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55 FLRA No. 38
U.S. Dept. of Housing and Urban Development Grand Rapids, Michigan and AFGE, Local 700 (Cohen, Arbitrator), 0-AR-3066 (Decided February 26, 1999)
The Arbitrator sustained the grievance challenging the Agency's suspension of the grievant from the credit hours program and awarded her 239.96 credit hours to compensate her for the suspension. The Authority denied the Agency's exceptions.
The Authority rejected the Agency's argument that the award was contrary to 5 U.S.C. § 6126 because it allowed the grievant to accumulate credit hours in excess of the limit in that section. The Authority explained that section 6126 precludes an employee from accumulating more than 24 credit hours for carryover. Section 6126 contains no limit on what an arbitrator can do to remedy an unjustified or unwarranted personnel action. The Authority noted that when Congress wants to limit leave accrual as a remedy, it does so clearly.
The Authority found that the award in this case was not contrary to section 6126. In so doing, the Authority noted that the remedy awarded by the Arbitrator was a make-whole remedy. The purpose of a make-whole remedy is to place individuals who have been adversely affected by an improper action in the situation they would have been if the improper action had not occurred. The Authority further noted that awarding the grievant the total number of credit hours she would have earned but for the Agency's unwarranted suspension of the grievant from the credit hours program was consistent with the practice of the Merit Systems Protection Board (MSPB) in cases involving awards of leave under the Back Pay Act. The Authority also rejected the allegation that the award failed to draw its essence from the parties' bargaining agreement.