19:0260(36)AR - Air Force, Kirtland AFB and AFGE Local 2263 -- 1985 FLRAdec AR

 19 FLRA No. 36
 
 DEPARTMENT OF THE AIR FORCE,
 KIRTLAND AIR FORCE BASE
 Activity
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 2263, AFL-CIO
 Union
 
                                            Case No. O-AR-831
 
                                 DECISION
 
    This matter is before the Authority on an exception to the award of
 Arbitrator Leo Kotin 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 Union filed an opposition.  /1/
 
    The Arbitrator stated the issue in this case to be whether the
 grievant was properly issued what the Arbitrator termed "a disciplinary
 letter" for abuse of sick leave.  In resolution of this issue, the
 Arbitrator awarded as follows:
 
          1.  The Employer shall remove from the employee's personnel
       record all entries therein which relate to the alleged abuse of
       sick leave with which the grievant was charged.
 
          2.  The number of days presently available to the grievant for
       sick leave shall be increased by two days effective the date of
       receipt of this award.
 
    In its exception the Agency contends, among other things, that the
 Arbitrator exceeded his authority by deciding an issue not before him.
 Specifically, the Agency argues that the stipulated issue pertained to
 whether the Agency properly required that the grievant furnish medical
 certification in connection with sick leave and in no manner pertained
 to discipline as decided by the Arbitrator.
 
    The Authority concludes that this exception provides no basis for
 finding the award deficient under the Statute.  The Authority finds that
 the award is directly responsive to the issue which the Agency states
 was stipulated and is not rendered deficient by the Arbitrator terming
 the letter of requirements respecting the grievant's sick leave as
 disciplinary.  Consequently, this exception fails to establish that the
 Arbitrator exceeded his authority by deciding an issue not submitted,
 and it accordingly is denied.
 
    The Agency further contends that the crediting of the grievant with
 two days of sick leave is contrary to the Back Pay Act, 5 U.S.C. 5596.
 The Authority agrees.
 
    The Authority has uniformly stated that the Back Pay Act requires not
 only a determination that the aggrieved employee was affected by an
 unjustified or 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
 otherwise would have earned or received.  Thus, in order for an award of
 pay, allowances, or differentials to be authorized by the Act, the
 arbitrator must find that an agency personnel action with respect to the
 grievant was unjustified or unwarranted, that such unjustified or
 unwarranted personnel action directly resulted in the withdrawal or
 reduction in the grievant's pay, allowances or differentials.  E.g.,
 Social Security Administration, Office of Hearings and Appeals and
 American Federation of Government Employees, Local 3506, 17 FLRA No. 142
 (1985).  Thus, in terms of this case, in order for the award of two days
 of sick leave to be authorized under the Act, the Arbitrator must have
 found that the grievant was affected by an unwarranted personnel action
 and that such action directly resulted in the reduction of the
 grievant's pay and allowances, i.e., her sick leave account.  See
 American Federation of Government Employees, Local 1395 and Department
 of Health and Human Services, Social Security Administration, 10 FLRA 18
 (1982).  Assuming without deciding that the Arbitrator effectively found
 that the grievant was affected by an unjustified or unwarranted
 personnel action, the Authority concludes that the Arbitrator has in no
 manner made a finding or determination that such unwarranted action
 directly resulted in a loss to the grievant of two days of sick leave
 that she otherwise would have earned or received.  Consequently, the
 award in this respect is deficient as contrary to the Back Pay Act.
 Accordingly, the award is modified by striking paragraph 2 from the
 award.  /2/ Issued, Washington, D.C., July 25, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ In its opposition the Union contends that the Agency's exceptions
 should be dismissed because they raise new issues not raised before the
 Arbitrator.  However, the Authority finds no basis for dismissing the
 exceptions.  The Agency has appropriately and timely raised for
 resolution by the Authority the issue of whether the award is deficient
 under section 7122(a) of the Statute.
 
 
    /2/ In view of this decision, it is not necessary to address the
 Agency's other exception to this portion of the award.