17:1061(144)AR - HHS, SSA and AFGE -- 1985 FLRAdec AR

 17 FLRA No. 144
 
 
 DEPARTMENT OF HEALTH 
 AND HUMAN SERVICES, 
 SOCIAL SECURITY ADMINISTRATION 
 Agency
 
 and 
 
 AMERICAN FEDERATION OF 
 GOVERNMENT EMPLOYEES 
 Union
 
                                            Case No. 0-AR-744
 
                                 DECISION
 
    This matter is before the Authority on an exception to the award of
 Arbitrator Robert H. Mount filed by the Activity 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 challenging the
 withholding of the grievant's within-grade increase.  The Arbitrator
 concluded that the Agency had improperly denied the grievant the full
 contractual period to show improvement prior to the date on which she
 became eligible for the salary increase.  As his award, the Arbitrator
 therefore directed that the grievant be granted the 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, and 5 U.S.C. 5335(a).  /1/
 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 be not only
 a determination that the aggrieved 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 denying or withholding of a within-grade increase, the
 Authority has recognized under 5 U.S.C. 5335(a) 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 did not find
 that but for the denial of an opportunity for improvement prior to the
 date on which she became eligible for the increase, the grievant's work
 otherwise 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, the Arbitrator's granting of a
 retroactive within-grade increase is contrary to 5 U.S.C. 5335(a) and 5
 U.S.C. 5596 and is struck from the award.  
 
 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.