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 1 FLRA No. 115
                                            SEPTEMBER 24, 1979
 
 MR. JOHN W. FOSSUM
 ACTING DIRECTOR OF PERSONNEL
 OFFICE OF THE SECRETARY
 U.S. DEPARTMENT OF AGRICULTURE
 WASHINGTON, D.C.  20250
 
                RE:  FOOD SAFETY AND QUALITY SERVICE, U.S.
               DEPARTMENT OF AGRICULTURE AND NATIONAL JOINT
               COUNCIL OF FOOD INSPECTION LOCALS, AFGE #488
                 (FISHGOLD, ARBITRATOR), FLRC No. 78A-162
 
 DEAR MR. FOSSUM:
 
    THE AUTHORITY HAS CAREFULLY CONSIDERED THE AGENCY'S PETITION FOR
 REVIEW OF THE ARBITRATOR'S AWARD, AND THE UNION'S OPPOSITION THERETO, IN
 THE ABOVE-ENTITLED CASE.  /1/
 
    ACCORDING TO THE ARBITRATOR, THE "BASIC ISSUE" BEFORE HIM WAS
 "WHETHER THE AGENCY VIOLATED ARTICLE VIII, SECTION A OF THE AGREEMENT
 /2/ WHEN IT ASSIGNED A VETERINARY SUPERVISOR TO PERFORM THE SATURDAY
 OVERTIME DUTIES ASSOCIATED WITH THE REINSPECTION WORK NORMALLY ASSIGNED
 TO (THE GRIEVANT), A PATROL OFFAL INSPECTOR DURING THE
 REGULARLY-SCHEDULED WORKWEEK." (FOOTNOTE ADDED.) NOTING THAT THE FACTS
 WERE NOT IN DISPUTE, THE ARBITRATOR FOUND THAT THE ACTIVITY, IN THE
 COURSE OF PROVIDING FOOD INSPECTION SERVICES TO TWO MEAT PACKING PLANTS,
 SCHEDULED FIVE FOOD INSPECTORS TO HANDLE CERTAIN WORK ASSIGNMENTS
 INTERCHANGEABLY AT THE TWO PLANTS.  DURING THE REGULAR DAILY OPERATION,
 MONDAY THROUGH FRIDAY, TWO OF THE INSPECTORS WERE ASSIGNED TO EACH PLANT
 TO PERFORM CERTAIN SLAUGHTER INSPECTION DUTIES.  THE REMAINING INSPECTOR
 WAS ASSIGNED AS PATROL OFFAL INSPECTOR TO WORK BOTH PLANTS.  A
 SUPERVISORY VETERINARY MEDICAL OFFICER (SVMO) HANDLED VETERINARY DUTIES
 AT BOTH PLANTS.
 
    THE DISPUTE AROSE ON A SATURDAY WHEN ONE OF THE PLANTS WORKED
 OVERTIME.  TO MEET ITS INSPECTION NEEDS AT THE PLANT ON THAT DAY, THE
 ACTIVITY ASSIGNED TWO SLAUGHTER INSPECTORS AND AN SVMO.  ACCORDING TO
 THE ARBITRATOR, THE ACTIVITY DID NOT SCHEDULE THE GRIEVANT, WHO WAS
 ASSIGNED AS THE PATROL OFFAL INSPECTOR FOR THE MONTH IN QUESTION.
 INSTEAD, THE SVMO, IN ADDITION TO PERFORMING THE REQUIRED VETERINARY
 DUTIES, ALSO PERFORMED THE NECESSARY OFFAL INSPECTION WORK.  A GRIEVANCE
 WAS INITIATED CHALLENGING THE ACTIVITY'S USE OF A VETERINARY SUPERVISOR
 TO PERFORM WORK NORMALLY ASSIGNED TO A PATROL OFFAL INSPECTOR AND THE
 MATTER WAS ULTIMATELY SUBMITTED TO ARBITRATION.
 
    IN THE OPINION ACCOMPANYING HIS AWARD, THE ARBITRATOR TRACED THE
 BARGAINING HISTORY OF THE DISPUTED CONTRACT PROVISION AND DETERMINED
 THAT IT DID NOT SUPPORT THE INTERPRETATION ADVANCED BY THE ACTIVITY IN
 ARBITRATION.  HE CONCLUDED THAT IN THE CASE BEFORE HIM, BASED ON THE
 EVIDENCE PRESENTED, THE GRIEVANT'S CONTRACTUAL RIGHTS WERE VIOLATED.  IN
 HIS AWARD, THE ARBITRATOR SUSTAINED THE GRIEVANCE AND STATED THAT "THE
 GRIEVANT IS ENTITLED TO BACK PAY."
 
    THE AGENCY FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD
 BASED UPON THE EXCEPTIONS DISCUSSED BELOW.  THE UNION FILED AN
 OPPOSITION.
 
    IN ACCORDANCE WITH SECTION 2400.5 OF THE TRANSITION RULES AND
 REGULATIONS OF THE AUTHORITY (44 FED.REG. 44741) AND SECTION 7135(B) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215),
 THE RULES OF PROCEDURE OF THE FEDERAL LABOR RELATIONS COUNCIL, 5 C.F.R.
 PART 2411(1978), REMAIN OPERATIVE WITH RESPECT TO THE PRESENT CASE
 EXCEPT THAT THE WORD "AUTHORITY" IS SUBSTITUTED, AS APPROPRIATE,
 WHEREVER THE WORD "COUNCIL" APPEARS IN SUCH RULES.
 
    UNDER SECTION 2411.32 OF THE RULES AS SO AMENDED, REVIEW OF AN
 ARBITRATOR'S AWARD WILL BE GRANTED "ONLY WHERE IT APPEARS, BASED UPON
 THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE
 EXCEPTIONS TO THE AWARD PRESENT GROUNDS THAT THE AWARD VIOLATES
 APPLICABLE LAW, APPROPRIATE REGULATION, OR THE ORDER, OR OTHER GROUNDS
 SIMILAR TO THOSE UPON WHICH CHALLENGES TO ARBITRATION AWARDS ARE
 SUSTAINED BY COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS."
 
    IN ITS FIRST EXCEPTION TO THE AWARD, THE AGENCY CONTENDS THAT THE
 AWARD VIOLATES THE BACK PAY ACT OF 1966, 5 U.S.C. 5596.  /3/ IN SUPPORT
 OF THIS EXCEPTION, THE AGENCY STATES THAT ITS RECORDS SHOW THAT THE
 GRIEVANT WORKED 9 1/4 HOURS OF OVERTIME ELSEWHERE IN THE MEAT PACKING
 PLANT ON THE DAY THE GRIEVANCE AROSE AND THAT HE HAD NOT BEEN PERFORMING
 OFFAL INSPECTION DUTIES DURING THE PRECEDING WEEK.  THUS, ACCORDING TO
 THE AGENCY, THE GRIEVANT WAS NOT DEPRIVED OF OVERTIME AND THE AWARD
 GRANTING THE GRIEVANT BACKPAY VIOLATES THE BACK PAY ACT BECAUSE THE
 GRIEVANT WAS NOT "THE VICTIM OF AN UNJUSTIFIED OR UNWARRANTED PERSONNEL
 ACTION WHICH RESULTED IN THE WITHDRAWAL, REDUCTION, OR DENIAL OF ALL OR
 PART OF PAY, ALLOWANCES, OR DIFFERENTIAL OTHERWISE DUE HIM."
 
    THE AUTHORITY WILL GRANT A PETITION FOR REVIEW OF AN ARBITRATOR'S
 AWARD WHERE IT APPEARS, BASED UPON THE FACTS AND CIRCUMSTANCES DESCRIBED
 IN THE PETITION, THAT AN AWARD VIOLATES APPLICABLE LAW, SUCH AS THE BACK
 PAY ACT OF 1966.  HOWEVER, IN THIS CASE THE AGENCY'S PETITION FOR REVIEW
 DOES NOT CONTAIN A DESCRIPTION OF FACTS AND CIRCUMSTANCES NECESSARY TO
 SUPPORT ITS EXCEPTION THAT THE AWARD VIOLATES THE BACK PAY ACT OF 1966.
 
    THE AUTHORITY NOTES THAT THE ARBITRATOR SPECIFICALLY FOUND THAT THE
 ACTIVITY VIOLATED THE AGREEMENT BY ASSIGNING A VETERINARY SUPERVISOR TO
 PERFORM OFFAL INSPECTION WORK, THAT THE GRIEVANT WAS ASSIGNED AS THE
 PATROL OFFAL INSPECTOR FOR THE MONTH IN QUESTION, AND THAT AS A RESULT
 OF THE VIOLATION OF THE AGREEMENT THE GRIEVANT WAS ENTITLED TO BACKPAY.
 IN EFFECT, THEREFORE, THE ARBITRATOR FOUND THAT "BUT FOR" THE AGREEMENT
 VIOLATION, THE GRIEVANT WOULD HAVE RECEIVED THE OVERTIME PAY IN QUESTION
 ON THE PARTICULAR DAY THE GRIEVANCE AROSE.  THE AGENCY'S STATEMENT THAT
 THE GRIEVANT "HAD NOT BEEN PERFORMING OFFAL INSPECTION DUTIES DURING THE
 PRECEDING WEEK" DOES NOT PRESENT FACTS AND CIRCUMSTANCES TO SUPPORT ITS
 CONTENTION THAT THE ARBITRATOR'S AWARD FINDING THE GRIEVANT ENTITLED TO
 BACKPAY WITH RESPECT TO THE PARTICULAR DAY IN ISSUE VIOLATES THE BACK
 PAY ACT.  AS TO THE AGENCY'S ASSERTION THAT THE GRIEVANT "WORKED 9 1/4
 HOURS OF OVERTIME ON THAT DAY IN ANOTHER AREA OF THE . . . PLANT," THE
 AGENCY'S ARGUMENT IN ESSENCE APPEARS TO BE THAT SINCE THE GRIEVANT
 RECEIVED OVERTIME ON THE DAY IN QUESTION HE WAS NOT DENIED PAY WITHIN
 THE MEANING OF THE BACK PAY ACT AND TO PAY HIM IN SUCH CIRCUMSTANCES
 WOULD RESULT IN A "DOUBLE" PAYMENT FOR THE HOURS HE WORKED.  HOWEVER,
 THE AGENCY PRESENTS NO FACTS AND CIRCUMSTANCES TO SUPPORT ITS ASSERTION
 THAT THE ARBITRATOR'S AWARD FINDING THE GRIEVANT "ENTITLED" TO BACKPAY
 WOULD REQUIRE IT TO COMPUTE AND MAKE A PAYMENT OF BACKPAY IN VIOLATION
 OF THE BACK PAY ACT.  THUS IT IS NOTED THAT THE REGULATIONS GOVERNING
 THE COMPUTATION OF BACKPAY UNDER THE BACK PAY ACT, ONCE ENTITLEMENT TO
 SUCH PAY IS DETERMINED, PROVIDE THAT "THE AGENCY SHALL RECOMPUTE FOR THE
 PERIOD COVERED . . . THE PAY . . . OF THE EMPLOYEE AS IF THE UNJUSTIFIED
 OR UNWARRANTED PERSONNEL ACTION HAD NOT OCCURRED, BUT IN NO CASE WILL
 THE EMPLOYEE BE GRANTED MORE PAY . . . THAN HE OR SHE WOULD HAVE BEEN
 ENTITLED TO BY LAW, EXECUTIVE ORDER, REGULATION, OR AGENCY POLICY." /4/
 THE REGULATIONS ALSO PROVIDE THAT "THE AGENCY SHALL DEDUCT THE AMOUNTS
 EARNED BY THE EMPLOYEE FROM OTHER EMPLOYMENT DURING THE PERIOD COVERED
 BY THE CORRECTED PERSONNEL ACTION." /5/ THE AGENCY PRESENTS NO FACTS AND
 CIRCUMSTANCES TO SHOW THAT THE AWARD WOULD COMPEL THE AGENCY TO
 DISREGARD THE REQUIREMENTS GOVERNING THE COMPUTATION OF BACKPAY
 ENUMERATED IN 5 C.F.R. 550.804.  IN SHORT, THE AWARD APPEARS TO DO NO
 MORE THAN STATE THAT THE GRIEVANT HAS A GENERAL ENTITLEMENT TO BACKPAY
 FOR THE CONTRACT VIOLATION FOUND BY THE ARBITRATOR.  THE AWARD DOES NOT
 APPEAR TO DIRECT THE PAYMENT OF BACKPAY CONTRARY TO THE REQUIREMENTS OF
 APPLICABLE LAW AND REGULATION AND THE AGENCY HAS NOT DEMONSTRATED IN
 WHAT WAY IT MIGHT.  ACCORDINGLY, THE AGENCY'S FIRST EXCEPTION PROVIDES
 NO BASIS FOR ACCEPTANCE OF ITS PETITION UNDER SECTION 2411.32 OF THE
 RULES OF PROCEDURE.
 
    IN ITS SECOND EXCEPTION TO THE AWARD, THE AGENCY CONTENDS, THAT THE
 ARBITRATOR EXCEEDED HIS AUTHORITY.  IN SUPPORT OF THIS EXCEPTION, THE
 AGENCY ASSERTS THAT THE ARBITRATOR DECIDED AN ISSUE THAT WAS NOT BEFORE
 HIM.  THE AGENCY ASSERTS THAT THE ARBITRATOR "IMPROPERLY AND INCORRECTLY
 ALTERED THE ISSUE AGREED TO BY BOTH PARTIES" TO INCLUDE BACKPAY FOR THE
 GRIEVANT.
 
    AS IS WELL ESTABLISHED UNDER THE ORDER, A PETITION FOR REVIEW OF AN
 ARBITRATOR'S AWARD WILL BE GRANTED WHERE IT APPEARS, BASED ON THE FACTS
 AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE ARBITRATOR
 EXCEEDED HIS OR HER AUTHORITY BY DETERMINING AN ISSUE NOT INCLUDED IN
 THE QUESTION(S) SUBMITTED TO ARBITRATION, LONG BEACH NAVAL SHIPYARD AND
 FEDERAL EMPLOYEES METAL TRADES COUNCIL (STEESE, ARBITRATOR), 3 FLRC 83
 (FLRC NO. 74A-40 (JAN. 15, 1975), REPORT NO. 62);  OR BY GOING BEYOND
 THE SCOPE OF THE SUBMISSION AGREEMENT, PACIFIC SOUTHWEST FOREST AND
 RANGE EXPERIMENT STATION, FOREST SERVICE, DEPARTMENT OF AGRICULTURE AND
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3217 (MYERS,
 ARBITRATOR), 4 FLRC 198 (FLRC NO. 75A-4 (MAR. 18, 1976), REPORT NO.
 101).
 
    IN THIS CASE, HOWEVER, THE AGENCY'S PETITION DOES NOT DESCRIBE THE
 NECESSARY FACTS AND CIRCUMSTANCES TO SUPPORT ITS EXCEPTION THAT THE
 ARBITRATOR EXCEEDED HIS AUTHORITY BY DETERMINING AN ISSUE OTHER THAN THE
 ONE "AGREED TO BY BOTH PARTIES." IN THIS REGARD, IT IS NOTED THAT THE
 UNION IN ITS OPPOSITION TO THE AGENCY'S PETITION STATES, CONTRARY TO THE
 POSITION ADVANCED BY THE AGENCY, THAT "THE ARBITRATOR FRAMED THE ISSUE
 BECAUSE THE PARTIES COULD NOT REACH AGREEMENT ON THEIR OWN." NOTHING IN
 THE AGENCY'S PETITION OR THE DOCUMENTS ATTACHED THERETO SHOW THAT A
 PRECISE ISSUE WAS STIPULATED TO AND PRESENTED TO THE ARBITRATOR.
 MOREOVER, IN THE OPINION ACCOMPANYING THE ARBITRATOR'S AWARD, THERE IS
 NO INDICATION THAT THE ISSUE BEFORE THE ARBITRATOR WAS STIPULATED.
 THUS, THE AGENCY HAS NOT PRESENTED FACTS AND CIRCUMSTANCES TO SUPPORT
 ITS ASSERTION THAT THE ARBITRATOR EXCEEDED HIS AUTHORITY BY DETERMINING
 AN ISSUE THAT WAS NOT BEFORE HIM.  /6/ ACCORDINGLY, THE AGENCY'S SECOND
 EXCEPTION PROVIDES NO BASIS FOR ACCEPTANCE OF ITS PETITION UNDER THE
 RULES OF PROCEDURE.
 
    IN ITS THIRD EXCEPTION, THE AGENCY CONTENDS THAT THE AWARD IS BASED
 ON A NONFACT.  IN SUPPORT OF THIS EXCEPTION, THE AGENCY ASSERTS THAT THE
 FACT UNDERLYING THE AWARD-- THE FACT THAT THE GRIEVANT "WAS THE
 PERSONALLY AGGRIEVED PARTY"-- IS ERRONEOUS BECAUSE THE GRIEVANT WAS NOT
 DEPRIVED OF OVERTIME AND HENCE WAS NOT "AGGRIEVED."
 
    AS IT WELL ESTABLISHED UNDER THE ORDER, A PETITION FOR REVIEW OF AN
 ARBITRATOR'S AWARD WILL BE GRANTED WHERE IT APPEARS, BASED UPON THE
 FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE EXCEPTION TO
 THE AWARD PRESENTS THE GROUND THAT "THE CENTRAL FACT UNDERLYING AN
 ARBITRATOR'S AWARD IS CONCEDEDLY ERRONEOUS, AND IN EFFECT IS A GROSS
 MISTAKE OF FACT BUT FOR WHICH A DIFFERENT RESULT WOULD HAVE BEEN REACHED
 . . . ." OFFICE OF ECONOMIC OPPORTUNITY, KANSAS CITY REGIONAL OFFICE,
 REGION VII AND NATIONAL COUNCIL OF OEO LOCALS, LOCAL 2691, AFL-CIO
 (YAROWSKY, ARBITRATOR), 3 FLRC 533, 536 (FLRC NO. 74A-102 (AUG. 15,
 1975), REPORT NO. 81).
 
    HOWEVER, IN THIS CASE THE AGENCY'S EXCEPTION IS NOT SUPPORTED BY THE
 FACTS AND CIRCUMSTANCES DESCRIBED IN ITS PETITION.  IN THIS REGARD, THE
 AGENCY'S PETITION FOR REVIEW DOES NOT PRESENT THE NECESSARY FACTS AND
 CIRCUMSTANCES TO DEMONSTRATE THAT THE CENTRAL FACT UNDERLYING THE
 ARBITRATOR'S AWARD IS CONCEDEDLY ERRONEOUS, AND IN EFFECT IS A GROSS
 MISTAKE OF FACT BUT FOR WHICH A DIFFERENT RESULT WOULD HAVE BEEN
 REACHED.  THAT IS, THE AGENCY HAS NOT DEMONSTRATED THAT THE QUESTION OF
 WHETHER OR NOT THE GRIEVANT WAS AN "AGGRIEVED PARTY" BECAUSE HE WAS NOT
 DEPRIVED OF OVERTIME WAS A CONCEDEDLY ERRONEOUS CENTRAL FACT BUT FOR
 WHICH A DIFFERENT RESULT WOULD HAVE BEEN REACHED BY THE ARBITRATOR IN
 HIS AWARD FINDING THE CONTRACT TO HAVE BEEN VIOLATED AND THE GRIEVANT
 "ENTITLED" TO BACKPAY.  ACCORDINGLY, THE AGENCY'S THIRD EXCEPTION
 PROVIDES NO BASIS FOR ACCEPTANCE OF ITS PETITION UNDER THE RULES OF
 PROCEDURE.
 
    IN ITS FOURTH EXCEPTION TO THE AWARD, THE AGENCY CONTENDS THAT THE
 ARBITRATOR FAILED TO CONSIDER PERTINENT AND MATERIAL EVIDENCE.  IN
 SUPPORT OF THIS EXCEPTION, THE AGENCY ASSERTS THAT THE ARBITRATOR DID
 NOT CONSIDER AGENCY TESTIMONY REGARDING THE INTENT OF THE PARTIES WITH
 RESPECT TO THE MEANING OF THE RELEVANT ARTICLE OF THE PARTIES'
 NEGOTIATED AGREEMENT.
 
    AS IS WELL ESTABLISHED UNDER THE ORDER, A PETITION FOR REVIEW OF AN
 ARBITRATOR'S AWARD WILL BE GRANTED WHERE IT APPEARS, BASED UPON THE
 FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE EXCEPTION
 PRESENTS THE GROUND THAT AN ARBITRATOR REFUSED TO HEAR PERTINENT AND
 MATERIAL EVIDENCE.  E.G., AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 2677 AND COMMUNITY SERVICES ADMINISTRATION (LUNDQUIST,
 ARBITRATOR), 4 FLRC 106 (FLRC NO.  75A-105 (JAN. 30, 1976), REPORT NO.
 96).  HOWEVER, IN THIS CASE THE AGENCY'S PETITION DOES NOT DESCRIBE THE
 NECESSARY FACTS AND CIRCUMSTANCES TO SUPPORT THIS EXCEPTION.  IN THIS
 REGARD, THERE IS NO SUGGESTION BY THE AGENCY THAT THE ARBITRATOR REFUSED
 TO HEAR THE AGENCY'S TESTIMONY.  RATHER, THE FACTS AND CIRCUMSTANCES
 DESCRIBED BY THE AGENCY IN ITS PETITION INDICATE THE OPPOSITE, THAT THE
 AGENCY PUT ON ITS TESTIMONY BEFORE THE ARBITRATOR BUT THE ARBITRATOR WAS
 APPARENTLY NOT PERSUADED BY THAT TESTIMONY.
 
    IT APPEARS THAT THE AGENCY'S CONTENTION THAT THE ARBITRATOR FAILED TO
 CONSIDER PERTINENT AND MATERIAL EVIDENCE IS, IN SUBSTANCE, MERE
 DISAGREEMENT WITH THE WEIGHT GIVEN BY THE ARBITRATOR TO CERTAIN
 EVIDENCE.  IT IS WELL ESTABLISHED UNDER THE ORDER THAT ARBITRAL
 DETERMINATIONS AS TO THE CREDIBILITY OF WITNESSES AND THE WEIGHT TO BE
 GIVEN THEIR TESTIMONY ARE NOT MATTERS SUBJECT TO REVIEW.  E.G., LABOR
 LOCAL 12, AFGE (AFL-CIO) AND U.S. DEPARTMENT OF LABOR (MALLET-PREVOST,
 ARBITRATOR), 3 FLRC 569 (FLRC NO. 75A-36 (SEPT. 9, 1975), REPORT NO.
 82).  THEREFORE, THE AGENCY'S FOURTH EXCEPTION PROVIDES NO BASIS FOR
 ACCEPTANCE OF THE AGENCY'S PETITION UNDER THE RULES OF PROCEDURE.
 
    ACCORDINGLY, THE AGENCY'S PETITION FOR REVIEW OF THE ARBITRATOR'S
 AWARD IS DENIED BECAUSE IT FAILS TO MEET THE REQUIREMENTS OF SECTION
 2411.32 OF THE RULES FOR ACCEPTANCE BY THE AUTHORITY OF A PETITION FOR
 REVIEW OF AN ARBITRATOR'S AWARD.  THE AGENCY'S REQUEST FOR A STAY OF THE
 AWARD IS ALSO DENIED.  /7/
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
    CC:  R. D. KING
 
    AFGE
 
    /1/ MEMBER LEON B. APPLEWHAITE DID NOT PARTICIPATE IN THE PRESENT
 CASE, WHICH HAD BEEN PROCESSED PRIOR TO HIS CONFIRMATION BY THE UNITED
 STATES SENATE AS A MEMBER OF THE AUTHORITY.
 
    /2/ ARTICLE VIII, SECTION A OF THE PARTIES' AGREEMENT PROVIDES IN
 PERTINENT PART:
 
    IF SLAUGHTER OVERTIME IS REQUIRED, IT WILL BE WORKED BY THE INSPECTOR
 COVERING THE
 
    ASSIGNMENT DURING THE REGULAR TOUR OF DUTY EXCEPT WHEN A QUALIFIED
 UNIT EMPLOYEE IS NOT
 
    AVAILABLE OR IN CASES OF EMERGENCY.
 
    /3/ WITH RESPECT TO THE MATTERS HEREIN INVOLVED, 5 U.S.C.  5596(1976)
 PROVIDED, IN PERTINENT PART, AS FOLLOWS:
 
    (B) AN EMPLOYEE OF AN AGENCY WHO, ON THE BASIS OF AN ADMINISTRATIVE
 DETERMINATION OR A
 
    TIMELY APPEAL, IS FOUND BY APPROPRIATE AUTHORITY UNDER APPLICABLE LAW
 OR REGULATION TO HAVE
 
    UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION THAT HAS
 RESULTED IN THE WITHDRAWAL
 
    OR REDUCTION OF ALL OR PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS
 OF THE EMPLOYEE--
 
    (1) IS ENTITLED, ON CORRECTION OF THE PERSONNEL ACTION, TO RECEIVE
 FOR THE PERIOD FOR WHICH
 
    THE PERSONNEL ACTION WAS IN EFFECT AN AMOUNT EQUAL TO ALL OR ANY PART
 OF THE PAY, ALLOWANCES,
 
    OR DIFFERENTIALS, AS APPLICABLE, THAT THE EMPLOYEE NORMALLY WOULD
 HAVE EARNED DURING THAT
 
    PERIOD IF THE PERSONNEL ACTION HAD NOT OCCURRED, LESS ANY AMOUNTS
 EARNED BY HIM THROUGH OTHER
 
    EMPLOYMENT DURING THAT PERIOD . . . .
 
    /4/ 5 C.F.R. 550.804(A)(1978).
 
    /5/ 5 C.F.R. 550.804(E) (1978).
 
    /6/ CF. PACIFIC SOUTHWEST FOREST AND RANGE EXPERIMENT STATION, FOREST
 SERVICE, DEPARTMENT OF AGRICULTURE AND AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 3217 (MYERS, ARBITRATOR), 4 FLRC 198 (FLRC NO. 75A-4
 (MAR. 18, 1976), REPORT NO. 101), (WHEREIN IT WAS NOTED THAT IF THERE IS
 NOT A SUBMISSION AGREEMENT WITH A PRECISE ISSUE, AN ARBITRATOR IN THE
 FEDERAL SECTOR HAS UNRESTRICTED AUTHORITY TO PASS ON ANY DISPUTE
 PRESENTED TO HIM SO LONG AS IT IS WITHIN THE CONFINES OF THE COLLECTIVE
 BARGAINING AGREEMENT).
 
    /7/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE
 BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
 APPLICATION OF RELATED PROVISIONS OF THE NEW STATUTE OR THE RESULT WHICH
 WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
 STATUTE RATHER THAN THE ORDER.
 
 
 

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