09:0672(77)AR - IRS, Austin District and NTEU, NTEU Chapter 52 -- 1982 FLRAdec AR



[ v09 p672 ]
09:0672(77)AR
The decision of the Authority follows:


 9 FLRA No. 77
 
 INTERNAL REVENUE SERVICE,
 AUSTIN DISTRICT
 Activity
 
 and
 
 NATIONAL TREASURY EMPLOYEES
 UNION, NTEU CHAPTER 52
 Union
 
                                            Case No. O-AR-213
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR RAYMOND L. BRITTON 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 RULES AND REGULATIONS.  THE UNION FILED
 AN OPPOSITION.
 
    THE DISPUTE IN THIS MATTER CONCERNS THE DISCIPLINE AND REASSIGNMENT
 OF THE GRIEVANT.  THE ACTIVITY HAD PROPOSED TO SUSPEND THE GRIEVANT FOR
 THREE DAYS FOR ACCEPTING FAVORS FROM THE CORPORATE TAXPAYER HE HAD
 AUDITED.  AS THE FINAL DECISION ON THE PROPOSED DISCIPLINE, THE GRIEVANT
 WAS INSTEAD ISSUED A LETTER OF REPRIMAND.  ON THE SAME DAY, HOWEVER, HE
 WAS ALSO NOTIFIED THAT HE WAS BEING REASSIGNED FROM EL PASO TO HOUSTON.
 THE GRIEVANT REFUSED THE REASSIGNMENT AND ELECTED INSTEAD TO TAKE A
 DISCONTINUED SERVICE RETIREMENT.  /1/ HE ALSO FILED A GRIEVANCE THAT WAS
 ULTIMATELY SUBMITTED TO ARBITRATION CLAIMING THAT THE REASSIGNMENT WAS
 IN VIOLATION OF ARTICLE 29, SECTION 1 OF THE PARTIES' COLLECTIVE
 BARGAINING AGREEMENT WHICH PROVIDES THAT "(R)EASSIGNMENTS WILL NOT BE
 USED IN LIEU OF DISCIPLINE."
 
    THE ARBITRATOR INTERPRETED THIS PROVISION TO MEAN THAT IN ORDER TO
 REASSIGN AN EMPLOYEE TO A DIFFERENT DUTY STATION, MANAGEMENT MUST SHOW A
 PURPOSE INDEPENDENT OF DISCIPLINE.  THE ARBITRATOR ALSO EXPLAINED THAT
 WHEN THE STATED REASONS FOR THE REASSIGNMENT ARE INDICATED AS MERELY A
 PRETEXT FOR THE IMPOSITION OF DISCIPLINE, IT MAY BE PROPERLY INFERRED
 THAT THE REASSIGNMENT WAS FOR PURPOSES OF DISCIPLINE.  ON THE BASIS OF
 THE EVIDENCE PRESENTED IN THIS REGARD, THE ARBITRATOR FOUND THE STATED
 REASONS FOR THE REASSIGNMENT WERE WITHOUT MERIT AND THAT THE
 REASSIGNMENT WAS NOT JUSTIFIED.  CONSEQUENTLY, THE ARBITRATOR FOUND THAT
 THE ACTIVITY'S REASSIGNMENT ACTION HAD VIOLATED THE AGREEMENT.  THE
 ARBITRATOR FURTHER FOUND THAT BUT FOR THE ACTIVITY'S IMPROPER
 REASSIGNMENT OF THE GRIEVANT, HE WOULD HAVE CONTINUED TO WORK FOR THE
 AGENCY UNTIL AGE 55 AT WHICH TIME HE WOULD HAVE RETIRED AT A HIGHER
 ANNUITY THAN HE RECEIVED AS A RESULT OF HIS DISCONTINUED SERVICE
 RETIREMENT.  THUS, THE ARBITRATOR DETERMINED THAT AS A DIRECT RESULT OF
 THE ACTIVITY'S REASSIGNMENT ACTION IN VIOLATION OF THE AGREEMENT, THE
 GRIEVANT LOST TEN MONTHS OF PAY AND A PORTION OF THE RETIREMENT ANNUITY
 TO WHICH HE OTHERWISE WOULD HAVE BEEN ENTITLED.  ACCORDINGLY, THE
 ARBITRATOR MADE THE FOLLOWING AWARD:
 
    FOR THE REASONS GIVEN, THE GRIEVANCE IS SUSTAINED AND IT IS DIRECTED
 THAT (THE GRIEVANT) BE
 
    RETROACTIVELY REINSTATED FOR THE PERIOD FROM JULY 15, 1978, THE DATE
 OF HIS RESIGNATION, TO
 
    MAY 16, 1979, THE DATE HE WOULD HAVE BEEN ELIGIBLE FOR OPTIONAL
 RETIREMENT, TOGETHER WITH ANY
 
    BACKPAY AND BENEFITS, LESS ANY AMOUNT EARNED IN OUTSIDE EMPLOYMENT
 DURING THAT PERIOD.  IT IS
 
    FURTHER DIRECTED THAT THE ANNUITY OF (THE GRIEVANT) BE RECOMPUTED
 BASED UPON THE INCREASED
 
    LENGTH OF GOVERNMENT SERVICE, TOGETHER WITH ANY MONIES LOST TO DATE
 DUE TO THE ERRONEOUS
 
    ANNUITY COMPUTATION AND THAT (THE GRIEVANT) BE AFFORDED ANY AND ALL
 OTHER RELIEF NECESSARY TO
 
    MAKE HIM WHOLE.
 
    IN ITS EXCEPTIONS THE AGENCY CONTENDS THAT THE AWARD IS CONTRARY TO
 LAW, REGULATION, AND THE COLLECTIVE BARGAINING AGREEMENT.  SPECIFICALLY,
 THE AGENCY PRIMARILY CONTENDS THAT THE AWARD IS CONTRARY TO THE BACK PAY
 ACT, 5 U.S.C. 5596, AND ITS IMPLEMENTING REGULATIONS, 5 CFR SUBPART H.
 IN THIS RESPECT THE AGENCY CLAIMS THAT THE AWARD IS DEFICIENT BECAUSE
 THE COLLECTIVE BARGAINING AGREEMENT PROVISION FOUND VIOLATED DOES NOT
 CONSTITUTE THE NONDISCRETIONARY PROVISION THAT IS NECESSARY FOR A
 FINDING OF AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION.  THE AGENCY
 FURTHER ARGUES THAT THE AWARD WAS NOT AUTHORIZED UNDER THE ACT BECAUSE
 THE GRIEVANT TESTIFIED THAT HE DID NOT WISH TO BE REINSTATED TO HIS OLD
 POSITION.  THE AGENCY SIMILARLY MAINTAINS THAT THE ADJUSTMENT OF THE
 GRIEVANT'S RETIREMENT ANNUITY WAS NOT AUTHORIZED BECAUSE THE GRIEVANT'S
 DISCONTINUED SERVICE RETIREMENT WAS VOLUNTARY AND BECAUSE IT IS
 SPECULATIVE THAT THE GRIEVANT WOULD HAVE WORKED UNTIL ELIGIBLE FOR
 OPTIONAL RETIREMENT AT AGE 55.  THE AGENCY ALSO CONTENDS THAT THE AWARD
 IS CONTRARY TO LAW AND REGULATION PERTAINING TO FEDERAL CIVIL SERVICE
 RETIREMENT BECAUSE ONLY THE OFFICE OF PERSONNEL MANAGEMENT HAS THE
 AUTHORITY TO ADJUDICATE RETIREMENT CLAIMS AND BECAUSE THE READJUSTED
 ANNUITY COVERS A PERIOD WHEN THE GRIEVANT PERFORMED NO WORK AND MADE NO
 CONTRIBUTIONS TO THE RETIREMENT FUND.  FINALLY, THE AGENCY CONTENDS THAT
 BECAUSE THE AWARD IS NOT AUTHORIZED BY LAW AND REGULATION, THE AWARD
 CORRESPONDINGLY VIOLATES THE COLLECTIVE BARGAINING AGREEMENT.
 
    THE AGENCY'S EXCEPTIONS AND SUPPORTING ASSERTIONS FAIL TO DEMONSTRATE
 THAT THE AWARD IS DEFICIENT.  AS TO ITS CONTENTION THAT THE AWARD IS
 CONTRARY TO THE BACK PAY ACT BECAUSE THE PROVISION FOUND VIOLATED IS NOT
 NONDISCRETIONARY, THE AGENCY'S POSITION IS THAT THE PROVISION MUST BE
 VIEWED AS DISCRETIONARY IN ORDER TO BE CONSISTENT WITH SECTION 7106(A)
 OF THE STATUTE.  THE AGENCY MAINTAINS THAT OTHERWISE THE PROVISION'S
 PRESCRIPTION THAT REASSIGNMENTS WILL NOT BE USED IN LIEU OF DISCIPLINE
 WOULD CONSTITUTE A PROHIBITED INTERFERENCE WITH MANAGEMENT'S RIGHT TO
 ASSIGN EMPLOYEES.  HOWEVER, THE AGENCY HAS NOT ESTABLISHED THAT THE
 PROVISION IN THIS MANNER IS DIRECTLY CONCERNED WITH THE ASSIGNMENT OF
 EMPLOYEES.  INSTEAD, THE PROVISION ONLY PERTAINS TO THE ASSIGNMENT OF
 EMPLOYEES FOR PURPOSES OF DISCIPLINE AND SIMPLY OPERATES TO ASSURE THAT
 MANAGEMENT'S EXERCISE UNDER SECTION 7106(A) OF ITS AUTHORITY TO TAKE
 DISCIPLINARY ACTION WILL BE IN ACCORDANCE WITH LAW.  THUS, IT IS
 APPARENT THAT THE PROVISION WAS PROPERLY AGREED TO AS AN APPROPRIATE
 ARRANGEMENT FOR EMPLOYEES ADVERSELY AFFECTED BY MANAGEMENT'S EXERCISE
 OF
 ITS AUTHORITY TO TAKE DISCIPLINARY ACTION BY PREVENTING THE USE OF
 REASSIGNMENTS IN LIEU OF DISCIPLINE IN ORDER THAT THE LEGAL, REGULATORY,
 AND AGREEMENT PROCEDURES AND PROTECTIONS AFFORDED AN EMPLOYEE AGAINST
 WHOM DISCIPLINARY ACTION IS TAKEN MAY NOT BE CIRCUMVENTED.  THEREFORE,
 CONTRARY TO THE ASSERTION OF THE AGENCY, THE ARBITRATOR PROPERLY
 CONSIDERED THE PROVISION NONDISCRETIONARY, AND ENFORCEMENT OF THE
 PROVISION DOES NOT DIRECTLY INTERFERE WITH THE EXERCISE OF THE AUTHORITY
 TO ASSIGN EMPLOYEES UNDER SECTION 7106(A)(2)(B) OF THE STATUTE.  SEE
 PORTSMOUTH NAVAL SHIPYARD AND FEDERAL EMPLOYEES METAL TRADES COUNCIL,
 AFL-CIO, 5 FLRA NO. 28(1981) AT 3-4 & N.4.
 
    THE OTHER ASSERTIONS OF THE AGENCY LIKEWISE PROVIDE NO BASIS FOR
 FINDING THE AWARD DEFICIENT.  THUS, THE AGENCY'S EXCEPTIONS FAIL TO
 ESTABLISH THAT THE AWARD OF BACKPAY AND INCREASED RETIREMENT BENEFITS IS
 CONTRARY TO THE BACK PAY ACT, RETIREMENT LAW, OR APPLICABLE REGULATIONS.
  AS HAS BEEN NOTED, THE ARBITRATOR DETERMINED THAT THE ACTIVITY HAD
 VIOLATED THE PARTIES' COLLECTIVE BARGAINING AGREEMENT BY ITS
 REASSIGNMENT ACTION, AND HE EXPRESSLY FOUND THAT BUT FOR SUCH
 UNWARRANTED PERSONNEL ACTION, THE GRIEVANT WOULD HAVE CONTINUED IN HIS
 EMPLOYMENT AT THE AGENCY UNTIL AGE 55 AT WHICH TIME HE WOULD HAVE
 RETIRED WITH A HIGHER ANNUITY.  THUS, CONTRARY TO THE VARIOUS ASSERTIONS
 OF THE AGENCY, THE ARBITRATOR'S AWARD IS FULLY CONSISTENT WITH THE
 STATUTORY ENTITLEMENTS DUE AN EMPLOYEE WHOSE PAY AND EMPLOYMENT BENEFITS
 HAVE BEEN ADVERSELY AFFECTED BY AN UNJUSTIFIED OR UNWARRANTED PERSONNEL
 ACTION.  UNDER THE TERMS OF THE ACT, ONCE THE ARBITRATOR FOUND THAT THE
 GRIEVANT HAD BEEN ADVERSELY AFFECTED BY AN UNWARRANTED PERSONNEL ACTION,
 THE ARBITRATOR, IN ORDER TO DETERMINE THE DIRECT RESULT OF THAT ACTION,
 PROPERLY QUESTIONED WHETHER THE GRIEVANT WOULD HAVE RETIRED ON A
 REDUCED
 ANNUITY IF THE REASSIGNMENT HAD NOT OCCURRED.  LIKEWISE, ONCE THE
 ARBITRATOR FOUND THAT THE GRIEVANT WOULD NOT HAVE RETIRED ON A REDUCED
 ANNUITY BUT FOR THE UNWARRANTED REASSIGNMENT, THE ARBITRATOR IN
 CORRECTION OF THAT PERSONNEL ACTION PROPERLY ADJUSTED THE GRIEVANT'S
 RETIREMENT ANNUITY TO THAT WHICH HE OTHERWISE WOULD HAVE BEEN ENTITLED.
 5 U.S.C. 5596(B)(1)(A).  SIMILARLY, UNDER THE EXPRESS TERMS OF THE ACT,
 AN EMPLOYEE FOUND TO HAVE BEEN ADVERSELY AFFECTED BY AN UNWARRANTED
 ACTION IS DEEMED "FOR ALL PURPOSES" TO HAVE PERFORMED SERVICE FOR THE
 AGENCY DURING THE PERIOD FOR WHICH THE PERSONNEL ACTION WAS IN EFFECT.
 5 U.S.C. 5596(B)(1)(B).  FURTHERMORE, THERE IS NO REQUIREMENT THAT AN
 EMPLOYEE SEPARATED FROM SERVICE AS A DIRECT RESULT OF THE UNWARRANTED
 PERSONNEL ACTION MUST ACTUALLY RETURN TO DUTY IN ORDER TO RECEIVE THE
 PAY AND EMPLOYMENT BENEFITS LOST DURING THE PERIOD THE UNWARRANTED
 ACTION WAS IN EFFECT.  FPM SUPP. 990-2, BOOK 550, SUBCHAPTER S8-6.  THE
 EMPLOYEE MUST ONLY HAVE BEEN READY AND ABLE TO PERFORM HIS OR HER DUTIES
 DURING THE EFFECTIVE PERIOD OF THE ACTION.  5 CFR 550.804(D)(1981).  IN
 TERMS OF THIS CASE, THE ARBITRATOR FOUND THAT THE GRIEVANT WAS ENTITLED
 TO THE BENEFITS LOST DURING THE PERIOD UNTIL MAY 1979 THAT THE
 UNWARRANTED ACTION WAS IN EFFECT, AND THE AGENCY'S EMPHASIZING THAT THE
 GRIEVANT TESTIFIED IN AUGUST 1980 THAT HE DID NOT WISH PRESENT
 REINSTATEMENT TO HIS OLD POSITION DOES NOT DEMONSTRATE OTHERWISE.
 ACCORDINGLY, THE AGENCY'S EXCEPTIONS ARE DENIED.  /2/
 
    ISSUED, WASHINGTON, D.C., JULY 28, 1982