National Federation of Federal Employees, Local 2030 (Union) and U.S. Department of the Interior, Bureau of Land Management, Idaho Falls District Office, Idaho Falls, Idaho (Agency)
[ v56 p667 ]
56 FLRA No. 110
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 2030
U.S. DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT
IDAHO FALLS DISTRICT OFFICE
IDAHO FALLS, IDAHO
September 21, 2000
Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.
Decision by Member Cabaniss for the Authority.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Harold G. Wren filed by both the Agency and the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. [n1] The Union's exceptions only concern the Arbitrator's allocation of the costs of the arbitration. The Union filed an opposition to the Agency's exceptions. The Agency did not file an opposition to the Union's exceptions.
The Arbitrator sustained a grievance alleging that the Agency had failed to promote the grievant in a timely manner. The Arbitrator ordered the Agency to retroactively promote the grievant with back pay. Also, in a cover letter to the award, the Arbitrator split the arbitration costs and requested payment from each party.
For the following reasons, we conclude that the Agency and the Union have failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny both the Agency and the Union's exceptions.
II. Background and Arbitrator's Award
The grievant is a dispatcher at the Agency who directs firefighters to fires in the forest and grassland areas served by the Agency. Before beginning his employment with the Agency, the grievant was employed with the National Park Service (NPS) as a GS-0462-5 forestry technician fire dispatcher. On July 6, 1997, he began employment with the Agency as a GS-4555-5/6/7 range technician (fire dispatcher)----a permanent part time position. "The three-grade designation connoted that this was a career ladder position, whereby [the grievant] could move from grade 5 through grade 6, and ultimately to grade 7." Award at 4. Though the grievant was guaranteed at least six months' work a year, he worked eight to nine months and was off duty the remaining months. In 1997, he worked until November 12, returning to work on March 9, 1998. On September 30, 1998, he completed his first full year of performance with the Agency.
In the grievant's Performance Improvement and Position Review (PIPR) for the period July to October 1997, the grievant's supervisor rated his performance as effective and in one of the five job elements, rated him as exceptional. For fiscal year 1998, the grievant was rated as effective and in three of the five elements, he was rated exceptional. The grievant received a copy of the 1998 PIPR on November 16, 1998, sixteen days after it was due. Shortly thereafter, he received a step increase within the Grade 5.
Subsequently, the grievant contacted his supervisor to discuss his concerns about his promotion to GS-6. The supervisor informed the grievant that she had never intended to withhold his promotion; that she had assumed he was a GS-6; and that she was surprised to learn that he was a Grade 5. She informed the grievant that she would look into the matter and initiated a personnel action requesting that his promotion be expedited. She also learned that the grievant would not be entitled to back pay.
On December 6, 1998, [n2] the grievant was promoted to Grade 6, effective that day. On December 28, he filed a grievance contending that he should have been promoted to the GS-6, step 1 level, effective either April 28 or July 6. The grievance was not resolved and was submitted to arbitration. [ v56 p668 ]
The Arbitrator stated the issue as:
Is Grievant . . . entitled to back pay and other employee benefits either from the time he was employed by the [NPS] on April 28, 1997, or from the time he was transferred to the [Agency] on July 6,  [n3] , to the time he was promoted from a GS-5 to a GS-6, effective December 6, 1998?
Id. at 8 (footnote added).
First, the Arbitrator addressed the Agency's contention that the grievant did not file his grievance in a timely fashion.
The Arbitrator interpreted Article 5.6A of the Agreement and stated that the Agreement provides that a grievance must be initiated at Step One "`within 30 calendar days of the incident that gave rise to the grievance, unless the grievant could not reasonably be expected to be aware of the incident by such time.'" Id. (quoting the Agreement at 10). [n4]
The Arbitrator found that the duties of the grievant's former position with the NPS and his position with the Agency were "`virtually identical.'" Id. The Arbitrator considered the time the grievant spent with NPS "as part of his service as a GS-5" and found that the grievant's anniversary date was April 28. Id. In so finding, the Arbitrator credited the grievant's testimony that a personnel specialist in the Agency, pursuant to the grievant's request, had informed him by e-mail that he would be eligible for promotion on April 28 in that "his work with the NPS would be counted as part of his GS-5 service in the [Agency's] career ladder promotion system." [n5] Id. at 8-9.
The Arbitrator rejected the Agency's argument that the grievance was untimely based on either the April 28 or July 6 date, when in its view the grievant should have been promoted, because the grievance was not filed within 30 calendar days of the incident that gave rise to the grievance, as required by the Agreement. The Arbitrator found that the grievant "could not reasonably be expected to be aware of any `incident' occurring on April 28 or July 6." Id. at 9. The Arbitrator found that the grievant was part of the career ladder program and had been advised by management that his service with NPS would be counted toward promotion to GS-6. The Arbitrator found that "non-action of management with respect to [g]rievant's promotion . . . continued right up until the grievance was filed[,]" and that "[a]s a continuing grievance," the grievant could file his grievance so long as he was employed as a GS-5. Id. He further emphasized that the grievant "could not reasonably be expected to be aware of management's failure to perform its duties with respect to his promotion." Id. Accordingly, the Arbitrator found that the filing of the grievance, informally or formally, "was in no way barred by time limitations within the Contract." Id.
The Arbitrator next addressed the merits of the grievance. According to the Arbitrator, under the career ladder program, the grievant had to satisfy the following major requirements to be eligible for promotion: (1) specialized experience; (2) time in grade; and (3) satisfactory performance. The Arbitrator found that the grievant had satisfied all three requirements by the time management should have promoted him to GS-6.
The Arbitrator further stated that the Agency, rather than the grievant or the Union, was responsible for pursuing the grievant's promotion. The Arbitrator found that the Agency "was primarily responsible for initiating the paper work necessary to promote [g]rievant . . . under the career ladder program[,]" which "is impliedly demonstrated by the [Agreement] and the Regulations governing [the Agency's] operations." Id. at 12. The Arbitrator found that throughout the Agreement, references to promotion "uniformly require that management initiate the process whereby an employee is promoted to the next higher grade." Id. The Arbitrator referenced Article 15.6B, which provides that "[e]mployees eligible for promotion `can and normally' will be promoted as soon as they meet all the regulatory requirements for promotion." Id. The Arbitrator stated that this provision and other references in the contract "are written in such a fashion as to indicate that it is [ v56 p669 ] management that is expected to make the first move when it comes to promotion within the career ladder program." Id. at 13.
The Arbitrator found that the grievant's supervisor failed to initiate the paper work necessary for the grievant to be promoted under the career ladder program to GS-6. The Arbitrator distinguished American Federation of Government Employees, San Francisco Region and Office of Program Operations Field Operations, Social Security Administration, San Francisco Region, 7 FLRA 622 (1982) (SSA), which was cited by the Agency and involved ministerial action that was not taken by an agency to effect a promotion. The Arbitrator found that although the supervisor's failure to commence the procedure for promoting the grievant "may not be considered `ministerial' in nature, it was most certainly non-discretionary." Id. at 14. According to the Arbitrator, the "moment that the [g]rievant had satisfied all the requirements for promotion . . ., it was [the supervisor's] duty to start the process." Id.
Relying on Social Security Administration and American Federation of Government Employees, Local 3342, 51 FLRA 1700 (1996) (Local 3342), and other Authority decisions, the Arbitrator determined that the employee was entitled to back pay. The Arbitrator found that management had failed to carry out its responsibilities under the career ladder program and that the grievant had not only satisfied all the requirements for promotion from GS-5 to GS-6, but was actually working at the full performance level of a GS-7. Accordingly, the Arbitrator directed the Agency to recognize the effective date of the grievant's promotion to GS-6 as April 28 and to restore back pay and other benefits to him.
III. Union's Exceptions
A. Positions of the Parties
The "Union's exceptions apply `only' . . . to the [arbitration] fees/costs which the Arbitrator assessed to the Union and the Agency." Exceptions at 1. The Union contends that the Arbitrator did not comply with Article 5.15 in assessing these costs and, therefore, his action manifestly disregards the Agreement and does not draw its essence from the Agreement. [n6] Id. at 2. Specifically, the Union asserts that "[s]ince there was no SPLIT . . . or question in the Arbitrator's decision as to whom he considered the winner . . . the Arbitrator is required by [Article 5.15] to order the losing party to pay the Arbitrator's fees and expenses." Id. at 5.
According to the Union, since there was no split or confusion as to whom the "clear and convincing winner" was, the Arbitrator showed a "`clear manifest disregard of [Article 5.15A of] the agreement'" and his award does not represent a plausible interpretation of this provision. Id. at 10. The Union states that the Arbitrator was made aware of Article 5.15 because the Agency pointed the provision out and argued it in its brief. The Union asserts that as the Arbitrator's determination of costs is not justified or tied to a specific article of the Agreement, there can be no plausible interpretation of the Agreement, and therefore the plain wording of the contract must stand. Accordingly, the Union argues that under Article 5.15, the Agency is the loser and should be held liable for the payment of all the Arbitrator's fees and expenses.
As noted earlier, the Agency did not file an opposition to the Union's exceptions.
B. Analysis and Conclusions
The Arbitrator's Determination Requiring the Costs and Expenses of the Arbitration to Be Split Between the Parties Draws its Essence from the Agreement
In order for an award to be found deficient as failing to draw its essence from the collective bargaining agreement, it must be established that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the [ v56 p670 ] agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See, e.g., U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Center, New Cumberland, Pennsylvania and American Federation of Government Employees, Local 2004, 55 FLRA 1303, 1306-07 (2000) (Member Cabaniss concurring); United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990) (OSHA).
The Union argues that the Arbitrator's action in requiring it to pay an equal share of the costs and expenses of the arbitration manifestly disregards the Agreement because the Agency was the losing party and Article 5.15 provides that the fees and expenses shall be borne by the losing party. While Article 5.15 indicates that the arbitrator's fees and expenses shall be paid by the losing party, it also explicitly states that "[i]f in the arbitrator's judgment, neither party is the clear losing party, then the arbitrator will indicate the percentage of the arbitration costs each will pay."
This provision permits the Arbitrator to exercise his judgment in determining how the costs should be divided when, in the Arbitrator's judgment, neither party is the clear losing party. As indicated by the attachment to the Union's exception, the determination of arbitration fees and expenses under Article 5.15 was presented to the Arbitrator by the Agency in its closing brief. In his decision, the Arbitrator determined who should pay the fees and expenses of the arbitration and listed such fees and expenses and the amount or percentage that each party was required to pay. The Arbitrator split the fees and expenses.
By such action, the Arbitrator interpreted the provision and, pursuant to the discretion expressly granted him by the Agreement, determined that neither party was the clear losing party. Thus, the Union has not established, given the discretion permitted under the provision, that the Arbitrator's award cannot in any rational way be derived from the Agreement or evidences a manifest disregard of the Agreement; or represents an implausible interpretation of the Agreement. See, e.g., OSHA, 34 FLRA at 576-77 (that the agency or the Authority may have interpreted the agreement differently provides no basis for finding the award deficient; the question of the interpretation of the collective bargaining agreement was a question solely for the arbitrator because it was the arbitrator's construction of the agreement for which the parties bargained); United Paperworkers v. Misco, Inc., 484 U.S. 29, 37-38 (1987). Accordingly, this exception provides no basis for finding the award deficient.
IV. Agency's Exceptions
A. Positions of the Parties
First, the Agency claims that the award does not draw its essence from the Agreement. The Agency contends that the grievant filed the grievance on December 28, 1998. According to the Agency, both dates that the grievant claimed he was entitled to be promoted--April 28 or July 6--are well beyond the 30-day time frame for filing a grievance under Article 5.6 and, therefore, the grievance is untimely.
The Agency contends that the grievant "had continuing notice" that he was serving in and being paid for only the GS-5 position. Exceptions at 13. The Agency refers to the grievant's Leave and Earnings statement and certain events, including the grievant's perceptions from April that he was entitled to be promoted, a meeting in April with his supervisor, and the promotion of a "co-worker." Id. at 14. According to the Agency, based on this evidence, there "can be no reasonable interpretation that [the grievant] did not know that he had not been promoted until November 30, 1998[,]" when he first complained about not being promoted. Id.
The Agency asserts that the grievance is limited to the 30-day time period immediately preceding the filing of the grievance on December 28. The Agency argues that granting relief beyond this 30-day time period fails to draw its essence from the Agreement because based on the circumstances described above, the grievance was not timely filed. In support of its position, the Agency references National Federation of Federal Employees, Local 2030 and U.S. Department of the Interior, Bureau of Land Management, Idaho Falls, Indiana, 55 FLRA 387 (1999) (BLM, Idaho Falls), and argues that the arbitrator in that case properly applied Article 5.6 of the Agreement to a situation similar to this case and limited recovery to the 30-day time period preceding the filing of the grievance. The Agency asserts that the Arbitrator's timeliness determination cannot in any rational way be derived from the Agreement and does not represent a plausible interpretation of the Agreement.
Second, the Agency contends that the award is based on a nonfact. The Agency asserts that the non-fact supporting the award of retroactive promotion and back pay was that the grievant "was not aware that he had not been promoted until December 28, 1998 when he filed [the] . . . grievance." Id. at 22 (emphasis omitted). The Agency contends that allowing this non-fact to support the Arbitrator's conclusion "flies [ v56 p671 ] directly in the face of facts the Arbitrator specifically determined, namely that [the grievant] knew in early April 1998" based on an e-mail from a personnel staffing specialist that he was eligible for promotion to GS-6 as of April 28, 1998. Id. This finding, in the Agency's view, is a "`gross mistake of fact but for which a different result would have been reached.'" Id. at 24. The Agency argues that the award should be set aside or at least modified to limit any back pay to the 30-day time frame preceding the filing of the grievance.
Third, the Agency contends that the retroactive promotion and award of back pay is contrary to the Back Pay Act, 5 U.S.C. § 5596. The Agency contends that there was no "administrative or clerical error which occurred because the process approving a promotion had never begun." Id. The Agency claims that as the delay in the grievant's promotion "preceded any approval of [the] promotion by the properly authorized official[,]" the award of a retroactive promotion with back pay is contrary to the Back Pay Act. Id.
The Agency also contends that this case is unlike SSA, 7 FLRA 622, where the Authority found that an award of a retroactive promotion was not contrary to the Back Pay Act because the official having the authority to approve the promotion had done so and the delay occurred thereafter. Rather, according to the Agency, this case is like U.S. Army Air Defense Center, Fort Bliss, Texas and National Association of Government Employees, Local R-14-22, 10 FLRA 161 (1982) (Fort Bliss), where the Authority found the delay in promoting a grievant preceded the promotion decision by the authorized official and, thus, the award of a retroactive promotion was contrary to the Back Pay Act. In support, the Agency also cites American Federation of Government Employees, Local 2502 and U.S. Department of Justice, Federal Prison System, Federal Correctional Institution, 17 FLRA 382 (1985) (Federal Correctional Institution), and Douglas C. Butler, 58 Comp. Gen. 51 (1978).
2. Union's Opposition
The Union asserts that the Agency is re-arguing issues presented before the Arbitrator and has not established that the award does not draw its essence from the Agreement or is based on a non-fact. In support, the Union cites National Association of Government Employees, Local R4-45 and U.S. Department of Defense, Defense Commissary Agency, Fort Lee, Virginia, 55 FLRA 695 (1999).
The Union also contends that the Agency's reliance on BLM, Idaho Falls, 55 FLRA 387 is misplaced because that case concerns temporary rather than career ladder promotions. The Union further asserts that the temporary promotion involved in that case was not mandatory or non-discretionary, while in this case the Arbitrator determined that the career ladder program that applied to the grievant was "`certainly non-discretionary.'" Opposition at 7 (quoting Award at 14). Citing to the transcript of the hearing, the Union also disputes the Agency's claim that the grievant had continuing notice based on the promotion of a "co-worker." According to the Union, the individual referenced by the Agency is not a co-worker of the grievant because he works for another agency under a different set of rules and further, is not covered by the Agreement.
The Union further asserts that the award does not violate the Back Pay Act. The Union contends that the Arbitrator found that the Agency violated Article 15.6B of the Agreement, pertaining to promotions, and that the promotion in the career ladder program was "non-discretionary." Id. at 10. The Union asserts that the Arbitrator cited as support for his decision relevant Authority cases that involve the application of the Back Pay Act. Accordingly, the Union asserts that the award shows the connection between the Agreement and the unjustified or unwarranted personnel action that resulted in a withdrawal or reduction of an employee's pay, allowances, and differentials.
B. Analysis and Conclusions
1. The Arbitrator's Determination that the Grievance Was Timely Draws Its Essence from the Agreement
The Agency argues that the Arbitrator's award finding the grievance timely filed under Article 5.6 fails to draw its essence from the Agreement. Interpreting Article 5.6, the Arbitrator determined that the grievant "could not reasonably be expected to be aware of any `incident' occurring on April 28 or July 6." Award at 9. The Arbitrator further found that "[n]on-action of management with respect to [g]rievant's promotion . . . continued right up until the grievance was filed. As a continuing grievance . . . [the] grievant could file his grievance so long as he was employed as a GS-5." Id.
An arbitrator's determination of the procedural arbitrability of a grievance is subject to challenge only on grounds other than those that directly challenge the procedural arbitrability determination. American Federation of Government Employees, Local 2921 and U.S. Department of the Army, Army & Air Force Exchange Service, Dallas, Texas, 50 FLRA 184, 185-86 (1995). In this case, the Agency disputes the Arbitrator's determination [ v56 p672 ] that the grievance was timely filed under Article 5.6 of the Agreement. Therefore, the Agency is directly challenging a procedural arbitrability determination, and thus provides no basis for overturning the award.
Additionally, the Agency's reliance on the arbitrator's decision in BLM, Idaho Falls provides no basis for finding the award deficient. The Authority has held that an arbitrator is not bound by an arbitration award resolving another dispute. See American Federation of Government Employees, Local 3615 and Social Security Administration, Office of Hearings and Appeals, Falls Church, Virginia, 54 FLRA 494, 501 (1998). Arbitration awards are not precedential. Id. Accordingly, the arbitrator's award in BLM, Idaho, Falls provides no basis for finding the award in this case deficient.
2. The Award Is Not Based on a Nonfact
To establish that an award is based on a nonfact, the appealing party must demonstrate that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. See U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593-94 (1993). However, the Authority will not find an award deficient on the basis of an arbitrator's determination of any factual matter that the parties disputed at arbitration. Id. at 594 (citing National Post Office Mailhandlers v. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)). Additionally, "[t]he mere fact that the appealing party disputes an arbitral finding does not provide a basis for finding that an award is based on a nonfact." American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Finance Administration, Baltimore, Maryland, 51 FLRA 576, 579 (1995). These principles appropriately accord deference to an arbitrator's factual findings because the parties have bargained for the facts to be found by an arbitrator whom they have chosen. See American Federation of Government Employees, Local 1858 and U.S. Department of the Army, U.S. Missile Command, Research Development and Engineering Center, Propulsion Directorate, Redstone Arsenal, Alabama, 56 FLRA 422, 424 (2000).
The question of whether the grievant could reasonably be expected to be aware of any incident occurring on April 28 or July 6 giving rise to the grievance was in dispute before the Arbitrator. The Arbitrator, based on the record evidence, resolved the question and determined that it was not reasonable for the grievant to be aware of such incident. Consequently, the Agency has not demonstrated that the award is based on a nonfact.
Additionally, as previously noted, the Arbitrator determined, based on the facts of this case, including his finding that the grievant could not reasonably be aware of any incident occurring on April 28 or July 6, that the grievance was timely filed under Article 5.6 of the parties' Agreement. The Agency's contention challenges the Arbitrator's procedural arbitrability determination. Such a contention does not provide a basis for finding the award deficient. See, for example, Veterans Administration Medical Center, Birmingham, Alabama and American Federation of Government Employees, Local 2207, 35 FLRA 553, 556-57 (1990) (exception contending that arbitrator's award was based on a nonfact failed to establish that the award was deficient because contention challenged the arbitrator's procedural arbitrability determination).
3. The Award of a Retroactive Promotion and Back Pay is Not Contrary to the Back Pay Act
The Agency contends that the award is contrary to the Back Pay Act. In reviewing arbitration awards for consistency with law, rule, or regulation, the Authority reviews the questions of law raised by the Arbitrator's award and the Agency exceptions de novo. See National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994). In applying the standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id. The Authority also defers to an arbitrator on questions of contract interpretation. See id. at 1709 n.4.
An award of backpay is authorized under the Back Pay Act only when an arbitrator finds that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; and (2) the personnel action resulted in the withdrawal or the reduction of an employee's pay, allowances, or differentials. See U.S. Department of Health and Human Services and National Treasury Employees Union, 54 FLRA 1210, 1218-19 (1998) (Authority clarified that a requirement that the pay loss would not have occurred but for the [ v56 p673 ] unwarranted action is not a separate, independent requirement of the Act but merely amplifies the causal connection requirement of the Act). A violation of a collective bargaining agreement constitutes an unjustified or unwarranted personnel action under the Act. See U.S. Department of Defense, Department of Defense Dependents Schools and Federal Education Association, 54 FLRA 773, 785 (1998).
In this case, the Arbitrator found that the grievant was employed in a career ladder position, that he satisfied the three major requirements for a career ladder promotion under the Agreement, and that he was therefore entitled to a retroactive promotion. The Agency disagrees and argues that the award of retroactive promotion is contrary to the Back Pay Act because the delay in approving the grievant's promotion preceded an approval by the properly authorized official.
We conclude that the award is not contrary to the Back Pay Act. In this regard, a career-ladder promotion is the direct result of an agency's decision to select an employee and place the employee in a career-ladder position in the agency. The agency's selection of an employee and the placement of that employee in a career-ladder position also constitutes the agency's decision to promote that employee noncompetitively at appropriate stages in the employee's career up to the full performance level of the position, once the requisite conditions have been met. National Association of Government Employees, Local R2-98 and Department of the Army, Watervliet Arsenal, Watervliet, New York, 29 FLRA 1303, 1310 (1987); see also Local 3342, 51 FLRA at 1705-06. The Arbitrator found that provisions in the parties' Agreement, including Article 15.6B, require management to initiate the "nondiscretionary" process whereby an employee is promoted to the next higher grade once the employee has satisfied all the requirements for a career ladder promotion, and that the Agency failed to comply with these provisions. Award at 14. The Arbitrator further found that the grievant had not only satisfied all the requirements for promotion from GS-5 to GS-6, as indicated by his PIPR, but was actually working at the full performance level of GS-7.
Thus, the Arbitrator's findings establish that the grievant occupied a career ladder position and, in accordance with the terms of the Agreement, was entitled to a nondiscretionary career ladder promotion when the requisite conditions were met. See Local 3342, 51 FLRA at 1706. Further, the Arbitrator's finding that the Agency failed to comply with the Agreement by failing to initiate the nondiscretionary process to timely promote the grievant satisfies the requirement under the Back Pay Act for an unjustified or unwarranted personnel action but for which the grievant would have been promoted to GS-6 as of April, 1998.
Additionally, the Authority cases relied on by the Agency--SSA and Fort Bliss--are inapposite because, unlike this case, those cases concerned discretionary promotions rather than a nondiscretionary career ladder promotion, and in the case of Fort Bliss involved a situation where a dispute existed as to whether the grievant met the requirements for promotion. Further, Federal Correctional Institution is also distinguishable in that the arbitrator there found employees were not automatically promoted on meeting eligibility requirements, while in the instant case the Arbitrator did not make such a finding. The Comptroller General's decision, Butler, is also inapposite because, unlike this case, it did not involve "nondiscretionary" action. Butler, 58 Comp. Gen. at 53.
Accordingly, the award is not contrary to the Back Pay Act.
The Agency and the Union's exceptions are denied.
Footnote # 1 for 56 FLRA No. 110
Footnote # 2 for 56 FLRA No. 110
Footnote # 3 for 56 FLRA No. 110
Footnote # 4 for 56 FLRA No. 110
A. Step One - The grievance shall first be taken up by the grievant (or Union Representative, if he/she elects to have one) with the Employee's immediate supervisor. The step will be initiated in writing within 30 calendar days of the incident that gave rise to the grievance, unless the grievant could not reasonably be expected to be aware of the incident by such time. In that case the grievance must be initiated within 30 calendar days of the date the grievant became aware of the incident. A grievance concerning a continuing practice or condition must be initiated within 30 calendar days of the last incident. . . . .
Agency's Exceptions, Joint Exhibit 1 Attachment.
Footnote # 5 for 56 FLRA No. 110
The Arbitrator found that the personnel specialist could not remember this e-mail and it was impossible to corroborate the grievant's testimony since the Agency customarily deleted its e-mail every six months. However, the Arbitrator credited the grievant's testimony since his inquiry about his promotion date appeared to have been soon after he was hired by the Agency.
Footnote # 6 for 56 FLRA No. 110
ARTICLE 5: GRIEVANCE AND ARBITRATION PROCEDURES.
. . . .
5.15 Fees and Expenses: The arbitrator's fees and expenses shall be borne by the losing party. Therefore, the arbitrator will be instructed that as part of his/her decision, the following will be indicated:
A. Which party is the losing party, and therefore, the party that will pay. If in the arbitrator's judgment, neither party is the clear losing party, then the arbitrator will indicate the percentage of arbitration costs each will pay.
B. The parties recognize that failure to agree upon an arbitration process will force the arbitration process to the more expensive one requested. If this occurs, the party desiring the more expensive process will pay the difference in cost between the process desired by the other party and the process used, regardless of which party is the losing party. In these situations, the arbitrator will provide these costs.
. . . .
Union's Exceptions, Attachment J-1.