49:1568(141)AR - - Police Asso. of the District of Columbia and Interior, National Park Service, U.S. Park Police - - 1994 FLRAdec AR - - v49 p1568

[ v49 p1568 ]
The decision of the Authority follows:

49 FLRA No. 141














July 13, 1994


Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on exceptions to an award of Arbitrator Eckehard Muessig 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 filed an opposition to the Union's exceptions.

The Arbitrator denied a grievance alleging that the Agency violated law by the manner in which it implemented certain salary adjustments for Park Police officers. For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The Federal Law Enforcement Pay Reform Act of 1990, Pub. L. No. 101-509, 104 Stat. 1465, Nov. 5, 1990 (the Pay Act), provides in section 404 that, effective the first pay period beginning on or after January 1, 1992, certain law enforcement officers of the Federal Government are entitled to specified pay adjustments.(1) Section 405 of the Pay Act directs agency heads, including the Secretary of the Interior, to prescribe regulations to implement section 404. Following enactment of the Pay Act, the Agency took the position that Park Police officers involved in this case were not law enforcement officers, within the meaning of section 404 and, accordingly, did not prescribe regulations to implement the pay adjustments.

The Pay Act was amended by the Technical and Miscellaneous Civil Service Amendments Act of 1992, Pub. L. No. 102-378, 106 Stat. 1346, October 2, 1992, (the Technical Amendments), which, among other things, included the Park Police in the definition of law enforcement officer. The Amendments also amended section 404 of the Pay Act to provide that the Office of Personnel Management (OPM) would determine the extent of certain reductions in the pay adjustments. On January 8, 1993, OPM promulgated an interim regulation which specified that section 404(a) of the Pay Act, as amended, was effective on the first day of the first pay period beginning on or after that date.(2) The Agency implemented the special pay adjustment effective January 8, 1993.

The Union filed a grievance contending that the pay adjustments should have been made retroactive to October 2, 1992, the date the Pay Act was amended by the Technical Amendments. When the grievance was not resolved, it was submitted to arbitration on the following issue, as set forth by the Arbitrator:

Did the Agency violate applicable law when it implemented the amendments to the [Pay Act] made by [the Technical Amendments]; if so, what shall the remedy be?

Award at 1.

In denying the grievance, the Arbitrator first noted that the Union offered no legislative history to support its argument that Congress intended OPM to apply the Technical Amendments to section 404 of the Pay Act retroactively. In addition, the Arbitrator found nothing in the wording of section 9 of the Technical Amendments to indicate that Congress intended the special locality pay adjustments to be effective retroactively. The Arbitrator concluded, based on an analysis of the Technical Amendments as a whole, that OPM was not "arbitrary . . . or unreasonable when it determined the effective date for the implementation of the [s]ection 404 amendments as being the first pay period beginning [on] or after January 8, 1993." Id. at 5. Accordingly, the Arbitrator denied the grievance.

III. Positions of the Parties

A. Union

The Union argues that the Arbitrator erred in concluding that OPM was authorized to "vary the effective date of . . . locality pay adjustments for . . . Park Police." Exceptions at 20. According to the Union, such conclusion is inconsistent with sections 404 and 405 of the Pay Act. The Union also argues that, consistent with section 9(a) of the Technical Amendments, any regulation prescribed by OPM should have been applied retroactive to January 1, 1992, the effective date of the Pay Act. Alternatively, the Union maintains that the OPM regulation should have been applied retroactive to October 2, 1992, the effective date of the Technical Amendments. In this regard, the Union contends that the Agency failed to prescribe regulations concerning the special pay adjustments and, thereby, violated section 405 of the Pay Act. The Union contends that the award is deficient because it "completely fails to address . . . the Agency's obligations under section 405 . . . ." Id. at 25.

The Union requests the Authority to order the Agency to grant the special pay adjustments, with applicable interest under the Back Pay Act, retroactive to the first day of the first pay period beginning on or after January 1, 1992, or, alternatively, October 2, 1992, "which ever [sic] date the Authority deems proper under the law[.]" Id. at 26. The Union also requests that the Authority remand the case to the parties to allow the Union to file a motion for attorney fees.

B. Agency

The Agency argues that the award is not deficient, and that the Arbitrator concluded properly that the Agency acted reasonably in implementing the pay adjustment in January 1993, in accordance with OPM regulations.

IV. Analysis and Conclusions

Under section 7122(a)(1) of the Statute, an award is deficient if it is "contrary to any law, rule, or regulation[.]" The Union contends that the award is contrary to section 404(a) of the Pay Act, as amended. For the following reasons, we conclude that the award is not deficient.

First, it is clear that the Agency implemented the pay adjustment consistent with OPM's interim regulation. In particular, the regulation required the Agency to implement the disputed pay adjustment o