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60 FLRA No. 107
DEPARTMENT OF AGRICULTURE
OF STATE, COUNTY
AND MUNICIPAL EMPLOYEES
December 30, 2004
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
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 granted the grievance, which alleged that the Agency violated the parties' agreement by denying the grievant's requests for official time, and retained jurisdiction of the attorney fees issue. For the reasons set forth below, we deny the Agency's exception.
II. Background and Arbitrator's Award
Prior to each pay period beginning in October 2003, the grievant, the Union president, submitted official time requests to her supervisor. The grievant's supervisor denied part of each request. The Union filed several grievances concerning the denied requests. The grievances were not resolved and were consolidated and submitted to arbitration. The parties did not stipulate the issues to be resolved and, as relevant here, the Arbitrator framed the issue to be:
Did the Agency violate law, the collective bargaining agreement, or any settlement agreements, [ v60 p528 ] memoranda of understanding and/or past practices between the parties when it refused to approve the full amount of official time requested by the [g]rievant for each week beginning in pay period 20 of 2003, and continuing to the date of arbitration? If so, what shall be the remedy?
Id. at 2. [n1]
The Arbitrator determined that an established past practice existed, whereby the "Agency accepted the [g]rievant's estimates of the official time she would need for each upcoming pay period" and that the grievant would only use the time she needed and would otherwise be available to perform Agency work. Id. at 33. The Arbitrator found that the Agency "violated a well established past practice[,] and thus the [collective bargaining agreement,]" by denying the grievant's official time requests. Id. at 28.
In determining the remedy, the Arbitrator found credible the grievant's assertion that she spent 25 hours of non-duty time performing representational work because of the Agency's improper denials of her official time requests. See id. at 35. As a result, he found that the grievant was "due 25 hours backpay at straight time, with interest." Id.
The Arbitrator also found that an award of attorney fees "may be authorized" under that Act. Id. at 35. In this regard, he found that the grievant was the "prevailing party[,]" and directed the parties to develop a schedule for presentation of arguments regarding whether attorneys fees are warranted under 5 U.S.C. § 7701. Id. at 36. The Arbitrator granted the grievance, directing the Agency to pay the grievant "25 hours [of] backpay at straight time, with interest[,]" and retained jurisdiction of the attorney fees issue until it was resolved. Id. at 35.
III. Positions of the Parties
A. Agency's Exception
As initial matters, the Agency asserts that its exception is not barred by § 2429.5 of the Authority's Regulations. The Agency also asserts that its exception is not interlocutory. In this regard, the Agency contends that the Arbitrator's retention of jurisdiction to decide unresolved attorney fees issues does not interfere with its right to file exceptions. [n2] Exception at 5-6.
On the merits, the Agency claims that the award is contrary to the Back Pay Act for two reasons. First, the Agency acknowledges that the grievant is entitled to compensation for improperly denied official time under § 7131, but asserts that such compensation does not constitute "pay" within the meaning of the Back Pay Act. Id. at 8. Second, the Agency claims that the grievant "lost nothing" because she "was paid for performing her normal duties during the time she was denied official time for representational work." Id.
The Agency also contends that interest on the award is not warranted because the Arbitrator improperly awarded backpay under the Back Pay Act. The Agency further contends that there is no authorization for an award of attorney fees under the Back Pay Act, the Statute, or the Equal Access to Justice Act, 5 U.S.C. § 504. See id. at 10-11.
B. Union's Opposition
The Union disputes the Agency's claim that the award of "straight time pay" is not backpay. Opposition at 5. In this regard, the Union contends that such awards are authorized under the Back Pay Act, if they meet the two-prong test for backpay.
The Union asserts that it is undisputed that the grievant was affected by an unjustified or unwarranted personnel action. See id. at 4. The Union also asserts that the pay at issue here is a "monetary benefit" to which the grievant is entitled under 5 U.S.C. § 7131(d) and, therefore, constitutes "pay, allowances, and differentials" within the meaning of the Back Pay Act. Id. at 6, 8.
The Union disputes the Agency's claim that the Arbitrator failed to identify pay the grievant lost. In this regard, the Union asserts that the Arbitrator based his award on his finding that the grievant spent 25 hours of non-duty time performing representational duties "in order to comply with her obligations and make up for the wrongfully denied official time[.]" Id. at 5. The Union contends that the Arbitrator's findings establish [ v60 p529 ] that, but for the Agency's "illegal acts[,]" the grievant would have been entitled to payment for performing the Union representational duties "during the normal work week[.]" Id. at 6. The Union also contends that the grievant is entitled to interest and attorney fees.
IV. The award is not contrary to the Back Pay Act, 5 U.S.C § 5596.
The Agency claims that the award is contrary to the Back Pay Act. When a party's exception challenges an award's consistency with law, the Authority reviews the exception de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
Under the Back Pay Act, 5 U.S.C. § 5596(b)(1), an award of back pay is authorized only when an arbitrator finds that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; and (2) the personnel action resulted in the withdrawal or reduction of the employee's pay, allowances, or differentials. See United States Dept' of Health & Human Servs., 54 FLRA 1210, 1218 (1998) (DHHS). An arbitrator's award of back pay must be supported by factual findings. See id. at 1219 n.9.
It is undisputed that the grievant suffered an unjustified or unwarranted personnel action as a result of the Agency improperly denying the grievant's official time requests. With regard to the second requirement for back pay, Congress has expressed its intent that the phrase "pay, allowances, or differentials" "cover everything" that an employee subjected to an unjustified or unwarranted personnel action "would have been entitled if the personnel action had not occurred." H.R. Rep. No. 32, 89th Congress, 1st Sess. 5 (1965). Consistent with this, the Office of Personnel Management Regulations implementing the Back Pay Act define "[p]ay, allowances, and differentials" as "pay, leave, and other monetary employment benefits to which an employee is entitled by statute or regulation and which are payable by the employing agency to an employee during periods of Federal employment." 5 C.F.R. § 550.803. Also, consistent with Congress' intent, the Authority has concluded that "pay" encompasses "legitimate employee benefits in the nature of employment compensation or emoluments[.]" DHHS, 54 FLRA at 1221-22. In this regard, the Authority has determined that an award of "pay" includes restoration of regular pay, annual leave, and pay for missed overtime opportunities, but does not extend to reimbursement payments such as per diem. See Nat'l Ass'n of Gov't Employees, Local R4-6, 52 FLRA 1522, 1527 n.3 (1997) (annual leave); United States Dep't of Veterans Affairs, Med. Ctr., Coatesville, Pa., 56 FLRA 829, 834 (2000) (missed overtime); Dep't of Def. Dependents Schs., 54 FLRA 259, 265 (1998) (per diem).
Here, there is no dispute that the grievant performed improperly denied official time during non-duty time and, thus, is entitled to straight-time pay pursuant to § 7131 of the Statute. See Exceptions at 8; United States Dep't of Transp., Fed. Aviation Admin., S.W. Region, Ft. Worth, Tex., 59 FLRA 530, 532 (2003) (§ 7131 entitles an employee who is improperly denied official time to be paid for the amount of time the employee spent performing representational duties during non-duty time). As the grievant is entitled to this compensation under § 7131, such compensation is a monetary "benefit in the nature of employment compensation or emoluments[,]" and is not akin to a reimbursement payment. DHHS, 54 FLRA at 1221-22; see also H.R. Rep. No. 1403, 95th Congress, 2d Sess. 58 (1978) (describing official time as "paid time"). Further, the compensation at issue meets the definition of "pay" under the Back Pay Act because it is compensation to which the grievant is "entitled" by § 7131 of the Statute and which is payable to the grievant by the Agency. See 5 C.F.R. § 550.803. Based on the foregoing, we find that the compensation at issue constitutes "pay" within the meaning of the Back Pay Act.
Turning to whether the grievant suffered a withdrawal or reduction of pay, the Arbitrator's findings, to which we defer, establish that the Agency improperly denied the grievant's requests to perform official time during duty time, that the grievant performed Agency work instead of duties on official time, and that the grievant also performed 25 hours of duties during non-duty time that properly should have been performed during duty time. The grievant was thus paid her regular pay for performing 25 hours of Agency work she should not have been required to perform and was not paid any amount for performing the 25 hours of duties for which she was improperly denied official time.
It is undisputed that the grievant is entitled to be paid for the time she spent performing duties for which she should have been granted official time. As a result of the Agency's improper denials of the grievant's requests for official time, the grievant performed 25 hours of additional duties. By failing to pay the grievant [ v60 p530 ] for performing these duties, the Agency withheld pay to which the grievant was entitled under § 7131 of the Statute.
Based on the foregoing, we find that the Agency's violation of the parties' agreement constituted an unjustified and unwarranted personnel action that resulted in the grievant suffering a loss of pay. As there is a causal connection between the Agency's unjustified or unwarranted personnel action and the grievant's loss of pay, we find that the requirements of the Back Pay Act have been satisfied. [n3] See Gen. Servs. Admin., 55 FLRA 493, 496 (1999). Accordingly, we deny the exception.
The Agency's exception is denied.
Footnote # 1 for 60 FLRA No. 107 - Authority's Decision
The Arbitrator determined that the Agency violated § 7116(a)(1) of the Statute by denying the grievant's requests for official time. See Award at 34. As neither party filed exceptions to the Arbitrator's resolution of this issue, we do not address it further.
Footnote # 2 for 60 FLRA No. 107 - Authority's Decision
The Union does not claim that the exception is interlocutory. Further, we note that "the retention of jurisdiction by an arbitrator for the purpose of resolving questions relating to attorney fees does not interfere in any way with [an] [a]gency's right to file exceptions" to an award under § 7122 of the Statute. See United States Dep't of the Treasury, U.S. Customs Serv., Nogales, Ariz., 47 FLRA 1391, 1392 (1993). Accordingly, we find that the Agency's exception is not interlocutory.
Footnote # 3 for 60 FLRA No. 107 - Authority's Decision
Because the Arbitrator properly awarded the grievant backpay under the Back Pay Act, the payment of interest on that backpay is required. See United States Dep't of Def., Dependents Schs., Bulzbach Elementary Sch., Bulzbach, Germany, 56 FLRA 208, 212 (2000). As the Agency did not contest the amount of interest to be paid, we do not address this issue further. See id. In addition, for the same reason, the threshold requirements for an award of attorney fees under the Back Pay Act have been satisfied. See United States Dep't of Def., Def. Distrib. Region E., New Cumberland, Pa., 51 FLRA 155, 158 (1995). We note that the Arbitrator has not awarded attorney fees in this matter. If the Arbitrator awards attorney fees, then the Agency may file exceptions to such an award at that time.