27:0044(11)AR - VA, Winston-Salem, NC and AFGE Local 2880 -- 1987 FLRAdec AR

 27 FLRA No. 11
 
 VETERANS ADMINISTRATION, 
 WINSTON-SALEM, N.C.
 Activity
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 2880
 Union
 
                                            Case No. 0-AR-1269
 
                                 DECISION
 
                         I.  Statement of the Case
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Lloyd L. Byars filed by the Agency under section 7122(a) of
 the Federal Service Labor-Management Relations Statute (the Statute) and
 part 2425 of the Authority's Rules and Regulations.
 
                  II.  Background and Arbitrator's Award
 
    A grievance was filed and submitted to arbitration in this case
 disputing the nonselection of the grievant for promotion to a GS-7
 claims examiner position.  The Arbitrator found "convincing evident or
 irregularities, omissions, and commissions in the selection process
 which indicate a reliance on non-job-related criteria as a basis for the
 nonselection of the grievant and which resulted in discrimination
 against the grievant for non-merit reasons" in violation of the parties'
 collective bargaining agreement.  However, the Arbitrator concluded that
 it was impossible to determine that "the Grievant would have been
 promoted but for the improper selction procedures of the selecting
 official." Nevertheless, he was of the opinion that "a remedy of
 anything less than a retroactive promotion for the Grievant" would be
 "inadequate." Accordingly, as his award, the Arbitrator directed that
 the grievant be promoted to the claims examiner position retroactively
 with backpay.  The Arbitrator also awarded the grievant reasonable
 attorney fees.
 
                           III.  First Exception
 
                              A.  Contentions
 
    The Agency contends that the award is deficient because the
 Arbitrator was biased against management and in favor of the grievant.
 
                       B.  Analysis and Conclusions
 
    This exception provides no basis for finding the award deficient and
 is denied.  The exception is totally devoid of any substantiation that
 the Arbitrator's award was procured by improper means;  that there was
 partiality or corruption on the part of the Arbitrator;  or that the
 Arbitrator was guilty of misconduct by which the rights of any party
 were prejudiced.  U.S. Army Corps of Engineers, New Orleans District and
 National Federation of Federal Employees, Local No. 1124, 13 FLRA 70
 (1983);  Department of the Army, Headquarters, 101st Airborne Division
 (Air Assault) and Fort Campbell, Fort Campbell, Kentucky and American
 Federation of Government Employees, Local 2022, 7 FLRA 18 (1981).
 
                           IV.  Second Exception
 
                              A.  Contentions
 
    The Agency contends that the Arbitrator's award of a retroactive
 promotion, backpay, and attorney fees is contrary to the specific
 requirements of the Back Pay Act, 5 U.S.C. section 5596.  The Union
 concedes that under applicable authority the Arbitrator failed to
 adequately justify his award.  However, the Union requests that the
 award be remanded for clarification and reevaluation of the relief
 awarded in this matter.
 
                       B.  Analysis and Conclusions
 
    We conclude that the award of a retroactive promotion, backpay, and
 attorney fees is deficient as contrary to the Back Pay Act.  In order
 for an award of backpay to be authorized under the Back Pay Act, the
 Arbitrator must find that an agency personnel action was unjustified or
 unwarranted, that such personnel action directly resulted in the
 withdrawal or reduction of the aggrieved employee's pay, allowances, or
 differentials and that but for such action, the grievant would not have
 suffered such a withdrawal or reduction.  For example, U.S. Department
 of Commerce, Patent and Trademark Office and Patent Office Professional
 Association, 21 FLRA No. 52 (1986).  In this case the Arbitrator did not
 make the findings necessary for a proper award of backpay.  The
 Arbitrator specifically concluded that it was impossible to determine
 that the grievant would have been promoted but for the improper
 selection procedures.  Accordingly, the award of a retroactive promotion
 and backpay is deficient and must be set aside.  /*/ With the award of
 backpay found deficient, and apart from other considerations, the
 Arbitrator's award of attorney fees is also deficient and must be set
 aside.  U.S. Army Missile Command, Redstone Arsenal, Alabama and Local
 1858, American Federation of Government Employees, AFL-CIO, 18 FLRA 374
 (1985).
 
    We also deny the Union's request for a remand.  When an award of
 retroactive promotion and backpay is found deficient under the Back Pay
 Act, the award is set aside and not remanded for clarification or
 reevaluation.  See National Association of Air Traffic Specialists and
 Federal Aviation Administration, Washington Flight Service Service
 Station, 21 FLRA No. 26 (1986), slip op. at 5.  At the same time,
 however, the Authority has indicated in similar circumstances that the
 parties are not precluded from agreeing on an appropriate remedy (as to
 appropriate remedies, see, for example, Local R4-97, National
 Association of Government Employees and Naval Mine Engineering Facility,
 Yorktown, Virginia, 5 FLRA 452, 456 and n.6 (1981) (priority
 consideration under a new promotion or other placement action);  Local
 R1-185, National Association of Government Employees and Adjutant
 General of the State of Connecticut, 25 FLRA No 36 (1987)
 (reconstruction or rerunning of the selection action)).  Alternatively,
 the parties could agree to resubmit the issue of an appropriate remedy
 to the Arbitrator or the Union could refer such matter to arbitration.
 See Veterans Administration Medical Center, Newington, Connecticut and
 National Association of Government Employees, Local R1-109, 19 FLRA 535
 (1985);  U.S. Department of Transportation, Federal Railroad
 Administration and American Federation of Government Employees, Local
 2814, AFL-CIO, 14 FLRA 240 (1984).
 
                               V.  Decision
 
    For these reasons, the award is modified to strike the award of
 retroactive promotion, backpay, and attorney fees.
 
    Issued, Washington, D.C., May 20, 1987
 
                                       /s/ Jerry L. Calhoun
                                       Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III
                                       Henry B. Frazier III, Member
                                       /s/ Jean McKee
                                       Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
    (*) In view of this decision, it is not necessary to address the
 Agency's other exception to the award.