U.S. Department of Defense, Education Activity, Arlington, Virginia (Agency) and Federal Education Association (Union)
[ v56 p887 ]
56 FLRA No. 148
U.S. DEPARTMENT OF DEFENSE
FEDERAL EDUCATION ASSOCIATION
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 Bernard Wray 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.
In this case Arbitrator Wray sustained a grievance alleging that the Agency failed to properly pay the grievant at the correct pay step and awarded the grievant backpay plus interest.
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
The grievant, a teacher, did not receive credit in her pay for prior teaching experience. She filed a grievance alleging that the Agency failed to pay her at the correct pay step under the parties' collective bargaining agreement. The grievant claimed that she should be paid at a step 4 based on her masters degree plus 15 years of teaching experience. The grievance was not resolved and the matter was submitted to arbitration.
The Arbitrator framed the issues as follows:
1. Is the pay grievance of the grievant arbitrable?
2. If the grievance is arbitrable, did the agency fail to pay the grievant the proper amount due her?
3. Has the agency violated the Back [P]ay Act, rules and regulations by refusing to pay the grievant interest on [backpay] due to her?
4. Considering the amount of [backpay] already paid to the grievant by the agency on June 17, 1999; and on July 29,1999, are any further payments of money due to the grievant?
Award at 2.
At the arbitration hearing, the grievant changed her demand for relief and requested that she receive pay at step 10. The Arbitrator also found that the grievant had not received any backpay. The Union asserted that the grievant is due interest because the Back Pay Act, incorporated by reference into the parties' agreement, mandates payment of interest in the event that the grievant has suffered an unjustified or unwarranted personnel action that has resulted in the reduction of pay. The Agency contended, among other things, that the grievance was not arbitrable because it was not filed within the time requirements of the parties' collective bargaining agreement.
The Arbitrator found, based on the grievant's testimony, that the grievant had been incorrectly informed that she could not receive credit for her prior teaching experience. The Arbitrator further found that the grievance "was rejected by the [grievant's] principal, on the ground that he did not have the authority to correct pay discrepancies." Id. at 5. The Arbitrator found that the principal told the grievant that he had elevated the grievance to Step 3. The grievant did not file a written appeal to Step 3. However, the grievant testified that the Principal told her that the grievance was forwarded to higher authority.
Turning to the arbitrability issue, the Arbitrator found that the grievant had the right to raise the issue concerning her pay pursuant to Article 12, Section 2 of the parties' agreement. [n1] The Arbitrator rejected the Agency's claim that the grievance was not filed in accordance with the time limits provided in the agreement. According to the Arbitrator, the Agency has the right under Article 12, Section 4 to require the Union to follow the time requirements of the agreement. [n2] However, the Arbitrator also observed based on the Union's testimony, that "there is a `past practice' during the ten year life of the [parties' agreement of] allowing the [Union] to invoke arbitration without a final decision, [ v56 p888 ] past the sixty days that the [A]gency claims is the time limit." Id. at 6.
Given the parties' history, the Arbitrator found the grievance arbitrable stating that he did not "believe that the grievant should be penalized" in the circumstances of this case because both parties had not been adhering to the time limitations of Article 12. However, the Arbitrator stated that in future cases, if a party failed to comply with the provisions of the agreement for advancing a grievance to arbitration, he would "strictly construe such time requirements[.]" Id.
The Arbitrator next addressed the Agency's claim that the grievant's last minute contention that she is owed pay under step 10 is not permitted under Article 12 because the Agency had no notice on which to investigate the amended claim. The Arbitrator stated that had the Agency demanded an adjournment he would have been forced to grant it, but he took no further action nor made any other finding regarding this concern.
Turning to the merits, the Arbitrator found that the Agency's "administrative error in not processing the grievant's proper pay on the correct step, was not the grievant's fault. There was a violation of statutes, regulations, and the [parties' agreement] requiring proper and timely payments." Id. at 7. The Arbitrator found, therefore, that the Agency's action "constituted an unjustified or unwarranted personnel action . . .; and the grievant is entitled to interest on her backpay." Id. As the grievant had received $16,183.70, the Arbitrator determined that the Union was entitled to an audit of grievant's pay, including the amount of interest due under the Back Pay Act, in order to determine whether the grievant had received the correct backpay. Accordingly, the Arbitrator granted the grievance.
III. Positions of the Parties
A. Agency's Exceptions
1. Procedural Matters
The Agency asserts that the Arbitrator's arbitrability determination does not draw its essence from the parties' agreement, exceeds the limits of his authority, and is based on a nonfact.
According to the Agency, Article 12 of the parties' agreement establishes "clear and unequivocal procedures for perfecting arbitration appeals, and time limits by which . . . parties must act." Exceptions at 7. The Agency contends that the Arbitrator disregarded management's right to waive any of the "procedural and timeliness requirements" of the agreement. Id. at 6. The Agency asserts that the Union did not comply with the procedures and thus, there is no "final [A]gency decision that is ripe for review by an arbitrator." Id. at 7. The Agency contends that in failing to hold the Union accountable for complying with the agreement, the Arbitrator "improperly substituted his judgment" for the language of the agreement. Id. According to the Agency the Arbitrator's award is in "direct contravention of the express terms of [the] Agreement." Id. The Agency asserts that "[n]othing in Article 12 affords an arbitrator the option to disregard clear contract language in order to reach a decision that he or she thinks is `equitable.'" Id. The Agency contends that in interpreting the provision, the Arbitrator drew unnecessary inferences that did not arise from the essence of the agreement.
The Agency further contends that there is no contract provision or principal of law that permits an arbitrator to disregard clear language of an agreement in favor of a past practice that a party waived its rights in the agreement. The Agency asserts that resort to past practice so conflicts with the requirements of the agreement as to exceed the Arbitrator's authority. The Agency also contends that the Arbitrator disregarded the requirement of exhaustion of administrative remedies. According to the Agency, the Arbitrator's disregard of the exhaustion and timeliness policies in the agreement, caused the parties to incur the expense of an arbitrator to resolve a grievance some 7 months later than would [ v56 p889 ] have been authorized by the agreement. The Agency asks, therefore, that the Authority find that the Arbitrator exceeded his authority by unnecessarily applying past practices to "unambiguous" contract provisions. Id. at 11.
Lastly, the Agency contends that the Arbitrator's finding that "the grievant would suffer a `penalty' but for his permitting this arbitration, [is] in direct contravention of the facts of record." [n3] Id.
a. Contrary to Law
The Agency asserts that the Arbitrator has "misapplied" the Back Pay Act and has granted relief not contemplated by that Act and that exceeds the relief requested. Id. at 11.
According to the Agency, the grievant is not entitled to recover interest on the pay adjustment she received because there was no unwarranted or unjustified personnel action taken against her that caused the withholding of her pay. The Agency asserts that the grievant experienced an administrative delay in receiving her pay.
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. Relying on Bell v. United States, 23 Cl. Ct. 73 (1991), the Agency asserts that "mere delay in payment, absent a non-discretionary provision of statute, regulation or collective bargaining agreement, does not engender a right to relief under the [Back Pay Act.]" Exceptions at 14. The Agency also relies on other court decisions, including United States v. Testan, 424 U.S. 392 (1976).
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 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 17 (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 limiting the [Back Pay Act] to those . . . circumstances where the personnel action, or omission, at issue, could be said to be mandatory." Id. at 17-18. The Agency relies on and cites to several Comptroller General and court decisions in support of its position.
The Agency argues that the parties' agreement and the Agency's pay regulations were a general entitlement "that did not mandate a specific pay date, or processing time." Id. at 16. The Agency asserts that the Arbitrator did not explain the basis of his decision but merely concluded without explanation that the Agency violated statutes, regulations, and the parties' agreement requiring proper and timely payments. The Agency states that, based on his comments, it "appears" that the Arbitrator found that the Agency had a mandatory duty to pay the grievant by a certain date. Id. at 21. The Agency asserts that there is no such duty.
Accordingly, the Agency contends that relief is not available under the Back Pay Act.
b. OPM Regulation
The Agency asserts that the Arbitrator "appears" to have construed the Back Pay Act and the Office of Personnel Management (OPM) regulations, implementing the Back Pay Act, in particular, 5 C.F.R. § 550.803, for the proposition that the Agency committed a separate adverse personnel action by not paying the grievant promptly at the proper pay level. The Agency contends that the definition of an unjustified or unwarranted personnel action promulgated in 5 C.F.R. § 550.803 expands the scope of the Back Pay Act. The Agency asserts that there is no justification within the Back Pay Act for OPM's extension of the definition to pay actions as an "independent basis" for finding an unjustified or unwarranted personnel action. Id. at 27. In support, the Agency references an opinion from the Department of Justice.
The Agency also 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 is nondiscretionary. The Agency asserts that in the present matter, however, the grievants' entitlement to payment had not become nondiscretionary in nature. [ v56 p890 ] Accordingly, payment would be inconsistent with the OPM regulations.
The Agency contends that Article 25 does not mandate the method or time for payment and is silent on the date after which failure to pay would violate law, rule, regulation or the parties' agreement. In this regard, the Agency contends that Article 25 is not linked to Article 27, which concerns extracurricular activities because the two articles "cannot reasonably be read together to establish a general mandatory pay date." Id. at 23. The Agency also asserts that neither Article 25 nor 27 specify actions which must or may not be taken. The Agency asserts therefore that the parties' agreement does not mandate payment.
B. Union's Opposition
1. Procedural Matters
The Union contends that the Arbitrator has the discretion of deciding whether the subject matter was timely raised. With respect to the Step 10 issue, the Union contends that because the grievant [n4] was so "confused" about her pay given the pay problems of the Agency, the issue was adequately identified when the Union included in the grievance a request for "`any other relief as may be deemed fair, equitable, and appropriate.'" Opposition at 3-4.
Noting the Agency's contention that under Article 12 the Union must invoke arbitration within 60 days of the due date of a final decision on a grievance, the Union asserts that the 60 day limit begins after the receipt of the grievance case file. According to the Union, the Agency's Regional Office never rendered a final decision on this elevated grievance and thus never transmitted a copy of the case file to the Union. The Union asserts that given this, the "60 day limit was never triggered." Id. at 6. Further, the Union contends that evidence in the record demonstrates that the grievance was properly elevated. According to the Union, the grievant did not present her principal with a written request to elevate the grievance because the principal had already elevated the grievance, as found by the Arbitrator. The Union contends that the Agency's assertion amounts to a claim that the award is contrary to evidence in the record, which provides no basis for finding an award deficient.
Further, the Union asserts that it has "historically" waited at least 6 months to invoke arbitration without a final decision in order to give the Agency a chance to resolve matters before resorting to an expensive arbitration. Id. at 7. The Union contends that the Agency's interpretation is contrary to the language of the agreement and at least 10 years of past practice. According to the Union, an Agency representative testified on cross-examination that the Agency does not issue final decisions within the required time limit.
The Union contends that the Arbitrator's award is not based on a nonfact. According to the Union, the Arbitrator did not disregard the time limits provided in the parties' agreement. Rather, the Union states that the Arbitrator "relied on 10 years of `past practice,'" and that the "`clear language'" of the agreement also supports the award. Id. at 14.
a. 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 Wray's 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 cases 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 acts of omission and pay actions. The Union contends that Congress amended the Back Pay Act to specifically waive sovereign immunity for interest. Moreover, the Union contends that some of the court cases as well as Comptroller General decisions support the Union's position, and also distinguishes certain cases cited by the Agency. The Union further asserts that the Agency ignores the Hockenberry and Popular prior awards and the "fact that the [Authority] has repeatedly held that `administrative errors' and `delays' can lead to [unjustified or unwarranted personnel actions] under the Back Pay Act." Id. at 24.
The Union asserts that in this case the grievant has a right to be paid under the parties' agreement and the Defense Department Overseas Teachers Pay and Personnel Practices Act (DOD Pay Act), which establishes a right to be paid a certain amount. Thus, according to the Union, the Agency has no discretion in this case and that the Arbitrator reviewed the Agency's "nondiscretionary administrative functions." Id. at 22. The Union contends that the parties' agreement requires the Agency to pay employees on a date certain. [ v56 p891 ]
b. OPM Regulation
The Union asserts that OPM regulations, including 5 C.F.R. § 550.803, are Government-wide and binding on the Agency and all executive branches of Government.
The Union disputes the Agency's contention that there is no requirement in the parties' agreement for the Agency to pay employees on a certain date. According to the Union, in Article 27 the parties "manifested their intent . . . that a teacher performing an extracurricular activity should be timely paid." Id. at 28. The Union states that Arbitrators Bloch, Hockenberry, and Popular in prior awards left no doubt as to the requirement.
IV. Analysis and Discussion
A. The Arbitrator's Determination that the Grievance Was Timely Draws Its Essence from the Agreement, Does Not Exceed the Arbitrator's Authority, and Is Not Based on a Nonfact
Awards resolving questions of procedural arbitrability are subject to challenge only on grounds other than those that directly challenge an arbitrator's determination of procedural arbitrability itself. See U.S. Department of the Treasury, United States Mint, Philadelphia, Pennsylvania and Fraternal Order of Police, Lodge F1-PA, 51 FLRA 1683, 1685 (1996). Such grounds include bias on the part of the Arbitrator or a showing that the arbitrator exceeded his authority. Id.
In this case, as it concerns the Agency's essence claim, the Agency disputes the Arbitrator's determination that the grievance was timely filed under Article 12 of the parties' agreement. Therefore, the Agency is directly challenging a procedural arbitrability determination, and thus provides no basis for overturning the award.
Concerning the Agency's nonfact claim, the Arbitrator determined based on the facts in the record that the grievance was timely filed under Article 12. The Agency's nonfact claim challenges the Arbitrator's procedural arbitrability determination. Such a contention does not provide a basis for finding the award deficient. See, for example, Veterans Administration Medical Center, Birmingham, Alabama and American Federation of Government Employees, Local 2207, 35 FLRA 553, 556-57 (1990) (exception contending that arbitrator's award was based on a nonfact failed to establish that the award was deficient because contention challenged the arbitrator's procedural arbitrability determination).
To the extent that the Agency's exceeded authority assertion challenges the Arbitrator's procedural arbitrability determination, we address whether the Arbitrator exceeded his authority in reaching that determination.
An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. U.S. Department of the Navy, Naval Base, Norfolk, Virginia and American Federation of Government Employees, Local 22, 51 FLRA 305, 307-08 (1995); National Association of Government Employees, Local R1-100 and U.S. Department of the Navy, Naval Submarine Base, New London, Connecticut, 51 FLRA 1500, 1502 (1996). Additionally, when the parties fail to stitipulate to the issue, the arbitrator may formulate it on the basis of the subject matter before him. See id.; American Federation of Government Employees, Local 1637 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Seagoville, Texas, 49 FLRA 125, 130 (1994). Such formulations are accorded substantial deference. Id.
The Agency has not established that the Arbitrator disregarded the exhaustion and timeliness provisions in the agreement by considering the parties' past practice and by finding the grievance timely. The record shows that the timeliness of the grievance was submitted to arbitration and that the issue as framed by the Arbitrator was "[i]s the pay grievance of the grievant arbitrable?" Award at 2.
In deciding this issue, the Arbitrator interpreted the timeliness requirements for filing a grievance and invoking arbitration in Article 12 of the agreement, and considered the parties' past practice only to interpret the agreement. See, for example, U.S. Department of the Treasury, U.S. Customs Service, Region IV, Miami District and National Treasury Employees Union, Chapter 137, 41 FLRA 394, 398 (1991) (arbitrator considered the parties' past practices only in interpreting the parties' collective bargaining agreement). The Arbitrator did not disregard the provisions of the agreement as the Agency claims. Rather, the Arbitrator analyzed the provisions of the agreement and evidence in concluding that the grievance was timely filed. Accordingly, the Agency has failed to establish that the Arbitrator disregarded the requirements of the agreement in concluding that the grievance was timely filed and, we therefore deny the Agency's exception. [ v56 p892 ]
1. Office of Personnel Management Regulations Implementing the Back Pay Act May Not Be Challenged in this Proceeding
The effect of the exception regarding the OPM regulations implementing the Back Pay Act, set forth at 5 C.F.R. Part 550, is to request that the Authority review and nullify those regulations.
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, National Council of Grain Inspection Locals 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.
2. 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). Here, Arbitrator Wray made those findings. 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 56 FLRA No. 119. [n5] 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, 56 FLRA No. 119, that the Agency has not shown that Arbitrator Wray's award in this case is contrary to the Back Pay Act. Arbitrator Wray found that there was an administrative error resulting in a violation of statutes, regulations, and the parties' agreement requiring proper and timely payments to the grievant. The Agency does not dispute that the employee was entitled to receive the pay and also admits that paperwork was lost or delayed in correcting her pay step. We find, in agreement with Arbitrator Wray, that the situation here encompasses an error that is governed by the administrative error rule and constitutes an unjustified or unwarranted personnel action.
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. The Back Pay Act [ v56 p893 ] has been amended to provide that omissions can constitute an unjustified or unwarranted personnel action, 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).
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 in the present case that omission or delay is, per se, an unjustified or unwarranted personnel action. Rather, Arbitrator Wray made his finding of an unjustified or unwarranted personnel action based upon the Agency's failure to carry out what he determined to be a ministerial act, i.e., the failure to make the payments that the Agency acknowledged to be owed to the grievant. See Agency's Post Hearing Brief at 24, 35-36. As noted in DODEA, Arlington, in its discussion of the administrative error rule, such conduct is sufficient to constitute an unjustified or unwarranted personnel action under the Back Pay Act. See DODEA, Arlington, 56 FLRA No. 119, slip op. at 18-19, citing Bishop.
Accordingly, we find that Arbitrator Wray's award is not contrary to law and deny the Agency's exception.