21:0397(52)AR - Dept. of Commerce, Patent and Trademark Office and POPA -- 1986 FLRAdec AR
[ v21 p397 ]
The decision of the Authority follows:
21 FLRA No. 52 U.S. DEPARTMENT OF COMMERCE, PATENT AND TRADEMARK OFFICE Agency and THE PATENT OFFICE PROFESSIONAL ASSOCIATION Union Case No. 0-AR-1019 DECISION I. STATEMENT OF THE CASE This matter is before the Authority on an exception to the award of Arbitrator Robert J. Ables 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. II. BACKGROUND AND ARBITRATOR'S AWARD The grievance protested the refusal of a supervisor to recommend the grievant, a GS-12 patent examiner, for a career-ladder promotion to GS-13. The grievant had been eligible for promotion for about two years, his productivity for the most recent six-month period had risen to the point where it was deemed sufficient for promotion to the next higher grade, and the supervisor had rated the grievant's performance as "fully satisfactory" in his most recent performance appraisal. However, the supervisor determined that he could not recommend the grievant for promotion to GS-13 because of the quality of his work. The supervisor based his determination upon a review of a six-case sample of the grievant's work. The Arbitrator found that the work contained a number of errors and insufficiencies and concluded that the grievant still required close review and further instruction. The Arbitrator identified the immediate issue in the case as whether the grievant had demonstrated the ability to perform examiner duties at the GS-13 level. The Arbitrator found that while an eligible examiner in a career-ladder plan had a right under the parties' collective bargaining agreement to be "considered" for promotion, the terms of the agreement clearly implied that not all examiners could expect to be promoted. The Arbitrator noted that the parties estimated that promotions from GS-12 to GS-13 are authorized about 90 percent of the time. The Arbitrator further found that there was no evidence that the parties had agreed that satisfactory performance of all performance standards of an examiner's position required a decision that the examiner be promoted. The Arbitrator determined that the parties' agreement contemplated that management officials have the discretion to judge the ability of a career-ladder examiner to perform at the next higher level, but that the discretion was limited by a requirement that the exercise of that judgment not be arbitrary or capricious. The Arbitrator concluded that the supervisor was arbitrary in this case. In reaching that conclusion, the Arbitrator found that the supervisor's review of the sampling of the grievant's work was made in anticipation of grievance litigation and after the six cases had already been routinely cleared in the usual course of business of the office. The Arbitrator further found that the time to judge the quality of the work was when it was first done, and he also noted that the supervisor himself had previously cleared four of the six cases that he afterwards subjected to the more careful quality review. As to the quality of the grievant's work, the Arbitrator found that it was not essential to make a determination on the relative merits of the technical position of the parties as to each of the grievant's cases reviewed by the supervisor. The Arbitrator determined that it was sufficient to conclude, without an ultimate finding on the technical aspects of the grievant's work, that there was a sizable question as to whether the grievant's work performance was below the level of other GS-12 examiners, almost all of whom had been routinely promoted to GS-13. The Arbitrator found that an examiner could expect to be promoted unless management showed a substantial basis for withholding the promotion, and that management had not made such a showing in this case. Consequently, the Arbitrator decided that the Agency was arbitrary in withholding the grievant's promotion to GS-13. The Arbitrator therefore sustained the grievance and, as his award, directed the Agency to promote the grievant to GS-13 retroactively with backpay. III. EXCEPTION In its exception, the Agency essentially contends that the Arbitrator's award is contrary to law. In support of this contention, the Agency primarily argues that the award is contrary to the Back Pay Act, 5 U.S.C. Section 5596, because the Arbitrator failed to make the necessary finding that but for the Agency violation of the parties' agreement, the grievant would have been promoted. The Agency further notes that an arbitrator can abridge management's right to promote under section 7106(a) of the Statute only if the arbitrator finds a direct connection between an improper agency action and the failure to promote the aggrieved employee. IV. ANALYSIS AND CONCLUSIONS In order for an award of backpay to be authorized under the Back Pay Act, the arbitrator must find that an agency personnel action was unjustified or unwarranted, that such personnel action directly resulted in the withdrawal or reduction of the aggrieved employee's pay, allowances, or differentials and that but for such action, the grievant would not have suffered such a withdrawal or reduction. U.S. Army Missile Command Redstone Arsenal and American Federation of Government Employees, Local 1858, 19 FLRA No. 38 (1985). In this case, the Authority concludes that the Arbitrator has not made the findings necessary for a proper award of backpay. The Arbitrator acknowledged that not all eligible GS-12 examiners could expect to be promoted to GS-13. In such circumstances, the Arbitrator's finding that the supervisor's failure to recommend the grievant for promotion was arbitrary does not constitute the requisite determination that but for the unwarranted or unjustified action, the grievant definitely would have been promoted to GS-13. American Federation of Government Employees, Local 2502 and U.S. Department of Justice, Federal Prison System, Federal Correctional Institution, 17 FLRA No. 61 (1985). Accordingly, the Authority concludes that the Arbitrator's award of backpay is contrary to the Back Pay Act. Moreover, with regard to filling positions, the Authority has specifically held that section 7106(a)(2)(C) of the Statute reserves to management the right to make the actual substantive determination to select or not to select employees for promotion. See, e.g., Army and Air Force Exchange Service, Fort Knox Exchange, Fort Knox, Kentucky and American Federation of Government Employees, Local 2303, AFL-CIO, 8 FLRA 256 (1982). In conjunction with the decisions of the Authority specifying when an award of a retroactive promotion is authorized under the Back Pay Act, the Authority has held that management's right may be constrained consistent with section 7106(a)(2)(C) and an agency ordered to select a particular employee for promotion only if the arbitrator finds that the employee was affected by improper agency action that directly resulted in the failure of the employee to be promoted when the employee otherwise would have been. American Federation of Government Employees, Local 3553, AFL-CIO and Veterans Administration Medical Center, New Orleans, Louisiana, 18 FLRA No. 65 (1985). In this case, as indicated above, the Arbitrator did not make the findings necessary to constrain management's right to determine not to promote the grievant. The Authority therefore concludes that the Arbitrator's award directing the Agency to promote the grievant retroactively to GS-13 is contrary to section 7106(a)(2)(C) of the Statute. V. DECISION Accordingly, for the above reasons, the Arbitrator's award is modified by striking the provisions for retroactive promotion and backpay. Issued, Washington, D.C., April 21, 1986.