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21:0397(52)AR - Dept. of Commerce, Patent and Trademark Office and POPA -- 1986 FLRAdec AR

[ v21 p397 ]
The decision of the Authority follows:

 21 FLRA No. 52
                                            Case No. 0-AR-1019
                  I.  STATEMENT OF THE CASE
    This matter is before the Authority on an exception to the award of
 Arbitrator Robert J. Ables 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 protested the refusal of a supervisor to recommend the
 grievant, a GS-12 patent examiner, for a career-ladder promotion to
 GS-13.  The grievant had been eligible for promotion for about two
 years, his productivity for the most recent six-month period had risen
 to the point where it was deemed sufficient for promotion to the next
 higher grade, and the supervisor had rated the grievant's performance as
 "fully satisfactory" in his most recent performance appraisal.  However,
 the supervisor determined that he could not recommend the grievant for
 promotion to GS-13 because of the quality of his work.  The supervisor
 based his determination upon a review of a six-case sample of the
 grievant's work.  The Arbitrator found that the work contained a number
 of errors and insufficiencies and concluded that the grievant still
 required close review and further instruction.
    The Arbitrator identified the immediate issue in the case as whether
 the grievant had demonstrated the ability to perform examiner duties at
 the GS-13 level.  The Arbitrator found that while an eligible examiner
 in a career-ladder plan had a right under the parties' collective
 bargaining agreement to be "considered" for promotion, the terms of the
 agreement clearly implied that not all examiners could expect to be
 promoted.  The Arbitrator noted that the parties estimated that
 promotions from GS-12 to GS-13 are authorized about 90 percent of the
 time.  The Arbitrator further found that there was no evidence that the
 parties had agreed that satisfactory performance of all performance
 standards of an examiner's position required a decision that the
 examiner be promoted.  The Arbitrator determined that the parties'
 agreement contemplated that management officials have the discretion to
 judge the ability of a career-ladder examiner to perform at the next
 higher level, but that the discretion was limited by a requirement that
 the exercise of that judgment not be arbitrary or capricious.
    The Arbitrator concluded that the supervisor was arbitrary in this
 case.  In reaching that conclusion, the Arbitrator found that the
 supervisor's review of the sampling of the grievant's work was made in
 anticipation of grievance litigation and after the six cases had already
 been routinely cleared in the usual course of business of the office.
 The Arbitrator further found that the time to judge the quality of the
 work was when it was first done, and he also noted that the supervisor
 himself had previously cleared four of the six cases that he afterwards
 subjected to the more careful quality review.
    As to the quality of the grievant's work, the Arbitrator found that
 it was not essential to make a determination on the relative merits of
 the technical position of the parties as to each of the grievant's cases
 reviewed by the supervisor.  The Arbitrator determined that it was
 sufficient to conclude, without an ultimate finding on the technical
 aspects of the grievant's work, that there was a sizable question as to
 whether the grievant's work performance was below the level of other
 GS-12 examiners, almost all of whom had been routinely promoted to
    The Arbitrator found that an examiner could expect to be promoted
 unless management showed a substantial basis for withholding the
 promotion, and that management had not made such a showing in this case.
  Consequently, the Arbitrator decided that the Agency was arbitrary in
 withholding the grievant's promotion to GS-13.  The Arbitrator therefore
 sustained the grievance and, as his award, directed the Agency to
 promote the grievant to GS-13 retroactively with backpay.
                              III.  EXCEPTION
    In its exception, the Agency essentially contends that the
 Arbitrator's award is contrary to law.  In support of this contention,
 the Agency primarily argues that the award is contrary to the Back Pay
 Act, 5 U.S.C. Section 5596, because the Arbitrator failed to make the
 necessary finding that but for the Agency violation of the parties'
 agreement, the grievant would have been promoted.  The Agency further
 notes that an arbitrator can abridge management's right to promote under
 section 7106(a) of the Statute only if the arbitrator finds a direct
 connection between an improper agency action and the failure to promote
 the aggrieved employee.
                       IV.  ANALYSIS AND CONCLUSIONS
    In order for an award of backpay to be authorized under the Back Pay
 Act, the arbitrator must find that an agency personnel action was
 unjustified or unwarranted, that such personnel action directly resulted
 in the withdrawal or reduction of the aggrieved employee's pay,
 allowances, or differentials and that but for such action, the grievant
 would not have suffered such a withdrawal or reduction.  U.S. Army
 Missile Command Redstone Arsenal and American Federation of Government
 Employees, Local 1858, 19 FLRA No. 38 (1985).  In this case, the
 Authority concludes that the Arbitrator has not made the findings
 necessary for a proper award of backpay.  The Arbitrator acknowledged
 that not all eligible GS-12 examiners could expect to be promoted to
 GS-13.  In such circumstances, the Arbitrator's finding that the
 supervisor's failure to recommend the grievant for promotion was
 arbitrary does not constitute the requisite determination that but for
 the unwarranted or unjustified action, the grievant definitely would
 have been promoted to GS-13.  American Federation of Government
 Employees, Local 2502 and U.S. Department of Justice, Federal Prison
 System, Federal Correctional Institution, 17 FLRA No. 61 (1985).
 Accordingly, the Authority concludes that the Arbitrator's award of
 backpay is contrary to the Back Pay Act.
    Moreover, with regard to filling positions, the Authority has
 specifically held that section 7106(a)(2)(C) of the Statute reserves to
 management the right to make the actual substantive determination to
 select or not to select employees for promotion.  See, e.g., Army and
 Air Force Exchange Service, Fort Knox Exchange, Fort Knox, Kentucky and
 American Federation of Government Employees, Local 2303, AFL-CIO, 8 FLRA
 256 (1982).  In conjunction with the decisions of the Authority
 specifying when an award of a retroactive promotion is authorized under
 the Back Pay Act, the Authority has held that management's right may be
 constrained consistent with section 7106(a)(2)(C) and an agency ordered
 to select a particular employee for promotion only if the arbitrator
 finds that the employee was affected by improper agency action that
 directly resulted in the failure of the employee to be promoted when the
 employee otherwise would have been.  American Federation of Government
 Employees, Local 3553, AFL-CIO and Veterans Administration Medical
 Center, New Orleans, Louisiana, 18 FLRA No. 65 (1985).  In this case, as
 indicated above, the Arbitrator did not make the findings necessary to
 constrain management's right to determine not to promote the grievant.
 The Authority therefore concludes that the Arbitrator's award directing
 the Agency to promote the grievant retroactively to GS-13 is contrary to
 section 7106(a)(2)(C) of the Statute.
                               V.  DECISION
    Accordingly, for the above reasons, the Arbitrator's award is
 modified by striking the provisions for retroactive promotion and
    Issued, Washington, D.C., April 21, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY