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56 FLRA No. 128
U.S. Department of Defense, Education Activity Arlington, Virginia and Federal Education Association (Babiskin, Arbitrator), 0-AR-3308 (Decided September 27, 2000
The Arbitrator sustained a grievance finding that payment of a "post allowance" due the grievant was covered by the Back Pay Act, and that interest was owing to the grievant on that payment. The Authority concluded that the Agency did not establish that the award was deficient under section 7122(a) of the Statute.
The Authority noted that in order to be eligible for relief under the Back Pay Act, the grievant must be found by an ppropriate authority under applicable law, rule, regulation, or collective bargaining agreement to have been affected by an unjustified or unwarranted personnel action which resulted in the withdrawal or reduction of all or part of the pay, allowances, or differentials of the employee. Such an individual is then entitled to receive, among other things, an amount equal to all or any part ofthe pay, allowances, or differentials the employee would have earned or received if the improper personnel action had not taken place. These amounts are payable with interest. Thus, in order for the grievant to qualify for interest on the post allowance paid her in this case, the Agency's failure to pay that allowance must have constituted an unjustified and unwarranted personnel action under the Back Pay Act.
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. The Authority moved on to conclude that the award was not contrary to law, regulation or sovereign immunity. Additionally, the Authority rejected the allegations that the award failed to derive its essence from the agreement, or that it was based on a nonfact.