19:0260(36)AR - Air Force, Kirtland AFB and AFGE Local 2263 -- 1985 FLRAdec AR
[ v19 p260 ]
The decision of the Authority follows:
19 FLRA No. 36 DEPARTMENT OF THE AIR FORCE, KIRTLAND AIR FORCE BASE Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2263, AFL-CIO Union Case No. O-AR-831 DECISION This matter is before the Authority on an exception to the award of Arbitrator Leo Kotin 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 Arbitrator stated the issue in this case to be whether the grievant was properly issued what the Arbitrator termed "a disciplinary letter" for abuse of sick leave. In resolution of this issue, the Arbitrator awarded as follows: 1. The Employer shall remove from the employee's personnel record all entries therein which relate to the alleged abuse of sick leave with which the grievant was charged. 2. The number of days presently available to the grievant for sick leave shall be increased by two days effective the date of receipt of this award. In its exception the Agency contends, among other things, that the Arbitrator exceeded his authority by deciding an issue not before him. Specifically, the Agency argues that the stipulated issue pertained to whether the Agency properly required that the grievant furnish medical certification in connection with sick leave and in no manner pertained to discipline as decided by the Arbitrator. The Authority concludes that this exception provides no basis for finding the award deficient under the Statute. The Authority finds that the award is directly responsive to the issue which the Agency states was stipulated and is not rendered deficient by the Arbitrator terming the letter of requirements respecting the grievant's sick leave as disciplinary. Consequently, this exception fails to establish that the Arbitrator exceeded his authority by deciding an issue not submitted, and it accordingly is denied. The Agency further contends that the crediting of the grievant with two days of sick leave is contrary to the Back Pay Act, 5 U.S.C. 5596. The Authority agrees. The Authority has uniformly stated that the Back Pay Act requires not only a determination that the aggrieved employee was affected by an unjustified or 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 otherwise would have earned or received. Thus, in order for an award of pay, allowances, or differentials to be authorized by the Act, the arbitrator must find that an agency personnel action with respect to the grievant was unjustified or unwarranted, that such unjustified or unwarranted personnel action directly resulted in the withdrawal or reduction in the grievant's pay, allowances or differentials. E.g., Social Security Administration, Office of Hearings and Appeals and American Federation of Government Employees, Local 3506, 17 FLRA No. 142 (1985). Thus, in terms of this case, in order for the award of two days of sick leave to be authorized under the Act, the Arbitrator must have found that the grievant was affected by an unwarranted personnel action and that such action directly resulted in the reduction of the grievant's pay and allowances, i.e., her sick leave account. See American Federation of Government Employees, Local 1395 and Department of Health and Human Services, Social Security Administration, 10 FLRA 18 (1982). Assuming without deciding that the Arbitrator effectively found that the grievant was affected by an unjustified or unwarranted personnel action, the Authority concludes that the Arbitrator has in no manner made a finding or determination that such unwarranted action directly resulted in a loss to the grievant of two days of sick leave that she otherwise would have earned or received. Consequently, the award in this respect is deficient as contrary to the Back Pay Act. Accordingly, the award is modified by striking paragraph 2 from the award. /2/ Issued, Washington, D.C., July 25, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ In its opposition the Union contends that the Agency's exceptions should be dismissed because they raise new issues not raised before the Arbitrator. However, the Authority finds no basis for dismissing the exceptions. The Agency has appropriately and timely raised for resolution by the Authority the issue of whether the award is deficient under section 7122(a) of the Statute. /2/ In view of this decision, it is not necessary to address the Agency's other exception to this portion of the award.