[ v56 p836 ]
56 FLRA No. 138
U.S. DEPARTMENT OF DEFENSE
FEDERAL EDUCATION ASSOCIATION
September 29, 2000
Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.
I. Statement of the Case
This case is before the Authority on exceptions to an award of Arbitrator Joseph Duffy filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.
The Arbitrator found that the Agency committed an unjustified or unwarranted personnel action under the Back Pay Act by failing to adjust the grievants' pay lanes or steps consistent with the parties' collective bargaining agreement and to pay them accordingly, and that the Agency owed them back pay with interest. [n1] For the reasons that follow, we conclude that the Agency has not established that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the Agency's exceptions.
II. Background and Arbitrator's Award
The grievants in this case are teachers employed by the Department of Defense Education Activity in Germany. According to the Arbitrator, "[p]ay rates for employees covered by the [parties' collective bargaining agreement] are set based on length of service with the [Agency] and based on the level of education the employee has achieved. The pay scale has 'steps' for longevity and 'pay lanes' for education level." Award at 3.
One of the grievants applied for and obtained a higher pay lane, a change from BA+30 to MA, during the 1991-92 school year. The Agency filed the appropriate paperwork (Form SF-50) to initiate that change. However, each school year thereafter, the Agency submitted paperwork establishing the grievant's pay lane as BA+30, although the grievant was paid correctly at the MA pay lane for much of that time. Beginning with the 1997-98 school year, the Agency changed pay agents and the grievant was payed thereafter incorrectly at the BA+30 pay lane based on incorrect paperwork filed by the Agency (the pay lane grievance). [n2]
The other grievant earned the required credits to qualify for a change in pay lane on April 10, 1997. The Agency made the change effective May 10, 1997. Although the grievant has received some back pay for her claim, she has not received the full amount. In addition, the Agency stipulated that the grievant should have been placed at step 17 for the 1997-98 school year, but was placed at step 16. According to the Arbitrator, although the grievant was paid $510.57 subsequent to the arbitration hearing in this case, the calculations on which that amount was based were not explained by the Agency (the step grievance).
Separate grievances were filed, which were later consolidated for arbitration.
B. Arbitrator's Award
The Arbitrator stated the issues agreed to by the parties as follows:
1. Did the Agency violate laws, rules, regulations, past practice, the negotiated agreement, Agency Decisions and/or earlier FLRA/Arbitration decisions by failing to pay the Grievant[s] in a timely manner and by failing to pay interest on back pay? If so, what shall the remedies be?
2. In regard to [the grievants]:
a. Did the [A]gency fail to take the necessary actions to timely and properly pay the Grievant[s]? [n3] If not, is interest due and if so, what are the Interest Accrual Dates? [ v56 p837 ]
b. Did the Agency's failure to take the necessary actions constitute an Unwarranted or Unjustified Personnel Action ('UUPA')?
c. Should the Agency be forced to comply with the Popular Arbitration? [n4]
d. Should the Agency be forced to pay correct back pay and/or interest, in accordance with the Back Pay Act, accompanied by an audit demonstrating correct payment?
e. Should the Arbitrator retain jurisdiction in order to ensure compliance and hear a motion for attorneys' fees and costs?
Award at 2-3.
The Arbitrator stated that the "central issue" in the case concerned "whether or not the Back Pay Act applies[.]" Award at 5. Specifically, the Arbitrator defined the issue as whether the Agency's failure to pay the grievants in a timely manner constituted an unjustified or unwarranted personnel action under the Back Pay Act. In this regard, the Arbitrator noted that the Back Pay Act defines the phrase "personnel action" as including the failure or omission to take an action or confer a benefit. The Arbitrator also noted that applicable Office of Personnel Management (OPM) regulations define the phrase as an "act of commission or an act of omission" that is determined "to have been unjustified or unwarranted under applicable law, Executive order, rule, regulation, or mandatory personnel policy established by an agency or through a collective bargaining agreement," including "personnel actions and pay actions (alone or in combination)." Id. at 6 (quoting 5 C.F.R. § 550.803). Finally, the Arbitrator quoted OPM's comments upon the issuance of its Back Pay Act regulations, to the effect that "if an agency, through administrative error, fails to implement a pay action such as a within-grade increase (after approval by the properly authorized official), the employee is made whole by issuing the appropriate payment of back pay and interest." Id. (quoting 53 Fed. Reg. 45885 (Nov. 15, 1988).
The Arbitrator refused to address the Agency's argument that OPM's regulations "exceed OPM's authority" on the ground that the issue was outside his jurisdiction as an arbitrator. Id. at 7. The Arbitrator rejected the Agency's argument that the Union had failed to identify any law, rule, regulation, or provision of the parties' agreement requiring it "to pay teachers by any date certain." Id. at 8. In this regard, the Arbitrator quoted Article 25, Section 2B of the parties' agreement as specifying "exactly when a pay lane change must be made[.]" [n5] The Arbitrator also reviewed provisions of the agreement that "make it clear the parties operate under a system of regular pay periods and pay days." Id. Based on this contractual evidence, the Arbitrator found that the Agency and the Union "have an established past practice that is supported by specific contract language under which the parties observe regular bi-weekly pay periods and regular pay days." Id. Consequently, he also found that "the obligation to pay the higher rate on 'the first day of the first pay period following the date the education was completed' establishes a date certain clearly understood and agreed to by both parties." [n6] Id. [ v56 p838 ]
The Arbitrator found, as to both grievances, that the Back Pay Act and its implementing regulations were incorporated by reference in the parties' agreement. As to the pay lane grievance, the Arbitrator found that the Agency committed an unjustified or unwarranted personnel action by failing, based on improper paperwork, to timely pay the grievant in accordance with the correct pay lane. The Arbitrator found that the grievant was entitled to back pay and interest accrued from the first pay day of the first pay period of the 1997-98 school year.
With respect to the step grievance, the Arbitrator found that the grievant was entitled to a pay change effective on April 10, 1997, but that, although the grievant has been paid some money, the Agency has failed to provide sufficient information to determine whether the amount is correct and has failed to provide interest. The Arbitrator also found that the Agency's failure to pay the grievant properly constituted an unjustified or unwarranted personnel action and that the grievant was entitled to back pay and interest accrued from the first day of the first pay period of the 1997-98 school year. The Arbitrator found that the Agency stipulated that the grievant should be at Step 17 for the 1999-2000 school year and, because the Agency had not provided an explanation of the amount already paid, it owed the grievant back pay with interest accrued from the beginning of the 1999-2000 school year.
Finally, as to both grievances, the Arbitrator directed the Agency to comply with the Popular award. He also ordered the Agency to pay both grievants interest on interest under 5 U.S.C. § 550.806(g) and to conduct audits that demonstrated the calculations used to compute the back pay and interest owed to the grievants. [n7]
III. Positions of the Parties
A. Agency's Exceptions
The Agency contends that the Arbitrator's award is deficient under section 7122(a) of the Statute because it is contrary to the Back Pay Act. Specifically, the Agency argues that the grievants are not entitled to interest under the Back Pay Act because the Agency's delay in paying them in accordance with the appropriate pay lane and step does not constitute an unjustified or unwarranted personnel action under that statutory provision. [n8] The Agency states that "[i]nterest is due only on back pay paid under the [Back Pay Act], and there has been no violation of the [Back Pay Act] in this case." Exceptions at 19.
In this regard, the Agency contends that the Back Pay Act constitutes a waiver of sovereign immunity and that, as such, it is to be narrowly construed. According to the Agency, even if delay in paying the grievants constitutes an omission within the meaning of the Back Pay Act, such an omission constitutes an unjustified or unwarranted personnel action only if it violates a mandate of law, regulation, or the collective bargaining agreement, citing Brown v. Secretary of the Army, 918 F.2d 214, 220 (D.C. Cir. 1990) (Brown). [n9] The Agency asserts that there is no legal, regulatory, or contractual mandate requiring timely payment in the circumstances of this case. Rather, the Agency contends, the failure to pay the grievants resulted from administrative error and, because that error did not violate the specific provisions of any law, rule, regulation or collective bargaining agreement, there is no basis for concluding that the pay withholding was unjustified or unwarranted.
In particular, the Agency maintains that, "[i]n order to support a decision under the [Back Pay Act]," the Arbitrator "must identify the specific actions and conditions unambiguously specified in law, rule, regulation or collective bargaining agreement that render the duty to pay, or the omission thereof, nondiscretionary and mandatory in order to conclude that interest is payable." Id. at 25. The Agency contends that the Arbitrator errs "in concluding that the Agency's past pay practice establish[es] a mandatory duty with respect to a nondiscretionary act." Id. at 24. [n10] The Agency claims that the Arbitrator has not "identified any law, rule, regulation [ v56 p839 ] or collective bargaining agreement that mandates the Agency to pay [the grievant] by a certain date, nor has evidence been presented that even the last discretionary personnel action or pay action was taken to authorize her pay." Id. at 31. Citing In the Matter of Synita Revels, GSBCA 14935-RELO, December 9, 1999 (Revels), the Agency also contends that the type of pay involved must be the type of pay that is covered by the Back Pay Act. Id. at 30.
Specifically, the Agency claims that, although the Arbitrator found "that language in the contract stating the effective date of a pay change and past practices require a finding that the [contract] establishes a date certain on which pay must be made," the contract literally states "only that the employee shall be assigned a higher salary effective on the first day of a pay period following the date the education was completed." [n11] Id. at 23. In this regard, the Agency maintains that the Arbitrator failed to identify "terms in the [contract] that satisfy the test of 'expressly and affirmatively--and not by silence, implication, or the ambiguous use of a particular phrase' demonstrate the nondiscretionary and mandatory duty to pay the [grievants]." Id. at 25 (emphasis in original). The Agency states that the Arbitrator's interpretation of the contract is "unreasonable[.]" Id.
Moreover, the Agency claims that by placing his interpretation of the parties' collective bargaining agreement "above the legal injunction to narrowly construe language that waives sovereign immunity," the Arbitrator has "expanded the waiver of sovereign immunity granted by the [Back Pay Act] to embrace all manner of delay in paying entitlements." Id. at 29. In this regard, the Agency notes that contract interpretation is not "uniform" among arbitrators and that, although prior arbitrators had found "a general duty to pay because of unreasonable delays," the Arbitrator in this case found that the parties' agreement "established an unequivocal and specific duty by the Agency to pay at the start of [the] next pay period following an award or the start of a school year." Id. at 29-30.
The Agency states that, currently, "a separate legal entity" operates as the paymaster for the Agency as a whole and contends that the actions of that separate entity are not mandatory and nondiscretionary merely because it is the agent of the Agency. Id. at 30. Rather, payment is not mandatory and nondiscretionary until "the agency's regulations indicate that the pay action has been subjected to the last internal discretionary act (such as legal review of the legality of the payment) and all conditions precedent to make the duty mandatory have occurred." Id. at 31.
More generally, the Agency questions whether, by providing for omissions in making pay actions to constitute unjustified or unwarranted personnel actions, OPM regulations improperly extend the Back Pay Act. The Agency also states that, by amending the Back Pay Act to include omissions to act or confer a benefit, Congress intended only to incorporate interpretations of the Back Pay Act by OPM and the Comptroller General prior to 1978 and contends that, to the extent the Arbitrator's conclusions are broader than that, they are inconsistent with the Back Pay Act. In any event, the Agency argues that even if "a pay action can stand alone as a 'personnel action' under the Back Pay Act, the rules used to determine whether the personnel action is mandatory and nondiscretionary must apply equally to determine if the pay action is mandatory and nondiscretionary. Thus, a pay action can be a [unjustified and unwarranted personnel action] only after it can be demonstrated unequivocally that the pay action must be processed or paid by a specific time, and the pay action is nondiscretionary." Id. at 30 (emphasis in original).
B. Union's Opposition
The Union contends that the "Agency's arguments ignore the 'plain meaning' of the terms 'omission or failure to take an action or confer a benefit.'" Opposition at 2. The Union states that "[i]f these terms, taken directly from the Back Pay Act and 5 C.F.R. [part] 550, do not mean 'administrative error' or 'delay,' what else can they mean?" Id.
Citing U.S. Department of Defense Dependents Schools, Bulzbach Elementary School, Bulzbach, Germany and Federal Education Association, 56 FLRA 208 (2000) (Bulzbach Elementary), the Union asserts that "[i]f an [a]rbitrator finds a 'contractual requirement' in the [collective bargaining agreement] to pay employees in a 'timely manner,'" the arbitrator's award will not be found deficient under the Back Pay Act by the Authority. Id. According to the Union, the Arbitrator found "a 'past practice' of paying teachers on a bi-weekly basis for work performed in the preceding pay period" and that "this 'past practice' is supported by specific contract language[.]" Id. at 3. The Union also notes that the [ v56 p840 ] Authority has rejected the Agency's arguments in two previous cases involving the same parties and the same issues, specifically, FEA I and U.S. Department of Defense, Department of Defense Dependents Schools and Federal Education Association, 54 FLRA 773 (1998).
The Union distinguishes cases relied on by the Agency. Specifically, the Union contends that the Agency's reliance on Revels is misplaced because that case concerned a claim for reimbursement for real estate transaction expenses, an incidental expense of a transfer, but not an entitlement to payment such as is found in the pay lane and step in this case. As to Abramson, the Union contends that the case supports its position because the court "specifically found that [an unjustified and unwarranted personnel action] resulting from a delay in payment had been committed, and that this triggered the [Back Pay Act]." Opposition at 7. The Union distinguishes Bradley on the ground that the plaintiffs in that case, unlike the grievants herein, did not suffer a reduction in pay and did not seek correction of an unjustified or unwarranted personnel action.
The Union argues that Spagnola and Brown support its position. According to the Union, the holding in Spagnola, denying a higher rate of pay to illegally detailed employees, was based on the absence of a nondiscretionary or mandatory requirement of a pay statute, whereas 20 U.S.C. § 906 and DoD Directive 1400.25-M mandate the payment of the post allowance in this case. As to Brown, the Union notes the court's holding that if a personnel action is mandatory, once certain conditions are met, the Back Pay Act affords a remedy. The Union asserts that 20 U.S.C. § 906 and "Article 25 of the [collective bargaining agreement] mandate the payment of more money to the [grievants]." Opposition at 8. In this regard, the Union claims that 20 U.S.C. § 906 and Article 25 give the Agency "no room for exercising discretion or judgment in paying a teacher at a higher [pay lane or step]." Id. at 9. According to the Union, the Agency's "only task" in these circumstances is to forward the "proper paperwork" to the Agency's pay agent. Id.
The Union contends that all the Comptroller General cases holding that where an agency has no discretion as to a personnel action, a failure to take that action provides a remedy under the Back Pay Act support its position, particularly cases holding that administrative errors in pay actions are remedial under the Back Pay Act. In addition, the Union maintains that even those cases where the Comptroller General found that an agency had discretion support its position because "each of these cases makes it quite clear that the result would have been different had the agencies had no discretion [due to] a mandatory provision of a [collective bargaining agreement] (like Article 25) . . . or if there were a delay in payment after any discretion was exercised." Opposition at 10.
The Union disputes the Agency's claim that the parties' collective bargaining agreement does not address the payments involved in this case. According to the Union, the agreement "clearly and specifically addresses [pay lane and step] problems." Id. at 11.
As to the Agency's argument that "the act of certifying a payment is 'the last internal discretionary act' that is taken by the payroll officer before authorizing disbursement," the Union argues that the "certifying principal which is clearly due in accordance with . . . 20 U.S.C. §§ 901-907 . . . and Article 25 of the [collective bargaining agreement] involves no discretion or exercise of judgment." Id. at 11-12. According to the Union, if the Agency is correct, the Agency would never have to pay its employees if a payroll officer did not certify the payment.
IV. Analysis and Conclusions
A. Standard of Review
When a party's exception challenges an award's consistency with law, the Authority reviews the question of law raised by the exception and the arbitrator's award de novo. See National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 685-87 (D.C. Cir. 1994)). In applying a de novo standard of review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. See National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's factual findings. See id.
B. The Requirements of the Back Pay Act
The Agency's exceptions in this case challenge the Arbitrator's award of interest to the grievant under the Back Pay Act. In order to be eligible for relief under the Back Pay Act, the grievant must be found by an "appropriate authority under applicable law, rule, regulation, or collective bargaining agreement, . . . to have been affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or all or part of the pay, allowances, or differentials of the [ v56 p841 ] employee[.]" 5 U.S.C. § 5596(b)(1). See also Social Security Administration, Office of Hearings and Appeals, Falls Church, Virginia and American Federation of Government Employees, Local 3615, 55 FLRA 349, 353 (1999) (citing U.S. Department of Health and Human Services and National Treasury Employees Union, 54 FLRA 1210, 1218 (1998)). Such an individual is then entitled to receive, among other things, "an amount equal to all or any part of" the pay, allowances, or differentials the employee would have earned or received if the improper personnel action had not taken place. 5 U.S.C. § 5596(b)(1)(A)(i). These amounts are payable with interest.
Thus, in order for the grievants to qualify for back pay and interest in the circumstances of this case, the Agency's failure to pay them in accordance with the appropriate pay lane and pay step must have constituted an unjustified and unwarranted personnel action under the Back Pay Act.
C. Office of Personnel Management Regulations Implementing the Back Pay Act May Not Be Challenged in this Proceeding
The Agency's arguments regarding the OPM regulations that implement the Back Pay Act, 5 C.F.R. Part 550, in effect ask the Authority to review and construe those regulations to find that a pay action is an inadequate basis to constitute an unjustified or unwarranted personnel action.
Section 7105 of the Statute enumerates the powers and duties of the Authority, none of which relate to passing judgment on rules and regulations that OPM or any other Federal agency has promulgated. See 5 U.S.C. § 7105; American Federation of Government Employees, AFL-CIO v. FLRA, 794 F.2d 1013, 1015 (5th Cir. 1986) (Congress did not intend for the Authority to sit in review of other agencies' regulations). If the Agency wishes to challenge the validity of OPM regulations implementing the Back Pay Act, the Authority is not the correct forum. See Bulzbach, 56 FLRA at 212. If the validity of the OPM regulations is in question, the issue must be raised by an interested party in another forum. Therefore, we deny the exception.
D. The Arbitrator's Award is Not Contrary to Law, Regulation, of Sovereign Immunity
As noted above, a violation of a provision of a collective bargaining agreement constitutes an unjustified or unwarranted personnel action under the Back Pay Act. See, e.g., U.S. Department of Defense, Department of Defense Dependents Schools and Federal Education Association, 54 FLRA 773, 785 (1998). The Arbitrator found that Article 25 specified exactly when a pay lane change should be made. He also found that provisions of the parties' agreement established that the parties maintained a system of regular pay periods and pay dates. Thus, we reject the Agency's argument that there was no such nondiscretionary mandate in this case. [n12] Accordingly, the Arbitrator concluded, and we find, that the failure of the Agency to timely pay the grievants in accordance with the appropriate pay lane and pay step constituted a violation of the parties' agreement and an unjustified and unwarranted personnel action under the Back Pay Act. See Bulzbach Elementary, 56 FLRA at 212.
Further, the Agency's Back Pay Act arguments in this case are encompassed by the Back Pay Act arguments made by it in U.S. Department of Defense, Education Activity, Arlington, Virginia and Federal Education Association, 56 FLRA No. 119 (September 26, 2000) (DODEA, Arlington). Here, as there, three interrelated and overlapping arguments are made: (1) the Back Pay Act does not come into play where the obligation to pay the underlying amount is not in question; (2) delay or omission does not fall under the Back Pay Act unless there is some law, rule or regulation that makes the payment nondiscretionary by a specific date; and (3) omission or mere delay is not per se an unjustified or unwarranted personnel action. See Exceptions at 24-25.
In DODEA, Arlington, after thoroughly examining the Agency's Back Pay Act arguments, legal precedent cited, and the arbitral record, we concluded that the exceptions there provided no basis for finding the underlying award contrary to the Back Pay Act. In the present matter, we have again examined the Agency's Back Pay Act arguments, the legal precedent cited in support thereof, and the underlying arbitral record. Specifically, as argued by the Union in its opposition to the Agency's exceptions, many of the court and Comptroller General cases relied on by the Agency appear to be either inapplicable or are supportive of the Arbitrator's decision. [n13] We conclude, for the same reasons set forth in DODEA, Arlington, that the Agency has not shown [ v56 p842 ] that the Arbitrator's award in the present case is contrary to the Back Pay Act. [n14]
As noted in DODEA, Arlington, the administrative or clerical error rule set forth in Comptroller General precedent specifically recognizes that an error or delay in making payment can constitute an unjustified or unwarranted personnel action under the Back Pay Act, even where the obligation to pay the underlying amount is not in question, and even where there is no nondiscretionary law, rule, or regulation mandating action in accordance with specific criteria or by a specific date. Also, as in DODEA, Arlington, there is no arbitral finding in the present case that omission or delay is, per se, an unjustified or unwarranted personnel action.
E. The Award Does Not Fail to Draw Its Essence from the Parties' Agreement
The Agency states generally that the collective bargaining agreement does not contain provisions mandating the payment of the grievants by a date certain. Even if we assume that the Agency's statements constitute a claim that the Arbitrator's interpretation of the parties' agreement does not draw its essence from that agreement, we find that the Agency has not demonstrated that the award is implausible, irrational, or in manifest disregard of the parties' collective bargaining agreement. Thus, the Agency's statements are not sufficient to demonstrate that the award in this regard is deficient. See, e.g., U.S. Department of the Treasury, U.S. Customs Service, El Paso, Texas and National Treasury Employees Union, Chapter 143, 55 FLRA 553 (1999).
F. The Award Is Not Based on a Nonfact
Finally, we note the Agency's statement that no evidence has been presented establishing that the last discretionary act was taken to authorize the grievant's pay. Even if we were to treat the Agency's statement as an exception on the ground of nonfact, the Agency has not shown that the award is deficient on that ground. Specifically, the Agency has not demonstrated that the alleged factual finding constitutes a central fact underlying the award, that the fact is clearly erroneous, and that but for that error a different result would have been reached by the Arbitrator. See, e.g., U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593-94 (1993). Moreover, to the extent that the Agency's statement is intended to challenge the legal validity of the Arbitrator's application of the Back Pay Act, we note that an arbitrator's legal conclusions cannot be challenged on the basis of nonfact. See, e.g., National Federation of Federal Employees, Local 561 and U.S. Department of the Army, U.S. Army Corps of Engineers, Mobile, Alabama, 52 FLRA 207, 210-11 (1996); U.S. Department of the Navy, Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 39 FLRA 590, 605 (1991).
Accordingly, we deny the Agency's exceptions.
The Agency's exceptions are denied.
1. The Back Pay Act, 5 U.S.C. § 5596, provides, in relevant part, as follows:
§ 5596. Back pay due to unjustified personnel action
. . . .
(b)(1) An employee of an agency who, on the basis of a timely appeal or an administrative determination (including a decision relating to an unfair labor practice or a grievance) is found by appropriate authority under applicable law, rule, regulation, or collective bargaining agreement, to have been affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of all or part of the pay, allowances, or differentials of the employee--
(A) is entitled, on correction of the personnel action, to receive for the period for which the action was in effect--
(i) an amount equal to all or any part of the pay, allowances, or differentials, as applicable which the employee normally would have earned or received during the period if the personnel action had not occurred, less any amounts earned by the employee through other employment during that period[.]
. . . . [ v56 p843 ]
(2)(A) An amount payable under paragraph (1)(A)(i) of this subsection shall be payable with interest[.]
. . . .
(4) For the purpose of this subsection, "grievance" and "collective bargaining agreement" have the meanings set forth in section 7103 of this title . . . "unfair labor practice" means an unfair labor practice described in section 7116 of this title . . . and "personnel action" includes the omission or failure to take an action or confer a benefit.
2. 5 C.F.R. § 550.806(g) provides as follows:
(g) To the extent administratively feasible, the agency shall issue payments of back pay and interest simultaneously. If all or part of the payment of back pay is issued on or before the date on which accrual of interest ends and the interest payment is issued after the payment of back pay is issued, the amount of the payment of back pay shall be subtracted from the accrued amount of back pay and interest, effective with the date the payment of back pay was issued. Interest shall continue to accrue on the remaining unpaid amount of back pay (if any) and interest until the date on which the accrual of interest ends.
Footnote # 1 for 56 FLRA No. 138
Footnote # 2 for 56 FLRA No. 138
Footnote # 3 for 56 FLRA No. 138
Footnote # 4 for 56 FLRA No. 138
In a previous arbitration case between the parties involving the Agency's failure to timely pay employees, Arbitrator Popular found that, although the Agency had reimbursed employees the correct amount for improperly withheld pay, the Agency was also required to pay employees interest on that amount under the Back Pay Act (Popular award). See U.S. Department of Defense, Dependents Schools and Federal Education Association, 54 FLRA 514 (1998) (FEA I), wherein the Agency challenged the award of attorney fees but not the merits of the underlying award.
Footnote # 5 for 56 FLRA No. 138
A unit employee who completes the advanced education required to qualify for a salary under a higher education salary schedule shall be assigned the higher salary effective on the first day of the first pay period following the date the education was completed. Such adjustment shall be made upon receipt of written documentation in which the college or university concerned specifies the date when the unit employee completed the advanced education, or the date when the unit employee met the requirements for a specific degree.
The Arbitrator states that the Agency "has not raised any challenge in this case concerning the completion of the required education or the submission of the required written documentation." Award at 8.
Footnote # 6 for 56 FLRA No. 138
The Arbitrator noted prior arbitration awards involving the same parties and same issues as are involved in the instant case, specifically, the awards of arbitrators Bloch and Hockenberry and the Popular award. The awards in those arbitration cases found that the Agency committed unjustified or unwarranted personnel actions by failing to timely pay the grievants and awarded back pay and interest. According to the Arbitrator, the Union made a strong case that those prior awards governed this case, but, because the Agency had changed its position somewhat from those cases, the Arbitrator concluded that he needed to address the Agency's arguments concerning the applicability of the Back Pay Act.
Based on his conclusions as to the requirements of the parties' agreement, the Arbitrator also rejected the Agency's arguments based on court and Comptroller General precedent.
Footnote # 7 for 56 FLRA No. 138
Footnote # 8 for 56 FLRA No. 138
The Agency couches its exceptions in terms of a failure to pay a post allowance. A post allowance is at issue in Case No. 0- AR-3308. We construe the Agency's arguments in this case to concern the failure to timely pay the grievants in accordance with the appropriate pay lane and step.
Footnote # 9 for 56 FLRA No. 138
The Agency cites other court and Comptroller General decisions in support of this proposition. See, e.g., Hambsch v. U.S., 857 F.2d 763 (Fed. Cir. 1988) (Hambsch); Spagnola v. Stockman, 732 F.2d 908 (Fed. Cir. 1984) (Spagnola); Bradley v. United States, 42 Fed. Cl. 333 (1998) (Bradley); Abramson v. U.S., 42 Fed. Cl. 621 (1998) (Abramson); Bell v. United States, 23 Ct. Cl. 73 (1991); Matter of: Turner-Caldwell--Reconsideration in View of Wilson v. United States, 61 Comp. Gen. 408 (1982) (Turner-Caldwell III); In the Matter of Internal Revenue Service Employees--Retroactive Promotion with Back Pay, 54 Comp. Gen. 888 (1975) (Internal Revenue Service Employees).
Footnote # 10 for 56 FLRA No. 138
The Agency acknowledges that it has "a general policy to pay employees regularly, within two weeks or a month of performing services," citing DoD Directive 1400.13, but maintains that the policy "does not require payment by date certain, and does not establish that the pay is a mandatory duty[.]" Exceptions at 24 n.4.
Footnote # 11 for 56 FLRA No. 138
The Agency notes that another arbitrator has found that Article 25 of the parties' agreement establishes "a mandatory Agency duty to provide a salary lane change . . . upon the occurrence of certain events." Exceptions at 24 n.5. The Agency contends, however, that Article 25 "says nothing, and therefore mandates nothing, about the method or time for processing the necessary actions to implement the new pay authority once the educator has demonstrated that he/she has satisfied the educational requirements and has presented proper proof of those accomplishments to [the Agency]." Id. (emphasis in original).
Footnote # 12 for 56 FLRA No. 138
Footnote # 13 for 56 FLRA No. 138
In this regard, contrary to the Agency's contention, the failure to timely pay the grievants in accordance with the appropriate pay lane and pay step is not the same as a miscalculation of employees' Law Enforcement Availability Pay, as in Bradley. Other cases are similarly inapplicable: Bell, for example, concerned involuntary retirement based on agency misinformation. We also agree with the Union's distinction of Revels from this case.
Footnote # 14 for 56 FLRA No. 138
We note the Agency's conclusionary statement that, in violating the scope of the Back Pay Act and waiving sovereign immunity by authorizing the payment of interest, the Arbitrator exceeded his authority. We find that this statement merely rephrases the Agency's claim that the award is contrary to law, rather than setting forth a separate exception.