17:0382(61)AR - AFGE Local 2502 and Justice, Federal Prison System, Federal Correctional Institution -- 1985 FLRAdec AR

 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.