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60 FLRA No. 10
SOCIAL SECURITY ADMINISTRATION
OF GOVERNMENT EMPLOYEES,
June 18, 2004
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1]
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator Charles Feigenbaum filed by the Agency under § 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 exception.
The Arbitrator found that the Agency violated the parties' national agreement by failing and refusing to recognize an employee as a designated Council 220 representative and by denying official time to that employee. The Arbitrator also found that these violations constituted an unfair labor practice under § 7116 of the Statute. For the reasons that follow, we deny the exception.
II. Background and Arbitrator's Award
The president of AFGE Council 220 moved his national office from Chicago to Baltimore in 2001. He then solicited assistance from Union members in Baltimore to work in the council office to provide administrative and clerical support. [n2] The grievant, who had previously been a local representative, volunteered and the Union president notified Agency management of her designation as a council representative. The grievant completed the required form and requested official time. She worked one day in the council office. Her next four requests for official time to work in the council office were not approved. Her last request for official time was denied in writing and the reason given was "`Not recognized as a person authorized to use national official bank time.'" Award at 6. She grieved and when the matter was not resolved, it was submitted to arbitration.
The Arbitrator determined that § 7131(b) and (d) are applicable to this case. He found that nothing in the Statute indicated that the clerical and administrative work in the Union office at issue here would constitute internal union business, or that official time would be inappropriate, under the law, for an employee whose work on behalf of a union consists solely of clerical and administrative duties. Consequently, the Arbitrator granted the grievance.
As a remedy, the Arbitrator ordered the following:
1. SSA will honor Union designations of Council 220 representatives for the Baltimore office, as needed, up to the extent of matching the official time formerly provided for staffing the Council 220 office when it was in Chicago. For this purpose, the time currently used by [the grievant] will be counted against the Baltimore office.
2. SSA will post the attached Notice at all appropriate locations for a period of 60 days.
3. The parties will attempt to reach agreement on appropriate monetary compensation, if any, to the Union for costs incurred as a result of the Agency's violation.
Award at 28.
The Arbitrator also retained jurisdiction for 60 days for the sole purpose of resolving any disputes that may arise out of the implementation of the award. It is only part 3 of the remedy to which the Agency excepts.
III. Positions of the Parties
A. Agency's Exception
The Agency claims that the third part of the award requires the expenditure of appropriated funds not authorized by law. The Agency asserts that it is immune from liability for the payment of money damages to the Union under the doctrine of sovereign immunity. The Agency also maintains that in the absence of a specific [ v60 p33 ] statutory authorization, it is without authority to use appropriated funds for such an obligation. The Agency also contends that the third part of the award is contrary to law because any authorization to pay travel and per diem to employees does not authorize payments to the Union for all costs incurred.
The Agency states that the Arbitrator failed to cite any specific authorization for the payment of costs to a union. The Agency contends that the award directs it to negotiate the reimbursement of costs for the Union and such reimbursement would constitute money damages that were expressly rejected by the Authority in INS, Los Angeles Dist., Los Angeles, Cal., 52 FLRA 103, 106 (1996) as contrary to the doctrine of sovereign immunity. Accordingly, the Agency requests that the third part of the award be set aside as it requires it to negotiate reimbursing the Union for costs incurred as a result of the Agency's violation, when such costs amount to monetary damages.
B. Union's Opposition
The Union contends that the award is not contrary to law because the purpose of the payment of travel and per diem to the Council 220 officials was not for personal reasons but rather in connection with the officials carrying out labor-management activities during their regular workdays. The Union further contends that their work was for the convenience of the Agency and was in the primary interest of the Government and therefore the Agency has the discretion to pay the travel and per diem.
The Union argues that the cases relied on by the Agency are not applicable because those cases dealt with requested reimbursement for employees for personal reasons, not for government business.
The Union asserts that the compensation ordered by the Arbitrator is more in the nature of equitable relief, because it attempts to give to the Union officials that to which they are entitled, that is, travel and per diem costs related to the official time they used during the occasions that the grievant was improperly denied official time to work there.
The Union also argues that it has already negotiated with the Agency for payment of travel and per diem for Union negotiators. Moreover, the Union states that the Agency failed to appeal an arbitrator's award of travel and per diem to two other union officials. Therefore, the Union asserts that the payment of travel and per diem can be made at the discretion of the Agency, because the work was done in connection with official business.
IV. Preliminary Matters
The Authority's Case Control Office issued an order inquiring as to whether the Agency's exception is interlocutory. Pursuant to § 2429.11 of the Authority's Regulations, the Authority ordinarily will not consider interlocutory appeals. An exception is considered interlocutory when it concerns a preliminary ruling as opposed to a final award. United States Dep't of Def., Army & Air Force Exch. Serv., 38 FLRA 587 (1990). Exceptions filed before an arbitrator makes a final disposition of all of the issues presented will be considered interlocutory. See United States Dep't of Health & Human Servs., Ctrs. for Medicare & Medicaid Servs., 57 FLRA 924, 926 (2002). Exceptions are interlocutory if they are filed before the arbitrator's decision is final.
In this case, the Arbitrator determined that the Agency had refused to recognize a duly appointed Council representative and ordered the Agency to post a notice for 60 days. The Arbitrator also ordered the parties to meet and arrive at an agreement of costs owed to the Union, if any. The Arbitrator retained jurisdiction for a period of 60 days to assist the parties with determining costs owed to the Union, as provided in his award, if his services were needed. However, his arbitration decision responded to the issues before him and was final for purposes of filing exceptions under § 7122(a) of the Statute on the day it was issued. See, e.g., United States Dep't of the Interior, Bureau of Indian Affairs, Wapato Irrigation Project, 55 FLRA 152, 158 (1999) (agency argued arbitrator's retention of jurisdiction to assist in determining backpay and interest left Authority without jurisdiction; Authority found, to the contrary, that award was not interlocutory).
Additionally, the Union contends that the Agency waived its right to file an exception to the Arbitrator's award. See Opposition at 6. The Union bases its contention on the Agency's failure, several years ago, to appeal an arbitrator's award of travel and per diem to two other union officials. See United States Dep't of Health & Human Servs., Soc. Sec. Admin., N.Y. Region, 52 FLRA 328, 329 n.2 (1996).
A waiver of a party's statutory right to file exceptions to an arbitrator's award under § 7122(a) of the Statute must be clear and unmistakable. United States Dep't of the Navy, Naval Surface Warfare Ctr., Indian Head Div., Indian Head, Md., 56 FLRA 848, 850 (2000). The Agency's failure to file exceptions to the prior award does not constitute a clear and unmistakable waiver of it right under the Statute to file exceptions to the award now before the Authority. Accordingly, we [ v60 p34 ] will consider the exceptions. See AFGE, Local 3615, 57 FLRA 19, 21 (2001).
V. Analysis and Conclusions
The Authority's role in reviewing arbitration awards depends on the nature of the exception raised by the appealing party. See United States Customs Serv. v. FLRA, 43 F.3d 682, 686 (D.C. Cir. 1994). In NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (NTEU Chapter 24), the Authority stated that if the arbitrator's decision is challenged, as it is here, on the ground that it is contrary to any law, rule, or regulation, the Authority will review the legal question de novo. In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id. See also United States Dep't of Commerce, Patent & Trademark Office, 52 FLRA 358, 367 (1996); United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593 (1993) (discussing Supreme Court's articulation of deferential standard of review of arbitration awards in United Paperworkers v. Misco, Inc., 484 U.S. 29 (1987)).
Here, the Arbitrator determined that the Agency violated the parties' collective bargaining agreement when it denied the grievant's request to use official time to work in the Union office on labor management business. As part of his award, the Arbitrator ordered the parties to meet and attempt to reach agreement on appropriate monetary compensation, if any, to the Union for the costs it incurred as a result of the Agency's refusal to allow the grievant to work in the Union office. According to the Agency, this award will have the effect of requiring the Agency to negotiate with the Union on costs incurred by the Union as a result of the Agency violation of the agreement. The Agency contends that the award conflicts with the Agency's sovereign immunity and that the Federal Government is not subject to monetary liability unless it has waived its sovereign immunity. See, e.g., United States v. Testan, 424 U.S. 392, 399 (1976) (Testan). [n3] However, contrary to the Agency's assertion, the award on its face simply requires that the Agency and Union meet and "attempt to reach agreement on appropriate monetary compensation, if any, to the Union for costs incurred as a result of the Agency's violation." Award at 28. There is nothing in the award that requires the parties to agree to any particular compensation or to violate any other law, rule or regulation governing the matter.
Consequently, the award does not mandate a violation of sovereign immunity or require the expenditure of appropriated funds for a purpose for which they are not intended. The award does not require that the parties agree to any negotiated reimbursement, but only that they meet and attempt to reach agreement on "appropriate" monetary compensation, if any. By its very terms, the arbitration award addresses only "appropriate" compensation that would necessarily have to be consistent with law and, thus, the award requires only that the Agency act in a lawful manner. Because the award only requires that the Agency act in a lawful manner, the award does not violate the Agency's sovereign immunity. We deny the exception because the award only requires the Agency to act in a manner consistent with law and regulation. See, for example, United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Otisville, N.Y., 58 FLRA 307, 308-09 (2003) (award only required agency to meet and negotiate with union and did not require the agency to agree to any particular proposals or procedures).
Accordingly, we conclude that the award does not affect the Agency's right to refuse to expend appropriated funds for purposes not authorized by law.
The Agency's exception is denied.
Concurring Opinion of Chairman Cabaniss:
I write separately to address the sovereign immunity issue raised in the exception. Here the Arbitrator ordered the Agency to "attempt to reach agreement on appropriate monetary compensation, if any, to the Union for costs incurred as a result of the Agency's violations." Award at 28. Those "costs incurred" relate to the Union's costs of bringing in employees from another location to provide representational work that a local employee should have been able to perform had there not been an improper denial of official time for the local employee.
Not surprisingly, there is Authority precedent awarding monetary damages to unions. See, e.g., Dep't of Defense Dependents Schools (Alexandria, Va.), 33 FLRA 659 (1988). In that case, without discussion or [ v60 p35 ] comment the Authority ordered an agency to reimburse a union for its expenses of paying various travel and per diem expenses of employees who should have received reimbursement for those expenses from the agency.
With all due respect to that precedent, it takes more than that to find that Congress explicitly waived sovereign immunity so as to permit monetary damages. In Dep't of the Army, United States Army Commissary, Fort Benjamin Harrison, Indianapolis, Ind.; Dep't of the Army, Fin. & Accounting Office, Fort Sam Houston, Tex. v. FLRA, 56 F.3d 273 (D.C. Cir. 1995), the court rejected a similar attempt by the Authority to order an agency to pay monetary damages, the issue there being the reimbursement to the agency's employees of their out of pocket losses incurred when the agency changed the time lag on employees receiving their pay. The court also made clear that monetary damages are not equitable or make whole relief.
As with that court case, there has been no action by Congress that provides any type of waiver of sovereign immunity to permit the Agency here to pay monetary damages to the Union, even if it wanted to. Thus, I hope all this is kept in mind while the parties go back and "attempt to reach agreement on appropriate monetary compensation, if any, to the Union for costs incurred as a result of the Agency's violations[,]" per the order of the Arbitrator noted above.
Footnote # 1 for 60 FLRA No. 10 - Authority's Decision
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Footnote # 3 for 60 FLRA No. 10 - Authority's Decision
Further, a "waiver of the traditional sovereign immunity `cannot be implied but must be unequivocally expressed.'" Testan, 424 U.S. at 399 (citations omitted). See also Dep't of the Army, United States Army Commissary, Fort Benjamin Harrison, Indianapolis, Ind.; Dep't of the Army, Fin. & Accounting Office, Fort Sam Houston, Tex. v. FLRA, 56 F.3d 273 (D.C. Cir. 1995).