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

[ v56 p996 ]

56 FLRA No. 172

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

and

FEDERAL EDUCATION ASSOCIATION
(Union)

0-AR-3355

_____

DECISION

December 22, 2000

_____

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

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Norman J. Stocker filed by the Agency under § 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 found that the Agency committed an unjustified or unwarranted personnel action in failing to timely pay two grievants certain wages and benefits.

      For the reasons that follow, we find that the Agency has failed to show that the Award is deficient under § 7122(a) of the Statute. Therefore, we deny the exceptions.

II.     Background and Arbitrator's Award

      It is undisputed that the grievants were owed backpay. While the facts are sparse, the Agency notes in its exceptions that it "did not challenge the grievants' right to collect the backpay in issue," and that each of the grievants has experienced "administrative delay in receiving a payment." Exceptions at 4, 7. [n2]  The parties stipulated that the Arbitrator was to consider the following:

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 grievants in a timely manner and by failing to pay interest on backpay? If so, what should the remedy be?
2.     In regard to each grievant:
     a)     Did the Agency fail to take necessary actions to timely and properly pay the grievants? 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 (UUPA)?
     c)     Should the Agency be forced to comply with the Popular arbitration?
     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 payments?
     e)     Should the Arbitrator retain jurisdiction in order to hear a motion for attorney fees and costs?
Award at 1-2.

      The Arbitrator determined that the Agency owed backpay with interest, finding that it had committed an unjustified or unwarranted personnel action by failing to timely pay the grievants. In doing so, he relied on the Back Pay Act and the Office of Personnel Management's (OPM) definition of an unjustified or unwarranted personnel action appearing at 5 C.F.R. § 550.803. In addition, he concurred with the findings and analysis of arbitrators Bloch, Hockenberry and Popular's awards involving these parties. [n3]  In noting his concurrence with those previous awards, the Arbitrator stated that they were neither "res judicata" nor "stare decisis." Award at 6.

      Further, the Arbitrator determined that the Agency should pay any backpay owed along with interest on the backpay starting thirty days from August 19, 1996, for one grievant, and 30 days from October 7, 1996, for the other. The Arbitrator found that when computing the interest/backpay payments, the Agency should include an audit showing how it determined the amount due. [ v56 p997 ] Moreover, the Arbitrator retained jurisdiction as to attorney fees.

III.     Positions of the Parties

A.     Agency's Exceptions

1.     OPM Regulations

      The Agency maintains that OPM's regulations defining an unjustified or unwarranted personnel action should be "approached with skepticism." Exceptions at 24, citing a Department of Justice, Office of General Counsel opinion dated May 31, 1994. Specifically, the Agency asserts that the definition of an unjustified or unwarranted personnel action appearing in OPM's regulations at 5 C.F.R. § 550.803 would allow every pay action standing alone to form the basis for finding an unjustified or unwarranted personnel action, a result not contemplated by the statutory language. [n4] 

2.     Contrary to Law

      The Agency contends that it owes no interest payments to the grievants because it does not owe them "backpay." Instead, the Agency argues, the grievants are owed "unpaid salary for time actually worked," which, it asserts, does not fall within the coverage of the Back Pay Act. Exceptions at 5, citing Bradley, et. al. v. United States, 42 Fed. Cl. 333 (1998); Bell v. United States, 23 Cl. Ct. 73 (1991).

      The Agency argues that the Arbitrator improperly found that it had committed an unjustified or unwarranted personnel action. Exceptions at 6, citing United States v. Testan, 424 U.S. 392, 405 (1976) (Testan). According to the Agency, the grievants were not subject to any adverse personnel action as described in Testan, but rather, are only experiencing administrative delay in receiving their payment. Exceptions at 7. In this respect, the Agency generally argues that pay delays, per se, are not violations of the Back Pay Act.

      The Agency further argues that the Back Pay Act's coverage of "omissions" is generally limited in scope to those very few circumstances where the omission of a personnel action is based on a mandatory action, such as where an Agency violates a "specific" law, rule, regulation or collective bargaining agreement. Exceptions at 13-15, 25. Accordingly, it argues that a general duty to pay is not equivalent to a mandatory duty to pay by a specific date, and, that the Arbitrator failed to show how the parties' agreement creates such a duty. Id. at 18. It further asserts that there is no evidence supporting a conclusion that it took the last discretionary personnel action prior to payment becoming mandatory. Id. at 25.

      The Agency also argues that Arbitrator Stocker's reliance on previous decisions issued by other arbitrators involving these parties and issues was in error. Specifically, the Agency argues that those decisions where flawed in that they failed to "identify specific terms and conditions that converted the Agency pay delays into [unjustified or unwarranted personnel actions]." Id. at 21.

3.     The Award is Based on Nonfact

      The Agency challenges the award on the basis that there was a lack of evidence of any personnel action that was taken or analysis of the facts to determine the existence of such personnel action. Exceptions at 23. We construe this argument as claiming that the award is based on nonfact.

4.     The Award Fails to Draw Its Essence from the Parties' Collective Bargaining Procedure

      The Agency argues that the parties' agreement is not sufficiently specific to require payment of the amount owed the grievants by a date certain. Exceptions at 25. We construe this argument as an assertion that the Arbitrator's award fails to draw its essence from the parties' collective bargaining agreement.

5.     The Arbitrator Exceeded His Authority

      Finally, the Agency argues that the Arbitrator exceeded his authority when in the absence of a specific law, rule, regulation or provision in the parties' agreement that set forth a specific time for payment, he found payment to be mandatory by a specific date. In this respect, the Agency argues that the Arbitrator was bound to construe any of the above narrowly in favor of the Agency under the doctrine of sovereign immunity. Exceptions at 26. The Agency argues that this matter involves the concept of "restored pay" under Comptroller General decisions, as opposed to backpay under the Back Pay Act. Moreover, it argues that by awarding interest under the concept of "restored pay," the Arbitrator impermissibly waived sovereign immunity and, as such, exceeded his authority. Id. [ v56 p998 ]

B.     Union's Opposition

      The Union contends that despite Agency claims to the contrary, an Agency regulation requires it to pay its employees by a date certain. It argues that under the Department of Defense Financial Management Regulation (FMR), DOD 7000.14-R, that the Agency is required to pay any pay or allowances owed in a "prompt and accurate" manner. Opposition at 3-4. As such, it maintains that there is no discretion or judgment on the part of the Agency to delay making these payments. Id. at 4-5. Therefore, it argues that the cases relied upon by the Agency actually support the Union's position, since matters involving discretion fall outside the Back Pay Act, while those matters not involving discretion do not. Id.

      The Union also argues that the cases cited by the Agency clearly show that this is not a matter of unpaid salary for time actually worked, but rather falls under the Back Pay Act. Id. at 6-7. It states that, "the Pay Statute [n5]  and Articles 25, 27, and 47 of the CBA mandate the payment of more money to the Grievants. There is no gap for the Back Pay Act to fill." Id. at 7-8.

      Moreover, the Union argues to the extent the Agency is asserting that it never took the "last internal discretionary act" of having its pay agent approve payment, such action is not discretionary. Id. at 9.

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 5 C.F.R. Part 550, the OPM regulations implementing the Back Pay Act, in effect ask the Authority to review these OPM regulations. The Agency suggests that the regulations go beyond the scope of the Back Pay Act in stating that the omission of a pay action is 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; AFGE, 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 United States Dep't of Defense, Dependents Sch., Bulzbach Elementary Sch., Bulzbach, Germany, 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. Therefore, we deny the exception.

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 NFFE, Local 1437, 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 NTEU, Chapter 50, 54 FLRA 250, 253 (1998).

      Here, Arbitrator Stocker concurred with the findings and analysis of three prior arbitration awards involving these parties. Included in those awards was a determination by Arbitrator Bloch that the Agency had committed an unjustified or unwarranted personnel action by failing to timely pay a grievant, in similar circumstances, money owed under the parties' collective bargaining agreement. Violation of the parties' collective bargaining agreement is sufficient to constitute an unjustified or unwarranted personnel action. See United States Dep't of Defense, Dep't of Defense Dependents Sch., 54 FLRA 773, 785 (1998) (DODDS).

      The Agency's Back Pay Act arguments in this case are encompassed by the Back Pay Act arguments made by it in United States Dep't of Defense Educ. Activity, Arlington, Virginia, 56 FLRA 711 (2000) (DODEA). Here, as in that case, 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 DODEA, 56 FLRA 711, after thoroughly examining the Agency's Back Pay Act arguments, legal precedent cited, and the arbitral record, we concluded that the exceptions there provided no basis for finding the [ v56 p999 ] underlying award contrary to the Back Pay Act. In the present matter, we have again 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, that the Agency has not shown that the Arbitrator's award in the present case is contrary to the Back Pay Act.

      As noted in DODEA, the administrative or clerical error rule set forth in Comptroller General precedent specifically recognizes that an error or delay in making payment can constitute an unjustified or unwarranted personnel action under the Back Pay Act, 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. Also, as in DODEA, there is no arbitral finding in the present case that omission or delay is, per se, an unjustified or unwarranted personnel action. Rather, the Arbitrator made his finding of an unjustified or unwarranted personnel action based upon a violation of a contractual obligation to make the required payments to the employee in a timely manner.

      We have reviewed the other judicial precedent relied on by the Agency and find those decisions unpersuasive. [n6]  As discussed above, the Arbitrator concurred with the previous Bloch award that the Agency's failure to timely pay the grievants violated the parties' collective bargaining agreement and thus constituted an unjustified or unwarranted personnel action. As such, the Arbitrator determined that interest was owed the employee. The Agency's reliance on the other cited cases, therefore, is misplaced.

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

C.     The Award is Not Based on a Nonfact

      To establish that an award is based on a nonfact, the appealing party must demonstrate that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. See, e.g., United States Dep't of the Air Force, Lowry AFB, Denver, Colo., 48 FLRA 589, 593 (1993); GSA, Region 2, 46 FLRA 1039, 1046-47 (1992). Moreover, the Authority has held that an arbitrator's legal conclusions cannot be challenged on the grounds of nonfact. See, e.g., NFFE, Local 561, 52 FLRA 207, 210-11 (1996); United States Dep't of the Navy, Philadelphia Naval Shipyard, 39 FLRA 590, 605 (1991).

      In this matter, Arbitrator Stocker determined that the Agency owed interest on the backpay owed the employees because an unjustified or unwarranted personnel action occurred. This Agency exception is not based on allegedly erroneous facts, but rather on the legal conclusions reached by the Arbitrator concerning the applicability of the Back Pay Act and its authorization for the payment of interest. As such, the exception provides no basis to overturn the award and we deny the exception.

D.     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) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to "manifest an infidelity to the obligation of the arbitrator"; or (2) does not represent a plausible interpretation of the agreement; or (3) cannot in any rational way be derived from the agreement or evidences a manifest disregard of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).

      The Agency argues generally that the parties' agreement is not specific enough to "require payment by a certain date." Exceptions at 25. However, the Arbitrator bases his conclusion that the Agency failed to timely pay the grievant based on a violation of the parties' agreement by concurring with the analysis and findings in the three aforementioned arbitration awards which include the Bloch award. We stated in DODDS, 54 FLRA at 782, that the Agency may not contest the findings and conclusions in that matter as it failed to file an exception to it. Similarly, the Agency's challenge of this award, which is based on the adoption of the findings and reasoning of the Bloch award, is an attempt to [ v56 p1000 ] challenge the conclusion in that matter. 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.

E.     The Arbitrator Did Not Exceed His Authority

      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. United States Dep't of Defense, Army and Air Force Exch. Serv., 51 FLRA 1371, 1378 (1996).

      The Agency contends that the Arbitrator exceeded his authority by determining that interest was due in the absence of a specific law, rule, regulation or provision in the parties' agreement mandating the time for payment of the money owed. The Agency claims that the Arbitrator ignored sovereign immunity by awarding interest for a remedy based under the concept of "restored pay" as opposed to backpay under the Back Pay Act. However, this argument is little more than the Agency again seeking analysis of one of its contrary to law arguments. We have determined that the Arbitrator's award in this regard is not contrary to law. Accordingly, this exception is denied.

V.     Decision

      The Agency's exceptions are denied.



Footnote # 1 for 56 FLRA No. 172

   Member Pope did not participate in this decision.


Footnote # 2 for 56 FLRA No. 172

   The Union indicates that the grievants have still not received backpay.


Footnote # 3 for 56 FLRA No. 172

   These awards are described in more detail in United States Dep't of Defense Educ. Activity, Arlington, Virginia, 56 FLRA 711 (2000).


Footnote # 4 for 56 FLRA No. 172

   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 # 5 for 56 FLRA No. 172

   This reference is not explain