19:0244(28)AR - Labor and National Council of Field Labor Locals, Local No. 648 -- 1985 FLRAdec AR
[ v19 p244 ]
The decision of the Authority follows:
19 FLRA No. 28 DEPARTMENT OF LABOR Agency and NATIONAL COUNCIL OF FIELD LABOR LOCALS, LOCAL NO. 648, AFL-CIO Union Case No. O-AR-923 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Lawrence M. Cohen 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 before the Arbitrator concerned the Agency's failure to give special consideration for repromotion to the grievant, a repromotion eligible who had been downgraded as the result of a reduction-in-force. The Arbitrator determined that the Agency's failure violated provisions of a Department of Labor Supplement to the Federal Personnel Manual respecting reductions-in-force. Noting that the grievant was a "good candidate" for the vacancy in question, the Arbitrator determined that a mere direction that the grievant be given special consideration for a future vacancy would not "make the grievant whole." Consequently, as his award, the Arbitrator essentially directed the Agency to repromote the grievant retroactively and "make him whole for any losses he may have suffered." As one of its exceptions, the Agency contends that the award of a retroactive promotion and backpay 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., United States Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees Union, Local 916, AFL-CIO, 14 FLRA 642 (1984). 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 643. In terms of this case, the Arbitrator essentially awarded the grievant a retroactive promotion with backpay even though he expressly found that "there is no way of knowing whether the Grievant would have been selected for the position." Consequently, since the Arbitrator failed to make the determination necessary for a proper award of a retroactive promotion and backpay, 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 by striking the second sentence and substituting the following: /1/ The grievant is entitled to special consideration for repromotion to any appropriate vacancy at the GS-13 level. Issued, Washington, D.C. July 22, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ In view of the Authority's decision, it is not necessary to address the Agency's other exceptions to the award.