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37:0406(27)AR - - Navy, Naval Avionics Center, Indianapolis, IN and AFGE Local 1744 - - 1990 FLRAdec AR - - v37 p406

[ v37 p406 ]
The decision of the Authority follows:

37 FLRA No. 27









LOCAL 1744




September 21, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Wendell W. Wright filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency did not file an opposition to the exceptions.

In an earlier award, the Arbitrator ruled that employees in the Agency's Painting and Potting Departments were not entitled to Environmental Differential Pay (EDP), in the amount of 8 percent, under the provisions of the collective bargaining agreement and applicable laws and regulations. During the processing of the grievance which led to the earlier award, the Agency voluntarily implemented a 4 percent EDP, with backpay commencing 15 days prior to the filing of the grievance. In the award now before us, the Arbitrator found that the Agency's designated period of backpay was not improper.

For the reasons discussed below, we find that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the Union's exceptions.

II. Background and Arbitrator's Award

The Arbitrator stated that the issue was "whether the four percent . . . EDP should be retroactive for six years rather than from the date applied by the Employer." Award at 1. The Arbitrator noted that the Agency based its backpay period on a provision in the collective bargaining agreement which states that a grievance will be timely initiated under the grievance procedure only if filed "within 15 calendar days after the matter being grieved occurred[.]" Id. at 4. The Arbitrator also noted that the Union requested a backpay period of 6 years based upon its application of 31 U.S.C. § 3702(b)(1), which states that, unless otherwise provided, a "claim against the Government . . . must be received by the Comptroller General within 6 years after the claim accrues . . . ."

The Arbitrator concluded that neither 31 U.S.C. § 3702 nor the time limits applicable to the filing of a grievance was applicable with respect to the question of EDP retroactivity. The Arbitrator stated that he "must look to the . . . [a]greement to determine the rights of the parties pertaining to the question of retroactivity." Id. at 5.

The Arbitrator found no language in the agreement, or any applicable law or regulation, addressing the date for the initiation of a backpay award. Having determined that there was "nothing in the Collective Bargaining Agreement, applicable laws or regulations, which required the effective date of the EDP granted . . . to be any particular date prior to the date that the Grievance was filed," the Arbitrator concluded that the Agency did not violate the agreement by implementing EDP payments retroactive to 15 days before the filing of the grievance. Id. at 6.

III. The Union's Exceptions

Noting that the parties' agreement defines "grievance" as a complaint by the Union concerning "any claimed violation, misinterpretation, or misapplication of any law, rule or regulation affecting conditions of employment," the Union contends that 31 U.S.C. § 3702 and "Section 55596" were not applied properly in this case. Exceptions at 1. The Union states that the affected employees' workplace environment has been acknowledged to be "potentially dangerous" and maintains that the "condition has ex[]isted . . . for many years." Id. The Union also contends that the affected employees are entitled to EDP because the Agency knew of and failed to apply the regulation providing for such compensation.

IV. Analysis and Conclusions

31 U.S.C. § 3702 provides that, unless otherwise provided, a claim against the Government "must be received by the Comptroller General within 6 years after the claim accrues . . . ." We agree with the Arbitrator that this statutory provision is not applicable in this case. The issue before the Arbitrator was whether EDP should have been paid "retroactive for [6] years rather than from the date applied by the Employer[,]" not how much time the Union had to file a claim against the Government. Accordingly, we reject the Union's assertion that the Arbitrator's award conflicts with 31 U.S.C. § 3702.

We also conclude that the Union has failed to show that the award is inconsistent with the Back Pay Act, 5 U.S.C. § 5596.(*) Under that provision, an arbitrator can award backpay to remedy "an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of all or part of the pay, allowances, or differentials" that an employee otherwise would have received. See, for example, Allen Park Veterans Administration Medical Center and American Federation of Government Employees Local 933, 34 FLRA 1091, 1103 (1990).

The Union has not demonstrated that any "unjustified or unwarranted personnel action" occurred in this case. The Union also has failed to demonstrate that any other statute or regulation required that the EDP in dispute here be made retroactive to any particular date. As such, we reject the Union's contention that the Arbitrator's award is inconsistent with the Back Pay Act.

V. Decision

The Union's exceptions are denied.

(If blank, the decision does not have footnotes.)

*/ We have construed the Union's assertion regarding section "55596" as an argument that the award conflicts with the Back Pay Act, 5 U.S.C. § 5596.