[ v17 p382 ]
The decision of the Authority follows:
17 FLRA No. 61 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2502 Union and U.S. DEPARTMENT OF JUSTICE, FEDERAL PRISON SYSTEM, FEDERAL CORRECTIONAL INSTITUTION Activity Case No. 0-AR-296 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Samuel H. Jaffee 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. The dispute in this case concerns the failure of the grievant's supervisor to recommend the grievant for a career-ladder promotion to GS-11. A grievance was filed and submitted to arbitration claiming that the grievant's failure to be promoted was without reasonable cause and requesting that she be promoted to GS-11 retroactive to the date she became eligible for promotion. The Arbitrator expressly determined that the failure to recommend the grievant for promotion, or in other words the recommendation not to promote the grievant, was "arbitrary in a legal sense." Although the Arbitrator specifically acknowledged testimony that employees in career ladders are not automatically promoted when they meet the eligibility requirements for the higher-grade position, the Arbitrator found that in his judgment, no valid reason had been given for not recommending the promotion of the grievant. In this respect the Arbitrator refused to credit testimony of the grievant's supervisor that the grievant was not recommended for promotion because the grievant was deficient in her knowledge of technical aspects of case management, as well as deficient in her writing skills. Instead, the Arbitrator concluded that the grievant was not recommended for promotion solely because of a claimed deficiency in writing skills. Finding that the grievant was not deficient in writing skills, the Arbitrator ruled that in his judgment, she was clearly worthy of promotion to GS-11. Accordingly, the Arbitrator directed that the grievant be promoted with backpay retroactive to the date on which she was eligible for promotion. As one of its exceptions, the Agency contends that the award of retroactive promotion with backpay is contrary to the Back Pay Act, 5 U.S.C. 5596. Specifically, the Agency argues that in the circumstances of this case, the award of retroactive promotion and backpay is not authorized by the Act. The Authority agrees. The Authority has consistently held in cases involving a failure to promote that in order for an award of retroactive promotion and backpay to be authorized, there must be both a determination that the grievant was affected by an unjustified and unwarranted personnel action and a determination that such unwarranted action directly resulted in the denial of a promotion to the aggrieved employee that the employee would otherwise have received. E.g., American Federation of Government Employees, Local 2811 and U.S. Government District Office, Social Security Administration, St. Paul, Minnesota, 7 FLRA 618 (1982). In terms of this case, the Authority concludes that the Arbitrator has not made the findings necessary to a proper award of retroactive promotion and backpay. The Arbitrator's findings that the failure to recommend the grievant's career-ladder promotion was arbitrary and that in the Arbitrator's judgment the grievant was worthy of promotion do not constitute the requisite finding that but for the arbitrary action of the grievant's supervisor, the grievant would definitely have received a career-ladder promotion on her eligibility date. In view of the Arbitrator's acknowledgment that employees in career ladders are not automatically promoted when they meet the eligibility requirements for the higher-grade position, the Arbitrator's finding that the failure to recommend the grievant for promotion was arbitrary plainly does not constitute the requisite finding that the grievant was affected by an unwarranted action that directly resulted in the denial of a promotion that the grievant otherwise would definitely have received. See id. at 620-21; Local R4-97, National Association of Government Employees and Naval Mine Engineering Facility, Yorktown, Virginia, 5 FLRA 452, 456 (1981). Likewise, the Arbitrator's finding that in his judgment the grievant was worthy of promotion plainly does not constitute the requisite finding that but for the unwarranted action, the responsible agency officials would have considered the grievant worthy of promotion and would originally have promoted the grievant, especially in view of the testimony that the grievant's deficiencies were more extensive than writing ability alone. See SSA, St. Paul at 620-21. Therefore, the award is deficient is contrary to the Back Pay Act and is set aside. /1/ Issued, Washington, D.C., April 4, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ In view of this decision, it is not necessary for the Authority to address the Agency's other exceptions to the award.