26:0368(44)AR - Labor, OIPA and AFGE Local 12 -- 1987 FLRAdec AR
[ v26 p368 ]
The decision of the Authority follows:
26 FLRA No. 44 U.S. DEPARTMENT OF LABOR, OIPA Agency and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 12 Union Case No. 0-AR-1225 DECISION I. STATEMENT OF THE CASE This matter is before the Authority on an exception to the award of Arbitrator Harry M. Leet filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. II. BACKGROUND AND ARBITRATOR'S AWARD The grievance in this case arose when, as the result of a moratorium on the production of audiovisual materials and a reduction in its budget, the Agency determined that a reduction in force (RIF) of three GS-11 audiovisual specialists was necessary. At the same time, the Agency created a new GS-12 audiovisual specialist position to perform the duties remaining and other duties relating to new work. The three employees affected by the RIF were advised of the new position and were urged to apply. All were found to be qualified for it. The employee with the least seniority among the three candidates was selected. As a result of the RIF, one of the other employees who was not selected was downgraded from GS-11 to a GS-4 position. That employee grieved, and the matter was submitted to arbitration. The Arbitrator found that (1) the RIF was properly conducted, (2) the GS-12 position was properly created and (3) there was justification for the selection of the least senior employee. However, the Arbitrator also found that the Agency had breached the parties' collective bargaining agreement by not establishing a Placement Committee at the time of the RIF as required by the agreement and that the grievant was entitled to whatever benefits a Placement Committee might have provided him. The Arbitrator determined that the record was too incomplete to order the grievant's placement in any particular position or to determine with precision what his loss of pay, if any, had been. Nevertheless, as his award, the Arbitrator ordered the Agency to pay the grievant an amount equal to one month's difference between the regular rate of pay for the GS-4 job which the grievant now holds and the rate of pay for the GS-12 audiovisual specialist position the grievant claimed he should have received. III. AGENCY EXCEPTION A. Contentions The Agency excepts only to that portion of the award which awards backpay to the grievant. The Agency contends that the Arbitrator's award is contrary to the Back Pay Act, 5 U.S.C. Section 5596. The Agency argues that even if the existence of the Placement Committee could have had a positive effect on the grievant's opportunity to find appropriate placement, there was no evidence that (1) the failure to establish a Placement Committee was an unjustified or unwarranted personnel action which resulted in the withdrawal or reduction of the grievant's pay; and (2) but for the failure to establish a Placement Committee, the grievant would not have suffered a reduction in pay. B. Analysis and Conclusions We agree with the Agency's contention that the award is contrary to the Back Pay Act, 5 U.S.C. Section 5596. In order for an award of backpay to be authorized under the Back Pay Act, the arbitrator must determine that the aggrieved employee was affected by an unjustified or unwarranted personnel action, that the personnel action directly resulted in the withdrawal or reduction of the grievant's pay, allowances or differentials, and that but for such action, the grievant otherwise would not have suffered the withdrawal or reduction. Norfolk Naval Shipyard, Portsmouth, Virginia and Tidewater Virginia Federal Employees Metal Trades Council, 21 FLRA No. 39 (1986). In this case, the Arbitrator determined that the Agency breached the parties' agreement by failing to establish a Placement Committee at the time of the RIF as required by the agreement. The Arbitrator also found that the Agency's breach of the Agreement deprived the grievant of the benefit of consideration for jobs other than the GS-4 position he now holds. The Arbitrator did not, however, find that the Agency's unwarranted action directly resulted in the grievant's reduction from GS-11 to GS-4. The Arbitrator did not determine that there was any specific causal connection between the Agency's violation of the parties' agreement and the grievant's reduction. Moreover, the Arbitrator did not find that but for the Agency's unwarranted action in failing to establish a Placement Committee that the grievant would have been selected for the GS-12 audiovisual position or any other position, or that the grievant would not have suffered any loss of pay. On the contrary, the Arbitrator found that the record was too incomplete to determine the grievant's entitlement to any position or to determine what the girevant's loss of pay, if any, had been. We conclude that the Arbitrator did not make the findings necessary for an award of compensation to the grievant in this case. Consequently, that portion of the Arbitrator's award is contrary to the Back Pay Act. IV. DECISION Accordingly, for the above reasons, the Arbitrator'