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19:0244(28)AR - Labor and National Council of Field Labor Locals, Local No. 648 -- 1985 FLRAdec AR

[ v19 p244 ]
The decision of the Authority follows:

 19 FLRA No. 28
                                            Case No. O-AR-923
    This matter is before the Authority on exceptions to the award of
 Arbitrator Lawrence M. Cohen 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 before the Arbitrator concerned the Agency's failure to
 give special consideration for repromotion to the grievant, a
 repromotion eligible who had been downgraded as the result of a
 reduction-in-force.  The Arbitrator determined that the Agency's failure
 violated provisions of a Department of Labor Supplement to the Federal
 Personnel Manual respecting reductions-in-force.  Noting that the
 grievant was a "good candidate" for the vacancy in question, the
 Arbitrator determined that a mere direction that the grievant be given
 special consideration for a future vacancy would not "make the grievant
 whole." Consequently, as his award, the Arbitrator essentially directed
 the Agency to repromote the grievant retroactively and "make him whole
 for any losses he may have suffered."
    As one of its exceptions, the Agency contends that the award of a
 retroactive promotion and backpay is contrary to the Back Pay Act, 5
 U.S.C. 5596.  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 under the Back Pay Act, there must not only be a
 determination that the grievant was affected by an unjustified or
 unwarranted personnel action, but also a determination that such
 unwarranted action directly resulted in the denial of a promotion that
 the employee would otherwise have received.  E.g., United States Air
 Force, Oklahoma City Air Logistics Center, Tinker Air Force Base,
 Oklahoma and American Federation of Government Employees Union, Local
 916, AFL-CIO, 14 FLRA 642 (1984).  Moreover, the Authority has expressly
 held that the failure to accord a repromotion-eligible employee the
 special consideration for promotion to which the employee is entitled
 cannot constitute the requisite finding that but for such unwarranted
 action, the grievant would in fact have been selected for promotion.
 Id. at 643.  In terms of this case, the Arbitrator essentially awarded
 the grievant a retroactive promotion with backpay even though he
 expressly found that "there is no way of knowing whether the Grievant
 would have been selected for the position." Consequently, since the
 Arbitrator failed to make the determination necessary for a proper award
 of a retroactive promotion and backpay, the award is deficient as
 contrary to the Back Pay Act and must be modified to provide an
 appropriate remedy.  Id.  Accordingly, the award is modified by striking
 the second sentence and substituting the following:  /1/
          The grievant is entitled to special consideration for
       repromotion to any appropriate vacancy at the GS-13 level.
 Issued, Washington, D.C. July 22, 1985
                                       Henry B. Frazier III, Acting
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ In view of the Authority's decision, it is not necessary to
 address the Agency's other exceptions to the award.