Food Safety and Quality Service, U.S. Department of Agriculture and National Joint Council of Food Inspection Locals, AFGE #488
[ v01 p1013 ]
01:1013(115)AR
The decision of the Authority follows:
1 FLRA No. 115
SEPTEMBER 24, 1979
MR. JOHN W. FOSSUM
ACTING DIRECTOR OF PERSONNEL
OFFICE OF THE SECRETARY
U.S. DEPARTMENT OF AGRICULTURE
WASHINGTON, D.C. 20250
RE: FOOD SAFETY AND QUALITY SERVICE, U.S.
DEPARTMENT OF AGRICULTURE AND NATIONAL JOINT
COUNCIL OF FOOD INSPECTION LOCALS, AFGE #488
(FISHGOLD, ARBITRATOR), FLRC No. 78A-162
DEAR MR. FOSSUM:
THE AUTHORITY HAS CAREFULLY CONSIDERED THE AGENCY'S PETITION FOR
REVIEW OF THE ARBITRATOR'S AWARD, AND THE UNION'S OPPOSITION THERETO, IN
THE ABOVE-ENTITLED CASE. /1/
ACCORDING TO THE ARBITRATOR, THE "BASIC ISSUE" BEFORE HIM WAS
"WHETHER THE AGENCY VIOLATED ARTICLE VIII, SECTION A OF THE AGREEMENT
/2/ WHEN IT ASSIGNED A VETERINARY SUPERVISOR TO PERFORM THE SATURDAY
OVERTIME DUTIES ASSOCIATED WITH THE REINSPECTION WORK NORMALLY ASSIGNED
TO (THE GRIEVANT), A PATROL OFFAL INSPECTOR DURING THE
REGULARLY-SCHEDULED WORKWEEK." (FOOTNOTE ADDED.) NOTING THAT THE FACTS
WERE NOT IN DISPUTE, THE ARBITRATOR FOUND THAT THE ACTIVITY, IN THE
COURSE OF PROVIDING FOOD INSPECTION SERVICES TO TWO MEAT PACKING PLANTS,
SCHEDULED FIVE FOOD INSPECTORS TO HANDLE CERTAIN WORK ASSIGNMENTS
INTERCHANGEABLY AT THE TWO PLANTS. DURING THE REGULAR DAILY OPERATION,
MONDAY THROUGH FRIDAY, TWO OF THE INSPECTORS WERE ASSIGNED TO EACH PLANT
TO PERFORM CERTAIN SLAUGHTER INSPECTION DUTIES. THE REMAINING INSPECTOR
WAS ASSIGNED AS PATROL OFFAL INSPECTOR TO WORK BOTH PLANTS. A
SUPERVISORY VETERINARY MEDICAL OFFICER (SVMO) HANDLED VETERINARY DUTIES
AT BOTH PLANTS.
THE DISPUTE AROSE ON A SATURDAY WHEN ONE OF THE PLANTS WORKED
OVERTIME. TO MEET ITS INSPECTION NEEDS AT THE PLANT ON THAT DAY, THE
ACTIVITY ASSIGNED TWO SLAUGHTER INSPECTORS AND AN SVMO. ACCORDING TO
THE ARBITRATOR, THE ACTIVITY DID NOT SCHEDULE THE GRIEVANT, WHO WAS
ASSIGNED AS THE PATROL OFFAL INSPECTOR FOR THE MONTH IN QUESTION.
INSTEAD, THE SVMO, IN ADDITION TO PERFORMING THE REQUIRED VETERINARY
DUTIES, ALSO PERFORMED THE NECESSARY OFFAL INSPECTION WORK. A GRIEVANCE
WAS INITIATED CHALLENGING THE ACTIVITY'S USE OF A VETERINARY SUPERVISOR
TO PERFORM WORK NORMALLY ASSIGNED TO A PATROL OFFAL INSPECTOR AND THE
MATTER WAS ULTIMATELY SUBMITTED TO ARBITRATION.
IN THE OPINION ACCOMPANYING HIS AWARD, THE ARBITRATOR TRACED THE
BARGAINING HISTORY OF THE DISPUTED CONTRACT PROVISION AND DETERMINED
THAT IT DID NOT SUPPORT THE INTERPRETATION ADVANCED BY THE ACTIVITY IN
ARBITRATION. HE CONCLUDED THAT IN THE CASE BEFORE HIM, BASED ON THE
EVIDENCE PRESENTED, THE GRIEVANT'S CONTRACTUAL RIGHTS WERE VIOLATED. IN
HIS AWARD, THE ARBITRATOR SUSTAINED THE GRIEVANCE AND STATED THAT "THE
GRIEVANT IS ENTITLED TO BACK PAY."
THE AGENCY FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD
BASED UPON THE EXCEPTIONS DISCUSSED BELOW. THE UNION FILED AN
OPPOSITION.
IN ACCORDANCE WITH SECTION 2400.5 OF THE TRANSITION RULES AND
REGULATIONS OF THE AUTHORITY (44 FED.REG. 44741) AND SECTION 7135(B) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215),
THE RULES OF PROCEDURE OF THE FEDERAL LABOR RELATIONS COUNCIL, 5 C.F.R.
PART 2411(1978), REMAIN OPERATIVE WITH RESPECT TO THE PRESENT CASE
EXCEPT THAT THE WORD "AUTHORITY" IS SUBSTITUTED, AS APPROPRIATE,
WHEREVER THE WORD "COUNCIL" APPEARS IN SUCH RULES.
UNDER SECTION 2411.32 OF THE RULES AS SO AMENDED, REVIEW OF AN
ARBITRATOR'S AWARD WILL BE GRANTED "ONLY WHERE IT APPEARS, BASED UPON
THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE
EXCEPTIONS TO THE AWARD PRESENT GROUNDS THAT THE AWARD VIOLATES
APPLICABLE LAW, APPROPRIATE REGULATION, OR THE ORDER, OR OTHER GROUNDS
SIMILAR TO THOSE UPON WHICH CHALLENGES TO ARBITRATION AWARDS ARE
SUSTAINED BY COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS."
IN ITS FIRST EXCEPTION TO THE AWARD, THE AGENCY CONTENDS THAT THE
AWARD VIOLATES THE BACK PAY ACT OF 1966, 5 U.S.C. 5596. /3/ IN SUPPORT
OF THIS EXCEPTION, THE AGENCY STATES THAT ITS RECORDS SHOW THAT THE
GRIEVANT WORKED 9 1/4 HOURS OF OVERTIME ELSEWHERE IN THE MEAT PACKING
PLANT ON THE DAY THE GRIEVANCE AROSE AND THAT HE HAD NOT BEEN PERFORMING
OFFAL INSPECTION DUTIES DURING THE PRECEDING WEEK. THUS, ACCORDING TO
THE AGENCY, THE GRIEVANT WAS NOT DEPRIVED OF OVERTIME AND THE AWARD
GRANTING THE GRIEVANT BACKPAY VIOLATES THE BACK PAY ACT BECAUSE THE
GRIEVANT WAS NOT "THE VICTIM OF AN UNJUSTIFIED OR UNWARRANTED PERSONNEL
ACTION WHICH RESULTED IN THE WITHDRAWAL, REDUCTION, OR DENIAL OF ALL OR
PART OF PAY, ALLOWANCES, OR DIFFERENTIAL OTHERWISE DUE HIM."
THE AUTHORITY WILL GRANT A PETITION FOR REVIEW OF AN ARBITRATOR'S
AWARD WHERE IT APPEARS, BASED UPON THE FACTS AND CIRCUMSTANCES DESCRIBED
IN THE PETITION, THAT AN AWARD VIOLATES APPLICABLE LAW, SUCH AS THE BACK
PAY ACT OF 1966. HOWEVER, IN THIS CASE THE AGENCY'S PETITION FOR REVIEW
DOES NOT CONTAIN A DESCRIPTION OF FACTS AND CIRCUMSTANCES NECESSARY TO
SUPPORT ITS EXCEPTION THAT THE AWARD VIOLATES THE BACK PAY ACT OF 1966.
THE AUTHORITY NOTES THAT THE ARBITRATOR SPECIFICALLY FOUND THAT THE
ACTIVITY VIOLATED THE AGREEMENT BY ASSIGNING A VETERINARY SUPERVISOR TO
PERFORM OFFAL INSPECTION WORK, THAT THE GRIEVANT WAS ASSIGNED AS THE
PATROL OFFAL INSPECTOR FOR THE MONTH IN QUESTION, AND THAT AS A RESULT
OF THE VIOLATION OF THE AGREEMENT THE GRIEVANT WAS ENTITLED TO BACKPAY.
IN EFFECT, THEREFORE, THE ARBITRATOR FOUND THAT "BUT FOR" THE AGREEMENT
VIOLATION, THE GRIEVANT WOULD HAVE RECEIVED THE OVERTIME PAY IN QUESTION
ON THE PARTICULAR DAY THE GRIEVANCE AROSE. THE AGENCY'S STATEMENT THAT
THE GRIEVANT "HAD NOT BEEN PERFORMING OFFAL INSPECTION DUTIES DURING THE
PRECEDING WEEK" DOES NOT PRESENT FACTS AND CIRCUMSTANCES TO SUPPORT ITS
CONTENTION THAT THE ARBITRATOR'S AWARD FINDING THE GRIEVANT ENTITLED TO
BACKPAY WITH RESPECT TO THE PARTICULAR DAY IN ISSUE VIOLATES THE BACK
PAY ACT. AS TO THE AGENCY'S ASSERTION THAT THE GRIEVANT "WORKED 9 1/4
HOURS OF OVERTIME ON THAT DAY IN ANOTHER AREA OF THE . . . PLANT," THE
AGENCY'S ARGUMENT IN ESSENCE APPEARS TO BE THAT SINCE THE GRIEVANT
RECEIVED OVERTIME ON THE DAY IN QUESTION HE WAS NOT DENIED PAY WITHIN
THE MEANING OF THE BACK PAY ACT AND TO PAY HIM IN SUCH CIRCUMSTANCES
WOULD RESULT IN A "DOUBLE" PAYMENT FOR THE HOURS HE WORKED. HOWEVER,
THE AGENCY PRESENTS NO FACTS AND CIRCUMSTANCES TO SUPPORT ITS ASSERTION
THAT THE ARBITRATOR'S AWARD FINDING THE GRIEVANT "ENTITLED" TO BACKPAY
WOULD REQUIRE IT TO COMPUTE AND MAKE A PAYMENT OF BACKPAY IN VIOLATION
OF THE BACK PAY ACT. THUS IT IS NOTED THAT THE REGULATIONS GOVERNING
THE COMPUTATION OF BACKPAY UNDER THE BACK PAY ACT, ONCE ENTITLEMENT TO
SUCH PAY IS DETERMINED, PROVIDE THAT "THE AGENCY SHALL RECOMPUTE FOR THE
PERIOD COVERED . . . THE PAY . . . OF THE EMPLOYEE AS IF THE UNJUSTIFIED
OR UNWARRANTED PERSONNEL ACTION HAD NOT OCCURRED, BUT IN NO CASE WILL
THE EMPLOYEE BE GRANTED MORE PAY . . . THAN HE OR SHE WOULD HAVE BEEN
ENTITLED TO BY LAW, EXECUTIVE ORDER, REGULATION, OR AGENCY POLICY." /4/
THE REGULATIONS ALSO PROVIDE THAT "THE AGENCY SHALL DEDUCT THE AMOUNTS
EARNED BY THE EMPLOYEE FROM OTHER EMPLOYMENT DURING THE PERIOD COVERED
BY THE CORRECTED PERSONNEL ACTION." /5/ THE AGENCY PRESENTS NO FACTS AND
CIRCUMSTANCES TO SHOW THAT THE AWARD WOULD COMPEL THE AGENCY TO
DISREGARD THE REQUIREMENTS GOVERNING THE COMPUTATION OF BACKPAY
ENUMERATED IN 5 C.F.R. 550.804. IN SHORT, THE AWARD APPEARS TO DO NO
MORE THAN STATE THAT THE GRIEVANT HAS A GENERAL ENTITLEMENT TO BACKPAY
FOR THE CONTRACT VIOLATION FOUND BY THE ARBITRATOR. THE AWARD DOES NOT
APPEAR TO DIRECT THE PAYMENT OF BACKPAY CONTRARY TO THE REQUIREMENTS OF
APPLICABLE LAW AND REGULATION AND THE AGENCY HAS NOT DEMONSTRATED IN
WHAT WAY IT MIGHT. ACCORDINGLY, THE AGENCY'S FIRST EXCEPTION PROVIDES
NO BASIS FOR ACCEPTANCE OF ITS PETITION UNDER SECTION 2411.32 OF THE
RULES OF PROCEDURE.
IN ITS SECOND EXCEPTION TO THE AWARD, THE AGENCY CONTENDS, THAT THE
ARBITRATOR EXCEEDED HIS AUTHORITY. IN SUPPORT OF THIS EXCEPTION, THE
AGENCY ASSERTS THAT THE ARBITRATOR DECIDED AN ISSUE THAT WAS NOT BEFORE
HIM. THE AGENCY ASSERTS THAT THE ARBITRATOR "IMPROPERLY AND INCORRECTLY
ALTERED THE ISSUE AGREED TO BY BOTH PARTIES" TO INCLUDE BACKPAY FOR THE
GRIEVANT.
AS IS WELL ESTABLISHED UNDER THE ORDER, A PETITION FOR REVIEW OF AN
ARBITRATOR'S AWARD WILL BE GRANTED WHERE IT APPEARS, BASED ON THE FACTS
AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE ARBITRATOR
EXCEEDED HIS OR HER AUTHORITY BY DETERMINING AN ISSUE NOT INCLUDED IN
THE QUESTION(S) SUBMITTED TO ARBITRATION, LONG BEACH NAVAL SHIPYARD AND
FEDERAL EMPLOYEES METAL TRADES COUNCIL (STEESE, ARBITRATOR), 3 FLRC 83
(FLRC NO. 74A-40 (JAN. 15, 1975), REPORT NO. 62); OR BY GOING BEYOND
THE SCOPE OF THE SUBMISSION AGREEMENT, PACIFIC SOUTHWEST FOREST AND
RANGE EXPERIMENT STATION, FOREST SERVICE, DEPARTMENT OF AGRICULTURE AND
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3217 (MYERS,
ARBITRATOR), 4 FLRC 198 (FLRC NO. 75A-4 (MAR. 18, 1976), REPORT NO.
101).
IN THIS CASE, HOWEVER, THE AGENCY'S PETITION DOES NOT DESCRIBE THE
NECESSARY FACTS AND CIRCUMSTANCES TO SUPPORT ITS EXCEPTION THAT THE
ARBITRATOR EXCEEDED HIS AUTHORITY BY DETERMINING AN ISSUE OTHER THAN THE
ONE "AGREED TO BY BOTH PARTIES." IN THIS REGARD, IT IS NOTED THAT THE
UNION IN ITS OPPOSITION TO THE AGENCY'S PETITION STATES, CONTRARY TO THE
POSITION ADVANCED BY THE AGENCY, THAT "THE ARBITRATOR FRAMED THE ISSUE
BECAUSE THE PARTIES COULD NOT REACH AGREEMENT ON THEIR OWN." NOTHING IN
THE AGENCY'S PETITION OR THE DOCUMENTS ATTACHED THERETO SHOW THAT A
PRECISE ISSUE WAS STIPULATED TO AND PRESENTED TO THE ARBITRATOR.
MOREOVER, IN THE OPINION ACCOMPANYING THE ARBITRATOR'S AWARD, THERE IS
NO INDICATION THAT THE ISSUE BEFORE THE ARBITRATOR WAS STIPULATED.
THUS, THE AGENCY HAS NOT PRESENTED FACTS AND CIRCUMSTANCES TO SUPPORT
ITS ASSERTION THAT THE ARBITRATOR EXCEEDED HIS AUTHORITY BY DETERMINING
AN ISSUE THAT WAS NOT BEFORE HIM. /6/ ACCORDINGLY, THE AGENCY'S SECOND
EXCEPTION PROVIDES NO BASIS FOR ACCEPTANCE OF ITS PETITION UNDER THE
RULES OF PROCEDURE.
IN ITS THIRD EXCEPTION, THE AGENCY CONTENDS THAT THE AWARD IS BASED
ON A NONFACT. IN SUPPORT OF THIS EXCEPTION, THE AGENCY ASSERTS THAT THE
FACT UNDERLYING THE AWARD-- THE FACT THAT THE GRIEVANT "WAS THE
PERSONALLY AGGRIEVED PARTY"-- IS ERRONEOUS BECAUSE THE GRIEVANT WAS NOT
DEPRIVED OF OVERTIME AND HENCE WAS NOT "AGGRIEVED."
AS IT WELL ESTABLISHED UNDER THE ORDER, A PETITION FOR REVIEW OF AN
ARBITRATOR'S AWARD WILL BE GRANTED WHERE IT APPEARS, BASED UPON THE
FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE EXCEPTION TO
THE AWARD PRESENTS THE GROUND THAT "THE CENTRAL FACT UNDERLYING AN
ARBITRATOR'S AWARD IS CONCEDEDLY ERRONEOUS, AND IN EFFECT IS A GROSS
MISTAKE OF FACT BUT FOR WHICH A DIFFERENT RESULT WOULD HAVE BEEN REACHED
. . . ." OFFICE OF ECONOMIC OPPORTUNITY, KANSAS CITY REGIONAL OFFICE,
REGION VII AND NATIONAL COUNCIL OF OEO LOCALS, LOCAL 2691, AFL-CIO
(YAROWSKY, ARBITRATOR), 3 FLRC 533, 536 (FLRC NO. 74A-102 (AUG. 15,
1975), REPORT NO. 81).
HOWEVER, IN THIS CASE THE AGENCY'S EXCEPTION IS NOT SUPPORTED BY THE
FACTS AND CIRCUMSTANCES DESCRIBED IN ITS PETITION. IN THIS REGARD, THE
AGENCY'S PETITION FOR REVIEW DOES NOT PRESENT THE NECESSARY FACTS AND
CIRCUMSTANCES TO DEMONSTRATE THAT THE CENTRAL FACT UNDERLYING THE
ARBITRATOR'S AWARD IS CONCEDEDLY ERRONEOUS, AND IN EFFECT IS A GROSS
MISTAKE OF FACT BUT FOR WHICH A DIFFERENT RESULT WOULD HAVE BEEN
REACHED. THAT IS, THE AGENCY HAS NOT DEMONSTRATED THAT THE QUESTION OF
WHETHER OR NOT THE GRIEVANT WAS AN "AGGRIEVED PARTY" BECAUSE HE WAS NOT
DEPRIVED OF OVERTIME WAS A CONCEDEDLY ERRONEOUS CENTRAL FACT BUT FOR
WHICH A DIFFERENT RESULT WOULD HAVE BEEN REACHED BY THE ARBITRATOR IN
HIS AWARD FINDING THE CONTRACT TO HAVE BEEN VIOLATED AND THE GRIEVANT
"ENTITLED" TO BACKPAY. ACCORDINGLY, THE AGENCY'S THIRD EXCEPTION
PROVIDES NO BASIS FOR ACCEPTANCE OF ITS PETITION UNDER THE RULES OF
PROCEDURE.
IN ITS FOURTH EXCEPTION TO THE AWARD, THE AGENCY CONTENDS THAT THE
ARBITRATOR FAILED TO CONSIDER PERTINENT AND MATERIAL EVIDENCE. IN
SUPPORT OF THIS EXCEPTION, THE AGENCY ASSERTS THAT THE ARBITRATOR DID
NOT CONSIDER AGENCY TESTIMONY REGARDING THE INTENT OF THE PARTIES WITH
RESPECT TO THE MEANING OF THE RELEVANT ARTICLE OF THE PARTIES'
NEGOTIATED AGREEMENT.
AS IS WELL ESTABLISHED UNDER THE ORDER, A PETITION FOR REVIEW OF AN
ARBITRATOR'S AWARD WILL BE GRANTED WHERE IT APPEARS, BASED UPON THE
FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE EXCEPTION
PRESENTS THE GROUND THAT AN ARBITRATOR REFUSED TO HEAR PERTINENT AND
MATERIAL EVIDENCE. E.G., AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 2677 AND COMMUNITY SERVICES ADMINISTRATION (LUNDQUIST,
ARBITRATOR), 4 FLRC 106 (FLRC NO. 75A-105 (JAN. 30, 1976), REPORT NO.
96). HOWEVER, IN THIS CASE THE AGENCY'S PETITION DOES NOT DESCRIBE THE
NECESSARY FACTS AND CIRCUMSTANCES TO SUPPORT THIS EXCEPTION. IN THIS
REGARD, THERE IS NO SUGGESTION BY THE AGENCY THAT THE ARBITRATOR REFUSED
TO HEAR THE AGENCY'S TESTIMONY. RATHER, THE FACTS AND CIRCUMSTANCES
DESCRIBED BY THE AGENCY IN ITS PETITION INDICATE THE OPPOSITE, THAT THE
AGENCY PUT ON ITS TESTIMONY BEFORE THE ARBITRATOR BUT THE ARBITRATOR WAS
APPARENTLY NOT PERSUADED BY THAT TESTIMONY.
IT APPEARS THAT THE AGENCY'S CONTENTION THAT THE ARBITRATOR FAILED TO
CONSIDER PERTINENT AND MATERIAL EVIDENCE IS, IN SUBSTANCE, MERE
DISAGREEMENT WITH THE WEIGHT GIVEN BY THE ARBITRATOR TO CERTAIN
EVIDENCE. IT IS WELL ESTABLISHED UNDER THE ORDER THAT ARBITRAL
DETERMINATIONS AS TO THE CREDIBILITY OF WITNESSES AND THE WEIGHT TO BE
GIVEN THEIR TESTIMONY ARE NOT MATTERS SUBJECT TO REVIEW. E.G., LABOR
LOCAL 12, AFGE (AFL-CIO) AND U.S. DEPARTMENT OF LABOR (MALLET-PREVOST,
ARBITRATOR), 3 FLRC 569 (FLRC NO. 75A-36 (SEPT. 9, 1975), REPORT NO.
82). THEREFORE, THE AGENCY'S FOURTH EXCEPTION PROVIDES NO BASIS FOR
ACCEPTANCE OF THE AGENCY'S PETITION UNDER THE RULES OF PROCEDURE.
ACCORDINGLY, THE AGENCY'S PETITION FOR REVIEW OF THE ARBITRATOR'S
AWARD IS DENIED BECAUSE IT FAILS TO MEET THE REQUIREMENTS OF SECTION
2411.32 OF THE RULES FOR ACCEPTANCE BY THE AUTHORITY OF A PETITION FOR
REVIEW OF AN ARBITRATOR'S AWARD. THE AGENCY'S REQUEST FOR A STAY OF THE
AWARD IS ALSO DENIED. /7/
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
CC: R. D. KING
AFGE
/1/ MEMBER LEON B. APPLEWHAITE DID NOT PARTICIPATE IN THE PRESENT
CASE, WHICH HAD BEEN PROCESSED PRIOR TO HIS CONFIRMATION BY THE UNITED
STATES SENATE AS A MEMBER OF THE AUTHORITY.
/2/ ARTICLE VIII, SECTION A OF THE PARTIES' AGREEMENT PROVIDES IN
PERTINENT PART:
IF SLAUGHTER OVERTIME IS REQUIRED, IT WILL BE WORKED BY THE INSPECTOR
COVERING THE
ASSIGNMENT DURING THE REGULAR TOUR OF DUTY EXCEPT WHEN A QUALIFIED
UNIT EMPLOYEE IS NOT
AVAILABLE OR IN CASES OF EMERGENCY.
/3/ WITH RESPECT TO THE MATTERS HEREIN INVOLVED, 5 U.S.C. 5596(1976)
PROVIDED, IN PERTINENT PART, AS FOLLOWS:
(B) AN EMPLOYEE OF AN AGENCY WHO, ON THE BASIS OF AN ADMINISTRATIVE
DETERMINATION OR A
TIMELY APPEAL, IS FOUND BY APPROPRIATE AUTHORITY UNDER APPLICABLE LAW
OR REGULATION TO HAVE
UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION THAT HAS
RESULTED IN THE WITHDRAWAL
OR REDUCTION OF ALL OR PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS
OF THE EMPLOYEE--
(1) IS ENTITLED, ON CORRECTION OF THE PERSONNEL ACTION, TO RECEIVE
FOR THE PERIOD FOR WHICH
THE PERSONNEL ACTION WAS IN EFFECT AN AMOUNT EQUAL TO ALL OR ANY PART
OF THE PAY, ALLOWANCES,
OR DIFFERENTIALS, AS APPLICABLE, THAT THE EMPLOYEE NORMALLY WOULD
HAVE EARNED DURING THAT
PERIOD IF THE PERSONNEL ACTION HAD NOT OCCURRED, LESS ANY AMOUNTS
EARNED BY HIM THROUGH OTHER
EMPLOYMENT DURING THAT PERIOD . . . .
/4/ 5 C.F.R. 550.804(A)(1978).
/5/ 5 C.F.R. 550.804(E) (1978).
/6/ CF. PACIFIC SOUTHWEST FOREST AND RANGE EXPERIMENT STATION, FOREST
SERVICE, DEPARTMENT OF AGRICULTURE AND AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3217 (MYERS, ARBITRATOR), 4 FLRC 198 (FLRC NO. 75A-4
(MAR. 18, 1976), REPORT NO. 101), (WHEREIN IT WAS NOTED THAT IF THERE IS
NOT A SUBMISSION AGREEMENT WITH A PRECISE ISSUE, AN ARBITRATOR IN THE
FEDERAL SECTOR HAS UNRESTRICTED AUTHORITY TO PASS ON ANY DISPUTE
PRESENTED TO HIM SO LONG AS IT IS WITHIN THE CONFINES OF THE COLLECTIVE
BARGAINING AGREEMENT).
/7/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE
BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
APPLICATION OF RELATED PROVISIONS OF THE NEW STATUTE OR THE RESULT WHICH
WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
STATUTE RATHER THAN THE ORDER.