18:0312(39)AR - EEOC and AFGE Local 3504 -- 1985 FLRAdec AR

 18 FLRA No. 39
 
 EQUAL EMPLOYMENT OPPORTUNITY 
 COMMISSION 
 Agency 
 
 and 
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 3504 
 Union
 
                                            Case No. 0-AR-864
 
                                 DECISION
 
    This matter is before the Authority on an exception to the award of
 Arbitrator E. J. Forsythe 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 grievance in this case concerned a delay in the recommendation of
 the grievant for a career-ladder promotion.  The Arbitrator found that
 the Agency had acted improperly when it failed to timely process the
 grievant's promotion action by her eligibility date which failure
 subjected the recommendation to a promotion freeze and apparently to a
 subsequent disapproval for lack of work at the higher-grade level when
 the freeze expired.  Accordingly, the Arbitrator awarded the grievant a
 retroactive promotion and backpay.
 
    In its exception the Agency contends that the award is contrary to
 the Back Pay Act, 5 U.S.C. Sec. 5596.  The Authority agrees.  The
 Authority has uniformly held with respect to cases where there has been
 a failure on the part of an agency to timely process a promotion action
 that the Back Pay Act provides the statutory authority to award a
 retroactive promotion and backpay only if an unwarranted delay is
 subsequent to approval of the promotion by the properly authorized
 official.  Social Security Administration and American Federation of
 Government Employees, Local 2369, 10 FLRA 163 (1982);  U.S. Army Air
 Defense Center, Fort Bliss, Texas and National Association of Government
 Employees, Local R-14-22, 10 FLRA 161 (1982).  Approval by the properly
 authorized official is essential because it confirms the promotion and
 permits a determination that the unwarranted action directly resulted in
 the aggrieved employee's promotion being delayed beyond the date that it
 otherwise would have been effective.  U.S. Army Air Defense Center at
 162.  In terms of this case, although the grievant was eligible for
 promotion before the freeze, the unwarranted delay occurred in
 recommending the grievant's promotion and the promotion was never
 approved.  Accordingly, the award is deficient as contrary to the Back
 Pay Act and is set aside.  Issued, Washington, D.C., May 24, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY