16:0552(76)AR - SSA and AFGE -- 1984 FLRAdec AR

 16 FLRA No. 76
 
 SOCIAL SECURITY ADMINISTRATION
 Agency
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 Union
 
                                            Case No. O-AR-503
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Myron J. Roomkin filed by the Agency under section 7122(a) of
 the Federal Service Labor-Management Relations Statute and part 2425 of
 the Authority's Rules and Regulations.  The Union filed an opposition.
 /1/
 
    The dispute in this matter concerns an allegation that the grievant
 was improperly denied a within-grade salary increase.  The Arbitrator
 found that the Agency had established by statistical evidence that the
 grievant's performance did not support the within-grade increase.
 However, the Arbitrator further found that prolonged continuation of
 full review of the grievant's work where no improvement was either
 visible or likely to be achieved was punitive treatment and that the
 Agency should have either trained or transferred the grievant.  The
 Arbitrator concluded that the Agency's failure to do so indicated that
 the within-grade increase was denied in lieu of disciplinary action in
 violation of the parties' collective bargaining agreement.  As his
 award, the Arbitrator essentially directed that the grievant be granted
 the within-grade increase retroactively with backpay.
 
    In its exceptions, the Agency contends, among other things, that the
 award is contrary to the Back Pay Act, 5 U.S.C. 5596, and 5 U.S.C. 5335.
  /2/ The Authority agrees.
 
    The Authority has uniformly held that in order for an award of
 backpay to be authorized under the Back Pay Act, there must be not only
 a determination that an employee was affected by an unwarranted
 personnel action, but also a determination that such unwarranted action
 directly resulted in the withdrawal or reduction in the pay, allowances,
 or differentials that the employee would otherwise have earned or
 received.  E.g., American Federation of Government Employees, Local 51
 and U.S. Department of the Mint, Old Mint Building, Customer Service
 Division, 15 FLRA No. 164 (1984).  In terms of this case, the Arbitrator
 expressly found that the grievant's performance did not support a
 within-grade salary increase.  Thus, while the Arbitrator found that the
 Agency's denial of the within-grade increase was violative of the
 parties' agreement, he did not determine that the grievant would have
 received the increase but for the Agency's violation.  On the contrary,
 it is clear that the grievant's performance was not at the acceptable
 level of competence that would warrant granting a within-grade increase
 under 5 U.S.C. 5335(a).  /3/ Therefore, while the Arbitrator had
 considerable latitude in fashioning a remedy for the Agency's violation
 of the parties' agreement, his award of a retroactive within-grade
 salary increase with backpay is contrary to 5 U.S.C. 5335(a) and 5
 U.S.C. 5596.
 
    Accordingly, the award is set aside.  /4/ Issued, Washington, D.C.,
 November 19, 1984
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ In its opposition, the Union argues, among other things, that the
 Agency's exceptions should be dismissed because under the parties'
 collective bargaining agreement exceptions may not be filed to expedited
 arbitration awards.  However, the Authority concludes that the Agency's
 exceptions were properly filed pursuant to section 7122(a) of the
 Statute and part 2425 of the Authority's Rules and Regulations and,
 therefore, that this matter is properly before the Authority for
 decision.
 
 
    /2/ 5 U.S.C. 5335(a) provides that an employee in the General
 Schedule shall be advanced to the next higher salary rate within his or
 her grade at certain intervals provided, among other things, that the
 work of the employee is at an acceptable level of competence as
 determined by the head of the agency.
 
 
    /3/ The Authority has previously noted that 5 CFR 430.202(e), which
 implements 5 U.S.C. 4301(3), requires the denial of a within-grade
 increase if an employee's performance in any critical element falls
 below a minimum standard.  See American Federation of State, County and
 Municipal Employees, AFL-CIO, Local 2027 and Action, Washington, D.C.,
 12 FLRA No. 128 (1983).
 
 
    /4/ In view of this decision, it is not necessary to address the
 Agency's other exceptions to the award.