14:0642(88)AR - Air Force, Oklahoma City Air Logistics Center, Tinker AFB, OK and AFGE Union Local 916 -- 1984 FLRAdec AR



[ v14 p642 ]
14:0642(88)AR
The decision of the Authority follows:


 14 FLRA No. 88
 
 UNITED STATES AIR FORCE,
 OKLAHOMA CITY AIR LOGISTICS CENTER,
 TINKER AIR FORCE BASE, OKLAHOMA
 Agency
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES UNION, LOCAL 916, AFL-CIO
 Union
 
                                            Case No. O-AR-529
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Edmund W. Schedler 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 dispute in this matter concerns the Activity's failure to
 repromote the grievant, a repromotion eligible, to a WG-12 position, the
 grade from which he had been demoted without personal cause and not at
 his request.  The Arbitrator determined that the Activity violated the
 repromotion eligible provisions of Federal Personnel Manual (FPM)
 chapter 335 /1/ and ordered that the grievant be offered repromotion to
 WG-12, retroactive to March 30, 1982, with backpay and benefits.
 
    In one of its exceptions, the Agency contends that the award is
 contrary to the Back Pay Act, 5 U.S.C. 5596.  The Authority agrees.
 
    The Authority has consistently held in cases involving a failure to
 promote that in order for an award of retroactive promotion and backpay
 to be authorized under the Back Pay Act, there must not only be a
 determination that the grievant was affected by an unjustified or
 unwarranted personnel action, but also a determination that such
 unwarranted action directly resulted in the denial of a promotion that
 the employee would otherwise have received.  E.g., Action and Action
 Employees Union, American Federation of State, County and Municipal
 Employees, Local 2027, 11 FLRA No. 89 (1983).  Moreover, the Authority
 has expressly held that the failure to accord a repromotion-eligible
 employee the special consideration for promotion to which the employee
 is entitled cannot constitute the requisite finding that but for such
 unwarranted action, the grievant would in fact have been selected for
 promotion.  Id. at 2.  Consequently, in terms of this case, the
 Arbitrator failed to make the determination necessary for a proper award
 of a retroactive promotion and backpay.  Therefore, the award is
 deficient as contrary to the Back Pay Act and must be modified to
 provide an appropriate remedy.  Id.  Accordingly, the award is modified
 to provide as follows:  /2/
 
          The grievant is entitled to special consideration for
       repromotion to any appropriate vacancy at