17:1058(143)AR - NTEU and IRS -- 1985 FLRAdec AR

 17 FLRA No. 143
 
 NATIONAL TREASURY EMPLOYEES UNION 
 Union 
 
 and 
 
 INTERNAL REVENUE SERVICE 
 Agency
 
                                            Case No. 0-AR-769
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator John Kagel 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.
 
    The grievance in this case involved the determination that the
 grievant was not performing at an acceptable level of competence (the
 negative determination) and the Agency's denial to her of a within-grade
 increase.  The grievant's requested reconsideration of the negative
 determination was denied, and the grievance was thereafter filed and
 submitted to arbitration.  The Arbitrator found that the file required
 to be prepared when an employee requests reconsideration was not fully
 prepared as required and was not prepared in a fashion which allowed the
 grievant to appropriately present her defense.  He ruled that these
 actions by the Agency constituted a violation of the parties' collective
 bargaining agreement and that under decisions of the Merit Systems
 Protection Board (MSPB) applying 5 U.S.C. 7701(c)(2)(A) /1/ to this type
 of case, these actions constituted harmful error requiring the
 overturning of the denial of the increase to the grievant.  Accordingly,
 the Arbitrator directed that the grievant be granted her within-grade
 increase retroactively.
 
    In its exceptions, the Agency contends, among other things, that the
 award is contrary to law.  The Authority agrees.
 
    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 al