17:0997(134)AR - Education, Division of Civil Rights, Atlanta, GA and AFGE Local Union No. 3887, Atlanta, GA -- 1985 FLRAdec AR

 17 FLRA No. 134
 
 U.S. DEPARTMENT OF EDUCATION, 
 DIVISION OF CIVIL RIGHTS, 
 ATLANTA, GEORGIA 
 Activity 
 
 and 
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL UNION NO. 3887 
 ATLANTA, GEORGIA 
 Union
 
                                            Case No. 0-AR-688
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Ralph Roger Williams 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 parties submitted to arbitration the issue of whether the
 Activity's denial of a within-grade increase to the grievant was in
 violation of the parties' collective bargaining agreement.  The
 Arbitrator ruled that the Activity had violated the agreement because
 the Activity had failed to sustain by a preponderance of the evidence
 that the disputed aspects of the grievant's work were not being
 performed at an acceptable level of competence (the negative
 determination).  The Arbitrator found that grievant's work product met
 acceptable standards and consequently allowed the grievance and granted
 the grievant the within-grade increase retroactively.
 
    In its first exception the Agency contends that the award is contrary
 to law.  The Authority however concludes that the Agency fails to
 establish that the award is deficient.
 
    The Authority has uniformly held that in order for an award of
 backpay to be authorized under the Back Pay Act, 5 U.S.C. 5596, there
 must be not only a determination that the aggrieved 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
 addition, with respect to the denying or withholding of a within-grade
 increase, the Authority has recognized under 5 U.S.C. 5335(a) that in
 order for an employee to be entitled to the increase, the work of the
 employee must be determined to be at an acceptable level of competence.
 Social Security Administration and American Federation of Government
 Employees, AFL-CIO, 16 FLRA No. 76 (1984).  Thus, in order for an award
 by an arbitrator of a retroactive within-grade increase to be
 authorized, the arbitrator must find that agency action in connection
 with the withholding or denying of the increase was unwarranted and that
 but for the unwarranted action, the grievant otherwise would have
 received the within-grade increase.  In this regard, the arbitrator must
 find either that the negative determination was not sustained or that
 due to some action or failure to take action on the part of the agency,
 the work of the grievant was determined not to be at an acceptable level
 of competence when it otherwise would have been.  See id. at 2.  In
 terms of this case, as has been noted, the Arbitrator on finding a
 violation of the agreement, constituting the unjustified or unwarranted
 personnel action, further found that the negative determination had not
 been sustained and that the grievant's work met acceptable standards.
 Thus, the Arbitrator effectively found that but for the unwarranted
 action, the grievant otherwise would have received the within-grade
 increase.  Consequently, the Arbitrator made the findings necessary for
 a proper award of a retroactive within-grade increase.  In its exception
 in this respect, the Agency, however, has argued that these findings
 were based on the Arbitrator's determination that the Activity had
 failed to sustain the negative determination by a preponderance of the
 evidence, a standard the Agency contends is contrary to law.  Citing to
 5 U.S.C. 7701(c)( 1), /1/ the Agency claims that the standard of proof
 required in cases challenging the denial of a within-grade increase is
 substantial evidence.  With the Arbitrator affirmatively finding that
 the "Grievant's work performance met acceptable standards," it is not
 clear, however, as maintained by the Agency, that the award is based
 only on the negative determination not having been sustained by a
 preponderance of the evidence.  Nevertheless, the Agency in any event
 fails to establish that the award is deficient because the Arbitrator
 was required by law to apply the standard of substantial evidence.
 
    In this regard the Authority has previously held that section 7701(c)
 expressly pertains only to the appellate procedures of the Merit Systems
 Protection Board (MSPB) in reviewing agency decisions in any action
 appealed to MSPB and that accordingly section 7701(c) is not applicable
 to grievances submitted to arbitration.  E.g., Naval Weapons Station,
 Yorktown, Virginia and National Association of Government Employees,
 Local R4-96, 13 FLRA 133 (1983).  At the same time, the Authority
 recognized that under section 7121(e)(2) of the Statute, /2/ an
 arbitrator in certain matters is governed by the standards set forth in
 section 7701(c).  However, that section of the Statute does not pertain
 to the denying or withholding of within-grade increases and therefore
 neither that section nor the standards set forth in section 7701(c)
 apply in this case.  Consequently, contrary to the contention of the
 Agency, no specific standard of proof is required by law and the
 Authority has held that unless a specific standard of proof is required,
 an arbitrator may establish whatever standard the arbitrator considers
 appropriate and the award is not subject to being found deficient on
 that basis.  Department of Defense Dependent Schools, Europe and
 Overseas Education Association, 4 FLRA 412 (1980).  Furthermore, with
 such arbitrations not being subject to judicial review by the U.S. Court
 of Appeals for the Federal Circuit under section 7121(f) of the Statute,
 /3/ the Agency additionally has failed to establish that section
 7701(c)(1) requires the application of the standard of substantial
 evidence to denials of within-grade increases.  Although that is the
 standard determined by MSPB and the U.S. Court of Appeals for the
 Federal Circuit to be required by section 7701(c)(1), Parker v. Defense
 Logistics Agency, 1 MSPB 489 (1980);  Gordon v. Veterans Administration,
 No. 84-1327 (Fed. Cir. Dec. 11, 1984), three other U.S. courts of appeal
 have held that the standard of preponderance of the evidence of section
 7701(c)(1)(B) applies to denials of within-grade increases.  Ommaya v.
 National Institutes of Health, 726 F.2d 827 (D.C. Cir. 1984);  White v.
 Department of the Army, 720 F.2d 209 (D.C. Cir. 1983);  Stankis v. EPA,
 713 F.2d 1181 (5th Cir. 1983);  Schramm v. Department of Health and
 Human Services, 682 E.2D 85 (3D Cir. 1982).  Accordingly, for these
 reasons this exception provides no basis for finding the award
 deficient.
 
    In its other exceptions the Agency contends that the Arbitrator
 exceeded his authority by applying the standard of preponderance of the
 evidence because the parties had agreed that the Arbitrator was to apply
 the standard of substantial evidence, and that the Arbitrator failed to
 conduct a fair hearing if he considered the decision in Stankis v. EPA,
 713 F.2d 1181 (5th Cir. 1983) because a copy of the decision was
 forwarded by the Union after the record before the Arbitrator was
 closed.  The Authority concludes that the Agency in these exceptions
 fails to provide a basis for finding the award deficient.  The Agency
 fails to establish that the parties had agreed that the Arbitrator was
 to apply the standard of substantial evidence.  The Agency also fails to
 establish that the Arbitrator in any manner denied the Activity a fair
 hearing.
 
    Accordingly, the Agency's exceptions are denied.  Issued, Washington,
 D.C. May 13, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 7701(c)(1) pertaining to the appellate procedures of the
 Merit Systems Protection Board provides:
 
          (c)(1) Subject to paragraph (2) of this subsection, the
       decision of the agency shall be sustained under subsection (b)
       only if the agency's decision--
 
          (A) in the case of an action based on unacceptable performance
       described in section 4303 of this title, is supported by
       substantial evidence, or
 
          (B) in any other case, is supported by a preponderance of the
       evidence.
 
 
    /2/ Section 7121(e)(2) provides:  "In matters covered under sections
 4303 and 7512 of (title 5) which have been raised under the negotiated
 grievance procedure in accordance with this section, an arbitrator shall
 be governed by section 7701(c)(1) of (title 5), as applicable."
 
 
    /3/ Section 7121(f) pertinently provides:
 
          In matters covered under sections 4303 and 7512 of this title
       which have been raised under the negotiated grievance procedure in
       accordance with this section, section 7703 of this title
       pertaining to judicial review shall apply to the award of an
       arbitrator in the same manner and under the same conditions as if
       the matter had been decided by the Board.