32:0940(134)AR - - AFGE Local 3512 and SSA, Data Operations Center - - 1988 FLRAdec AR - - v32 p940
[ v32 p940 ]
The decision of the Authority follows:
32 FLRA No. 134
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3512
DATA OPERATIONS CENTER
SOCIAL SECURITY ADMINISTRATION
Case No. 0-AR-1511
I. Statement of the Case
This matter is before the Authority on an exception to the award of Arbitrator Alfred G. Albert. The grievant filed a grievance over the Activity's denial of her within- grade increase. The Arbitrator sustained the grievance and directed that the within-grade increase be granted the grievant retroactively.
The Agency filed an exception under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union did not file an opposition.
The Agency fails to establish that the award is contrary to law. Therefore, we will deny the exception.
II. Background and Arbitrator's Award
The grievant was denied her within-grade increase because the Activity determined that she was not performing at an acceptable level of competence. The grievant filed a grievance which was submitted to arbitration.
The Arbitrator stated the issue to be (1) whether the grievant was properly determined not to be performing at an acceptable level of competence, and, if not, (2) whether the improprieties found warrant granting the within-grade increase retroactively.
The Arbitrator ruled that the Activity had not properly determined that the grievant was not performing at an acceptable level of competence. The Arbitrator found that the Activity violated Article 22 of the parties' collective bargaining agreement by failing to provide the grievant with 60 days' advance notice to permit the grievant to improve her performance. Arbitrator's Award at 4. He found that the Activity violated Article 21 by failing to institute a "personal improvement plan" when the grievant was determined not to be performing at an acceptable level of competence. Id.
Consequently, the Arbitrator concluded that:
[H]armful error was committed and that but for the several failures to comply with specific provisions of the Agreement the [Activity's] determination would have inched into the fully satisfactory classification. The [Activity's] action is accordingly deemed unwarranted resulting in pay denial which the employee would otherwise have received and that by the action and failure to take action on the part of the [Activity], the work of the grievant was determined not to be at an acceptable level of competence when it otherwise would have been.
Accordingly, the Arbitrator sustained the grievance and directed that the grievant be granted her within-grade increase retroactive to the first pay period following her eligibility date.
The Agency contends that the Arbitrator's award is contrary to 5 U.S.C. § 5335 and the Back Pay Act, 5 U.S.C. § 5596. The Agency maintains that the Arbitrator failed to make the findings required under Authority case law for granting the within-grade increase retroactively.
The Agency argues that the Arbitrator did not find that the grievant was performing at an acceptable level of competence. The Agency further asserts that the grievant had the benefit of more than 60 days' advance notice and that the record submitted to the Arbitrator does not support the Arbitrator's conclusion that but for the violations of the agreement, the grievant would have achieved an acceptable level of competence. The Agency maintains that the Arbitrator based his award on a failure to provide 60 days' notice. The Agency argues that the Authority has held that failure to provide the required notice does not constitute a legal basis for awarding a within-grade increase retroactively.
IV. Analysis and Conclusions
The Agency fails to establish that the Arbitrator's rescission of the denial of the grievant's within-grade increase and grant of the within-grade increase retroactively is contrary to 5 U.S.C. § 5335(a) or the Back Pay Act.
In order for an award of backpay to be authorized under the Back Pay Act, the arbitrator must determine not only that the aggrieved employee was affected by an unwarranted personnel action, but also 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. For example, Social Security Administration, Region IX and American Federation of Government Employees, AFL-CIO, Council 147, 29 FLRA 1331, 1332 (1987). In addition, with respect to the denial of a within-grade increase, the work of the employee must be determined to be at an acceptable level of competence under 5 U.S.C. § 5335(a), in order for an employee to be entitled to the increase. Id. Consistent with these requirements, 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 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 (1) the determination that the grievant was not performing at an acceptable level of competence (the negative determination) was not sustained; or (2) although the grievant's work performance was not at an acceptable level of competence, the grievant's failure to achieve an acceptable level of competence was due to management action or inaction. Id.
We conclude that the Arbitrator made the findings necessary for awarding a retroactive within-grade increase. The Arbitrator ruled that the Activity had not properly determined that the grievant was not performing at an acceptable level of competence. He found that the Activity had violated Articles 21 and 22 of the parties' collective bargaining agreement. The Arbitrator further found that but for the violations of the agreement, the grievant's work would have been determined to have been at an acceptable level of competence and the grievant would have been granted the within-grade increase. Therefore, the award of a retroactive within-grade increase is consistent with 5 U.S.C. § 5335(a) and the Back Pay Act. See U.S. Department of Education, Division of Civil Rights, Atlanta, Georgia and American Federation of Government Employees, Local Union No. 3887, Atlanta, Georgia, 17 FLRA 997 (1985).
Contrary to the Agency's claim, the Authority has not held that the failure to provide a notice period required by a collective bargaining agreement cannot provide the legal basis for a retroactive within-grade increase. The Authority has held only that the arbitrator must find that but for th