National Border Patrol Council, Local 2913 and U.S. Department of Justice, Immigration and Naturalization Service Border Patrol (Authority decision, October 8, 1993)

Final FLRA decision. The Authority modifies the arbitration award to include interest on backpay. 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 resolve an unfair labor practice.

Plain-English summary

Border Patrol suspended an employee for five days after alleging careless testimony in federal court. An arbitrator found that the agency had failed to give timely notice of the discipline and ordered the suspension rescinded, with backpay and restored benefits, but denied interest. The union challenged only the denial of interest. The Authority held that the Back Pay Act requires interest on backpay awarded after an unwarranted personnel action reduces compensation. It modified the award to add interest.

Decision snapshot

• Authority: Arbitration exception under 5 U.S.C. § 7122(a); interest under 5 U.S.C. § 5596(b).
• Outcome: Award modified to include interest on the backpay.
• Key point: Interest is required on a qualifying Back Pay Act award; the arbitrator could not withhold it.

Full text (FLRA public release)

[ v48 p657 ]
48:0657(66)AR

The decision of the Authority follows:

48 FLRA No. 66

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL BORDER PATROL COUNCIL

LOCAL 2913

(Union)

and

U.S. DEPARTMENT OF JUSTICE

IMMIGRATION AND NATURALIZATION SERVICE BORDER
PATROL

(Agency)

0-AR-2493

_____

DECISION

October 8, 1993

_____

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator James L. Macpherson filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency did not file an opposition to the Union's exception.

The Union filed a grievance seeking to reverse the grievant's 5-day suspension for alleged misconduct in giving careless and negligent testimony in a proceeding in Federal court. The Arbitrator sustained the grievance and ordered the Agency to rescind the grievant's suspension, restore his salary and benefits, and remove materials relating to his suspension from his personnel file. Additionally, the Arbitrator denied the Union's request that the backpay include interest.

For the following reasons, we conclude that the portion of the award denying interest on the backpay is deficient because it is contrary to law. Accordingly, we will modify the award to provide for the payment of interest on the backpay award.

II. Arbitrator's Award

As pertinent here, the Arbitrator determined that the Agency violated Article 31, Section F(3) of the parties' agreement by failing to provide the grievant "notice of his suspension discipline at the earliest practicable time[.]"(*) Award at 20. As a remedy, the Arbitrator directed the Agency to rescind the grievant's 5-day suspension, restore his salary and benefits, and remove materials relating to his suspension from his personnel file. In his award granting backpay, the Arbitrator stated that "no interest shall be applied to the amount of salary to be restored." Id.

III. The Union's Exception

The Union contends that "[t]he payment of interest is not discretionary under the Back Pay Act, as amended." Exception at 2. To support this contention, the Union cites 5 U.S.C. § 5596(b)(2)(A) as amended in 1987 by Public Law No. 100-202, which states that an amount payable under paragraph (1)(A)(i) of the Back Pay Act shall be payable with interest.

IV. Analysis and Conclusion

Under the Back Pay Act, 5 U.S.C. § 5596(b), as amended, an employee who is found to have been subjected to an unwarranted personnel action that has resulted in a withdrawal or reduction in compensation is entitled to interest on any backpay award. For example, U.S. Department of the Army, Fort Polk, Louisiana and National Association of Government Employees, Local R5-168, 44 FLRA 1548, 1555-56 (1992); U.S. Department of the Army, New Cumberland Army Depot, New Cumberland, Pennsylvania and American Federation of Government Employees, Local 2004, 40 FLRA 186, 193-94 (1991); U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Hyattsville, Maryland and National Association of Agriculture Employees, 38 FLRA 1291, 1299 (1991); U.S. Department of Defense, Marine Corps Logistics Base, Barstow, California and American Federation of Government Employees, Local 1492, 37 FLRA 796, 797 (1990) (Marine Corps Logistics Base). As we held in Marine Corps Logistics Base, under the Back Pay Act "interest must be paid" on backpay awards such as the one in this case. 37 FLRA at 797. Accordingly, consistent with the reasoning of the above-cited cases, we conclude that the Arbitrator's failure to award interest on his award of backpay is inconsistent with the Back Pay Act, and we will modify the award to include interest.

V. Decision

The Arbitrator's award is modified to include the payment of interest on the backpay award.

FOOTNOTES:
(If blank, the decision does not
have footnotes.)

*/ Article 31, Section F(3), entitled
"Disciplinary Actions," provides in relevant part:

(3) The Employer shall furnish employees with notices of proposed disciplinary actions at the earliest practicable date after the alleged offense has been committed and made known to the Employer.