Department of Defense Dependents Schools, Panama Region and Panama Canal Federation of Teachers, Local 29 (Authority decision, February 12, 1987)

Final FLRA decision. The Authority sets aside an arbitration award for backpay and interest. Under 5 U.S.C. § 7123(a)(1), an order involving an arbitral award is generally excluded from judicial review unless it involves an unfair labor practice under 5 U.S.C. § 7116. This decision does not decide an unfair labor practice.

Plain-English summary

A part-time teacher at a Department of Defense school in Panama received half of a full-time salary but said her duties warranted more. An arbitrator found that the school had failed to explain her pay and had skipped an orientation required by the labor agreement. He awarded the difference between half pay and 60 percent pay, plus interest. The Authority set aside the award because the arbitrator had not found that the orientation failure caused the teacher to lose pay she otherwise would have received, as the Back Pay Act required. It also held that interest was unavailable under the Act and urged the agency to explain employment terms to new hires clearly.

Decision snapshot

• Authority: Arbitration review under 5 U.S.C. § 7122(a) and backpay requirements under 5 U.S.C. § 5596.
• Outcome: Backpay and interest award set aside.
• Key point: A contract violation did not support backpay without a finding that it directly caused a loss of pay.

Full text (FLRA public release)

[ v25 p629 ]

25:0629(51)AR

The decision of the Authority follows:

25 FLRA No. 51

DEPARTMENT OF DEFENSE DEPENDENTS
SCHOOLS, PANAMA REGION
Agency

and

THE PANAMA CANAL FEDERATION
OF TEACHERS, LOCAL 29
Union

Case No. 0-AR-1215

DECISION

I. STATEMENT OF THE CASE

This matter is before the Authority on exceptions to the award of Arbitrator James J. Sherman filed by the Agency under section 7122(a) of the Federal Service Labor-Management Authority's Rules and Regulations.

II. BACKGROUND AND ARBITRATOR'S AWARD

The dispute before the Arbitrator concerned the grievant's contention that she was not paid the proper rate for her part-time teaching position. The grievant contended that her duties, which consisted of three classes plus a lunch period and required time before and after classes, were at least two-thirds those of a full-time teacher, yet she was paid only a half-time salary. The Arbitrator stated the issue to be whether the Agency violated the collective bargaining agreement by paying one-half instead of two-thirds of the normal salary for the approximately five months the grievant was employed.

The Arbitrator found that salaries for teachers were set by an Agency wage board but that the board had not addressed the matter of salaries for employees who worked less than full-time and more than half-time. He agreed with the Agency that he had no authority to establish a salary rate in the absence of wage board guidelines. On the other hand, he found that the school principal failed to fully inform the grievant at the beginning of her employment exactly what her salary would be and that the principal failed to comply with a contractual obligation to conduct an orientation session to inform the grievant of the terms of her employment. He concluded that if an orientation session had been held and the grievant had been informed that she would receive only one-half the full rate of pay she would have had the option of either accepting that rate or refusing the position. He ruled that the grievant was not entitled to compensation at the rate of two-thirds of the full-time rate but that she had a resonable expectation that she would receive 60 percent. The Arbitrator emphasized that he was not setting a new salary rate of 60 percent for all part-time assignments such as the grievant's. As his award, the Arbitrator ordered the Agency to pay the grievant the difference between a 60 percent salary and what she actually received. He also ordered the Agency to pay interest on that amount at the rate of 8 percent.

III. FIRST EXCEPTION

A. Contentions

In its first exception, the Agency contends the award is contrary to the Back Pay Act, 5 U.S.C. Section 5596, because it orders backpay without the requisite finding that there was an unwarranted or unjustified personnel action that directly resulted in the withdrawal or reduction in pay that the grievant otherwise would not have suffered. Particularly, the Agency maintains that the Arbitrator made no finding that but for the Agency's failure to conduct an orientation session as required by the agreement, the grievant would have received more pay. The Union argues that the Arbitrator clearly and correctly found that the grievant was not properly paid.

B. Analysis and Conclusions

We agree with the Agency that the Arbitrator's award does not comply with the legal requirements for an award of backpay. The Authority has consistently held that in order for an award of backpay to be authorized under the Back Pay Act, the arbitrator must determine that the aggrieved employee was affected by an unjustified or unwarranted personnel action, that the personnel action directly resulted in the withdrawal or reduction of the grievant's pay, allowances or differentials, and that but for such action, the grievant otherwise would not have suffered the withdrawal or reduction. For example, National Marine Fisheries Service, Northeast Region, National Oceanic and Atmospheric Administration, United States Department of Commerce, Gloucester, Massachusetts and International Organization of Masters, Mates, and Pilots, AFL-CIO, Boston, Massachusetts, 22 FLRA No. 43 (1986). In this case, the Arbitrator found that the principal's failure to conduct an orientation session and to inform the grievant of her salary rate was a violation of the parties' agreement. However, he did not find that the grievant would have been entitled to receive more than the half-time rate even if the orientation session had been conducted. The Arbitrator conceded that he did not have the authority to set the salary rate for more than half-time employment in the absence of guidelines by the wage board and he specifically ruled that the grievant would have been entitled only to one-half normal salary and no more if she had been properly informed and accepted the position. Consequently, we conclude that the Arbitrator's award of backpay is contrary to the Back Pay Act.

Although we are compelled to find the award deficient in this manner, we agree with the Arbitrator's finding that the grievant was misled by the principal's failure to inform her at the beginning of her employment what the salary rate would be and that she could not expect to receive more than half-time compensation even though she would be required to work more than half-time. As a matter of simple fairness and improved employee-management relations, the Agency should ensure that newly-hired employees are informed completely of the terms of their employment in a timely fasion so that misunderstandings such as this one will not occur in the future.

IV. SECOND EXCEPTION

A. Contentions

In its second exception, the Agency contends that the award is contrary to the Back Pay Act because it requires the payment of interest to the grievant. The Union contends that the payment of interest is lawful.

B. Analysis and Conclusions

The Agency's exception has merit. The Authority has adopted the settled rule that interest is not available against the Federal Government unless authorized by an express provision in a relevant statute or contract and has determined that interest is not available in awards of backpay under the Back Pay Act. Portsmouth Naval Shipyard and Federal Employees Metal Trades Council, 7 FLRA 30 (1981). Consequently, the award of interest is deficient.

V. DECISION

For the above reasons, the award is set aside.

Issued, Washington, D.C., February 12, 1987.

Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY