17:1056(142)AR - SSA, Office of Hearings and Appeals and AFGE Local 3506 -- 1985 FLRAdec AR

[ v17 p1056 ]
The decision of the Authority follows:

 17 FLRA No. 142
                                            Case No. 0-AR-842
    This matter is before the Authority on an exception to the award of
 Arbitrator John F. Caraway 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.
    A grievance was filed and submitted to arbitration claiming that the
 Activity's denial of a within-grade increase to the grievant was
 contrary to the parties' collective bargaining agreement.  Although the
 Arbitrator found that the grievant's performance appraisal rating of
 minimally satisfactory was grounds for denying her increase, he noted
 that the parties had negotiated strict requirements surrounding the
 denial of a within-grade increase.  In this respect he determined that
 the Activity had not fully complied with the requirements of the
 agreement and he held that therefore he was required to rescind the
 denial.  Accordingly, as his award in this regard, the Arbitrator
 directed that the grievant be granted her within-grade increase
 retroactively with backpay.
    In its exception the Agency primarily contends that the award is
 contrary to the Back Pay Act, 5 U.S.C. 5596.  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 not only be
 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 addition, with respect to the
 withholding or denying of a within-grade increase, the Authority has
 recognized under 5 U.S.C. 5335(a) /1/ 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 (the determination