[ v15 p865 ]
The decision of the Authority follows:
15 FLRA No. 164 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 51 Union and U.S. DEPARTMENT OF THE MINT, OLD MINT BUILDING, CUSTOMER SERVICE DIVISION Activity Case No. O-AR-496 DECISION This matter is before the Authority on exceptions to the award of Arbitrator William B. Gould filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. The Arbitrator as his award in this case found the grievance arbitrable under the parties' collective bargaining agreement and found that the Activity violated the agreement when it downgraded the customer service clerk-typists in July 1981. With respect to a remedy the Arbitrator stated as follows: (I)nasmuch as it cannot be said with certainty that a proper evaluation would have resulted in a GS-4 rating only fifty percent (50%) backpay will be awarded. Accordingly, the Arbitrator awarded 50% backpay to the clerk-typists from the date of the downgrade until an evaluation consistent with the agreement is performed. As to the Arbitrator's finding that the grievance is arbitrable, the Agency has filed exceptions contending that to this extent the award is contrary to law and regulation, does not draw its essence from the collective bargaining agreement, is arbitrary and capricious, and is in excess of the Arbitrator's authority. However, the Authority concludes that these exceptions constitute nothing more than disagreement with the Arbitrator's interpretation of the parties' agreement to find that the grievance before him was arbitrable. Consequently, these exceptions provide no basis for finding the award deficient in this respect and are denied. See San Antonio Air Logistics Center, Kelly Air Force Base, San Antonio, Texas and American Federation of Government Employees, AFL-CIO, Local 1617, 9 FLRA 378 (1982). In its other exception the Agency contends that the Arbitrator's award of backpay is contrary to the Back Pay Act, 5 U.S.C. 5596. The Authority has uniformly held that in order for an award of backpay to be authorized under the Back Pay Act, there must be not only a determination that the employees were 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 employees would otherwise have earned or received. E.g., Jefferson Barracks National Cemetery, St. Louis, Missouri and National Association of Government Employees, Local R14-116, 13 FLRA No. 113 (1984). In terms of this case, with the Arbitrator expressly stating that there was no certain connection between the unwarranted action and any withdrawal or reduction in pay, allowances, or differentials, the Arbitrator plainly failed to make the finding necessary for an authorized award of backpay. Consequently, the award of backpay is deficient as contrary to the Back Pay Act, and the Arbitrator's award is accordingly modified by striking the last sentence directing the award of 50% backpay. /1/ Issued, Washington, D.C., August 31, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ It is further noted that in any event an award of 50% backpay is contrary to the express statutory entitlements of the Back Pay Act. For an award of backpay to be consistent with an aggrieved employee's statutory entitlement, the award must fully compensate the employee for the pay, allowances, or differentials which the employee would have earned or received if the unwarranted personnel action had not occurred. 5 U.S.C. 5596(b)(1)(A)(i); See Bureau of Alcohol, Tobacco, and Firearms and National Treasury Employees Union, 12 FLRA No. 13 (1983).