17:0382(61)AR - AFGE Local 2502 and Justice, Federal Prison System, Federal Correctional Institution -- 1985 FLRAdec AR

[ v17 p382 ]
The decision of the Authority follows:

 17 FLRA No. 61
                                            Case No. 0-AR-296
    This matter is before the Authority on exceptions to the award of
 Arbitrator Samuel H. Jaffee 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 dispute in this case concerns the failure of the grievant's
 supervisor to recommend the grievant for a career-ladder promotion to
 GS-11.  A grievance was filed and submitted to arbitration claiming that
 the grievant's failure to be promoted was without reasonable cause and
 requesting that she be promoted to GS-11 retroactive to the date she
 became eligible for promotion.  The Arbitrator expressly determined that
 the failure to recommend the grievant for promotion, or in other words
 the recommendation not to promote the grievant, was "arbitrary in a
 legal sense." Although the Arbitrator specifically acknowledged
 testimony that employees in career ladders are not automatically
 promoted when they meet the eligibility requirements for the
 higher-grade position, the Arbitrator found that in his judgment, no
 valid reason had been given for not recommending the promotion of the
 grievant.  In this respect the Arbitrator refused to credit testimony of
 the grievant's supervisor that the grievant was not recommended for
 promotion because the grievant was deficient in her knowledge of
 technical aspects of case management, as well as deficient in her
 writing skills.  Instead, the Arbitrator concluded that the grievant was
 not recommended for promotion solely because of a claimed deficiency in
 writing skills.  Finding that the grievant was not deficient in writing
 skills, the Arbitrator ruled that in his judgment, she was clearly
 worthy of promotion to GS-11.  Accordingly, the Arbitrator directed that
 the grievant be promoted with backpay retroactive to the date on which
 she was eligible for promotion.
    As one of its exceptions, the Agency contends that the award of
 retroactive promotion with backpay is contrary to the Back Pay Act, 5
 U.S.C. 5596.  Specifically, the Agency argues that in the circumstances
 of this case, the award of retroactive promotion and backpay is not
 authorized by the Act.  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, there must be both a determination that the grievant
 was affected by an unjustified and unwarranted personnel action and a
 determination that such unwarranted action