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58 FLRA No. 23
5Social Security Administration, Office of Hearings and Appeals, Paducah, Kentucky and AFGE, Local 3627, 0-AR-3484, (Goggin, Arbitrator) (Decided September 30, 2002)
The grievant filed a grievance disputing her failure to be promoted. The Arbitrator sustained the grievance and ordered that one of the employees selected be removed from the position and that the grievant be retroactively promoted to the position. The Authority concluded that the promotion order was deficient.
The Authority found that the order to vacate the one selection action was not deficient. It further found that the Agency failed to establish that the order was contrary to any law, rule, or regulation. The Authority explained that the events that gave rise to the grievance in this case occurred in 2000. In view of the abolishment of the FPM in 1994, section A-4b and Authority cases applying that section are no longer applicable. As the Agency cited no other law, rule, or regulation and as arbitration awards are not precedential, the Agency provided no basis for finding the ordered removal of one of the selected applicants deficient. The Authority also dismissed the Agency's claim that the Arbitrator disregarded the agreement by failing to allow the disputed selection action to stand.
The Authority, however, concluded that the award of backpay was deficient as contrary to the Back Pay Act. The award did not establish that the grievant would have been selected for promotion if the Agency had considered the internal applicants as required by Section 7B.