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10:0161(32)AR - Army Air Defense Center, Fort Bliss, TX and NAGE Local R14-22 -- 1982 FLRAdec AR



[ v10 p161 ]
10:0161(32)AR
The decision of the Authority follows:


 10 FLRA No. 32
 
 U.S. ARMY AIR DEFENSE CENTER,
 FORT BLISS, TEXAS
 Activity
 
 and
 
 NATIONAL ASSOCIATION OF
 GOVERNMENT EMPLOYEES,
 LOCAL R-14-22
 Union
 
                                            Case No. O-AR-314
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR ANNE HOLMAN WOOLF FILED BY THE AGENCY UNDER SECTION 7122(A)
 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE)
 AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS.  THE UNION DID
 NOT FILE AN OPPOSITION.
 
    THE DISPUTE IN THIS MATTER CONCERNS A DELAY IN THE PROMOTION OF TWO
 EMPLOYEES AT THE ACTIVITY.  A GRIEVANCE WAS FILED PROTESTING THE DELAY
 THAT WAS ULTIMATELY SUBMITTED TO ARBITRATION.
 
    THE ARBITRATOR STATED THAT THE ACTIVITY HAD AN OBLIGATION UNDER THE
 PARTIES' COLLECTIVE BARGAINING AGREEMENT TO ADMINISTER AND PROCESS
 PROMOTION PROCEDURES AS EFFICIENTLY AS POSSIBLE.  IN TERMS OF THIS CASE,
 THE ARBITRATOR FOUND THAT THE PROMOTION ACTION APPROPRIATELY SHOULD HAVE
 BEEN CONCLUDED AND EFFECTUATED BY NOVEMBER 28, 1978.  CONSEQUENTLY, SHE
 FOUND THAT THE DELAY IN THE PROMOTION ACTION BEYOND THAT DATE, WHICH
 SUBJECTED THE ACTION TO A PROMOTION FREEZE SO THAT THE GRIEVANTS WERE
 NOT PROMOTED UNTIL 1980, CONSTITUTED A VIOLATION OF THE PARTIES'
 AGREEMENT BUT FOR WHICH THE GRIEVANTS WOULD HAVE BEEN PROMOTED ON
 NOVEMBER 28, 1978.  THEREFORE, AS HER AWARD IN THIS RESPECT THE
 ARBITRATOR ORDERED THAT THE GRIEVANTS' SUBSEQUENT PROMOTIONS BE MADE
 RETROACTIVE WITH BACKPAY TO NOVEMBER 28, 1978.
 
    IN ITS EXCEPTION THE AGENCY CONTENDS THAT THE AWARD IS CONTRARY TO
 THE BACK PAY ACT, 5 U.S.C. 5596.  THE AUTHORITY AGREES.  AS THE
 AUTHORITY EXPLAINED IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, SAN
 FRANCISCO REGION AND OFFICE OF PROGRAM OPERATIONS, FIELD OPERATIONS,
 SOCIAL SECURITY ADMINISTRATION, SAN FRANCISCO REGION, 7 FLRA NO.
 98(1982), THE BACK PAY ACT PROVIDES THE STATUTORY AUTHORITY TO AWARD A
 RETROACTIVE PROMOTION AND BACKPAY IN PROMOTION DELAY CASES ONLY IF AN
 UNWARRANTED DELAY IS SUBSEQUENT TO APPROVAL OF THE PROMOTION BY THE
 PROPERLY AUTHORIZED OFFICIAL.  ACCORD DEPARTMENT OF HEALTH AND HUMAN
 SERVICES, SOCIAL SECURITY ADMINISTRATION, AREA III AND AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3231, 8 FLRA NO.
 50(1982).  THUS, IT IS ESSENTIAL THAT THE PROMOTION ALREADY HAVE BEEN
 APPROVED BECAUSE IT IS ONLY WHEN THE UNWARRANTED DELAY IS SUBSEQUENT TO
 THE PROMOTION DECISION THAT IT CAN PROPERLY BE DETERMINED CONSISTENT
 WITH THE ACT THAT THE UNWARRANTED ACTION DIRECTLY RESULTED IN THE
 AGGRIEVED EMPLOYEE'S PROMOTION BEING DELAYED BEYOND THE DATE THAT IT
 OTHERWISE WOULD HAVE BEEN EFFECTIVE.  SEE OFFICE OF PROGRAM OPERATIONS
 AT 3.  IN THIS CASE THE UNWARRANTED DELAY PRECEDED THE PROMOTION
 DECISION, AND CONSEQUENTLY THE RETROACTIVE PROMOTION WITH BACKPAY OF THE
 GRIEVANTS IS NOT AUTHORIZED BY THE BACK PAY ACT.  ACCORDINGLY, PARAGRAPH
 4 OF THE ARBITRATOR'S AWARD IS SET ASIDE.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 29, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY