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The decision of the Authority follows:
11 FLRA NO. 89
ACTION Agency and ACTION EMPLOYEES UNION, AFSCME, LOCAL 2027 Union Case No. 0-AR-280
This matte is before the Authority on an exception to the award of Arbitrator Samuel H. Jaffee 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 filed an opposition. 1
The dispute in this matter concerns the Activity's failure to accord the grievant, a repromotion eligible, special consideration for promotion to a temporary GS-14 position. The Arbitrator determined that the Activity in this respect had violated the parties' collective bargaining agreement and agency regulation. As a remedy for the Activity's failure to accord the grievant the special consideration to which he was entitled, the Arbitrator awarded the grievant backpay in the amount of the difference between what he earned and what he would have earned during the period of the temporary position if he had been selected for that position.
In its exception the Agency contends that the remedy awarded by the Arbitrator is deficient as contrary to governing law and regulation, particularly the Back Pay Act, 5 U.S.C. 5596 (1976 & Supp. V 1981). The Authority agrees. [ v11 p514 ]
The Authority has uniformly held in cases involving a failure to promote that in order for an award of backpay to be authorized under the Back Pay Act, there must be a determination not only that the aggrieved employee was affected by an unjustified or unwarranted personnel action within the meaning of that Act, but also a determination that such unwarranted action directly resulted in the denial of a promotion that the employee otherwise would have received. E.g., Picatinny Arsenal, U.S. Army Armament Research and Development Command, Dover, New Jersey and National Federation of Federal Employees, Local 1437, 7 FLRA No. 109 (1982), at 5-6. Furthermore, the Authority has held that the failure to accord a repromotion eligible special consideration for promotion cannot constitute the requisite finding that but for such unwarranted action, the aggrieved employee would in fact have been selected for promotion. Id. at 6. Consequently, in terms of this case, the Arbitrator failed to make the determination necessary for a proper order of backpay, and the award, to the extent it orders backpay for the grievant, is therefore deficient as contrary to the Back Pay Act and must be modified to provide a legal and appropriate remedy. See id. at 6-7; Local R4-97, National Association of Government Employees and Naval Mine Engineering Facility, Yorktown, Virginia, 5 FLRA No. 57 (1981), at 5.
Therefore, the award is modified by striking paragraphs 3 and 4, which order retroactive pay adjustments for the grievant, and inserting in their place the following as paragraph 3. with the subsequent paragraphs renumbered accordingly:
3. The grievant is entitled to special consideration for repromotion to any appropriate vacancy at the GS-13 or GS-14 level.
Issued, Washington, D.C., March 9, 1983 Ronald W. Haughton, Chairman Henry B. Frazier III, Member Leon B. Applewhaite, Member FEDERAL LABOR RELATIONS AUTHORITY
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Footnote 1 The Agency has claimed that the Union's opposition was not timely filed. However, the Agency has failed to establish in terms of the Authority's Rules and Regulations that the opposition was untimely, and accordingly the Union's opposition has been considered by the Authority.