National Association of Government Employees, Local R4-106 and U.S. Department of the Air Force, Langley Air Force Base, Hampton, Virginia (Authority decision, July 31, 1999)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority involving an arbitral award under 5 U.S.C. § 7122. Judicial review under 5 U.S.C. § 7123(a) generally does not extend to such an order unless the order involves an unfair labor practice under 5 U.S.C. § 7116. This decision resolves exceptions to an arbitration award and does not state that it involves an unfair labor practice.

Plain-English summary

Two Langley employees obtained reimbursement after an arbitrator found they had not negligently lost four laptop computers. The union later requested attorney fees under the Back Pay Act. The Authority upheld denial of fees because the arbitrator had not found a violation of law, regulation, or the agreement constituting an unjustified or unwarranted personnel action. The original award was unchallenged and final, so its framing of the issue could not be attacked through the fee proceeding. The Authority did not decide whether payroll allotments used to repay the assessed debt amounted to a reduction in pay. The union’s exceptions were denied.

Decision snapshot

• Authority: Back Pay Act prerequisites for attorney fees and arbitration review.
• Outcome: Attorney-fee denial upheld; original reimbursement award remains intact.
• Key point: Winning reimbursement did not supply the required finding of an unlawful or contractually improper personnel action.

Full text (FLRA public release)

[ v55 p676 ]

55 FLRA No. 119

NATIONAL ASSOCIATION OF GOVERNMENT

EMPLOYEES, LOCAL R4-106

(Union)

and

U.S. DEPARTMENT OF THE AIR FORCE

LANGLEY AIR FORCE BASE

HAMPTON, VIRGINIA

(Agency)

0-AR-3128

_____

DECISION

July 31, 1999

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

Decision by Member Wasserman for the Authority.

I. Statement of the Case

This matter is before the Authority on
exceptions to an award of Arbitrator Donald Doherty 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 Regulations. The Agency filed an opposition to the Union's exceptions.

In his supplemental award, the Arbitrator
denied the Union's motion for attorney fees. The Union contends that the Arbitrator's denial is contrary to law.

For the following reasons, we conclude that
the Union's exceptions fail to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.

II. Background and Arbitrator's Supplemental
Award

In his original award dated May 28, 1998, the
Arbitrator ruled that the Agency erred in finding that there was negligence on the part of the two grievants in the loss of four laptop computers. As a remedy, the Arbitrator directed the Agency to, among other things, reimburse the grievants for "money[] charged against them." Original Award at

9. Neither party filed exceptions to the original award.

The Union filed a motion for attorney fees on
July 30, 1998. The Arbitrator denied the Union's motion in a supplemental award. The Arbitrator concluded that grievants had not been affected by an unjustified or unwarranted personnel action that resulted in the withdrawal or reduction of their pay, allowances, or differentials. The Arbitrator found that no unjustified or unwarranted personnel action had occurred because "[t]he action taken was [a] collection of a debt pursuant to a decision made in the Report of Survey program." [n1] Supplemental Award at 15. According to the Arbitrator, "[t]he collection of a debt is not part of the Agency's personnel program." Id.

The Arbitrator also stated that no violation
of the parties' collective bargaining agreement had occurred. Rather, the Arbitrator stated that he had resolved the grievance on the grounds that the grievants "had not been negligent in the loss of the computer[s] and should not have been assessed a monetary penalty." Id. at 13.

Finally, the Arbitrator noted the Union's
contention that the grievants were forced to "endure reductions in their pay each period." Id. at 16. In this regard, the Arbitrator stated as follows:

The question of a choice of payment of the assessed liability, whether through a voluntary allotment, by use of a credit card, cash or a check never arose during the arbitration hearing. It would appear, however, that a debt might be canceled in a variety of ways, with a voluntary allotment being the easiest method for an employee. However, no ruling was requested or made as to whether the grievants were "forced to endure reductions in their pay each period."

Id. The Arbitrator also stated that "[j]ust because the grievants chose an allotment from their pay, this does not automatically equate to a withholding of pay or benefits as defined under the Back Pay Act." Id. Therefore, the Arbitrator denied the Union's motion.

III. Positions of the Parties

A. Union's Exceptions

The Union contends that the Arbitrator's
denial of its request for attorney fees is contrary to the Back Pay Act, 5 U.S.C. § 5596. First, the Union argues that assessments of liability in reports of survey are routinely subject to review in negotiated agreements and that a [ v55 p677 ] successful grievance "necessarily implies that there was an infringement on the rights of the grievants" under the collective bargaining agreement. Exceptions at 5. Therefore, the Union states that the grievants were affected by an unjustified or unwarranted personnel action.

Second, the Union argues that because of the
Agency's improper assessment of liability, the "[g]rievants were forced to endure reductions in their pay each pay period." Id. The Union notes that, based on the arbitration award, this money was returned to them. The Union disputes as irrelevant the Arbitrator's statement that the grievants could have paid for the loss of the computers by means other than payroll deduction. The Union argues that the fact that the grievants could have paid by other means does not change the fact that they paid by payroll deduction and suffered a loss in pay.

Finally, the Union maintains that the
Agency's improper assessment of liability against the grievants was the direct cause of their reduction in pay.

B. Agency's Opposition

The Agency maintains that the
Union's exceptions are without merit. The Agency contends that no unjustified or unwarranted personnel action was taken against the grievants because there was no violation of the collective bargaining agreement. The Agency asserts that the grievance did not concern an allegation of a violation of the collective bargaining agreement but, rather, concerned whether or not there was negligence in the loss of the laptop computers. The Agency states that "[g]rieving the assessment of a debt is not the same as making an allegation that a provision of the collective bargaining agreement was violated
. . . ." Opposition at 4.

Further, the Agency contends that no
withdrawal or reduction of the grievants' pay occurred. The Agency argues that the grievants had various options to satisfy their "debt," including payment by credit card, cash, check or "voluntary allotment" from pay. Id. The Agency asserts that the grievants chose voluntary allotment from pay. The Agency also argues that there was no reduction in the pay of the grievants. The Agency asserts that the grievants were provided their full pay and they "opted" to apply a portion of the pay as a "voluntary allotment to satisfy their debt." Id.

IV. Analysis and Conclusions

The Union's exceptions involve the
consistency of the Arbitrator's award with law. Thus, the Authority will review the questions of law raised by the Agency's exceptions and the Arbitrator's award de novo. See National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995). When applying a de novo standard of review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law, based upon the underlying factual findings. National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

The threshold requirement for entitlement to
attorney fees under the Back Pay Act, 5 U.S.C. § 5596, is a finding that the grievant was affected by an unjustified or unwarranted personnel action, which resulted in the withdrawal or reduction of the grievant's pay, allowances, or differentials. Alabama Association of Civilian Technicians and U.S. Department of Defense, Alabama State Military Department, Alabama National Guard, 54 FLRA 229, 232 (1998). In this regard, a violation of an applicable law, rule, regulation or provision of a collective bargaining agreement constitutes an unjustified or unwarranted personnel action. See U.S. Department of the Army, Pine Bluff Arsenal, Arkansas and American Federation of Government Employees, Local 953, 47 FLRA 626, 629 (1993); see also 5 C.F.R. § 550.803.

The Union argues that the Agency's improper
assessment of liability against the grievants in this case "implies that there was an infringement on [their] rights" under the collective bargaining agreement and, therefore, that they were affected by an unjustified or unwarranted personnel action. Exceptions at 5. We reject this argument on two grounds.

First, the record supports the Arbitrator's
finding that he did not resolve the grievance on the basis of a violation of the collective bargaining agreement. In the original award, the issue framed by the Arbitrator did not include a contractual claim. Rather, the Arbitrator framed the issue as "[w]hether or not there was negligence in the loss of four laptop computers?" See Original Award at 4. As neither party filed exceptions to the original award under section 7122(a) of the Statute, it became final and binding and, thus, the Arbitrator's framing of the issue is not subject to collateral attack. E.g., U.S. Department of Defense, Defense Distribution [ v55 p678 ] Region East, New Cumberland, Pennsylvania and American Federation of Government Employees, Local 2004, 51 FLRA 155, 159 (1995); Patent and Trademark Office and Patent Office Professional Association, 22 FLRA 7, 10 (1986).

Second, although the Arbitrator ruled that
the Agency erred in finding that there was negligence on the part of the two grievants, he did not find that the Agency's action was unjustified or unwarranted under applicable law, rule, regulation or provision of a collective bargaining agreement. Absent such a finding, there is no basis on which to conclude that the grievants suffered an unjustified or unwarranted personnel action as defined by the implementing regulations of the Back Pay Act. [n2] See 5 C.F.R. 550.803.

Thus, in these circumstances, the Union has
not established that the Arbitrator's denial of attorney fees in his supplemental award is contrary to the Back Pay Act. Therefore, the Union's exceptions provide no basis for finding the award deficient. [n3]

V. Order

The Union's exceptions are denied.

Footnote # 1 for 55 FLRA No. 119

According to the Agency, the Report of
Survey program "is specifically designed to analyze loss or damage to government property." Opposition at 1.

Footnote # 2 for 55 FLRA No. 119

Member Cabaniss would also find that there
was no "personnel action" involved in terms of any Back Pay Act entitlement.

Footnote # 3 for 55 FLRA No. 119

Since one of the requirements of the Back
Pay Act has not been met, we find it is unnecessary to reach the remaining exception that the grievants endured a reduction of pay.