National Association of Government Employees, Local R4-106 and U.S. Department of the Air Force, Langley Air Force Base, Hampton, Virginia

[ v55 p676 ]

55 FLRA No. 119

NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R4-106
(Union)

and

U.S. DEPARTMENT OF THE AIR FORCE
LANGLEY AIR FORCE BASE
HAMPTON, VIRGINIA
(Agency)

0-AR-3128

_____

DECISION

July 31, 1999

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

Decision by Member Wasserman for the Authority.

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Donald Doherty 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 Regulations. The Agency filed an opposition to the Union's exceptions.

      In his supplemental award, the Arbitrator denied the Union's motion for attorney fees. The Union contends that the Arbitrator's denial is contrary to law.

      For the following reasons, we conclude that the Union's exceptions fail to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.

II.     Background and Arbitrator's Supplemental Award

      In his original award dated May 28, 1998, the Arbitrator ruled that the Agency erred in finding that there was negligence on the part of the two grievants in the loss of four laptop computers. As a remedy, the Arbitrator directed the Agency to, among other things, reimburse the grievants for "money[] charged against them." Original Award at 9. Neither party filed exceptions to the original award.

      The Union filed a motion for attorney fees on July 30, 1998. The Arbitrator denied the Union's motion in a supplemental award. The Arbitrator concluded that grievants had not been affected by an unjustified or unwarranted personnel action that resulted in the withdrawal or reduction of their pay, allowances, or differentials. The Arbitrator found that no unjustified or unwarranted personnel action had occurred because "[t]he action taken was [a] collection of a debt pursuant to a decision made in the Report of Survey program." [n1]  Supplemental Award at 15. According to the Arbitrator, "[t]he collection of a debt is not part of the Agency's personnel program." Id.

      The Arbitrator also stated that no violation of the parties' collective bargaining agreement had occurred. Rather, the Arbitrator stated that he had resolved the grievance on the grounds that the grievants "had not been negligent in the loss of the computer[s] and should not have been assessed a monetary penalty." Id. at 13.

      Finally, the Arbitrator noted the Union's contention that the grievants were forced to "endure reductions in their pay each period." Id. at 16. In this regard, the Arbitrator stated as follows:

The question of a choice of payment of the assessed liability, whether through a voluntary allotment, by use of a credit card, cash or a check never arose during the arbitration hearing. It would appear, however, that a debt might be canceled in a variety of ways, with a voluntary allotment being the easiest method for an employee. However, no ruling was requested or made as to whether the grievants were "forced to endure reductions in their pay each period."

Id. The Arbitrator also stated that "[j]ust because the grievants chose an allotment from their pay, this does not automatically equate to a withholding of pay or benefits as defined under the Back Pay Act." Id. Therefore, the Arbitrator denied the Union's motion.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union contends that the Arbitrator's denial of its request for attorney fees is contrary to the Back Pay Act, 5 U.S.C. § 5596. First, the Union argues that assessments of liability in reports of survey are routinely subject to review in negotiated agreements and that a [ v55 p677 ] successful grievance "necessarily implies that there was an infringement on the rights of the grievants" under the collective bargaining agreement. Exceptions at 5. Therefore, the Union states that the grievants were affected by an unjustified or unwarranted personnel action.

      Second, the Union argues that because of the Agency's improper assessment of liability, the "[g]rievants were forced to endure reductions in their pay each pay period." Id. The Union notes that, based on the arbitration award, this money was returned to them. The Union disputes as irrelevant the Arbitrator's statement that the grievants could have paid for the loss of the computers by means other than payroll deduction. The Union argues that the fact that the grievants could have paid by other means does not change the fact that they paid by payroll deduction and suffered a loss in pay.

      Finally, the Union maintains that the Agency's improper assessment of liability against the grievants was the direct cause of their reduction in pay.

B.     Agency's Opposition

      The Agency maintains that the Union's exceptions are without merit. The Agency contends that no unjustified or unwarranted personnel action was taken against the grievants because there was no violation of the collective bargaining agreement. The Agency asserts that the grievance did not concern an allegation of a violation of the collective bargaining agreement but, rather, concerned whether or not there was negligence in the loss of the laptop computers. The Agency states that "[g]ri