16:0552(76)AR - SSA and AFGE -- 1984 FLRAdec AR
[ v16 p552 ]
The decision of the Authority follows:
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.