United States Geological Survey, Water Resources Division, Caribbean District (Agency) and American Federation of Government Employees, Local 1503 (Union)

[ v57 p752 ]

57 FLRA No. 165

UNITED STATES GEOLOGICAL SURVEY
WATER RESOURCES DIVISION
CARIBBEAN DISTRICT
(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1503
(Union)

0-AR-3445

_____

DECISION

April 26, 2002

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This matter is before the Authority on an exception to an award of Arbitrator Robert B. Hoffman 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 exception. [n1] 

      The Arbitrator denied the Agency's request for reconsideration of his previous award concerning the payment of interest on unpaid per diem. The Agency excepts to the Arbitrator's denial of reconsideration. For the reasons that follow, we deny the Agency's exception.

II.     Background and Arbitrator's Award

      In an award dated December 21, 2000, the Arbitrator found that the Agency had violated the parties' collective bargaining agreement and the Federal Travel Regulations by paying unit employees who were on official government travel a lower per diem rate than that to which they were entitled. As a remedy, the Arbitrator ordered the Agency to pay eligible employees backpay, for a period of six years prior to the filing of the grievance, equal to the difference between the rate that the Agency had paid them and the rate that it was required to pay them pursuant to the Federal Travel Regulations. In this regard, the Arbitrator stated:

This payment shall be in accordance with all relevant laws and regulations governing the payment of back pay to federal employees, including 31 USC 3702 and 5 USC 5596. Eligible employees shall be entitled to back pay plus interest pursuant to these authorities.

Award at 24-25. The Arbitrator retained jurisdiction for six months "to assure that the remedy is administered in an orderly and fair manner, and to help resolve any controversies[.]" Id. at 25. The Agency did not file exceptions to the award.

      On April 30, 2001, the Agency filed a request for reconsideration with the Arbitrator. The Agency maintained that the payment of interest on unpaid per diem for six years prior to the filing of the grievance had no legal basis. According to the Agency, "its only obligation to pay interest is from March 1, 2000 under the Travel and Transportation Reform Act of 1998." Award Denying Reconsideration at 1. [n2]  The Union opposed the Agency's request.

      The Arbitrator denied the Agency's request. He noted that in his award, he had ordered the Agency "to pay the per diem difference and interest `in accordance with all relevant laws and regulations governing the payment of back pay to federal employees.'" Id. at 2, quoting Award at 24-25. The Arbitrator stated that in order "[t]o dispute this legal conclusion," the Agency was required to have filed exceptions under § 7122(a) of the Statute, but that it had not done so. Id. at 2. The Arbitrator found that, in these circumstances, he did not have authority to rule on the Agency's request, and accordingly he denied the request. [ v57 p753 ]

III.     Positions of the Parties

A.     Agency's Exception

      The Agency excepts to the Arbitrator's denial of the request for reconsideration on the ground that it constitutes a "mistake of law" because the denial would not "eliminate the award of interest for such periods of time during which the United States had not waived its sovereign immunity." [n3]  Exceptions at 2. More specifically, the Agency maintains that "Congress did not waive its sovereign immunity from a requirement to pay interest" on awards of per diem until the enactment of the Travel and Transportation Reform Act of 1998 and its implementing regulations. Id. As a remedy, the Agency urges the Authority to find that the United States "has not waived its sovereign immunity for an award of interest in this instance for any period of time prior to March 1, 2000." Id. at 3.

B.     Union's Opposition

      The Union asserts that the Arbitrator correctly denied the Agency's request for reconsideration and that, therefore, the Authority should deny the Agency's exception. The Union maintains that the Agency's request for reconsideration was an improper effort to circumvent the exclusive procedures for challenging an arbitration award set forth in § 7122 of the Statute. The Union asserts that the only means to challenge the Arbitrator's award of interest was through timely filed exceptions to the award, and the Agency failed to file such exceptions.

IV.     Analysis and Conclusions

      The Agency claims that the Arbitrator's award denying reconsideration constitutes a mistake of law. When a party's exceptions involve an award's consistency with law, we review the questions of law raised by the arbitrator's award and the party's exceptions 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).

      We conclude that the Agency has misconstrued the Arbitrator's award with respect to the payment of interest on unpaid per diem. The Arbitrator did not order the payment of interest on all unpaid per diem. Rather, as the Arbitrator stated in his award and explicitly reaffirmed in his award denying reconsideration, he ordered the payment of interest only to the extent that such payment is "`in accordance with all relevant laws and regulations governing the payment of back pay to federal employees.'" Award Denying Reconsideration at 2, quoting Award at 24-25.

      The Authority has repeatedly rejected claims that arbitration awards are contrary to law or regulation where the awards, by their terms, are to be applied consistent with law and regulation. See, e.g., Veterans Administration Medical Center, Palo Alto, Ca., 36 FLRA 98, 109 (1990) (denying claim that an award ordering parties to negotiate an overtime payment "insofar as it is possible under applicable federal laws and regulations" is contrary to regulation; Authority found, as relevant here, that "[b]ecause the award, by its terms, requires the parties to negotiate overtime payment in accordance with applicable laws and regulations," the award did not conflict with regulation); United States Dep't of Agriculture, Food and Nutrition Service, Midwest Region, 28 FLRA 580, 581 (1987) (denying claim that an interest arbitration award was deficient because it directed the parties to include in their agreement a provision that probationary employees were covered by negotiated grievance procedures "consistent with applicable law"; Authority found that the provision "is not contrary to law because by its terms it is circumscribed by law"); Dep't of Health and Human Services, Social Security Administration, 26 FLRA 12, 16 reconsideration denied, 26 FLRA 781 (1987) (denying exception to award ordering agency to pay travel and per diem consistent with law and regulation).

      Pursuant to its terms, the award denying reconsideration requires that the Agency pay interest on unpaid per diem only to the extent that such payment of interest is consistent with relevant laws and regulations. Accordingly, as any interest payments directed by the Arbitrator must be in accordance with law, the award, by its terms, is not contrary to law, as the Agency argues. Accordingly, consistent with Authority precedent, we find that the award is not deficient and we will deny the Agency's exception. [n4] 

V.     Decision

      The Agency's exception is denied.



Footnote # 1 for 57 FLRA No. 165

   The Union asserts that the Agency's exception does not comply with § 2425.2 of the Authority's Regulations because it is not a self-contained document. That section requires an exception to be a self-contained document which sets forth in full "[a]rguments in support of the stated grounds, together with specific reference to the pertinent documents and citations of authorities." We find that the Agency's exception adequately sets forth the bases upon which the award is allegedly deficient, and, therefore, this assertion is without merit. See, e.g., United States Dep't of Veterans Affairs, Finance Center, Austin, Tex., 50 FLRA 73, 76 (1994).


Footnote # 2 for 57 FLRA No. 165

   The Travel and Transportation Reform Act of 1998 was enacted as Pub. L. No. 105-264, § 112 Stat. 2350 (1998), and, as relevant here, became effective on March 1, 2000. See 65 Fed. Reg. 3056 (Jan. 19, 2000) (codified at 41 C.F.R. pt. 301-52).


Footnote # 3 for 57 FLRA No. 165

   The Agency states that it "does not contest the basis of the award pertaining to the per diem issue." Exception at 1.


Footnote # 4 for 57 FLRA No. 165

   In light of our determination that under the award, any payment of interest must be consistent with law, we need not and do not resolve what specific laws apply and whether payment of interest would be consistent with any applicable laws. However, we note that in Dep't of Defense Dependents Schools, 54 FLRA 259, 265 (1998), the Authority stated that it "has concluded that the pay, allowances and differentials encompassed by the Back Pay Act `constitute normal legitimate employee benefits in the nature of employment compensation or emoluments' that do not extend to reimbursement payments such as per diem. Community Services [Administration], 7 FLRA [206,] 209 [(1981)] [(Community Services)]. See also United States Department of the Treasury, Internal Revenue Service and Internal Revenue Service, Austin District, and Internal Revenue Service, Houston, District, 23 FLRA 774, 782 (1986); U.S. Customs Service, Chicago-O'Hare and National Treasury Employees Union, Chapter 172, 23 FLRA 366, 368 (1986) (citing Community Services,