11:0514(89)AR DIGEST HEADINGS SUBJECT MATTER INDEX ENTRIES STATUTE DIGEST NOTES DECISION -- 1983 FLRAdec AR



[ v11 p514 ]
11:0514(89)AR
The decision of the Authority follows:


11 FLRA NO. 89

ACTION

     Agency

     and

ACTION EMPLOYEES UNION,
AFSCME, LOCAL 2027

     Union

Case No. 0-AR-280

 

DECISION

This matte is before the Authority on an exception to the award of Arbitrator Samuel H. Jaffee 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. The Union filed an opposition. 1

The dispute in this matter concerns the Activity's failure to accord the grievant, a repromotion eligible, special consideration for promotion to a temporary GS-14 position. The Arbitrator determined that the Activity in this respect had violated the parties' collective bargaining agreement and agency regulation. As a remedy for the Activity's failure to accord the grievant the special consideration to which he was entitled, the Arbitrator awarded the grievant backpay in the amount of the difference between what he earned and what he would have earned during the period of the temporary position if he had been selected for that position.

In its exception the Agency contends that the remedy awarded by the Arbitrator is deficient as contrary to governing law and regulation, particularly the Back Pay Act, 5 U.S.C. 5596 (1976 & Supp. V 1981). The Authority agrees. [ v11 p514 ]

The Authority has uniformly held in cases involving a failure to promote that in order for an award of backpay to be authorized under the Back Pay Act, there must be a determination not only that the aggrieved employee was affected by an unjustified or unwarranted personnel action within the meaning of that Act, but also a determination that such unwarranted action directly resulted in the denial of a promotion that the employee otherwise would have received. E.g., Picatinny Arsenal, U.S. Army Armament Research and Development Command, Dover, New Jersey and National Federation of Federal Employees, Local 1437, 7 FLRA No. 109 (1982), at 5-6. Furthermore, the Authority has held that the failure to accord a repromotion eligible special consideration for promotion cannot constitute the requisite finding that but for such unwarranted action, the aggrieved employee would in fact have been selected for promotion. Id. at 6. Consequently, in terms of this case, the Arbitrator failed to make the determination necessary for a proper order of backpay, and the awa