50:0034(8)AR - - Education and AFGE, Council 252, Local 2607 - - 1994 FLRAdec AR - - v50 p34



[ v50 p34 ]
50:0034(8)AR
The decision of the Authority follows:


50 FLRA No. 8

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

UNITED STATES DEPARTMENT OF EDUCATION

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL 252, LOCAL 2607

(Union)

0-AR-2580

_____

DECISION

December 8, 1994

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator John Paul Simpkins 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. The Union filed an opposition to the Agency's exceptions.

The Arbitrator sustained the grievance over an employee's suspension for alleged misconduct. After finding that the suspension was unwarranted and unjustified, he reduced the discipline to a letter of reprimand and directed the Agency to make the grievant whole for any wages not received as a result of the suspension. The Agency excepts only to the award of backpay on the grounds that the grievant was not eligible for backpay because she was not ready, willing, and able to work during the suspension.(1)

For the following reasons, we remand this case to the parties to obtain a clarification of the award from the Arbitrator.

II. Background and Arbitrator's Award

The Agency proposed to suspend the grievant for 10 days for alleged misconduct. The grievant began an unapproved 6-week absence the day before the Agency issued its decision to suspend her. The grievant's suspension was in effect during the period of her absence. A grievance was filed over the suspension and submitted to arbitration.

The Arbitrator framed the issue as follows: "Did the [Agency] suspend the [g]rievant for [10] days for sufficient and just cause? If not, what shall the remedy be?" Award at 9. The Arbitrator found that the suspension was unwarranted and unjustified under the parties' collective bargaining agreement and reduced the discipline to a written reprimand.

With respect to backpay, the Agency argued to the Arbitrator that an award of backpay was not proper because the grievant was in a nonduty, nonpay absent without leave (AWOL) status while serving her suspension. The Union contended that the grievant was unable to work because of a stress-induced condition precipitated by the Agency's action proposing the suspension.

The Arbitrator stated that "[t]he [Agency's] argument that [the] [g]rievant is not entitled to back pay because she was in a [nonpay], absence without official leave (AWOL) status during the period of suspension without pay is rejected." Award at 15. The Arbitrator ordered that the grievant be made whole for any wages not received as a result of her suspension.

III. Exceptions

A. Agency's Contentions

The Agency claims that the grievant is not entitled to an award of backpay under the Back Pay Act, 5 U.S.C. § 5596, because the Arbitrator made no finding that the suspension directly resulted in the withdrawal or reduction of the grievant's pay, or that but for the suspension, the grievant otherwise would have been paid.

The Agency also contends that the award is deficient because it is inconsistent with 5 C.F.R. § 550.805(c), under which, according to the Agency, an agency is precluded from including, in computing an award of backpay, any time during which an employee was not ready, willing, and able to perform his or her duties.(2) The Agency argues that the grievant was not ready, willing, and able to perform her work due to an illness within the meaning of 5 C.F.R. § 550.805(c)(1), and that she was unavailable to perform her duties for reasons not connected to her suspension within the meaning of 5 C.F.R. § 550.805(c)(2).

B. Union's Opposition

The Union claims that the award is consistent with the Back Pay Act because the Arbitrator found that the Agency's suspension of the grievant was unjustified and unwarranted and that the grievant should be made whole for any wages that she did not receive as a result of the suspension.

The Union maintains that 5 C.F.R. § 550.805(c)(2) permits an agency to award backpay for any period during which the employee was unavailable for the performance of his or her duties for reasons (including illness or injury) related to, or caused by, the unjustified or unwarranted personnel action. The Union contends that the award satisfies this provision because the grievant's absence was medically necessary and caused by severe stress related to management's decision to suspend her, and that, but for the Agency's unjustified and unwarranted action, she would have been ready, willing, and able to perform her duties.

IV. Analysis and Conclusions

In order to award backpay under the Back Pay Act, an arbitrator must find that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; (2) the personnel action directly resulted in the withdrawal or reduction of the grievant's pay, allowances, or differentials; and (3) but for such action, the grievant otherwise would not have suffered the withdrawal or reduction. For example, U.S. Department of Housing and Urban Development, Regional Office, Atlanta, Georgia and American Federation of Government Employees, Local 1568, 41 FLRA 520, 524-25 (1991). The regulations implementing the Back Pay Act provide that an agency may not include in the computation of an award of backpay "[a]ny period during which an employee was not ready, willing, and able to perform his or her duties because of an incapacitating illness or injury[.]" 5 C.F.R. § 550.805(c)(1). The regulations further provide that if an employee's unavailability for work is "related to, or caused by, the unjustified or unwarranted personnel action[,]" that period of unavailability is included in the computation of backpay owed the employee. 5 C.F.R. § 550.805(c)(2).

The Un