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37:0796(64)AR - - DOD, Marine Corps Logistics Base, Barstow, CA and AFGE Local 1492 - - 1990 FLRAdec AR - - v37 p796

[ v37 p796 ]
The decision of the Authority follows:

37 FLRA No. 64









LOCAL 1492




September 28, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to the award of Arbitrator Robert M. Leventhal 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 exception.

The Union filed a grievance claiming that the Agency violated the parties' agreement when it did not provide work for the grievant and charged him 8 hours of leave without pay (LWOP). The Arbitrator upheld the grievance and ordered the Agency to pay the grievant 8 hours' backpay. The Arbitrator denied the Union's request that the backpay include interest.

For the following reasons, we conclude that the portion of the award pertaining to the denial of interest is deficient because it is contrary to law. Accordingly, we will modify the award to provide for the payment of interest on the backpay award.

II. Arbitrator's Award

As pertinent here, the Arbitrator determined that the Agency violated the parties' agreement relating to reduced work operations over the 1988 Christmas season when it failed to provide the grievant with 8 hours of work. As a remedy, the Arbitrator directed the Agency to convert to annual leave the 8 hours of LWOP it had charged the grievant and to provide the grievant with 8 hours' backpay for the disputed period. The Arbitrator further determined that "[b]ased on the delays in this case, some of which were caused by the [g]rievant, the Union's prayer for interest is denied." Award at 15.

III. The Union's Exception

The Union contends that the award is "violative of law" because it is contrary to "Public Law 100-202," which provides for interest on backpay awards to Federal employees. Exception at 1. To support this contention, the Union cites FPM Bulletin No. 550-63, dated June 22, 1988, and the Bulletin's second attachment, Office of Personnel Management (OPM) Notice of Changes to Title 5 of the Code of Federal Regulations (OPM Notice).

IV. Analysis and Conclusion

Under the Back Pay Act, 5 U.S.C. § 5596(b), as amended, Pub. L. No. 100-202 (1987), an employee who is found to have been subjected to an unwarranted personnel action that has resulted in withdrawal in pay is entitled to interest on the backpay. Specifically, 5 U.S.C. § 5596(b)(2)(A) provides that "[a]n amount payable under paragraph (1)(A)(i) of [the Back Pay Act] shall be payable with interest." (Emphasis added.) In issuing regulations implementing this section, OPM notified agencies that 5 C.F.R. § 550.80l, 805-06 "require agencies to pay interest on back pay awarded to Federal employees." OPM Notice (emphasis added). Based on the clear wording of 5 U.S.C. § 5596(b)(2)(A) and the OPM Notice, we conclude that interest must be paid on backpay awards.

Moreover, the Merit Systems Protection Board (MSPB) has held that 5 U.S.C. § 5596(b)(2)(A) "does not provide any exceptions to the requirement for the payment of interest on back[]pay awards." Stone v. Dept. of Health and Human Services, 39 M.S.P.R. 650, 654 (1989) (Stone). In Stone, the MSPB rejected the agency's argument that a delay in awarding the appellant backpay, which occurred because several motions had been filed in the case, excused the agency's payment of interest. Id.

Consistent with Stone, we find no basis in law or regulation on which to conclude that procedural delays form a basis to withhold the payment of interest under 5 U.S.C. § 5596(b)(2)(A). The Back Pay Act makes no provisions for such exceptions. Accordingly, we find that because interest on backpay awards must be paid under 5 U.S.C. § 5596(b)(2), the Arbitrator's award is deficient because it conflicts with law. See also Allen Park Veterans Administration, Medical Center and American Federation of Government Employees, Local 933, 34 FLRA 1091, 1101-02 (1990).

V. Decision

The Arbitrator's award is modified to include the payment of interest on the backpay award.

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