Department of Labor International Labor Affairs Bureau and AFGE Local 12 (Authority decision, July 25, 1985)

Final FLRA decision. The Authority resolves exceptions to an arbitration award. Under 5 U.S.C. § 7123(a)(1), orders involving arbitral awards are generally excluded from judicial review unless they involve an unfair labor practice under 5 U.S.C. § 7116. This decision does not state that it involves one.

Plain-English summary

An arbitrator awarded a former employee three months of pay and employment credit after finding violations in a reduction in force. The Authority found no determination that those violations directly caused the loss of three months of employment. It set aside the supplemental pay award under the Back Pay Act.

Decision snapshot

• Authority: Arbitration review under 5 U.S.C. § 7122(a) and the Back Pay Act.
• Outcome: Supplemental pay and employment credit award set aside.
• Key point: A contract violation supported backpay only if it directly caused the lost pay.

Full text (FLRA public release)

[ v19 p263 ]

19:0263(37)AR

The decision of the Authority follows:

19 FLRA No. 37

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 12, AFL-CIO
Union

and

U.S. DEPARTMENT OF LABOR,
INTERNATIONAL LABOR AFFAIRS BUREAU
Activity

Case No. O-AR-838

Decision

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 Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY