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







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