provide a basis for concluding that the pay withholding was unjustified or unwarranted, and therefore the payment of interest is not authorized. Id. at 13.

      The Agency suggests that the grievant does have a remedy which allows for the recovery of the pay which was erroneously withheld. The Agency cites to the administrative and clerical exception rule (administrative exception rule), promulgated by the Comptroller General, which permits retroactive payment by the Agency, but without interest. Id.

      The Agency further contends that the Back Pay Act clearly and unambiguously requires a finding that there must be an underlying unjustified or unwarranted personnel action if the grievant is to recover interest on the delayed pay. The Agency contends that the grievant did not suffer a personnel action that deprived her of an entitlement. The Agency asserts that there is no basis for concluding that the administrative delay in making payments, associated with the consolidation of the Agency's payroll function in the Defense Finance and Accounting Office (DFAS), constituted an unjustified or unwarranted personnel action.

      A final argument asserted by the Agency is that it has no control over the Defense Finance and Accounting Office, because it is "a separate legal entity" and "[o]ne agency cannot determine that the actions of a separately regulated entity are nondiscretionary and mandatory merely because the pay entity is an agent of the employing activity." Exceptions at 26.

3.     Essence

      The Agency argues that there is no language in the parties' collective bargaining agreement which sets forth specific date requirements for when employees must be paid. The Agency contends that by adopting the conclusions of the Bloch, Hockenberry and Popular awards, Arbitrator Jascourt is inappropriately concluding from disparate sections of the agreement that the requisite specificity has been established to create a mandatory duty to pay, the omission of which, constitutes an unjustified or unwarranted personnel action. [ v56 p883 ] Exceptions at 23, n.8. We construe these contentions as an exception that the award fails to draw its essence from the parties' agreement.

4.     Nonfact

      The Agency challenges Arbitrator Jascourt's award on the basis that no "evidence has been presented that even the last discretionary personnel action or pay action was taken to authorize her pay." Id. at 27.

B.     Union Opposition

1.     OPM Regulations

      The Union did not specifically address this exception in its opposition.

2.     Contrary to Law

      The Union first states that Arbitrator Jascourt's award clearly decided that the Agency had violated the parties' agreement. Opposition at 2. The Union also states that the Arbitrator correctly found that it was not within his power to void 5 C.F.R. § 550 as requested by the Agency, and that his analysis of the Bloch, Hockenberry, and Popular awards was correct.

      The Union next states that the Agency's exception is merely an attempt to avoid paying interest on a Back Pay Act award for as long as possible. According to the Union, the exception amounts to "mere disagreement with [Arbitrator] Jascourt's studied interpretation and application of the Back Pay Act." Id. at 4. The Union asserts 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 one more time. Id. As such, the Union contends, the exception should be summarily dismissed.

      The Union looked at many of the cases cited by the Agency in its exceptions and discussed why it felt the Agency was inappropriately relying on those cases. The Union first looked at Hambsch v. U.S., 857 F.2d 763 (Fed. Cir. 1988) (Hambsch). It argues that while the Agency relies on Hambsch for the proposition that there must be an independent statutory basis which mandates the payment of money, it is clear that several justices of the United States Supreme Court felt that this was clearly a wrong interpretation and that the Court merely denied granting certiorari and did not uphold its reasoning. Opposition at 4. The Union also argues that Authority cases are reviewed by the D.C. Circuit not the Federal Circuit, and that Hambsch therefore should not be considered precedential. Id. at 5.

      The Union next looked at Abramson v. U.S., 42 Fed. Cl. 621 (1998) (Abramson) and Bradley v. U.S., 42 Fed. Cl. 333 (1998) (Bradley). It argues that Abramson supports the Union's claim and that Bradley is irrelevant. Opposition at 6. Abramson, argues the Union, found that a delay in payment had occurred and that an unjustified or unwarranted personnel action resulted from the delay, thus supporting the grievant's claim. Bradley, argues the Union, is irrelevant because the Court was construing the retroactive application of the Law Enforcement Availability Pay Act and the availability of interest on such claims, not the availability of interest under the Back Pay Act. Id. at 6.

      The Union also argues that Spagnola v. Stockman, 732 F.2d 908 (Fed. Cir. 1984) (Spagnola) and Brown v. Secretary of the Army, 918 F.2d 214 (D.C. Cir. 1990) (Brown), as cited by the Agency, actually support the Union's claim. Opposition at 7. The Union argues that Spagnola found there was a statutory limitation which prevented the Agency from paying detailed employees at a higher rate, and that there is no such statutory limitation present in the grievant's case. [n5]  The Union also claims Brown supports the grievant's claim because Article 47 of the parties' agreement and the Department of Defense Dependents Schools (DODDS) pay statute give the Agency no room for exercising discretion in the payment of LQAs, and that even if there was some discretion to exercise, the Agency exercised it when they processed the grievant's application for an LQA. Id. at 8.

      The Union next asserts that all of the Comptroller General cases cited by the Agency actually support the grievant's claim. Id. The Union argues that since this case involves no discretion or judgement on the part of the Agency, "all of the Comptroller General decisions cited by the Agency actually show that the delays in paying this [g]rievant fall within the purview of the Back Pay Act." Id. The Union states that the "nondiscretionary cases" cited by the Agency unequivocally show that an administrative error in paying an employee falls within the purview of the Back Pay Act. As for the "discretionary cases" cited by the Agency, the Union argues that they all state that if an agency had no discretion (as the Agency did not have in the grievant's case), then the employees in those cases would have been entitled to relief under the Back Pay Act. Id. at 9. [ v56 p884 ]

      The Union makes two final arguments in its opposition. First it argues that, unlike the Agency's claim, certifying principal which is clearly due under the pay statute is not a discretionary act because it involves no discretion or exercise of judgement. Id. at 10. Lastly, the Union claims that the Agency's Appropriations Clause argument is "clearly bogus" because the Agency is authorized to make payment to the grievant by the various Defense Appropriations Act and the Back Pay Act. Id.

3.     Essence

      The Union did not specifically address this exception.

4.     Nonfact

      The Union did not specifically address this exception.

IV.     Analysis and Conclusions

A.     Office of Personnel Management Regulations Implementing the Back Pay Act May Not Be Challenged in this Proceeding

      The Agency's arguments 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 correct forum. See U.S. Department of Defense, Dependents Schools, Bulzbach Elementary School, Bulzbach, Germany and Federal Education Association, 56 FLRA 208, 212 (2000). If the validity of these OPM regulations is in question, the issue must be raised by an interested party in another forum.

B.     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, 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 Jascourt found that the "[g]rievant's warranted expectations" of timely payment, in the context of prior arbitration awards and pay obligations generally, supported a determination that an unjustified or unwarranted personnel action had occurred. He concluded that "the Agency was to effectuate payment of LQAs no later than 30 days after the pay technician processed the claim." Award at 7. In fact, Arbitrator Jascourt stated that the only thing left for the Agency to do after the grievant's claim was processed, as the Agency conceded was done, was "the ministerial act of issuing payments." Id. As discussed below, this is a sufficient basis on which to determine that an unjustified or unwarranted personnel action occurred.

      The Agency's Back Pay Act arguments in this case are encompassed by the Back Pay Act arguments made by it in 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. [ v56 p885 ]

      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 Jascourt's award in this case is contrary to the Back Pay Act.

      As noted in DODEA, Arlington, the administrative or clerical error rule 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. The Back Pay Act has been amended to provide that omissions can constitute an unjustified or unwarranted personnel action, [n6]  and OPM regulations and Comptroller General precedent permitted omissions to constitute an unjustified or unwarranted personnel action even before the statute was amended. See Turner-Caldwell, 61 Comp. Gen. 408, 411 (1982). [n7] 

      The basic administrative error rule is set forth in Butler, 58 Comp. Gen. 51, 53 (1978), and is discussed in the context of being an exception to the general rule that personnel actions may not be retroactive so as to increase employee compensation. The administrative error rule identifies three situations when an administrative error creates an unjustified or unwarranted personnel action under the Back Pay Act, thereby permitting a personnel action to be retroactive, when the administrative error: (1) prevents a personnel action from being effected as originally intended; (2) results in a nondiscretionary administrative regulation or policy not being carried out; or (3) deprives an employee of a right granted by statute or regulation. Later Comptroller General decisions confirm explicitly that these administrative errors constitute unjustified or unwarranted personnel actions under the Back Pay Act. See Bishop, Comp. Gen. Decision No. B-206,181 (May 5, 1982) (unpublished).

      Also, as in DODEA, Arlington, there is no arbitral finding that omission or delay is, per se, an unjustified or unwarranted personnel action. Rather, Arbitrator Jascourt made his finding of an unjustified or unwarranted personnel action based upon the grievant's "warranted expectations" that she would be paid on time, the Agency's concession that the grievant's LQA claim had been processed for payment, and the three prior arbitration awards related to this case. We agree with the Arbitrator's conclusion that the Agency committed an unjustified or unwarranted personnel action. Here, as the Agency failed to carry out the ministerial act of actually issuing payments to the grievant within thirty days of the claim being processed, the Agency's failure to act constituted an administrative error that gave the grievant a basis to recover back pay and interest under the Back Pay Act. See DODEA, Arlington, 56 FLRA No. 119, slip op. at 19.

      We have reviewed the other judicial precedent relied on by the Agency and find those decisions unpersuasive. [n8]  As discussed above, Arbitrator Jascourt found that the Agency's failure to pay the grievant her LQA within thirty days of the claim being processed constituted an unjustified or unwarranted personnel action and that backpay and interest were due the employee. Consistent with the analysis of the above described Comptroller General cases, the grievant is entitled to back pay with interest in the situation presented here. Accordingly, the Agency's reliance on the other cited cases is misplaced.

      Lastly, the Agency argues that it has no control over the Defense Finance and Accounting Office (DFAS), because it is "a separate legal entity" and "[o]ne Agency cannot determine that the actions of a separately regulated entity are nondiscretionary and mandatory merely because the pay entity is an agent of the employing activity." Exceptions at 26. This argument [ v56 p886 ] seems to imply that DFAS, as opposed to the Agency, somehow is liable to the grievant. However, the Agency provides no substantiation or legal authority for its belief that it is not responsible for ensuring compliance with its contractual obligation to pay its employees in a timely manner. As such, this claim is nothing more than a bare assertion, and is rejected in accordance with Authority precedent. See, e.g., U.S. Department of Transportation, Federal Aviation Administration, Washington, D.C. and National Air Traffic Controllers Association, 55 FLRA 322, 326 (1999); American Federation of Government Employees, Local 3615 and Social Security Administration, Office of Hearings and Appeals, Falls Church, Virginia, 54 FLRA 494, 499 (1998).

      Accordingly, we find that the award is not contrary to law and deny the Agency's exception.

C.     The Award Does Not Fail 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 an 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).

      The Agency has not identified contract language that affects the Arbitrator's conclusion that the Agency has a duty to pay the grievant within thirty days of the claim being processed. As such, the Agency has not demonstrated that the award is implausible, irrational, or in manifest disregard of the parties' collective bargaining agreement. Accordingly, we find that the Agency has not demonstrated that the award fails to draw its essence from the parties' agreement and we deny the exception.

D.     The Award Is Not Based on a Nonfact

      We note the Agency's statement that no evidence has been presented establishing that the last discretionary act was taken to authorize the grievant's pay. Even if we were to treat the Agency's statement as an exception on the ground of nonfact, the Agency has not shown that the award is deficient on that ground. Specifically, the Agency has not demonstrated that the alleged factual finding constitutes a central fact underlying the award, that the fact is clearly erroneous, and that but for that error 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, 593-94 (1993). Moreover, to the extent that the Agency's statement is intended to challenge the legal validity of the Arbitrator's application of the Back Pay Act, we note that an arbitrator's legal conclusions cannot be challenged on the basis 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).

V.     Decision

      Consistent with the above, we deny the Agency's exceptions.



Footnote # 1 for 56 FLRA No. 147

   The first request and part of the second were to be processed by the 266th Finance and the other part of the second as well as the third were to be processed by Defense Finance and Accounting Service (DFAS) which had taken over the role of servicing the Agency. Award at 2.


Footnote # 2 for 56 FLRA No. 147

   The Arbitrator cites to U.S. Department of Defense, Department of Defense Dependents Schools and Federal Education Association , 54 FLRA 773 (1998) as support.


Footnote # 3 for 56 FLRA No. 147

   An "unjustified or unwarranted personnel action," as defined in 5 C.F.R. § 550.803, means

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 # 4 for 56 FLRA No. 147

   In its exceptions, the Agency states that the Arbitrator "exceeded his authority, and violated the scope of the [Back Pay Act] when he waived sovereign immunity." Exceptions at 28. We construe this contention as a restatement of the Agency's claim that the award is contrary to law, rather than setting forth a separate exception.


Footnote # 5 for 56 FLRA No. 147

   The Union also argues that Spagnola based its decision on the lack of a mandatory provision in a pay statute and therefore is not applicable because in the current case a mandatory pay provision is contained in Article 47 of the parties' agreement and the DODDS pay statute. Opposition at 7.


Footnote # 6 for 56 FLRA No. 147

   5 U.S.C. section 5596(b)(5) in pertinent part states: "`personnel action' includes the omission or failure to take an action or confer a benefit."


Footnote # 7 for 56 FLRA No. 147

   Contr