United States, Department of Agriculture, Rural Development, Washington, D.C. (Agency) and American Federation of State, County, and Municipal Employees, Local 3870 (Union)
[ v60 p527 ]
60 FLRA No. 107
DEPARTMENT OF AGRICULTURE
OF STATE, COUNTY
AND MUNICIPAL EMPLOYEES
December 30, 2004
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 Charles Feigenbaum 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.
The Arbitrator granted the grievance, which alleged that the Agency violated the parties' agreement by denying the grievant's requests for official time, and retained jurisdiction of the attorney fees issue. For the reasons set forth below, we deny the Agency's exception.
II. Background and Arbitrator's Award
Prior to each pay period beginning in October 2003, the grievant, the Union president, submitted official time requests to her supervisor. The grievant's supervisor denied part of each request. The Union filed several grievances concerning the denied requests. The grievances were not resolved and were consolidated and submitted to arbitration. The parties did not stipulate the issues to be resolved and, as relevant here, the Arbitrator framed the issue to be:
Did the Agency violate law, the collective bargaining agreement, or any settlement agreements, [ v60 p528 ] memoranda of understanding and/or past practices between the parties when it refused to approve the full amount of official time requested by the [g]rievant for each week beginning in pay period 20 of 2003, and continuing to the date of arbitration? If so, what shall be the remedy?
Id. at 2. [n1]
The Arbitrator determined that an established past practice existed, whereby the "Agency accepted the [g]rievant's estimates of the official time she would need for each upcoming pay period" and that the grievant would only use the time she needed and would otherwise be available to perform Agency work. Id. at 33. The Arbitrator found that the Agency "violated a well established past practice[,] and thus the [collective bargaining agreement,]" by denying the grievant's official time requests. Id. at 28.
In determining the remedy, the Arbitrator found credible the grievant's assertion that she spent 25 hours of non-duty time performing representational work because of the Agency's improper denials of her official time requests. See id. at 35. As a result, he found that the grievant was "due 25 hours backpay at straight time, with interest." Id.
The Arbitrator also found that an award of attorney fees "may be authorized" under that Act. Id. at 35. In this regard, he found that the grievant was the "prevailing party[,]" and directed the parties to develop a schedule for presentation of arguments regarding whether attorneys fees are warranted under 5 U.S.C. § 7701. Id. at 36. The Arbitrator granted the grievance, directing the Agency to pay the grievant "25 hours [of] backpay at straight time, with interest[,]" and retained jurisdiction of the attorney fees issue until it was resolved. Id. at 35.
III. Positions of the Parties
A. Agency's Exception
As initial matters, the Agency asserts that its exception is not barred by § 2429.5 of the Authority's Regulations. The Agency also asserts that its exception is not interlocutory. In this regard, the Agency contends that the Arbitrator's retention of jurisdiction to decide unresolved attorney fees issues does not interfere with its right to file exceptions. [n2] Exception at 5-6.
On the merits, the Agency claims that the award is contrary to the Back Pay Act for two reasons. First, the Agency acknowledges that the grievant is entitled to compensation for improperly denied official time under § 7131, but asserts that such compensation does not constitute "pay" within the meaning of the Back Pay Act. Id. at 8. Second, the Agency claims that the grievant "lost nothing" because she "was paid for performing her normal duties during the time she was denied official time for representational work." Id.
The Agency also contends that interest on the award is not warranted because the Arbitrator improperly awarded backpay under the Back Pay Act. The Agency further contends that there is no authorization for an award of attorney fees under the Back Pay Act, the Statute, or the Equal Access to Justice Act, 5 U.S.C. § 504. See id. at 10-11.
B. Union's Opposition
The Union disputes the Agency's claim that the award of "straight time pay" is not backpay. Opposition at 5. In this regard, the Union contends that such awards are authorized under the Back Pay Act, if they meet the two-prong test for backpay.
The Union asserts that it is undisputed that the grievant was affected by an unjustified or unwarranted personnel action. See id. at 4. The Union also asserts that the pay at issue here is a "monetary benefit" to which the grievant is entitled under 5 U.S.C. § 7131(d) and, therefore, constitutes "pay, allowances, and differentials" within the meaning of the Back Pay Act. Id. at 6, 8.
The Union disputes the Agency's claim that the Arbitrator failed to identify pay the grievant lost. In this regard, the Union asserts that the Arbitrator based his award on his finding that the grievant spent 25 hours of non-duty time performing representational duties "in order to comply with her obligations and make up for the wrongfully denied official time[.]" Id. at 5. The Union contends that the Arbitrator's findings establish [ v60 p529 ] that, but for the Agency's "illegal acts[,]" the grievant would have been entitled to payment for performing the Union representational duties "during the normal work week[.]" Id. at 6. The Union also contends that the grievant is entitled to interest and attorney fees.
IV. The award is not contrary to the Back Pay Act, 5 U.S.C § 5596.
The Agency claims that the award is contrary to the Back Pay Act. When a party's exception challenges an award's consistency with law, the Authority reviews the exception 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)). In applying the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
Under the Back Pay Act, 5 U.S.C. § 5596(b)(1), an award of back pay is authorized only when an arbitrator finds that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; and (2) the personnel action resulted in the withdrawal or reduction of the employee's pay, allowances, or differentials. See United States Dept' of Health & Human Servs., 54 FLRA 1210, 1218 (1998) (DHHS). An arbitrator's award of back pay must be supported by factual findings. See id. at 1219 n.9.
It is undisputed that the grievant suffered an unjustified or unwarranted personnel action as a result of the Agency improperly denying the grievant's official time requests. With regard to the second requirement for back pay, Congress has expressed its intent that the phrase "pay, allowances, or differentials" "cover everything" that an employee subjected to an unjustified or unwarranted personnel action "would have been entitled if the personnel action had not occurred." H.R. Rep. No. 32, 89th Congress, 1st Sess. 5 (1965). Consistent with this, the Office of Personnel Management Regulations implementing the Back Pay Act define "[p]ay, allowances, and differentials" as "pay, leave, and other monetary employment ben