American Federation of Government Employees, Local 3134 (Union) and United States Small Business Administration, Region 2, New York, New York (Agency)

[ v56 p983 ]

56 FLRA No. 167

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3134
(Union)

and

UNITED STATES SMALL BUSINESS
ADMINISTRATION, REGION 2
NEW YORK, NEW YORK
(Agency)

0-AR-3341

_____

DECISION

December 13, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman; Dale Cabaniss and Carol Waller Pope, Members. [n1] 

Decision by Chairman Wasserman for the Authority.

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Arthur Stark filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

      The Arbitrator awarded the grievant backpay to remedy a violation of a training agreement, but denied the grievant's request for interest and attorney fees.

      For the following reasons, we find that the award is contrary to the Back Pay Act, 5 U.S.C. § 5596 (1996), and modify the award to include payment of interest. The Union's request for attorney fees and costs is denied without prejudice to the Arbitrator's consideration of a timely fee request.

II.     Background and Arbitrator's Award

      The grievant was selected for a position under the Agency's Professional Career Development Program. The program requires the Agency to enter into a training agreement with participating employees. The grievant's training agreement specified that she would be promoted upon satisfactorily completing the 6-month program. However, despite having completed the program satisfactorily, the grievant was not promoted for 4 months.

      The Union filed a grievance that, when not resolved, was submitted to arbitration. The Arbitrator set out the following issues relevant to the exception:

1.     [D]id the [e]mployer violate the agreement . . . in connection with the promotion of [the grievant]?
2.     If a violation occurred, to what remedy is [the grievant] entitled?

Award at 1.

      The Arbitrator concluded that the Agency violated Article 29, Section 2 of the parties' collective bargaining agreement by not promoting the grievant according to the terms of the training agreement. [n2]  To remedy the violation, the Arbitrator awarded the grievant backpay. However, the Arbitrator concluded, without explanation, that "[u]nder the particular circumstances of this case . . . payment of interest or attorney's fees [is not] warranted." Id. at 28.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union claims that the award is inconsistent with the Back Pay Act, because the Arbitrator awarded the grievant backpay without awarding interest. According to the Union, an employee who is entitled to backpay under the Act is also entitled to interest. The Union requests that the Authority modify the award to include interest, and award attorney fees and costs.

B.     Agency's Opposition

      The Agency claims that the Arbitrator did not find that the Agency violated the parties' agreement or that its actions constituted an unwarranted personnel action as defined in the Back Pay Act. Relying on Edwards v. Lujan, 40 F.3d 1152 (10th Cir. 1994) (Edwards), the [ v56 p984 ] Agency argues that the Act requires the payment of interest only where a promotion is mandatory and not discretionary, and because the promotion here was discretionary, the grievant is not entitled to interest.

IV.     Analysis and Conclusions

      When an exception involves the award's consistency with law, the Authority reviews any question of law raised by the exception and the award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). The Authority, in its de novo review, "assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law." United States Dep't of Defense, Dep'ts of the Army and the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

      An award of backpay is authorized under the Back Pay Act 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 the reduction of an employee's pay, allowances, or differentials. See United States Dep't of Health and Human Services, 54 FLRA 1210, 1218 (1998) (HHS). The Authority has held that a violation of a collective bargaining agreement constitutes an unwarranted personnel action under the Act. See id. at 1218-19; see also United States Dep't of Labor, Wash., D.C., 55 FLRA 1019, 1023 (1999) (finding requirements of the Back Pay Act met where agency violated the parties' agreement in not promoting grievant). Under the provisions of the Back Pay Act, "interest must be paid" on backpay awards. United States Dep't of the Navy, Naval Trng. Ctr., Orlando, Fla., 53 FLRA 103, 109 (1997) (citation omitted) (Dep't of the Navy); see 5 U.S.C. § 5596(b).

      The Arbitrator explicitly found that the Agency violated the parties' agreement by failing to promote the grievant upon completing the training program. Therefore, the Agency's assertion that the Arbitrator did not find a violation of the agreement is without merit. Under settled Authority case law, the Agency's violation of the parties' agreement constitutes an unwarranted personnel action under the Back Pay Act. See HHS, 54 FLRA at 1218-19. Because the Arbitrator properly awarded the grievant backpay under the Act, and no exception to that aspect of the award was filed, the payment of interest on that backpay is required. [n3]  See Dep't of the Navy, 53 FLRA at 109.

V.     Decision

      The award of backpay is modified to include interest. The Union's request for attorney fees and costs is denied without prejudice to the Arbitrator's consideration of a timely fee request. [n4] 



Footnote # 1 for 56 FLRA No. 167

   Member Pope did not participate in this decision.


Footnote # 2 for 56 FLRA No. 167

   In relevant part, Article 29, Section 2 states:

Employees serving in career ladder positions or under formal training agreements shall be considered to have demonstrated an ability to perform higher level work as required for career promotion, provided that: they are rated at least "Fully Successful" in all elements of their assigned position during the rating period; and the performance standards for the elements of their positions require indicated potential to perform at the next higher grade level.

Award at 22.


Footnote # 3 for 56 FLRA No. 167

   In this regard, the Agency's reliance on Edwards, 40 F.3d 1152, is misplaced. That case addressed when an award of backpay is appropriate. Here, backpay was awarded under the Back Pay Act, and no exception was filed regarding that issue.


Footnote # 4 for 56 FLRA No. 167

   While the Back Pay Act provides that an employee affected by an unjustified or unwarranted personnel action is entitled to receive reasonable attorney fees, the Arb