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56 FLRA No. 124
U.S. Department of Defense, Education Activity Arlington, Virginia and Federal Education Association (Moore, Arbitrator), 0-AR-3175 (Decided September 27, 2000)
This case is related to three prior arbitration awards and several other arbitration cases pending before the Authority regarding payment of interest on arbitration awards. The underlying background is set in 56 FLRA No. 119. In this case, Arbitrator Moore sustained a grievance alleging that the Agency failed to pay interest (and in some cases the principal amounts) on backpay and allowances that were due to twelve employees. This exception was denied.
Preliminarily, the Authority noted that Office of Personnel Management regulations implementing the Back Pay Act could not be challenged in this proceeding. The Authority noted that section 7105 of the Statute enumerates the powers and duties of the Authority, none of which relate to passing judgment on rules or regulations that OPM or any other Federal agency has enacted. The Authority further noted that if the Agency wished to challenge the validity of the OPM regulations implementing the Back Pay Act, it may do so in an appropriate Federal district court, not through exceptions to an arbitrator's award.
Under the Back Pay Act, 5 U.S.C. § 5596(b)(1)(A)(i), an award of backpay 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. A violation of a collective bargaining agreement constitutes an unjustified or unwarranted personnel action under the Back Pay Act. Here, Arbitrator Moore found a violation of a contractual right to receive timely payment for the sums owed the grievants. This is sufficient to constitute an unjustified or unwarranted personnel action. Accordingly, the Authority found that Arbitrator Moore's award was not contrary to law. Also rejected were the allegations that the award fail to draw its essence from the agreement and that it was based on a nonfact