17:1061(144)AR - HHS, SSA and AFGE -- 1985 FLRAdec AR
[ v17 p1061 ]
The decision of the Authority follows:
17 FLRA No. 144 DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION Agency and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES Union Case No. 0-AR-744 DECISION This matter is before the Authority on an exception to the award of Arbitrator Robert H. Mount filed by the Activity 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 challenging the withholding of the grievant's within-grade increase. The Arbitrator concluded that the Agency had improperly denied the grievant the full contractual period to show improvement prior to the date on which she became eligible for the salary increase. As his award, the Arbitrator therefore directed that the grievant be granted the 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, and 5 U.S.C. 5335(a). /1/ 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 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 (the determination that the work of the grievant was not at an acceptable level of competence) 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, although the Arbitrator did not find that but for the denial of an opportunity for improvement prior to the date on which she became eligible for the increase, the grievant's work otherwise would have been determined to have been at an acceptable level of competence which would have resulted in the granting of the within-grade increase. Consequently, the Arbitrator's granting of a retroactive within-grade increase is contrary to 5 U.S.C. 5335(a) and 5 U.S.C. 5596 and is struck from the award. Issued, Washington, D.C. May 13, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ 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.