Defense Logistics Agency and American Federation of Government Employees, Local 2501 (Authority decision, March 9, 1988)

Final FLRA decision. The Authority dismisses the agency's exception for lack of jurisdiction because the arbitration award concerns an employee removal under 5 U.S.C. §§ 7121(f) and 7512. Review of that award may be sought in the U.S. Court of Appeals for the Federal Circuit under 5 U.S.C. § 7703. The Authority does not decide the agency's challenge to interest on backpay.

Plain-English summary

The Defense Logistics Agency removed an employee for two incidents of intoxication on duty and one absence without leave. An arbitrator reduced the penalty to a five-day suspension, restored the employee to his position, and awarded backpay with interest. The agency challenged only the interest portion of the award. The Authority held that an award concerning removal falls outside its jurisdiction, even when the exception targets one part of the remedy, and dismissed the exception. It also noted a recent amendment to the Back Pay Act concerning interest.

Decision snapshot

• Authority: Removal award review limits under 5 U.S.C. §§ 7121(f), 7122(a), and 7512.
• Outcome: Agency exception dismissed for lack of Authority jurisdiction.
• Key point: A challenge to interest on backpay did not give the Authority jurisdiction over an award concerning removal.

Full text (FLRA public release)

[ v31 p754 ]

31:0754(49)AR

The decision of the Authority follows:

31 FLRA NO. 49
31 FLRA 754 (1988)
09 MAR 1988

DEFENSE LOGISTICS AGENCY

Agency

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL No. 2501

Union

Case No. 0-AR-1456

ORDER DISMISSING EXCEPTION

This matter is before the Authority on an exception to the award of Arbitrator Ralph C. Barnhart 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 Rules and Regulations. Because the Arbitrator's award concerns a removal from service, we find that we are without jurisdiction to review the Agency's exception.

The Agency removed the grievant from Federal service because he had been intoxicated while on duty twice and absent without leave once. The Arbitrator found that the grievant's removal violated the parties' collective bargaining agreement. As his award, the Arbitrator: (1) rescinded the grievant's removal and reduced the penalty to a 5-day suspension; (2) restored the grievant to his former position; and (3) granted the grievant backpay with interest at 9 percent for the time lost.

The Agency filed an exception only to that portion of the Arbitrator's award which directed the payment of interest to the grievant. The Union did not file an opposition.

Section 7122(a) of the Statute provides, in pertinent part:

Either party to arbitration under this chapter may file with the Authority an exception to any arbitrator's award pursuant to the arbitration (other than an award relating to a matter described in section 7121(f) of this title).

The matters described in section 7121(f) of the Statute include adverse actions (such as removals) under 5 U.S.C. 7512. Review of arbitration awards relating to such matters, like review of decisions of the Merit Systems Protection Board, may be sought by appeal to the U.S. Court of Appeals for the Federal Circuit in accordance with 5 U.S.C. 7703. Because the Arbitrator's award concerns a matter covered by 5 U.S.C. 7512, that is, the removal of the grievant from service, an exception to the award may not be filed with the Authority under section 7122(a) of the Statute. The Authority, therefore, is without jurisdiction to review the Agency's exception. U.S. Department of Transportation, Federal Aviation Administration Eastern Region and Professional Airways Systems, MEBA, AFL - CIO, 28 FLRA 345 (1987). Accordingly, the Agency's exception is dismissed.

We also note, for the information of the parties and others in the Federal labor-management relations community, that 5 U.S.C. 5596(b) (the Back Pay Act) was amended on December 22, 1987, to provide for the payment of interest on awards of backpay to Federal employees. The text of that amendment, which can be found in the Continuing Appropriations Act of 1988, Pub. L. No. 100-202, 1988 U.S. Code Cong. & Admin. News (101 Stat.) 1329-1, 1329-428--1329-429, is as follows:

Sec. 623. Interest On Back Pay For Federal Employees.--(a) In General.--Section 5596(b) of title 5, United States Code is amended--

(1) by redesignating paragraphs (2) and (3) as paragraphs (3) and (4), respectively, and

(2) by adding after paragraph (1) the following:

"(2)(A) An amount payable under paragraph (1)(A)(i) of this subsection shall be payable with interest.

"(B) Such interest--

"(i) shall be computed for the period beginning on the effective date of the withdrawal or reduction involved and ending on a date not more than 30 days before the date on which payment is made;

"(ii) shall be computed at the rate or rates in effect under section 6621(a)(1) of the Internal Revenue Code of 1986 during the period described in clause (i); and

"(iii) shall be compounded daily.

"(C) Interest under this paragraph shall be paid out of amounts available for payments under paragraph (1) of this subsection."

(b) Effective Date.--

(1) Generally. --Except as provided in paragraph (2), the amendments made by subsection (a) shall take effect on the date of the enactment of this Act, and shall apply with respect to any employee found, in a final judgment entered or a final decision otherwise rendered on or after such date, to have been the subject of an unjustified or unwarranted personnel action, the correction of which entitles such employee to an amount under section 5596(b)(1)(A)(i) of title 5, United States Code.

(2) Exception.--

(A) Cases In Which A Right To Interest Was Reserved.--The amendments made by subsection (a) shall also apply with respect to any claim which was brought under section 5596 of title 5, United States Code, and with respect to which a final judgment was entered or a final decision was otherwise rendered before the date of the enactment of this Act, if, under terms of such judgment or decision, a right to interest was specifically reserved, contingent on the enactment of a statute authorizing the payment of interest on claims brought under such section 5596.

(B) Method Of Computing Interest.--The amount of interest payable under this paragraph with respect to a claim shall be determined in accordance with section 5596(b)(2)(B) of title 5, United States Code (as amended by this section).

(C) Source.--An amount payable under this paragraph shall be paid from the appropriation made by section 1304 of title 31, United States Code, notwithstanding section 5596(b) (2) (C) of title 5, United States Cod? (as amended by this section) or any other provision of law.

(D) Deadline.--An application for a payment under this paragraph shall be ineffective if it is filed after the end of the 1-year period beginning on the date of the enactment of this Act.

(E) Limitation On Payments.--Payments under this paragraph may not be made before October 1, 1988, except that interest shall continue to accrue in accordance with 5596(b) (2) (B) of title 5, United States Code.

Issued, Washington, D.C. March 9, 1988.

Jerry L. Calhoun, Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY