U.S. Federal Labor Relations Authority

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15:0865(164)AR - AFGE Local 51 and Mint, Old Mint Building, Customer Service Division -- 1984 FLRAdec AR

[ v15 p865 ]
The decision of the Authority follows:

 15 FLRA No. 164
                                            Case No. O-AR-496
    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).