19:0263(37)AR - AFGE Local 12 and Labor, International Labor Affairs Bureau -- 1985 FLRAdec AR

[ v19 p263 ]
The decision of the Authority follows:

 19 FLRA No. 37
                                            Case No. O-AR-838
    This matter is before the Authority on exceptions to the award of
 Arbitrator Bertram Gottlieb 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 grievance before the Arbitrator concerned in relevant part the
 separation of Grievant O'Brien as the result of a reduction-in-force.
 The Arbitrator determined that the computerized reemployment priority
 list with respect to this grievant did not completely list all the
 positions and grades for which the grievant was qualified and that this
 error constituted a violation of the parties' collective bargaining
 agreement.  As his award the Arbitrator ordered the grievant given
 reemployment priority for two years for the positions and grades for
 which he was qualified but which were not listed on the computerized
 reemployment priority list.  In addition, the Arbitrator ordered the
 parties to confer as to any other remedy that may be appropriately
 fashioned for the grievant, and the Arbitrator retained jurisdiction to
 order a remedy if the parties were unable to agree.  When the parties
 were unable to agree, the Arbitrator, in a supplemental award, fashioned
 the following remedy for the Activity's violation of the agreement:
          (P)ayment to (the grievant) of three (3) months pay at his pay
       level at the time he was terminated, with employment credit for
       the next (3) months.
    In its exception the Agency contends that the supplemental award of
 backpay and employment credit is deficient as contrary to the Back Pay
 Act, 5 U.S.C. 5596.  The Authority agrees.
    The Authority has consistently stated that the Back Pay Act requires
 not only a determination that an 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 of
 pay, allowances, or differentials that the employee otherwise would have
 earned or received.  Thus, in order for an award of backpay by an
 arbitrator 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, and that but for such action, the grievant
 otherwise would not have suffered a withdrawal or reduction of 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).  In terms of this case,
 the Arbitrator expressly found that the Activity violated the parties'
 collective bargaining agreement with respect to the computerized
 reemployment priority listing of Grievant O'Brien.  The Arbitrator,
 however, failed to find that this unwarranted action, or any of the
 other violations that the Arbitrator found respecting the
 reduction-in-force, directly resulted in the grievant's employment not
 being extended three months when it otherwise would have been.
 Consequently, the Arbitrator's supplemental award of three months pay
 and employment credit is deficient as contrary to the Back Pay Act and
 is set aside.  Issued, Washington, D.C., July 25, 1985
                                       Henry B. Frazier III, Acting
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY