American Federation of Government Employees, Local 2811 (Union) and Government District Office, Social Security Administration, St. Paul, Minnesota (Activity)

 



[ v07 p618 ]
07:0618(97)AR
The decision of the Authority follows:


 7 FLRA No. 97
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 LOCAL 2811
 Union
 
 and
 
 U.S. GOVERNMENT DISTRICT
 OFFICE, SOCIAL SECURITY
 ADMINISTRATION, ST. PAUL,
 MINNESOTA
 Activity
 
                                            Case No. O-AR-107
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR MARTIN E. CONWAY FILED BY THE AGENCY UNDER SECTION 7112(A) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) /1/
 AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR PART
 2425).  THE UNION FILED AN APPOSITION.
 
    ACCORDING TO THE ARBITRATOR, THE DISPUTE IN THIS MATTER AROSE WHEN,
 ON THE BASIS OF DEFICIENCIES IN HER WORK PERFORMANCE, THE GRIEVANT WAS
 DENIED A WITHIN-GRADE INCREASE AND WAS NOT RECOMMENDED FOR PROMOTION TO
 THE FULL PERFORMANCE, JOURNEYMAN LEVEL OF HER CAREER LADDER.  A
 GRIEVANCE WAS FILED AND PROCESSED THROUGH THE STEPS OF THE NEGOTIATED
 GRIEVANCE PROCEDURE.  THE FINAL AGENCY DECISION ON THE GRIEVANCE
 REVERSED THE DECISION WITHHOLDING THE GRIEVANT'S WITHIN-GRADE INCREASE,
 BUT SUSTAINED THE DECISION TO DENY THE GRIEVANT A CAREER LADDER
 PROMOTION TO HER JOURNEYMAN LEVEL OF GS-10.  THEREAFTER, THE GRIEVANCE
 WAS SUBMITTED TO ARBITRATION ON THE ISSUE OF WHETHER THE ACTIVITY
 IMPROPERLY DENIED THE GRIEVANT A CAREER LADDER PROMOTION.
 
    THE ACTIVITY'S CAREER LADDER PLAN PERTINENTLY REQUIRED MANAGEMENT TO
 DEVELOP, COMMUNICATE, AND IMPLEMENT CRITERIA FOR THE PROMOTION FROM ONE
 GRADE LEVEL TO THE NEXT AND TO MEET QUARTERLY WITH EMPLOYEES TO REVIEW
 THEIR STATUS. FINDING THAT MANAGEMENT FAILED TO MAKE A REASONABLE AND
 SUBSTANTIAL EFFORT TO INSTITUTE THE PLAN IN THESE RESPECTS, THE
 ARBITRATOR DETERMINED THAT AN AWARD OF RETROACTIVE PROMOTION AND BACKPAY
 IN FAVOR OF THE GRIEVANT WAS REQUIRED.  HE EXPLAINED THAT IN VIEW OF
 MANAGEMENT'S FAILURE TO PROPERLY INSTITUTE THE CAREER LADDER, WHICH
 FAILURE HE FOUND TO VIOLATE THE PARTIES' COLLECTIVE BARGAINING
 AGREEMENT, HE WOULD PRESUME THAT THE GRIEVANT WAS QUALIFIED FOR
 PROMOTION TO THE JOURNEYMAN LEVEL OF GS-10 WHEN THE COMPLETED HER YEAR
 AT GS-9.  THUS, THE ARBITRATOR RULED THAT IN ORDER TO DENY THE GRIEVANT
 A RETROACTIVE PROMOTION WITH BACKPAY, MANAGEMENT HAD TO REBUT THAT
 PRESUMPTION BY PRESENTING CLEAR AND CONVINCING EVIDENCE THAT THE
 GRIEVANT WAS NOT QUALIFIED FOR PROMOTION.  MOREOVER, HE REJECTED ALL
 EVIDENCE FOUNDED ON WHAT HE VIEWED AS SUBJECTIVE EVALUATIONS.  HE
 REFUSED TO CREDIT MANAGEMENT'S EVIDENCE THAT THE GRIEVANT WAS NOT
 QUALIFIED FOR PROMOTION TO THE JOURNEYMAN LEVEL BECAUSE HER WORK
 PERFORMANCE WAS DEFICIENT IN TERMS OF TIMEL