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

[ v56 p985 ]

56 FLRA No. 168

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

and

FEDERAL EDUCATION ASSOCIATION
(Union)

0-AR-3327

_____

DECISION

December 14, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman and 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 Mary P. Bass 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.

      The Arbitrator sustained the Union's grievance, finding that the Agency had failed to implement the award of an earlier arbitrator. In enforcing the earlier award, the Arbitrator determined that, commencing with the 1990-91 school year, all locally hired teachers who were transferred outside their commuting area but within the same geographic locality, are entitled to transportation agreements, separation travel, and renewal agreement travel (RAT), with interest. [n2]  For the reasons that follow, we find that the award is not contrary to law. Accordingly, we deny the Agency's exceptions.

II.     Background and Arbitration Award

      This dispute has a long procedural history and is now before us for a fourth time. [n3]  Here, the Union's grievance, filed on March 17, 1998, requested that Arbitrator Bass enforce an award that had been issued on December 15, 1997 by Arbitrator Paul Fasser (hereinafter the "Fasser award"). [n4]  The Fasser award held that locally hired teachers who were transferred outside of their commuting area but within their geographical locality are entitled to transportation agreements with RAT and separation travel.

      Arbitrator Bass held the hearing on September 27, 1999. The Union argued that the Agency was relying on an improper interpretation of the Fasser award as an excuse for not carrying out its implementation. In this connection, the Agency's position was that the Fasser award only granted transportation benefits to local hires who were reassigned by Headquarters (located in the Washington, D.C. area), as distinguished from transfers implemented at the District, i.e., local, level. The Agency claimed that the Fasser award did not order the Agency to grant transportation benefits to employees whose transfers were implemented at the local level.

      The parties agreed that the issue to be decided by the Arbitrator concerned whether:

[the Agency] is misinterpreting Arbitrator Paul Fasser's decisions by not providing transportation benefits, including Renewal Agreement Travel (RAT) and Separation Travel, to all bargaining unit employees who were transferred/reassigned outside of the commuting area, but who remained within the same geographical area. [The Agency's] [ v56 p986 ] actions also violated applicable laws, regulations and the negotiated agreement.

Award at 1. After setting forth the issue, the Arbitrator listed the Union's requested relief as follows:

a.     that all bargaining unit employees be made whole
b.     that retroactive travel benefits be granted
c.     that retroactive backpay and interest, together with interest thereon, be awarded under the Back Pay Act
d.     that attorney's fees be granted; and
e.     that any other appropriate relief be granted.

Award at 2.

      After reviewing the Fasser award, the Arbitrator as a "[f]inding[ ] of fact" determined that the intention of Arbitrator Fasser was to order the Agency to grant transportation agreements, separation travel, and RAT to local hires who were declared excess and for that reason were transferred to another Agency teaching position outside of the commuting area but within the same geographical locality, commencing with the 1990-91 school year. Award at 6. The Arbitrator further determined that the award "on its face" granted transportation benefits to employees regardless of whether they were reassigned at the District or Headquarters level. Id.

      The Arbitrator concluded that, commencing with the 1990-91 school year, all locally hired teachers who were transferred outside their commuting area but within the same geographic locality are entitled to transportation agreements, RAT, and separation travel. The Arbitrator ordered such transportation benefits be paid, with interest, "retroactive to the year of reassignment." Id. at 12. The Arbitrator also held that the Union may submit an application for attorney fees within 120 days of the award, and retained jurisdiction for that purpose.

III.     Positions of the Parties

A.     Agency's Exceptions

      First, the Agency concedes that it has not properly implemented the Fasser award. It contends, however, that the Bass award exceeds the scope of the Back Pay Act (the "Act"), 5 U.S.C. § 5596, and therefore does not come within the Act's waiver of sovereign immunity. Specifically, the Agency cites Social Security Administration, Baltimore, Maryland v. FLRA, 201 F.3d 465 (D.C. Cir. 2000), for the proposition that "pay, allowances, or differentials[,]" as defined by the Act, includes only payments and benefits of the sort that an employee normally earns or receives as part of regular compensation for performing job duties. The Agency explains that, as separation travel "only comes into play when the employee terminates her job[,]" and RAT "is for the sole purpose of taking vacation between commitments to serve a tour of duty[,]" they are not benefits that flow from the performance of the job. Exceptions at 8. The Agency concludes that, because those benefits do not fall under the purview of the Back Pay Act, the award should be "set aside as to the payment of interest on any retroactive reimbursements." Id. at 14.

      Second, the Agency alleges that, because separation travel and RAT are not "pay, allowances, or differentials" within the meaning of the Back Pay Act, there is no statutory basis to entertain a motion for attorney fees.

      Third, the Agency claims that the award violates the Appropriations Clause of the U.S. Constitution, Article 1, Section 9, Clause 7 (as quoted by the Agency, "`no money shall be drawn from the treasury, but in consequence of appropriations made by law.'"), because the award requires payment of travel expenses that were not actually incurred by employees. Id. at 10. The Agency explains that, "[b]ecause the order compels the payment of money from the Federal Treasury, the award is unlawful absent specific Congressional authorization for the expenditure of such funds." Id. at 11. As such, the Agency claims that the award should be "modified to limit applicability to expenses actually incurred." Id. at 14.

      Fourth, the Agency contends that "[t]o the extent that [the award] requires the [A]gency to provide monetary relief for expenses actually incurred prior to March 17, 1992, six years prior to the date [the Union] filed this grievance, it is unlawful." Id. at 12. In this regard, the Agency claims that the award "must be modified" to conform with the six year statute of limitations imposed by the Barring Act, 31 U.S.C. § 3702, and the Back Pay Act, 5 U.S.C. § 5596(b)(4). Id. at 13.

B.     Union's Opposition

      First, the Union contends that separation travel and RAT are "pay, allowances, and differentials" within the meaning of the Back Pay Act. In support, the Union argues that the Authority should follow the example of, among other cases, Dep't of Def. Dependents Schools, 54 FLRA 259 (1998) (DoDDs), which found that environmental morale leave falls under the purview of the Back Pay Act. The Union points to the Travel Expenses Act, 5 U.S.C. § 521 et seq., and the DoD Joint Travel Regulations, as authority for paying employees in this [ v56 p987 ] case. In this regard, the Union also contends that separation travel and RAT fall under the definition of "pay, allowances, or differentials" as set forth by the Office of Personnel Management (OPM) regulations, 5 C.F.R. § 550.803. In the alternative, the Union argues that because the Agency violated the parties' collective bargaining agreement when it denied separation travel or RAT to employees, the employees in this case are entitled to backpay under the Back Pay Act.

      Second, the Union claims that, because separation travel and RAT are "pay, allowances, or differentials" within the meaning of the Back Pay Act, it was proper for the Arbitrator to retain jurisdiction in order to entertain a motion for attorney fees. In addition, the Union contends that, as the award of attorney fees has not been issued, the Agency's exception in this regard is premature.

      Third, with regard to the Agency's argument that it is unlawful to reimburse an employee for expenses unless they actually occurred, the Union points out that employees "did in fact incur expenses" related to trips home. Opposition at 9. With regard to those employees who did not incur such expenses, the Union claims that "[t]he payment of economic or monetary value of employment benefits is not unprecedented." Id. In support, the Union cites, among other cases, DoDDS, 54 FLRA 259.

      Fourth, the Union opposes the Agency's contention that the filing date of the instant grievance is the controlling date for the six-year statute of limitations. Instead, the Union asserts that "the filing of the instant grievance is the equivalent of the filing of an unfair labor practice charge to force implementation of an award . . . [t]hus, the controlling date in this case should be 1989, the filing date of the original award regarding [the Agency's] denial of RAT and [s]eparation [t]ravel." Opposition at 11. The Union argues that the Agency's contention, if granted, would constitute "an open invitation to the Agency to continue its relentless delaying tactics to run out the clock, to circumvent the awards of arbitrators Fasser and Bass." Id.

IV.     Section 2429.5 of the Authority's Regulations Bars the Agency's Exceptions

      The Agency contends that Arbitrator Bass's award is contrary to law because it does not represent a remedy that may be granted under the Back Pay Act. The Agency's position includes arguments that the Back Pay Act does not provide for payment of interest, reimbursement for expenses not actually incurred, and attorney fees; and that the retroactive relief awarded by the Arbitrator is contrary to the applicable statute of limitations.

      Under the circumstances presented here, the Agency's arguments are not properly before the Authority. Under section 2429.5 of the Authority's Regulations, [n5]  the Authority will not consider issues that could have been, but were not, presented to the Arbitrator. See, e.g., AFGE, Local 2145, 55 FLRA 366, 368 (1999) (Authority held section 2429.5 barred union's claim that award was contrary to section 7102 of the Statute). Based on review of the entire record in this case and our three previous decisions relating to the same dispute, it is clear that the Agency was on notice that the relief sought by the Union included an order of backpay under the Back Pay Act, with interest, commencing with the 1990-1991 school year. [n6]  There is no indication in the award or elsewhere in the record that the Agency previously raised the issue of whether RAT and separation travel constitute "pay, allowances or differentials" for purposes of the Back Pay Act. Rather, as stated by the Arbitrator, "the Agency's entire case" was "based on its asserted controlling distinction between transfers implemented at the District and transfers implemented at Headquarters." Award at 9.

      As the issues presented by the Agency's exceptions should have been, but were not, raised before the Arbitrator, the exceptions are barred from consideration by the Authority under section 2429.5 of the Authority's Regulations. Accordingly, we find that the exceptions provide no basis for finding the award deficient.

V.     Decision

      The Agency's exceptions are denied.



Footnote # 1 for 56 FLRA No. 168

   Member Pope did not participate in this decision.


Footnote # 2 for 56 FLRA No. 168

   "Locally hired teachers" are teachers hired at an overseas location, as opposed to those who are hired in the United States and then transferred to overseas locations. "Commuting area" is an area within a 10 mile radius from the employee's home. "Geographical locality" is the contiguous political area of a single country or a related island group in the same region. In a "transportation agreement" the agency agrees to furnish transportation and other related benefits, in consideration for which the employee agrees to remain in Government service for a specified period. Such agreements may also provide for "separation travel," which enables teachers to return to their actual residences when their employment ceases. See United States Dep't of Def., Dependents Schools, 53 FLRA 249, 249 n.2 (1997) (DoD III) (explaining the meaning of the aforementioned terms). RAT provides employees an allowance for travel expenses for the purpose of returning home to take leave between tours of duty overseas. See Federal Travel Regulation (FTR) § 302-1.13.


Footnote # 3 for 56 FLRA No. 168

   See United States Dep't of Def., Dependents Schools, 42 FLRA 1166 (1991) (DoD I); United States Dep't of Def., Dependents Schools, 49 FLRA 120 (1994) (DoD II); DoD III, 53 FLRA 249.


Footnote # 4 for 56 FLRA No. 168

   The Fasser award resulted from the fourth arbitration concerning the initial grievance, which had complained that "Local Hires who transfer outside a commuting area, but within a Geographical Locality, are not being paid the appropriate transportation benefits." See Award at 2 (quoting the grievance from Arbitrator Fasser's first award). After requesting that the Agency submit a copy of the Fasser award to the Authority, we have added it to the record in this case.


Footnote # 5 for 56 FLRA No. 168

   5 C.F.R. § 2429.5 provides, in pertinent part:

The Authority will not consider evidence offered by a party, or any issue, which was not presented in the proceedings before . . . the arbitrator. The Authority may, however, take official notice of such matters as would be proper.

Footnote # 6 for 56 FLRA No. 168

   As set forth by the Arbitrator, the Union's requested relief included retroactive backpay and