B-240561, Jun 12, 1991, 70 Comp.Gen. 560

B-240561: Jun 12, 1991

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No interest is due on an arbitrator's award of backpay which became final before December 22. Even though the award was clarified after that date. Although several compliance issues were not resolved until later. Interest on Backpay: The question in this case is whether interest may be paid to certain grievants on an arbitrator's award of backpay to them. /1/ We conclude that interest is not payable because the arbitrator's award was "final" before December 22. Employees in certain job classifications in several hospital and clinic service units located throughout the Navajo Reservation filed grievances claiming that they were entitled to overtime compensation for hours spent in an "on-call"/"standby" duty status.

B-240561, Jun 12, 1991, 70 Comp.Gen. 560

No interest is due on an arbitrator's award of backpay which became final before December 22, 1987, the effective date of the amendment to the Back Pay Act which provided for interest on final decisions granting backpay, even though the award was clarified after that date. Although several compliance issues were not resolved until later, such issues which arise during the implementation phase of an award do not affect the finality of an award in which liability and remedy had been decided.

Interest on Backpay:

The question in this case is whether interest may be paid to certain grievants on an arbitrator's award of backpay to them. /1/ We conclude that interest is not payable because the arbitrator's award was "final" before December 22, 1987, the date upon which an amendment to the Back Pay Act, 5 U.S.C. Sec. 5596, to award interest on backpay determinations became effective. BACKGROUND

In 1984, employees in certain job classifications in several hospital and clinic service units located throughout the Navajo Reservation filed grievances claiming that they were entitled to overtime compensation for hours spent in an "on-call"/"standby" duty status. When negotiations between the agency and the union were unsuccessful, the case went to arbitration, and the arbitrator awarded backpay on July 3, 1987, to grievants in some but not all of the job classifications because he found that they were effectively working overtime on "standby" duty. Since many grievants were involved, and since they were in a "standby" duty status for several years, the parties realized that it would not be feasible to compute the overtime due each individual within the month provided in the award. On July 17, 1987, a supplemental agreement of the parties, approved by the arbitrator, eliminated the time period for compliance with the award, affirmed the finality of the award's liability determination, and postponed the matter of attorney fees until after compliance with the award. The arbitrator retained jurisdiction over the compliance phase of the arbitration to settle any disputes regarding specific backpay calculations.

The union filed two unfair labor practice charges, which were settled in November 1988, in order to move along the process of calculating backpay for the grievants. In June 1989, the agency requested a clarification from the arbitrator of a part of his award. The arbitrator issued a clarification in July 1989, to which the union took exception. On April 20, 1990, the union withdrew its exceptions and agreed to backpay calculations based upon the award as clarified by the arbitrator. The settlement agreement also dealt with some issues not included in the award, including liquidated damages and some implementation details, and provided for the parties to submit the question of interest on the award of backpay to the Comptroller General.

ANALYSIS AND CONCLUSION

The Back Pay Act, 5 U.S.C. Sec. 5596, was amended December 22, 1987, to provide interest on backpay when awarded under the act. /2/ However, the amendment provided that interest was allowable under the act on backpay resulting only under final decisions rendered on or after December 22, 1987. An arbitrator's award is a decision under the Back Pay Act, so the question in this case is whether the arbitrator's award of July 3, 1987, was a final decision in this case.

The union argues that the July 3 award was not a final decision for two reasons. First, it argues that this award determined only liability and reserved jurisdiction to later determine the remedy, and was therefore interlocutory rather than final. Second, the union claims the July 3 award was subsequently so substantially modified by the July 1989 clarification that the clarification modification constitutes a new final order. We do not agree.

The Award Of July 31, 1987, Disposed Of The Entire Proceeding

The union relies on the fact that when the arbitrator began the hearings in 1986, a two-stage proceeding was planned-- the first stage consisting of determining liability and the second stage consisting of determining remedy. However, that initial plan was not carried out in the arbitrator's award after the hearings were over. The arbitrator determined that the agency was liable to grievants in certain job classifications for overtime compensation, and he awarded backpay for the grievants' time spent in a "standby" duty status as a remedy. The Federal Labor Relations Authority (FLRA) looks at what an arbitrator actually does in his or her award to determine whether the award is final. In a recent case an arbitrator found that an agency violated an agreement to promote certain persons in a career ladder when they became eligible and were recommended for promotions, and he directed as a remedy that the agency process the recommended promotions as soon as possible but not more than 30 days from receipt of his award. Although he retained jurisdiction to address questions concerning interpretation and matters affecting the expeditious implementation of the award, the FLRA ignored the arbitrator's caption of "Interim Award" and concluded that the award was not an interlocutory award but one that disposed of the entire proceeding and was final. American Federation of Government Employees, Local 1760 v. U.S. Department of Health and Human Services, Social Security Administration, 37 FLRA 1193 (1990).

We believe we have the same situation here. The arbitrator determined liability and the remedy in July of 1987 and retained jurisdiction only in the event of a controversy over the determination of the number of backpay hours for each grievant. The language of both his award of July 3 and the supplemental agreement of July 17 state the need for compliance with and implementation of a remedy that has been determined, not of a need to determine the remedy later. In all the cases that the union cites to demonstrate interlocutory awards that were not final, the arbitrator had expressly reserved his jurisdiction to determine a remedy or an additional element of liability at a later time. In those cases, the arbitrators and parties knew that the awards did not dispose of the entire case and the arbitrators expressly retained jurisdiction to make specific remedy or liability determinations. /3/ The fact that the settlement of April 1990 dealt with some implementation details and issues not treated in the award did not affect the award's finality.

A Clarification of an Award That Does Not Modify It Does Not Disturb the Award's Finality

A substantial modification of an award may be considered a new final award. However, this principle does not apply to a clarification that only removes an ambiguity and relates back to the original award without modification. See Portsmouth Naval Shipyard and Federal Employees Metal Trades Council, AFL-CIO, 15 FLRA 181 (1984), and decisions cited therein.

We believe that is the case here. The arbitrator's original award contained an ambiguous provision concerning how sleep time was to be deducted from 24-hour periods of duty. In July 1989, the arbitrator issued a clarification which explained the provision concerning the deduction of sleep time but which did not modify the original award. Thus, there was no modification of the award to give rise to a new final award.

Accordingly, the arbitrator's award of July 3, 1987, was a final decision for purposes of the 1987 amendments to the Back Pay Act. Thus, the amendment allowing interest on backpay under the act does not apply to this case, and no interest is due the grievants.

/1/ The question was presented by a joint request of the Department of Health and Human Services and Navajo Nation Health Care Employees Union, Laborers International Union of North America, Local 1376, under 4 C.F.R. part 22 (1990).

/2/ 5 U.S.C. Sec. 5596(b), as amended by the Continuing Appropriations Act of 1988, Pub. L. No. 100-202, Sec. 101(m), Dec. 22, 1987, 101 Stat. 1329-428, 429.

/3/ The union also cites cases that concern an interlocutory award where an arbitrator reserves jurisdiction to later issue an award of attorney fees. These cases do not apply here where the arbitrator did not reserve jurisdiction to later rule on attorney fees. The supplemental agreement of July 17 did not reserve jurisdiction, and the settlement merely provided that disputes over reasonable attorney fees would be presented to the arbitrator at a later time. Normally, requests for attorney fees are submitted to an arbitrator after an award is final. Philadelphia Naval Shipyard v. Philadelphia Metal Trades Council, 32 FLRA 417 (1988).