17:1056(142)AR - SSA, Office of Hearings and Appeals and AFGE Local 3506 -- 1985 FLRAdec AR

 17 FLRA No. 142
 
 SOCIAL SECURITY ADMINISTRATION, 
 OFFICE OF HEARINGS AND APPEALS
 Activity 
 
 and 
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 3506
 Union
 
                                            Case No. 0-AR-842
 
                                 DECISION
 
    This matter is before the Authority on an exception to the award of
 Arbitrator John F. Caraway 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.
 
    A grievance was filed and submitted to arbitration claiming that the
 Activity's denial of a within-grade increase to the grievant was
 contrary to the parties' collective bargaining agreement.  Although the
 Arbitrator found that the grievant's performance appraisal rating of
 minimally satisfactory was grounds for denying her increase, he noted
 that the parties had negotiated strict requirements surrounding the
 denial of a within-grade increase.  In this respect he determined that
 the Activity had not fully complied with the requirements of the
 agreement and he held that therefore he was required to rescind the
 denial.  Accordingly, as his award in this regard, the Arbitrator
 directed that the grievant be granted her within-grade increase
 retroactively with backpay.
 
    In its exception the Agency primarily contends that the award is
 contrary to the Back Pay Act, 5 U.S.C. 5596.  The Authority agrees.
 
    The Authority has uniformly held that in order for an award of
 backpay to be authorized under the Back Pay Act, there must not only be
 a determination that an employee was 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 employee would otherwise have earned or
 received.  E.g., American Federation of Government Employees, Local 51
 and U.S. Department of the Mint, Old Mint Building, Customer Service
 Division, 15 FLRA No. 164 (1984).  In addition, with respect to the
 withholding or denying of a within-grade increase, the Authority has
 recognized under 5 U.S.C. 5335(a) /1/ that in order for an employee to
 be entitled to the increase, the work of the employee must be determined
 to be at an acceptable level of competence.  Social Security
 Administration and American Federation of Government Employees, AFL-CIO,
 16 FLRA No. 76 (1984).  Thus, in order for an award by an arbitrator of
 a retroactive within-grade increase to be authorized, the arbitrator
 must find that agency action in connection with the withholding or
 denying of the increase was unwarranted and that but for the unwarranted
 action, the grievant otherwise would have received the within-grade
 increase.  In this regard, the arbitrator must find either that the
 negative determination (the determination that the work of the grievant
 was not at an acceptable level of competence) was not sustained or that
 due to some action or failure to take action on the part of the agency,
 the work of the grievant was determined not to be at an acceptable level
 of competence when it otherwise would have been.  See id. at 2.  In
 terms of this case, although the Arbitrator found that the Agency had
 failed to fully comply with the collective bargaining agreement, he
 erroneously concluded that at that point, he was required to rescind the
 denial of the grievant's within-grade increase.  Thus, the Arbitrator
 did not find that but for the Activity's failure to fully comply with
 the agreement, constituting the unwarranted action, the grievant's work
 would have been determined to have been at an acceptable level of
 competence which would have resulted in the granting of the within-grade
 increase.  Consequently, in view of the grievant's performance rating
 /2/ and the Arbitrator's failure to make the necessary finding, the
 award of a retroactive within-grade increase is deficient as contrary to
 5 U.S.C. 5596.  Accordingly, the award is modified by striking the first
 paragraph.  Issued, Washington, D.C. May 13, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ 5 U.S.C. 5335(a) provides that an employee in the General
 Schedule shall be advanced to the next higher salary rate within his or
 her grade at certain intervals provided, among other things, that the
 work of the employee is at an acceptable level of competence as
 determined by the head of the agency.
 
 
    /2/ The Authority has previously noted that 5 C.F.R. 430.202(e) (1984
 Supp.), which implements 5 U.S.C. 4301(3), requires the denial of a
 within-grade increase when an employee's performance in any critical
 element is below a minimum standard.  See American Federation of State,
 County and Municipal Employees, AFL-CIO, Local 2027 and Action,
 Washington, D.C., 12 FLRA 643, 646-47 (1983).