29:1331(110)AR - AFGE, COUNCIL 147 VS HHS, SSA, REGION IX
[ v29 p1331 ]
The decision of the Authority follows:
29 FLRA NO. 110
SOCIAL SECURITY ADMINISTRATION, REGION IX Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, COUNCIL 147 Union Case No. 0-AR-1396
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Kenneth A. Perea 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. We find that the award is deficient.
II. Background and Arbitrator's Award
As it pertains to the Agency's exceptions, the dispute in this case concerns the Activity's denial of the within-grade increase of the grievant. As to this aspect of the dispute, the parties submitted to arbitration the issue of whether the denial was in accordance with law, regulation and the parties' collective bargaining agreement. The Arbitrator determined that the increase had been improperly denied. The Arbitrator found that after management notified the grievant that he was not performing at an acceptable level of competence (the negative determination), he was not provided with a minimum of 60 days to improve as required by the collective bargaining agreement before the within-grade increase was denied. Accordingly as his award, the Arbitrator ordered as follows:
4. SSA shall immediately grant (the grievant) a Within-Grade Increase retroactive to November 26, 1983, and make him whole for all loss of salary and other fringe benefits lost as a result of withholding his Within-Grade Increase.
The Agency contends that the award is contrary to 5 U.S.C. 5335(a) and the Back Pay Act, 5 U.S.C. 5596. 1
IV. Analysis and Conclusions
We conclude that the award is contrary to 5 U.S.C. 5335(a) and the Back Pay Act.
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. For example, Social Security Administration and Local 1760, American Federation of Government Employees, AFL-CIO, 17 FLRA 1063, 1064 (1985). 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, 17 FLRA at 1064. 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 would have received the within-grade increase. The arbitrator must find either that the negative determination was not sustained or that due to some action or inaction 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. Id.
Although the Arbitrator found that the Activity had violated the parties' collective bargaining agreement, he did not make the findings necessary for awarding a retroactive within-grade increase. He did not invalidate the negative determination. More particularly, he did not find that but for the violation of the agreement in not providing the grievant with at least 60 days to improve, the grievant's work otherwise would have been determined to have been at an acceptable level of competence, and the grievant would have been granted the wit