United States Department of Transportation, Federal Aviation Administration (Agency) and National Air Traffic Controllers Association (Union)

[ v62 p385 ]

62 FLRA No. 73

UNITED STATES
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
(Agency)

and

NATIONAL AIR TRAFFIC
CONTROLLERS ASSOCIATION
(Union)

0-AR-4166

_____

DECISION

April 30, 2008

_____

Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member [n1] 

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Janet Maleson Spencer 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 grievance concerns whether employees who were awarded compensation through settlement agreements for time served on military leave are entitled to Sunday premium pay and interest on the backpay. The Arbitrator ruled that the grievants are entitled to both the payment of interest on the backpay and the payment of Sunday premium pay. The Agency filed exceptions to both the award of interest and the award of Sunday premium pay.

      For the reasons that follow, as to the award of interest, we view the Agency as having withdrawn its exception, and, as to the award of Sunday premium pay, we conclude that the award is deficient.

II.      Background and Arbitrator's Award

      Through a series of negotiated settlement agreements, the parties agreed that unit employees who had served on military duty would be awarded backpay for unpaid night differential and holiday pay. However, the parties were unable to reach agreement on the payment of Sunday premium pay for the military duty and the payment of interest on the backpay of night differential and holiday pay. The Union filed a grievance that was submitted to arbitration on the following stipulated issues:

Are the employees who are compensated through settlement agreements dated 3-4-04[,] 7-18-03, and 3-9-05 entitled to interest through the Back Pay Act? If so, what should the remedy be?
Whether employees are entitled to Sunday premium pay, pursuant to Article 26 and 5 USC 6323 and appropriate Law and Regulation? If so, what should the remedy be?

Award at 4.

      As to the first issue, the Arbitrator ruled that the grievants were entitled to interest on the backpay. The Arbitrator concluded that the payment of interest was consistent with the Back Pay Act, which was incorporated into Article 37 of the parties' agreement. The Arbitrator also concluded that under the Agency's Personnel Management System, "the Agency was meant to have the authority to use funds for interest on back pay awarded under a decision or settlement under a collective bargaining agreement." Id. at 12.

      As to the second issue, the Arbitrator ruled that the grievants were entitled to Sunday premium pay. The Arbitrator acknowledged that the Department of Transportation and Related Agencies Appropriation Act of 1996, Pub. L. No. 104-50, 109 Stat. 43649 (DOT Act) and subsequent Appropriations Acts prohibited the use of Agency funds to pay Sunday premium pay to employees unless the employees performed work on Sunday. Id. at 14. However, she was not persuaded that the prohibition applied to employees on military leave and rejected the Agency's reliance on United States Department of Transportation, Federal Aviation Administration, Washington, D.C., 54 FLRA 584 (1998) (FAA I), because it did not concern military leave. The Arbitrator viewed military leave to be different from other leave because employees on military leave are performing "work in the national interest." Id. at 16. In addition, she emphasized that Congress in enacting the Military Leave Act (MLA) guaranteed that they would suffer "no loss of pay" during their 15 days of military leave. Id. (emphasis in original). Accordingly, the Arbitrator awarded the grievants Sunday premium pay, [ v62 p386 ] with interest, for time spent on military leave on Sundays.

III.     Initial Positions of the Parties

A.      Agency's Exceptions

      The Agency contended that the Arbitrator's award of interest on the backpay is deficient because it is barred by the doctrine of sovereign immunity. The Agency also contended that the award of Sunday premium pay is deficient because it is contrary to "Public Law 104-50, and subsequent Appropriation Acts." Exceptions at 10.

      As to the award of interest, the Agency asserted that "[t]here can not be a right to money damages without a waiver of sovereign immunity." Id. at 11. The Agency argued that the Back Pay Act does not apply to the Agency under either the DOT Act or Pub. L. No. 106-181, 49 U.S.C. § 40122(g) (FAA Act). Accordingly, the Agency claimed that the Agency's exclusion from the Back Pay Act precludes finding a waiver of sovereign immunity by the Back Pay Act. The Agency further argued that to the extent its regulations or the parties' collective bargaining agreement created a right to backpay, such right is not enforceable.

      As to the award of Sunday premium pay, the Agency asserted that Congress has specifically prohibited the payment of Sunday premium pay to employees who are not actually performing work on Sundays for the Agency. Id. at 21-22 (citing the DOT Act and subsequent Appropriations Acts). Additionally, the Agency noted that the Authority has determined under the DOT Act that when employees are not working, they are not entitled to premium pay. Id. at 23 (citing FAA I; United States Dep't of Transp., Fed. Aviation Admin., Washington, D.C., 51 FLRA 1385 (1996) (FAA II)).

B.      Union's Opposition

      The Union contended that the grievants are entitled to interest on the backpay because the Agency permissibly adopted a backpay entitlement in its personnel system. The Union further contended that the parties' collective bargaining agreement "explicitly granted employees' rights to compensation if they met the provisions of the Back Pay Act and the Military Pay Act." Opposition at 6.

      The Union contended that the grievants are entitled to Sunday premium pay because they were working for the government when they were on military leave. According to the Union, the Arbitrator's determination that the employees were working for the government while on military leave should be given deference. The Union further argued that because the Arbitrator found that the grievants were working for the government, the Arbitrator's award adheres to the explicit language of both the DOT Act and the Military Leave Act. In addition, the Union noted that under § 6323, employees on military leave are entitled to such leave without loss of pay. Id. at 8.

IV.      The Authority's Order to the Parties

      On October 16, 2007, the Authority issued an Order (Chairman Cabaniss dissenting) directing the Agency and the Union to file supplemental submissions. The parties were directed to address whether the Back Pay Act, the FAA Act, § 7122(b) of the Statute, or the Tucker Act constituted a waiver of sovereign immunity applicable to the Agency so as to authorize the payments ordered by the Arbitrator.

V.      Subsequent Positions of the Parties

      In response to the Authority's order, the Agency states that "[a]n arbitrator has the authority to award back pay, including interest, to an [Agency] employee in an arbitration conducted under a grievance procedure negotiated pursuant to the [Statute] even though Congress excluded the Agency from the Back Pay Act." Agency's Response at 2 (citations omitted). In the Agency's view, § 7122(b) of the Statute provides the necessary waiver of sovereign immunity.

      Although the Agency no longer contends that sovereign immunity bars awards of backpay and interest by arbitrators that are consistent with the Back Pay Act, in its response to the Authority's order, the Agency maintains that the interest awarded by the Arbitrator is not consistent with the Back Pay Act because the grievants' entitlement to backpay was based on settlement agreements granting them backpay and not on the Arbitrator's award. Id. at 7-8. Thus, the Agency contends that in the absence of an award of backpay by the Arbitrator, the award of interest is still deficient. The Agency also emphasizes that it continues to contend that the Arbitrator impermissibly awarded the grievants Sunday premium pay.

      In response to the Authority's order, the Union asserts that the FAA Act and § 7122(b), either together or separately constitute an express waiver of sovereign immunity sufficient to support the Arbitrator's award. In addition, the Union asserts that the PMS regulations also support the Arbitrator's award. [ v62 p387 ]

VI.      Preliminary Issues

      In its exception to the Arbitrator's award of interest, the Agency contended that the award of interest was barred by the doctrine of sovereign immunity. In response to the Authority's order, however, the Agency now has abandoned its position that the award is barred by the doctrine of sovereign immunity. In view of this disavowal by the Agency of the basis for its exception to the award of interest, we view the Agency as having withdrawn this exception to the award. As the exception has been withdrawn, we will not review it. [n2] 

      In addition, we reject the Agency's attempt to reframe its objection to the award of interest in its response to the Authority's order. The exception timely filed to the Arbitrator's award asserted a deficiency on the basis of sovereign immunity. We will not consider an exception asserting a deficiency on the basis of an alleged inconsistency with the Back Pay Act that was raised for the first time in the response to the Authority's order. See AFGE Local 1938, 61 FLRA 645, 646 n.1 (2006) (exception raised as part of an opposition filed more than 30 days after the date the award was served was untimely and was not addressed).

      In contrast, the Agency has consistently contended that the award of Sunday premium pay is contrary to law. Consequently, we address and resolve this exception.

VII.      The Arbitrator's award of Sunday premium pay is contrary to law.

      When an exception involves an award's consistency with law, the Authority reviews any question of law raised by the exception and the award de novo. NTEU Chapter 24, 50 FLRA 330, 332 (1995). 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. United States Dep't of Def., Dep'ts of the Army and the Air Force, Alabama Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. Id.

      The Agency argues that the award of Sunday premium pay to employees on military leave is contrary to the DOT Act and subsequent Appropriations Acts that since 1995 have provided that the Agency may not pay Sunday premium pay under 5 U.S.C. § 5546(a) unless the employee "actually performed work" during the time at issue. [n3]  According to the Union, the Arbitrator's "factual finding" that employees are working when they are on military leave should "be given deference." Opposition at 9. However, the question of whether particular types of paid absences fall within the limitations of the DOT Act and subsequent Appropriations Acts is a question of law, not of fact. FAA I, 54 FLRA at 589; see also NTEU, 53 FLRA 1469, 1482 (1998) (legal conclusions based on undisputed facts are questions of law). Accordingly, the Arbitrator's contrary finding is not a factual finding entitled to deference, but a legal conclusion subject to de novo review.

      Reviewing the Arbitrator's legal conclusion de novo, we conclude that the Arbitrator's reliance on the requirement of the MLA that leave be granted without loss in pay does not support the award. In FAA I, the Authority construed the appropriations limitation as applying not only to sick and annual leave, but also to employees in a continuation of pay status as the result of a workplace accident. 54 FLRA at 589. The Authority concluded that "[t]his language does not by its terms allow any exception to its coverage" and is "unambiguous."  [n4]  Id.

      The Authority also concluded that the legislative history showed that Congress believed that the actual performance of work is necessary for any payment of Sunday premium pay. Id. at 589-90. The Authority explained that the appropriations limitation was Congress' response to the decision in Armitage v. United States, 991 F.2d 746 (Fed. Cir. 1993) (Armitage), which held that annual and sick leave statutes precluded any reduction in pay for those regularly scheduled hours for which the employee is charged annual or sick leave. However, the Authority specifically rejected the claim that Congress intended to limit the restriction to the annual and sick leave statutes addressed in Armitage. Id. at 590.

      [ v62 p388 ] For the same reasons, we reject the Arbitrator's conclusion that the limitation does not apply to military leave. We agree with the decision of the Court of Federal Claims in Curry v. United States, 66 Fed. Cl. 593, 604 (2005), which held that employees of the Veterans Administration, who are subject to an identical appropriations prohibition, cannot receive additional pay as part of military leave for any tour of duty which includes a Sunday. The court acknowledged that the "without loss of pay" language of the MLA would entitle these employees to Sunday premium pay, but held that the appropriations prohibition barred such pay. In reaching this conclusion, the court noted that Congress in the appropriations act and in response to the decision in Armitage, "forbade all executive agencies from paying any Sunday premium pay to employees on paid leave" and that the words of the act are "unambiguous." Id. at 600-01.

      In sum, there is no statutory basis for treating military leave different from other forms of leave or unexcused absences in the application of the DOT Act and subsequent Appropriations Acts to Sunday premium pay. Accordingly, we conclude that the DOT Act and subsequent Appropriations Acts prohibit the payment of Sunday premium pay to the grievants. Consequently, the Arbitrator's award of Sunday premium pay with interest is contrary to law, and we strike it from the award.

VIII.      Decision

      The Agency's modified exception to the award of interest is dismissed as untimely. The award of Sunday premium pay is deficient and is struck from the award.


File 1: Authority's Decision in 62 FLRA No. 73
File 2: Opinion of Chairman Cabaniss and Member Pope


Footnote # 1 for 62 FLRA No. 73 - Authority's Decision

   The separate opinions of Chairman Cabaniss and Member Pope are set forth at the end of this decision.


Footnote # 2 for 62 FLRA No. 73 - Authority's Decision

   In view of this decision, we need not address the Agency's April 16, 2007, motion for leave to file other documents.


Footnote # 3 for 62 FLRA No. 73 - Authority's Decision

   The Agency and the Arbitrator both misquote the DOT Act and subsequent Appropriations Acts by including the word "the" prior to the word "work." Award at 6; Exceptions at 8. However, the misquote does not affect our decision.


Footnote # 4 for 62 FLRA No. 73 - Authority's Decision

   Neither the Arbitrator nor the parties acknowledge an aspect of the DOT Act. The Act applies to Agency employees paid Sunday premium pay under § 5546(a), but Agency employees are exempt from § 5546(a) by section (g)(2) of the FAA Act. Despite this exemption, Congress continues to reenact this limitation in each yearly Appropriations Act. In these circumstances, and consistent with the