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