[ v49 p1568 ]
The decision of the Authority follows:
49 FLRA No. 141
FEDERAL LABOR RELATIONS AUTHORITY
POLICE ASSOCIATION OF THE DISTRICT OF COLUMBIA
U.S. DEPARTMENT OF THE INTERIOR
NATIONAL PARK SERVICE
UNITED STATES PARK POLICE
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
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.
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 on the first day of the first pay period on or after January 8, 1993. The Agency implemented the pay adjustment effective that date. Accordingly, to find the Agency's action inconsistent with the Pay Act, as amended, it also would be necessary to find OPM's regulation in violation of the Pay Act. However, the Statute does not authorize us to declare another agency's Government-wide regulation invalid. See American Federation of Government Employees, AFL-CIO, National Council of Grain Inspection Locals v. FLRA, 794 F.2d 1013, 1015 (5th Cir. 1986). See also U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, Local 1923, 37 FLRA 1469, 1475 (1990).
Moreover, even if we had such authority, the record before us provides no basis on which to find OPM's regulation inconsistent with the Pay Act, as amended. In this regard, the Arbitrator found, and we agree, that nothing in the plain wording or legislative history of the Pay Act or the Technical Amendments supports a conclusion that OPM was required to make its pay adjustment determinations retroactive. As such, we have no basis on which to reject the Arbitrator's conclusion that OPM had discretion to determine the effective date of the pay adjustments and we cannot conclude that the award is deficient as contrary to law, rule or regulation.
Finally, we reject the Union's claim that the Arbitrator improperly failed to address the Agency's alleged violation of section 405 of the Pay Act. The fact that an award does not mention an issue does not establish that an award is deficient or that the arbitrator did not address the issue. For example, International Federation of Professional and Technical Engineers, Local 11 and U.S. Department of the Navy, Naval Electronic Systems Engineering Center, Vallejo, California, 46 FLRA 893, 898 (1992). In our view, the Union's contention constitutes disagreement with the Arbitrator's evaluation of the evidence and his findings and conclusions thereon. As such, the exception provides no basis for finding the award deficient. See id.
The Union's exceptions are denied.(3)
Section 404 of the Pay Act, as originally enacted, provided as follows:
(a) A law enforcement officer shall be paid any applicable special pay adjustment in accordance with the provisions of this section, but such special pay adjustment shall be reduced by the amount of any applicable interim geographic adjustment . . . any applicable locality-based comparability payment . . . and any applicable special rate of pay . . . .
(b) Except as provided in subsection (a), effective on the first day of the first applicable pay period beginning on or after January 1, 1992, each law enforcement officer whose post of duty is in one of the following areas shall receive an adjustment . . . .
. . . .
Pub. L. No. 101-509, 104 Stat. at 1466.
Section 405 of the Pay Act provides, in pertinent part:
(a) The appropriate agency head . . . shall prescribe regulations under which the purposes of sections 403 and 404 shall be carried out . . . .
Section 404 of the Pay Act, as amended by the Technical Amendments, provides as follows:
(a) A law enforcement officer shall be paid any applicable special pay adjustment . . . but such special pay adjustment shall be reduced by the amount of any applicable interim geographic adjustment . . . any applicable locality-based comparability payment . . . and, to the extent determined appropriate by the Office of Personnel Management, any applicable special rate of pay
. . . .
Pub. L. No. 101-509, 104 Stat. at 1466, as amended by the Technical Amendments of October 2, 1992, Pub. L. No. 102-378, 106 Stat. at 1356.
Section 9(a) of the Technical Amendments provides, in pertinent part, that "[e]except as otherwise provided in this section, this Act and the amendments made by this Act shall take effect as of the date of enactment of this Act." Pub. L. No. 102-378, 106 Stat. at 1360. The amendment to section 404(a) of the Pay Act is not listed as an exception.
Pub. L. No. 102-378, 106 Stat. at 1360.
(If blank, the decision does not have footnotes.)
1. Relevant statutory provisions are set forth in the appendix to this decision.
2. OPM's interim regulation is found at 58 Fed. Reg. 3199. To date, OPM has not finalized that regulation.
3. In view of our decision, it is unnecessary to address the Union's request that we remand the case to the parties so that the Union may file a motion for attorney fees.