Social Security Administration, Region IX and American Federation of Government Employees, Council 147 (Authority decision, October 30, 1987)

Final FLRA decision. The Authority strikes the portion of an arbitration award granting a retroactive within-grade increase and backpay. Under 5 U.S.C. § 7123(a)(1), an order involving an arbitral award is generally excluded from judicial review unless it involves an unfair labor practice under 5 U.S.C. § 7116. This decision does not decide an unfair labor practice.

Plain-English summary

An arbitrator found that Social Security had denied an employee a within-grade pay increase without giving him the 60 days to improve required by the labor agreement. The arbitrator ordered the increase retroactively with backpay. The Authority held that this remedy required a finding that the employee would have received the increase but for the agency's violation. The arbitrator had not overturned the negative performance determination or made that finding. The Authority therefore struck the pay-increase paragraph from the award.

Decision snapshot

• Authority: Within-grade increases under 5 U.S.C. § 5335(a); backpay under 5 U.S.C. § 5596.
• Outcome: Retroactive within-grade increase and backpay paragraph struck from arbitration award.
• Key point: A procedural violation alone did not support backpay without a finding that it caused the employee to lose an increase he otherwise would have received.

Full text (FLRA public release)

[ v29 p1331 ]
29:1331(110)AR

The decision of the Authority follows:

29 FLRA NO. 110

SOCIAL SECURITY ADMINISTRATION,
REGION IX

Activity

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, COUNCIL 147

Union

Case No. 0-AR-1396

DECISION

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Kenneth A. Perea 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. We find that the award is deficient.

II. Background and Arbitrator's Award

As it pertains to the Agency's exceptions, the dispute in this case concerns the Activity's denial of the within-grade increase of the grievant. As to this aspect of the dispute, the parties submitted to arbitration the issue of whether the denial was in accordance with law, regulation and the parties' collective bargaining agreement. The Arbitrator determined that the increase had been improperly denied. The Arbitrator found that after management notified the grievant that he was not performing at an acceptable level of competence (the negative determination), he was not provided with a minimum of 60 days to improve as required by the collective bargaining agreement before the within-grade increase was denied. Accordingly as his award, the Arbitrator ordered as follows:

4. SSA shall immediately grant (the grievant) a Within-Grade Increase
   retroactive to November 26, 1983, and make him whole for all loss of salary and other fringe benefits lost as a result of withholding his Within-Grade Increase.

III. Exception

The Agency contends that the award is contrary to 5 U.S.C. 5335(a) and the Back Pay Act, 5 U.S.C. 5596. 1

IV. Analysis and Conclusions

We conclude that the award is contrary to 5 U.S.C. 5335(a) and the Back Pay Act.

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. For example, Social Security Administration and Local 1760, American Federation of Government Employees, AFL-CIO, 17 FLRA 1063, 1064 (1985). 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, 17 FLRA at 1064. 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 would have received the within-grade increase. The arbitrator must find either that the negative determination was not sustained or that due to some action or inaction 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. Id.

Although the Arbitrator found that the Activity had violated the parties' collective bargaining agreement, he did not make the findings necessary for awarding a retroactive within-grade increase. He did not invalidate the negative determination. More particularly, he did not find that but for the violation of the agreement in not providing the grievant with at least 60 days to improve, the grievant's work otherwise would have been determined to have been at an acceptable level of competence, and the grievant would have been granted the within-grade increase. Accordingly, the Arbitrator's awarding of a retroactive within-grade increase is deficient and must be struck from the award.

V. Decision

For these reasons, paragraph 4 is struck from the award.

Issued, Washington, D.C., October 30, 1987

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY

Footnotes:

Footnote 1: In view of our
decision, it is unnecessary to address the other Agency exception.