26:0368(44)AR - Labor, OIPA and AFGE Local 12 -- 1987 FLRAdec AR



[ v26 p368 ]
26:0368(44)AR
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'