18:0486(65)AR - AFGE Local 3553 and VA Medical Center, New Orleans, LA -- 1985 FLRAdec AR

[ v18 p486 ]
The decision of the Authority follows:

 18 FLRA No. 65
                                            Case No. 0-AR-703
    This matter is before the Authority on exceptions to the award of
 Arbitrator Norwood J. Ruiz 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 grievance in this case concerned the Activity's failure to
 promote the grievant to the position of pipefitter foreman.  The
 grievant was selected from a certificate of eligibles, but his promotion
 was never effectuated by the approving official because it was
 determined that he would be supervising his brother in violation of the
 Veterans Administration nepotism regulation.  A waiver of the regulation
 was requested, but it was denied.  Thereafter, the grievance was filed
 and submitted to arbitration.  At arbitration the Union primarily
 contended that the grievant was wrongfully denied promotion because the
 Activity as a matter of practice willfully and knowingly permitted, in
 other cases, nepotism violative of the agency regulation.  The
 Arbitrator determined that "there (was) not one iota of credible
 evidence" to substantiate that the Activity knowingly permitted such
 nepotism.  The Arbitrator did however expressly cite a previous
 situation at the Activity involving an employee who supervised another
 employee whom he subsequently married.  The Arbitrator noted that the
 subordinate was permitted to remain in her position after her job
 description was amended to have someone other than her husband have
 responsibility for all personnel actions affecting her.  The Arbitrator
 acknowledged the Activity's explanation that the grievant's situation
 was different because the prohibited nepotism here was pre-existing and
 the promotion personnel action could not have been effectuated
 consistent with regulation.  The Arbitrator nevertheless determined that
 the grievant had a right to protection from discriminatory application
 and interpretation of agency policy and that he had not been afforded
 this equality.  Accordingly, as his award, the Arbitrator ordered the
 Activity to waive application of the agency nepotism regulation and to
 permanently promote the grievant retroactively with backpay to the
 position of pipefitter foreman.
    In its exceptions the Agency contends among other things that the
 award is contrary to the Back Pay Act, 5 U.S.C. 5596, and section 7106
 of the Statute.  The Authority agrees.
    The Authority has uniformly held that in order for an award of
 backpay to be authorized under the Back Pay Act, there must be not only
 a determination that the aggrieved employee was affected by an
 unwarranted personnel action, but also a determination that such
 unwarranted action directly resulted in the withdrawal or reduction in
 the pay, allowances, or differentials that the employee would otherwise
 have earned or received.  E.g., American Federation of Government
 Employees, Local 51 and U.S. Department of the Mint, Old Mint Building,
 Customer Service Division, 15 FLRA No. 164 (1984).  More specifically,
 the Authority has held in cases involving a failure to promote that in
 order for a 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 directly resulted in the denial of a promotion
 to the grievant that the grievant otherwise would have received.  E.g.,
 American Federation of Government Employees, Local 2811 and U.S.
 Government District Office, Social Security Administration, St. Paul,
 Minnesota, 7 FLRA 618 (1982).  In terms of this case, the Arbitrator, as
 noted, expressly determined that the grievant was not afforded equality
 with respect