24:0424(43)AR - AFGE Local 17 and VA Central Office -- 1986 FLRAdec AR

 24 FLRA No. 43
 
 AMERICAN FEDERATION OF 
 GOVERNMENT EMPLOYEES 
 LOCAL 17, AFL-CIO
 Union
 
 and
 
 VETERANS ADMINISTRATION 
 CENTRAL OFFICE
 Agency
 
                                            Case No. 0-AR-1154
 
                                 DECISION
 
                         I.  Statement of the Case
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Roger P. Kaplan filed by the Agency under section 7122(a) of
 the Federal Service Labor-Management Relations Statute (the Statute) and
 part 2425 of the Authority's Rules and Regulations.
 
                  II.  Background and Arbitrator's Award
 
    The grievance protested the Agency's failure to give the grievant a
 career ladder promotion to grade GS-11.  According to the Arbitrator,
 the grievant's immediate supervisor was advised by the personnel office
 that the grievant would be eligible for promotion on July 7, 1985.  The
 supervisor sent a memorandum to the next level of management
 recommending the grievant for promotion, and also informed the grievant
 in writing of his intention to recommend her for promotion.  The
 grievant was not promoted because higher level management contended that
 she had not performed higher grade duties.  The immediate supervisor had
 stated that the grievant had satisfactorily performed and was able to
 perform the full range of GS-11 duties.
 
    The matter was submitted to arbitration.  The Arbitrator framed the
 issue as whether the Agency violated Article 34, Section 17B of the
 collective bargaining agreement by its failure to promote the grievant
 on July 7, 1985.  That provision of the agreement contained the
 requirements for career ladder promotion.  The Arbitrator noted that the
 parties disagreed only on whether the grievant met the first requirement
 which concerned "(t)he selectee's demonstration of the ability to
 perform the duties of the next higher grade to the satisfaction of the
 supervisor." He also noted that the parties agreed at the hearing that
 if he found a violation of the agreement, the grievant would be entitled
 to retroactive promotion from July 7, 1985 to January 18, 1986 when she
 was promoted to GS-11.
 
    The Arbitrator found that the immediate supervisor's testimony
 concerning the grievant's satisfactory performance of GS-11 duties
 outweighed the claim of higher management that she had not performed
 satisfactorily.  Therefore, he ruled that the grievant met the first
 requirement of the agreement.  He rejected the Agency's contention that
 the immediate or first level supervisor only can recommend that
 promotions be made and he ruled that under his interpretation of the
 agreement, the only person to make the determination of ability to
 perform at the next higher level was the immediate supervisor.  The
 Arbitrator ruled that the grievant met the requirements of Article 34,
 Section 17B of the agreement and that the Agency violated those
 requirements by not promoting her.  He sustained the grievance and
 awarded the grievant a retroactive promotion and back pay from July 7,
 1985 to January 18, 1986.
 
                           III.  First Exception
 
    A.  Contentions
 
    The Agency contends that the award violates management's right to
 select under section 7106(a)(2)(C) of the Statute because it fails to
 make the required connection between improper Agency action and the
 failure of the grievant to be promoted.  The Agency contends that the
 Arbitrator did not make a finding that the level of management having
 authority to promote the grievant would have approved and made the
 promotion.
 
    B.  Analysis and Conclusion
 
    The Agency's first exception does not provide a basis for finding the
 award deficient.  As the Agency correctly noted, the Authority has held
 that management's right to make selections under section 7106(a)(2)(C)
 of the Statute may be constrained and an agency ordered to select a
 particular employee for promotion only if the arbitrator finds that the
 employee was affected by an improper agency action that directly
 resulted in the failure of the employee to be promoted.  U.S. Department
 of Commerce, Patent and Trademark Office and the Patent Office
 Professional Association, 21 FLRA No. 52 (1986).  The Authority has also
 held with regard to section 7106(a)(2)(C), that a decision to promote an
 employee to the next grade in a career ladder position does not
 constitute a selection for appointment within the meaning of that
 section but is merely a "ministerial act" implementing a prior decision
 to select an employee for apointment.  National Treasury Employees Union
 and NTEU Chapter 72 and Internal Revenue Service, Austin Service Center,
 11 FLRA 271 (1983) (Proposal 2).  In this case, the grievant was placed
 in a career ladder position with promotion governed by the provisions of
 Article 34, Section 17B of the agreement.  The Arbitrator interpreted
 the agreement and found that the immediate supervisor was the proper
 person to evaluate the grievant's ability to perform at a higher grade.
 He concluded that the requirements for promotion were met and found that
 the Agency violated the agreement by failing to promote her.  Thus,
 contrary to the Agency's contentions, the Arbitrator made the findings
 necessary to support his award.  The Agency's exception merely
 constitutes disagreement with the Arbitrator's interpretation and
 application of the collective bargaining agreement which provides no
 basis for finding an award deficient.  United States Army Missile
 Material Readiness Command (USAMIRCOM) and American Federation of
 Government Employees, Local 1858, AFL-CIO, 2 FLRA 432, 438 (1980).
 
                           IV.  Second Exception
 
    A.  Contentions
 
    In its second exception, the Agency contends that the award is
 contrary to the Back Pay Act, 5 U.S.C. Section 5596, because it does not
 make the required connection between improper Agency action and failure
 to select the grievant for promotion.  The Agency maintains that the
 Arbitrator did not expressly find that the Agency's unwarranted action
 directly resulted in the failure of the grievant to be promoted.
 
    B.  Analysis and Conclusion
 
    The Agency fails to show that the award is contrary to the Back Pay
 Act.  The Authority has consistently held that in order for an award of
 retroactive promotion and backpay to be authorized under the Back Pay
 Act, there must be not only a determination that the aggrieved employee
 was affected by an unjustified or unwarranted personnel action but also
 a determination that such action directly resulted in the denial of a
 promotion to the grievant.  American Federation of Government Employees,
 Local 3553, AFL-CIO and Veterans Administration Medical Center, New
 Orleans, Louisiana, 18 FLRA No. 65 (1985).  The Arbitrator found that
 the grievant met the agreement requirements for promotion and that the
 Agency's failure to promote her violated the agreement.  Having selected
 the grievant for a career ladder position the Agency was obligated to
 promote her to the next grade when she demonstrated "the ability to
 perform the duties of the next higher grade to the satisfaction of the
 supervisor." The Arbitrator found that the grievant made such a
 demonstration and he effectively found that she would have been promoted
 if the Agency had not refused to comply with the agreement.  Further, as
 the Arbitrator states in his award, the parties stipulated that the
 proper remedy if the Arbitrator found a violation of the agreement would
 be a retroactive promotion.  Under these circumstances we find that the
 Arbitrator made a proper award under the Back Pay Act.
 
                               V.  Decision
 
    For the above reasons, the Agency's exceptions are denied.
 
    Issued, Washington, D.C. December 10, 1986.
                                       /s/ Jerry . Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY