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19:0265(38)AR - Army Missile Command, Redstone Arsenal and AFGE Local 1858 -- 1985 FLRAdec AR

[ v19 p265 ]
The decision of the Authority follows:

 19 FLRA No. 38
                                            Case No. O-AR-936
    This matter is before the Authority on an exception to the award of
 Arbitrator William D. Ferguson 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.
    A grievance was filed and submitted to arbitration essentially
 challenging the reassignment of the grievant.  According to the
 Arbitrator's award, the grievant was one of two GS-6 secretaries in a
 project office, and the dispute arose as the result of an attempt, which
 was rejected by the Activity's personnel office, to noncompetitively
 promote the other secretary to GS-7, but not the grievant.  Thereafter,
 the grievant was reassigned because of an anticipated reduction-in-force
 and the promotion to GS-7 was announced competitively.  The grievant was
 one of the final three candidates for the promotion, but the other
 secretary in the project office was selected for the competitive
 promotion.  The Arbitrator determined that the Activity had violated
 provisions of the parties' collective bargaining agreement by failing to
 inform the Union of the anticipated reduction-in-force that resulted in
 the reassignment of the grievant.  The Arbitrator further found that the
 reassignment of the grievant violated the parties' agreement because the
 reassignment was for the purpose of preventing her from being promoted.
 Accordingly, the Arbitrator ruled that the grievant was entitled, on her
 request, to be promoted the same as the other project office secretary
 with backpay.
    In its exception the Agency contends that the award of retroactive
 promotion with backpay is contrary to the Back Pay Act, 5 U.S.C. 5596.
 The Authority agrees.
    The Authority has uniformly stated that the Back Pay Act requires not
 only a determination that the aggrieved employee was affected by an
 unwarranted personnel action, but also a determination that such
 unwarranted action directly resulted in the withdrawal or reduction in
 the pay, allowances, or differentials that the employee otherwise would
 have earned or received.  Thus, in order for an award of backpay by an
 arbitrator to be authorized by the Act, the arbitrator must find that an
 agency personnel action with respect to the grievant was unjustified or
 unwarranted, that such unjustified or unwarranted personnel action
 directly resulted in the withdrawal or reduction of the grievant's pay,
 allowances, or differentials, and that but for such action, the grievant
 otherwise would not have suffered such withdrawal or reduction of pay,
 allowances, or differentials.  E.g., American Federation of Government
 Employees, Local 3553, AFL-CIO and Veterans Administration Medical
 Center, New Orleans, Louisiana, 18 FLRA No. 65 (1985).  In terms of this
 case, the Arbitrator, as noted, determined that the reassignment of the
 grievant violated the parties' collective bargaining agreement.
 However, the Arbitrator did not expressly find that this unwarranted
 action directly resulted in the failure of the grievant to be promoted,
 especially the failure to be promoted "the same as" the other secretary
 who was promoted competitively instead of the grievant.  In this
 respect, the Arbitrator expressly concluded that if the objective was to
 merely promote the other secretary and not promote the grievant, this
 could have been accomplished without having reassigned the grievant by
 the competitive promotion procedures which in fact resulted in the
 competitive promotion of the other secretary and not the grievant.
 Thus, there is no finding that but for the unwarranted reassignment, the
 grievant otherwise definitely would have been promoted.  Accordingly,
 the Authority concludes that the Arbitrator has not made the findings
 necessary for an award of a retroactive promotion and backpay, and
 consequently the award in this respect is deficient as contrary to the
 Back Pay Act.  Therefore, the award is modified to strike all provisions
 for retroactive promotion and backpay.  Issued, Washington, D.C., July
 25, 1985
                                       Henry B. Frazier III, Acting
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY