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52 FLRA No. 4

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

(Agency)

and

NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION

(Union)

0-AR-2686

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DECISION

August 16, 1996

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

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Richard I. Bloch filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

The Arbitrator ordered the Agency to reimburse the grievant for monies and sick leave expended as a result of the grievant's participation in an in-patient alcohol counseling program. For the following reasons, we conclude that the award is deficient because it is contrary to law. Therefore, we set aside the award.

II. Background and Arbitrator's Award

The affected employee in this case, an air traffic controller, contacted the Agency's Employee Assistance Program (EAP), which was administered by Personal Performance Consultants (PPC), a contractor, to discuss the employee's alcohol-related problems. PPC was responsible for interviewing the employee and making recommendations to the Agency Flight Surgeon concerning an appropriate rehabilitation program. PPC did not have "readily available a list of rehabilitation . . . organizations," as required by DOT Order 3910.1B, an Agency regulation. Award at 6. After interviewing the employee, PPC recommended a 14-day out-patient program into which the employee was accepted and began treatment.

Eight days later, the Flight Surgeon concluded that out-patient treatment was inadequate, and directed the employee to enter a 28-day in-patient program. Because the employee's insurance would not cover the cost of the in-patient program, the employee paid for the program herself.⁽¹⁾

The Union filed a grievance, requesting that the Agency reimburse the employee for lost wages and leave expended during the period of time the employee was attending the in-patient program, and the out-of-pocket expenses for attending that program. When the grievance was not resolved, it was submitted to arbitration, where the Arbitrator stated that the issue was:

Did the Agency improperly require a second rehabilitation program as a condition to continued employment?

Award at 2.

The Arbitrator sustained the grievance, finding that:

management's agent, PPC, violated the requirements of DOT Order 3910.1B and, in so doing, caused [the employee] to enter the out-patient program which, because it fell short of the requirements deemed essential by management, caused the grievant to unnecessarily expend both contractual sick day benefits and insurance coverages.

Id. at 5.

The Arbitrator determined that the Agency was responsible for any "excess costs that would otherwise have been avoided had the referral been made directly to in-patient treatment[.]" Id. at 8. According to the Arbitrator, "[i]f it was error to refer the grievant to the out-patient treatment initially, fairness requires that responsibility . . . must be borne by the employer." Id. As his award, the Arbitrator directed the Agency to make the grievant whole for "monies and sick leave expended as a result of participation in the in-patient Rehabilitation Program." Id. at 9.

III. Exceptions

A. Agency's Contentions

As relevant here, the Agency argues that the award of the grievant's medical expenses is contrary to law because it violates the doctrine of sovereign immunity.⁽²⁾ The Agency argues that the Back Pay Act, 5 U.S.C. § 5596, does not waive sovereign immunity in this case because: (1) the Arbitrator did not find that the Agency committed an unjustified or unwarranted personnel action; and (2) even if there were an unjustified or unwarranted personnel action, there is no causal connection between that action and any loss of benefits by the employee. The Agency claims that because the employee's health insurance policy did not cover in-patient alcohol treatment, the Agency's action did not cause the employee to incur additional or unnecessary medical expenses.

B. Union's Opposition

The Union argues that 31 U.S.C. § 3529 provides statutory authority for the grievant's claim.⁽³⁾ The Union also claims that "additional guidance" is contained in GAO regulations at 4 C.F.R. Part 22.⁽⁴⁾

IV. Analysis and Conclusions

The United States, as sovereign, is immune from suit except as it consents to be sued. United States v. Testan, 424 U.S. 392, 399 (1976). Thus, there is no right to money damages in a suit against the United States without a waiver of sovereign immunity. Id. at 402. In order to waive sovereign immunity, Congress must unequivocally express its desire to do so. Lane v. Pena, 64 U.S.L.W. 4541, 4542-43 (June 20, 1996), quoting Irwin v. Veterans Affairs, 498 U.S. 89, 95 (1990). The Government's consent to a particular remedy also must be unambiguous. Department of Army v. FLRA, 56 F.3d 273, 277 (1995). Absent a waiver of sovereign immunity, the Arbitrator's award of medical expenses is contrary to law.

For the following reasons, we conclude that neither of the two potential waivers of sovereign immunity argued by the parties -- 31 U.S.C. § 3529 and the Back Pay Act -- provides a basis for the portion of the award to which the Agency has excepted.

A. 31 U.S.C. § 3529 Does Not Apply

The Union's argument that the award is authorized by 31 U.S.C. § 3529 is without foundation. That provision simply permits agency officials to request a decision from the Comptroller General on questions regarding the payment of money. It does not, explicitly or implicitly, authorize any payment itself. Accordingly, it does not constitute a waiver of sovereign immunity permitting the Arbitrator to award medical expenses.

B. The Back Pay Act Does Not Provide a Basis for the Award

The Back Pay Act is a waiver of sovereign immunity. United States v. Testan, 424 U.S. at 405. Under the Back Pay Act, an award of backpay, defined as "pay, allowances, and differentials," is authorized only when an arbitrator finds that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; (2) the personnel action directly resulted in the withdrawal or reduction of the grievant's pay, allowances or differentials; and (3) but for such action, the grievant otherwise would not have suffered the withdrawal or reduction. U.S. Department of Justice, Immigration and Naturalization Service, San Diego, California and American Federation of Government Employees, National Immigration and Naturalization Service Council, 51 FLRA 1094, 1098 (1996). Unless an arbitrator finds that an aggrieved employee was affected by an unjustified or unwarranted personnel action, an award of backpay is deficient. Id.

OPM defines "pay, allowances, and differentials" as "monetary and employment benefits to which an employee is entitled by statute or regulation . . . ." 5 C.F.R. § 550.805. No basis has been offered or is apparent on which to conclude that the payment of personal medical expenses is a monetary or employment benefit within the meaning of the Back Pay Act.⁽⁵⁾ Cf. National Labor Relations Board, Office of the General Counsel and National Labor Relations Board Union, 36 FLRA 743, 746 (1990) (Back Pay Act did not waive sovereign immunity because agency's denial of employee's request to engage in outside employment did not deprive employee of "pay, allowances, or differentials"); U.S. Customs Service, Chicago-O'Hare and National Treasury Employees Union, Chapter 172, 23 FLRA 366, 367-68 (1986) (Back Pay Act did not waive sovereign immunity because additional commuting expenses awarded by arbitrator were not "pay, allowances, or differentials"). Moreover, even if personal medical expenses constituted a monetary or employment benefit, within the meaning of the Back Pay Act, no basis is argued or apparent for concluding that the grievant is "entitled" to such benefit "by statute or regulation", within the meaning of 5 C.F.R. § 550.805.⁽⁶⁾

There is no support in this case for finding that the grievant's personal medical expenses constitute "pay, allowances, [or] differentials," within the meaning of the Back Pay Act, as those terms are defined by OPM. Accordingly, the Back Pay Act does not encompass such payment. As the Back Pay Act does not provide a basis for awarding the medical expenses, and there is no other basis for such award in this case, the portion of the award encompassing medical expenses is deficient as contrary to the doctrine of sovereign immunity.⁽⁷⁾

V. Decision

The portion of the award encompassing the grievant's medical expenses is deficient because it is contrary to the doctrine of sovereign immunity. Therefore, we set aside that portion of the award.

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

1. The employee was released after 14 days in the in-patient program based, in part, on the employee's previous out-patient treatment.

2. The Agency did not specifically except to the portion of the award directing the Agency to restore the grievant's sick leave, and made no reference to, or arguments regarding, sick leave. Therefore, we construe the exceptions as not contesting the sick leave portion of the award, and we do not address that portion of the award.

3. 5 U.S.C. § 3529 provides:

(a) A disbursing or certifying official or the head of an agency may request a decision from the Comptroller General on a question involving--

(1) a payment the disbursing official or head of the agency will make; or

(2) a voucher presented to a certifying official for certification.

(b) The Comptroller General shall issue a decision requested under this section.

4. 4 C.F.R. Part 22 is reserved. Accordingly, it does not support the Union's claim and will not be addressed further.

5. We note that the cost of private health insurance obtained during the period of removal or suspension, may not be included as part of a backpay award. See Matter of James B. Ruch, Comptroller General Decision B-215626 (Jan. 7, 1985) (5 U.S.C. § 8908(a) provides only two remedies for employees who lose coverage under a health benefits plan because they are removed or suspended improperly: after reinstatement or restoration to duty, they may either enroll in a health benefits plan as a new employee or have coverage restored to the same extent as though the improper action had not taken place).

6. Although they are not relied on by the Union, we note that neither 5 U.S.C. § 7901, which authorizes federal employee health programs, nor 5 U.S.C. §§ 8101 et seq., the Federal Employees Compensation Act (FECA), which provides coverage for occupational disease or illness, provides for payment of the medical expenses involved in this case. Section 7901 "does not extend to treatment beyond that involving on-the-job illness and dental conditions of a minor nature or requiring emergency attention." National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, Washington, D.C., 49 FLRA 973, 979-80 (1994), quoting National Federation of Federal Employees, Local 1287 and Defense Mapping Agency, 26 FLRA 785, 788 (1987) (emphasis in original). FECA is "specifically designed to cover situations where employees believe that they have sustained on-the-job injuries and are seeking payment or reimbursement for expenses connected with such injuries." National Treasury Employees Union, NTEU Chapter 51 and Internal Revenue Service, Wichita District Office, 40 FLRA 614, 631 (1991).

7. Our conclusion that this portion of the award is deficient should not be misconstrued as condoning the actions of the Agency and its contractor in failing to act in a more timely and responsible fashion in handling this grievant's request for assistance. These actions served neither the interests of the Agency nor those of the grievant in prompt and effective rehabilitation.

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