B-192568, DECEMBER 8, 1978

B-192568: Dec 8, 1978

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DIGEST: FEDERAL LABOR RELATIONS COUNCIL REQUESTS DECISION ON ARBITRATION AWARD OF BACK PAY TO A TEACHER HIRED UNDER 20 U.S.C. 241(A) WHO WAS TERMINATED IN A REDUCTION-IN-FORCE. THIS CASE IS BEFORE THE FEDERAL LABOR RELATIONS COUNCIL AS THE RESULT OF A PETITION FOR REVIEW FILED BY THE DEPARTMENT OF THE NAVY ALLEGING THAT THE AWARD VIOLATES APPLICABLE LAWS AND REGULATIONS. THE SOLE ISSUE PRESENTED FOR CONSIDERATION BY US IS WHETHER OR NOT THE ARBITRATOR'S AWARD OF BACK PAY TO THE AGGRIEVED EMPLOYEE VIOLATES THE BACK PAY ACT. WAS TERMINATED ON THE BASIS OF A REDUCTION-IN-FORCE. RUSH'S EMPLOYMENT WAS TERMINATED EFFECTIVE JULY 10. THE ISSUE AS FORMULATED BY THE ARBITRATOR FOR HIS CONSIDERATION IS AS FOLLOWS: "WAS MR.

B-192568, DECEMBER 8, 1978

DIGEST: FEDERAL LABOR RELATIONS COUNCIL REQUESTS DECISION ON ARBITRATION AWARD OF BACK PAY TO A TEACHER HIRED UNDER 20 U.S.C. 241(A) WHO WAS TERMINATED IN A REDUCTION-IN-FORCE. ARBITRATOR FOUND THAT THE SCHOOL SYSTEM VIOLATED AGREEMENT BY NOT FINDING THE TEACHER TO BE BASICALLY QUALIFIED FOR DIFFERENT TEACHING ASSIGNMENT. HOWEVER, THE ARBITRATOR ALSO CONDITIONED HIS AWARD OF BACK PAY UPON SUCCESSFUL COMPLETION OF A QUALIFYING COURSE. THE CONDITIONAL AWARD OF BACK PAY DOES NOT SATISFY THE CRITERIA OF THE BACK PAY ACT, 5 U.S.C. 5596 AND MAY NOT BE IMPLEMENTED.

CLIFTON RUSH -- ARBITRATION AWARD OF BACK PAY:

THE FEDERAL LABOR RELATIONS COUNCIL HAS REQUESTED A DECISION ON THE LEGALITY OF BACK PAY ORDERED BY AN ARBITRATOR IN THE MATTER OF ANTILLES CONSOLIDATED SCHOOL SYSTEM AND ANTILLES CONSOLIDATED EDUCATION ASSOCIATION (KANZER, ARBITRATOR), FLRC NO. 78A-21. THIS CASE IS BEFORE THE FEDERAL LABOR RELATIONS COUNCIL AS THE RESULT OF A PETITION FOR REVIEW FILED BY THE DEPARTMENT OF THE NAVY ALLEGING THAT THE AWARD VIOLATES APPLICABLE LAWS AND REGULATIONS. THE COUNCIL ACCEPTED THE PETITION INSOFAR AS IT RELATED TO THE AGENCY'S EXCEPTION WHICH ALLEGED THAT THE AWARD VIOLATES THE BACK PAY ACT OF 1966. THE SOLE ISSUE PRESENTED FOR CONSIDERATION BY US IS WHETHER OR NOT THE ARBITRATOR'S AWARD OF BACK PAY TO THE AGGRIEVED EMPLOYEE VIOLATES THE BACK PAY ACT, 5 U.S.C. 5596(1976).

THE ARBITRATOR MADE A CONDITIONAL AWARD OF BACK PAY TO MR. CLIFTON F. RUSH, A TEACHER WHOSE EMPLOYMENT AT THE ANTILLES MIDDLE SCHOOL, ANTILLES CONSOLIDATED SCHOOL SYSTEM, FORT BUCHANAN, PUERTO RICO, WAS TERMINATED ON THE BASIS OF A REDUCTION-IN-FORCE. MR. RUSH'S EMPLOYMENT WAS TERMINATED EFFECTIVE JULY 10, 1977. FROM MAY 1971, THROUGH THAT DATE, HE HAD BEEN EMPLOYED AS A TEACHER OF INDUSTRIAL ARTS IN THE SCHOOL SYSTEM. THE NAVY OPERATED THE SCHOOL SYSTEM UNDER THE AUTHORITY OF 20 U.S.C. 241(A), AS A "SECTION 6 SCHOOL" FOR THE COMMISSIONER OF EDUCATION, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE.

THE ISSUE AS FORMULATED BY THE ARBITRATOR FOR HIS CONSIDERATION IS AS FOLLOWS: "WAS MR. CLIFTON RUSH QUALIFIED TO PERFORM THE DUTIES OF MR. CARL PACHUCKI AS A TEACHER OF AUTO MECHANICS IN THE ANTILLES SENIOR HIGH SCHOOL AT THE TIME OF THE TERMINATION OF RUSH ON JULY 10, 1977?"

THE FACTS IN THE MATTER AS STATED IN THE ARBITRATOR'S DECISION ARE SUMMARIZED AS FOLLOWS. MR. RUSH RECEIVED BOTH B.S. AND M.S. DEGREES AND POSSESSES A TEACHER CERTIFICATE ISSUED BY THE KANSAS DEPARTMENT OF EDUCATION WHICH LIST THE FOLLOWING SUBJECTS: GENERAL SHOP, DRAFTING, METALS, AND WOOD. RUSH COMPLETED ONE FORMAL COLLEGE COURSE IN THE AUTO MECHANICS AREA; HOWEVER, TO EARN CERTIFICATION IN KANSAS HE WOULD HAVE TO COMPLETE TWO MORE ADVANCED COURSES IN AUTO MECHANICS. HE NEVER TAUGHT A CLASS IN AUTO MECHANICS, BUT REPAIRED ENGINES IN THE NAVY FROM 1962-1967, AND WORKED FOUR MONTHS AS AN AUTO MECHANIC WHILE AT COLLEGE. THE ACCREDITING AGENCY FOR ANTILLES CONSOLIDATED SCHOOL SYSTEM (HEREAFTER "ANTILLES") REQUIRES A TEACHER OF INDUSTRIAL ARTS TO HAVE A MINIMUM OF ONE COURSE IN EACH SUBJECT TAUGHT. ALTHOUGH THE ARBITRATOR FOUND THAT THE COURSE PASSED BY RUSH DID NOT SATISFY THAT REQUIREMENT, HE NOTED THAT IF ANTILLES WERE CITED BY THE ACCREDITING AGENCY FOR A DEFICIENCY IN SUCH COURSE WORK, THE ACCREDITING AGENCY NORMALLY WOULD ALLOW ANTILLES ONE YEAR UNDER CITATION WITHIN WHICH TIME THE TEACHER COULD COMPLETE THE NEEDED COURSE.

THE ACCREDITING AGENCY ADVISED ANTILLES PRIOR TO THE START OF 1976 1977 SCHOOL YEAR TO OFFER A COURSE IN AUTO MECHANICS AT THE HIGH SCHOOL WITH THE START OF THE LATTER YEAR. ACCORDINGLY, ANTILLES HIRED A TEACHER WHO WAS FOUND BY THE ARBITRATOR TO BE FULLY QUALIFIED TO TEACH A COURSE IN AUTO MECHANICS.

IT WAS NOT UNTIL ABOUT MAY 1977, THAT THE NEW TEACHER OF AUTO MECHANICS PROVIDED SHOP WORK FOR THE AUTO MECHANICS CLASS. THE ARBITRATOR FOUND THAT, ALTHOUGH THE COLLEGE COURSE COMPLETED BY RUSH WAS NOT COMPREHENSIVE ENOUGH TO MEET THE STANDARDS OF THE ACCREDITING AGENCY, HIS COURSE DID COVER MOST OF THE AREAS COVERED BY THE TEXT BOOK USED BY THE NEW CLASS FOR THE AUTO MECHANICS COURSE.

IN FEBRUARY 1977, RUSH WAS ADVISED THAT THE INDUSTRIAL ARTS CLASSES AT THE MIDDLE SCHOOL WERE TO BE PHASED OUT FOR ECONOMIC REASONS WHICH COULD RESULT IN RUSH LOSING HIS JOB. THE ARBITRATOR FOUND THAT RUSH DID NOT RECEIVE A WRITTEN ROSTER OF COMPETITIVE RATING WITHIN 30 DAYS OF MARCH 31, 1977, AS REQUIRED BY THE NEGOTIATED LABOR AGREEMENT. ON MAY 10, 1977, RUSH RECEIVED A FORMAL REDUCTION-IN-FORCE LETTER. RUSH THEN APPLIED FOR THE TEACHING POSITION IN AUTO MECHANICS AT ANTILLES HIGH SCHOOL, OFFERING TO COMPLETE THE NEEDED COURSE WORK THAT HE LACKED FOR CERTIFICATION. HOWEVER, ANTILLES REFUSED TO RECONSIDER. NEITHER DID IT OFFER TO PERMIT RUSH A BRIEF TRIAL OR TRAINING PERIOD TO DEMONSTRATE ON THE JOB WHETHER HE KNEW THE WORK, PENDING COMPLETION OF THE DEFICIT IN COURSE WORK, WHICH THE ARBITRATOR FOUND COULD HAVE BEEN COMPLETED IN MUCH LESS TIME THAN THE ONE YEAR CITATION PERIOD PERMITTED BY THE ACCREDITING AGENCY.

ON THE BASIS OF THE FACTS DEVELOPED AT THE HEARING, THE ARBITRATOR FOUND THAT THE SINGLE 2-CREDIT COURSE TAKEN BY RUSH DID NOT MEET THE ACCREDITING AGENCY'S REQUIREMENT FOR CERTIFICATION TO TEACH AUTO MECHANICS AT ANTILLES HIGH SCHOOL. BUT HE ALSO FOUND THAT RUSH HAD THE "BASIC QUALIFICATIONS" TO TEACH THE COURSE IN ALL OTHER RESPECTS PURSUANT TO ARTICLE 21 OF THE AGREEMENT. HE BASED THIS ON RUSH'S EMPLOYMENT EXPERIENCE AS A MECHANIC, HIS KNOWLEDGE OF THE SUBJECTS COVERED AND HIS SIX YEARS OF GENERAL TEACHING EXPERIENCE IN INDUSTRIAL ARTS.

HOWEVER, BECAUSE HE FOUND THAT THE SOLE COURSE IN SMALL GAS ENGINES COMPLETED BY RUSH DID NOT SUFFICE, THE ARBITRATOR CONDITIONED THE REMEDIES AWARDED TO RUSH IN GRANTING HIS GRIEVANCE DIRECTLY UPON A PROMPT COMPLETION OF THE NEXT COURSE NEEDED.

THE ARBITRATOR'S AWARD READS AS FOLLOWS:

"I, THEREFORE, CONCLUDE THAT RUSH POSSESSED THE BASIC QUALIFICATIONS TO PERFORM THE JOB AS AUTO MECHANICS TEACHER IN ANTILLES H.S. WHICH WAS HELD BY PACHUCKI, AND HIS GRIEVANCE IS HEREBY GRANTED, VESTING HIM IN PACHUCKI'S POSITION AS OF JULY 10, 1977, HOWEVER WITHIN THE FRAMEWORK OF THE REMEDIES FASHIONED BY THE ARBITRATOR BELOW:

"1. RUSH IS AWARDED PACHUCKI'S POSITION RETROACTIVE TO JULY 10, 1977, WITHOUT ANY BREAK IN SENIORITY OR EMPLOYEE RIGHTS OR BENEFITS.

"2. RUSH IS HEREBY DIRECTED TO IMMEDIATELY ENROLL IN AND PASS THE NEXT AUTO MECHANICS COURSE NEEDED TO SECURE HIS CERTIFICATION. THIS MUST BE DONE AND AN APPROPRIATE TRANSCRIPT AND CERTIFICATE FILED WITH THE ANTILLES SCHOOL SYSTEM NO LATER THAN THE END OF THE 1977-78 SCHOOL YEAR (ON OR ABOUT JULY 10, 1978). IF RUSH FAILS TO PERFORM THE LATTER CONTINGENCY BY THE END OF THE 1977-78 SCHOOL, THEN HIS CONTRACT SHALL BE TERMINATED BY ANTILLES AND HE SHALL BE DISMISSED FROM SERVICE AT THE ANTILLES H.S.

"3.WHILE RUSH TAKES AND COMPLETES HIS COURSE, ANTILLES SHALL HONOR PACHUKI'S CONTRACT, AND ALLOW HIM TO COMPLETE HIS DUTIES ON HIS CURRENT JOB UNTIL THE END OF THE 1977-78 SCHOOL YEAR. ALTHOUGH THIS ARBITRATOR HAS NO JURISDICTION REGARDING THE DESTINY OF PACHUCKI, AS FAR AS HIS RE EMPLOYMENT IS CONCERNED, IT IS HOPED ALL PARTIES WILL JOIN HANDS TO FIND HIM A NEW POSITION IN THE FT. BUCHANAN AREA AS WORTHY AS THE ONE HE NOW HAS. AS AN INNOCENT VICTIM OF THE REDUCTION IN FORCE, HE DESERVES THE HELP OF BOTH LABOR AND MANAGEMENT.

"4. IF RUSH COMPLETES HIS COURSE BY THE END OF THE 1977-78 YEAR, HE IS TO BE REIMBURSED BY ANTILLES BY PAYMENT OF THE DIFFERENCE BETWEEN HIS GROSS ANNUAL SALARY AND THE SUMS RECEIVED IN THE FORM OF SEVERANCE PAY OF $1,950.40 AND WEEKLY CHECKS OF $100 IN UNEMPLOYMENT COMPENSATION BENEFITS.

"5. IN SUM, RUSH IS NOT TO PERFORM ANY SERVICES OR RECEIVE ANY BACK PAY (SEE, NO. 4 SUPRA) UNLESS AND UNTIL HE COMPLIES FULLY WITH MY DIRECTIVE OF COMPLETION OF THE COURSE SET OUT IN PARAGRAPH 2, ABOVE."

PERSONNEL EMPLOYED AT SO CALLED "SECTION 6 SCHOOLS," SUCH AS THE ANTILLES CONSOLIDATED SCHOOL SYSTEM, CREATED UNDER AUTHORITY OF SECTION 6 OF PUBLIC LAW 81-874, 64 STAT. 1100, SEPTEMBER 30, 1950, AS AMENDED 20 U.S.C. 241, ARE EMPLOYEES OF THE UNITED STATES, AND AS SUCH FALL WITHIN THE PURVIEW OF THE BACK PAY ACT, 5 U.S.C. 5596(1976). SEE 52 COMP.GEN. 291(1972); B-187881, OCTOBER 3, 1977; B-183804, NOVEMBER 14, 1975. HOWEVER, SECTION 6 SPECIFICALLY EXEMPTS SUCH EMPLOYEES FROM THE CIVIL SERVICE ACT AND RULES (5 U.S.C. 3301 ET SEQ.); ACCORDINGLY, THEY HAVE NO STATUTORY APPEAL FROM A REDUCTION-IN-FORCE ACTION, BUT THE PARTIES IN THEIR NEGOTIATED AGREEMENT HAVE ESTABLISHED REDUCTION-IN FORCE POLICIES AND PROCEDURES (ARTICLE 21).

OUR RECENT DECISIONS CONSIDERING THE LEGALITY OF IMPLEMENTING BINDING ARBITRATION AWARDS, WHICH RELATE TO FEDERAL EMPLOYEES COVERED BY COLLECTIVE BARGAINING AGREEMENTS, HAVE HELD THAT THE PROVISIONS OF SUCH AGREEMENTS MAY CONSTITUTE NONDISCRETIONARY AGENCY POLICIES IF CONSISTENT WITH APPLICABLE LAWS AND REGULATIONS, INCLUDING EXECUTIVE ORDER 11491, AS AMENDED. THEREFORE, WHEN AN ARBITRATOR ACTING WITHIN PROPER AUTHORITY AND CONSISTENT WITH APPLICABLE LAWS AND DECISIONS DECIDES THAT AN AGENCY HAS VIOLATED AN AGREEMENT, THAT SUCH VIOLATION DIRECTLY RESULTS IN A LOSS OF PAY, AND AWARDS BACK PAY TO REMEDY THAT LOSS, THE AGENCY HEAD CAN LAWFULLY IMPLEMENT A BACK PAY AWARD FOR THE PERIOD DURING WHICH THE EMPLOYEE WOULD HAVE RECEIVED THE PAY BUT FOR THE VIOLATION, SO LONG AS THE RELEVANT PROVISION IS PROPERLY INCLUDABLE IN THE AGREEMENT. SEE 54 COMP.GEN. 312(1974), AND 54 COMP.GEN. 435(1974).

THE BACK PAY ACT, CODIFIED IN 5 U.S.C. 5596, IS THE STATUTORY AUTHORITY UNDER WHICH AN AGENCY MAY RETROACTIVELY ADJUST AN EMPLOYEE'S COMPENSATION, AND IT PROVIDES, IN PART, AS FOLLOWS:

"(B) AN EMPLOYEE OF AN AGENCY WHO, ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION OR A TIMELY APPEAL, IS FOUND BY APPROPRIATE AUTHORITY UNDER APPLICABLE LAW OR REGULATION TO HAVE UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION THAT HAS RESULTED IN THE WITHDRAWAL OR REDUCTION OF ALL OR A PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS OF THE EMPLOYEE--

"(1) IS ENTITLED, ON CORRECTION OF THE PERSONNEL ACTION, TO RECEIVE FOR THE PERIOD FOR WHICH THE PERSONNEL ACTION WAS IN EFFECT AN AMOUNT EQUAL TO ALL OR ANY PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS, AS APPLICABLE, THAT THE EMPLOYEE NORMALLY WOULD HAVE EARNED DURING THAT PERIOD IF THE PERSONNEL ACTION HAD NOT OCCURRED, LESS ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING THAT PERIOD; * * *."

HOWEVER, BEFORE REATROACTIVE PAYMENT MAY BE MADE UNDER THE PROVISIONS OF 5 U.S.C. 5596, THERE MUST BE A DETERMINATION NOT ONLY THAT AN EMPLOYEE HAS UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION, BUT ALSO THAT SUCH ACTION DIRECTLY RESULTED IN A WITHDRAWAL OF PAY, ALLOWANCES, OR DIFFERENTIALS. ALTHOUGH EVERY PERSONNEL ACTION WHICH DIRECTLY AFFECTS AN EMPLOYEE AND IS DETERMINED TO BE A VIOLATION OF THE NEGOTIATED AGREEMENT MAY ALSO BE CONSIDERED TO BE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION, THE REMEDIES UNDER THE BACK PAY ACT ARE NOT AVAILABLE UNLESS IT IS ALSO ESTABLISHED THAT, BUT FOR THE WRONGFUL ACTION, THE WITHDRAWAL OF PAY, ALLOWANCES, OR DIFFERENTIALS WOULD NOT HAVE OCCURRED. 54 COMP.GEN 760, 763(1975).

IN LIGHT OF THE FOREGOING, IN ORDER TO MAKE A VALID AWARD OF BACK PAY, IT IS NECESSARY FOR THE ARBITRATOR NOT ONLY TO FIND THAT THE NEGOTIATED AGREEMENT HAS BEEN VIOLATED BY THE AGENCY, BUT ALSO TO FIND THAT SUCH IMPROPER ACTION DIRECTLY CAUSED THE GRIEVANT TO SUFFER A LOSS OR REDUCTION IN PAY, ALLOWANCES, OR DIFFERENTIALS. 55 COMP.GEN 629, 633(1976).

HERE, THE ARBITRATOR FOUND THAT THE ANTILLES CONSOLIDATES SCHOOL SYSTEM VIOLATED THE AGREEMENT BECAUSE THE SCHOOL SYSTEM FAILED TO MEET ITS BURDEN OF SHOWING BY CONVINCING PROOF THAT THE GRIEVANT WAS NOT BASICALLY QUALIFIED TO PERFORM PACHUCKI'S JOB. HOWEVER, THE ARBITRATOR ALSO FOUND THAT RUSH DID NOT MEET THE CERTIFICATION REQUIREMENT TO TEACH AUTO MECHANICS AT THE HIGH SCHOOL AND, THEREFORE, WOULD HAVE TO TAKE ANOTHER COURSE BEFORE HE COULD TEACH AUTO MECHANICS. ACCORDINGLY, THE ARBITRATOR DIRECTED RUSH TO ENROLL IN AND PASS THE NEXT AVAILABLE COURSE AND SPECIFIED THAT RUSH WAS NOT ENTITLED TO PERFORM ANY SERVICES OR RECEIVE ANY BACK PAY UNLESS AND UNTIL HE COMPLIED WITH THE DIRECTIVE TO COMPLETE THE NEXT AUTO MECHANICS COURSE NEEDED TO SECURE HIS CERTIFICATION. ONLY IF HE COMPLETED THE COURSE WOULD RUSH BE ENTITLED TO RECEIVE RETROACTIVE PAY.

WE DO NOT BELIEVE THAT THE ARBITRATOR'S CONDITIONAL AWARD OF BACK PAY MEETS THE REQUIREMENT OF THE BACK PAY ACT THAT THE UNJUSTIFIED ACTION MUST HAVE DIRECTLY CAUSED THE EMPLOYEE TO SUFFER A LOSS OR REDUCTION IN PAY. THE DIRECT CAUSE OF THE LOSS OF PAY WAS THAT THE GRIEVANT DID NOT HAVE THE REQUIRED COURSE CREDITS TO TEACH AUTO MECHANICS AT THE ANTILLES HIGH SCHOOL. SINCE THE ARBITRATOR FOUND THAT THE GRIEVANT LACKED THE FORMAL QUALIFICATIONS TO FILL THE POSITION IN QUESTION AT THE TIME OF HIS TERMINATION, HE DID NOT AND COULD NOT FIND THAT BUT FOR THE WRONGFUL ACTION THE LOSS OF PAY WOULD NOT HAVE OCCURRED.

ACCORDINGLY, THERE IS NO AUTHORITY UNDER THE BACK PAY ACT FOR THE CONDITIONAL BACK PAY AWARD BY THE ARBITRATOR, AND THAT PART OF THE AWARD MAY NOT BE IMPLEMENTED.