24:0435(46)AR - DOL and Local 12, AFGE -- 1986 FLRAdec AR



[ v24 p435 ]
24:0435(46)AR
The decision of the Authority follows:


 24 FLRA No. 46
 
 U.S. DEPARTMENT OF LABOR
 Agency
 
 and
 
 LOCAL 12, AMERICAN FEDERATION 
 OF GOVERNMENT EMPLOYEES
 Union
 
                                            Case No. 0-AR-1119
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Edith Barnett 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.
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    The grievance in this case concerns the failure of the four grievants
 to be promoted.  The grievants are GS-9 disclosure reports specialists
 in a career-ladder with a full performance level of GS-11.  After the
 grievants had met the time-in-grade requirements for promotion and, in
 the judgment of their supervisor, had demonstrated the ability to
 perform at the GS-11 level, but had not been promoted, they met with
 their supervisor who told them that the "climate was not right" for
 their promotions.  Subsequently, the grievants had a meeting with the
 division chief who, according to the Arbitrator, also told them that
 under "the present administration" the "climate was not right" for their
 promotions.  Not satisfied, the grievants filed the grievance
 challenging their failure to be promoted.  At arbitration the Arbitrator
 framed the issues as whether the grievance was arbitrable and whether
 the Agency violated the collective bargaining agreement by failing to
 promote the grievants.
 
    On the issue of arbitrability, the Arbitrator ruled that the
 grievance was arbitrable.  Contrary to the contention of the Agency, she
 determined that the grievance only concerned whether the Agency properly
 refused to promote the grievants and did not concern the classification
 of any position.
 
    On the merits issue, the Arbitrator ruled that the Agency's failure
 and refusal to promote the grievants on their eligibility date was
 arbitrary and capricious and in violation of Article 21, Sections 3c and
 3d of the collective bargaining agreement.  The Arbitrator further ruled
 that but for the arbitrary and capricious actions of the grievants'
 supervisors, which were in violation of the collective bargaining
 agreement, the grievants would have been promoted to GS-11 on July 24,
 1983.  Accordingly, the Arbitrator ordered the grievants promoted to
 GS-11 retroactive to July 24, 1983, with backpay.
 
    In her opinion accompanying the award, the Arbitrator discussed her
 reasoning in concluding that the failure and refusal to promote the
 grievants was arbitrary and capricious.  Primarily, the Arbitrator
 rejected the Agency's position that the grievants were not promoted
 because sufficient work at the GS-11 level was not available.  Instead,
 she found that in not promoting the grievants, their supervisors were
 motivated by "subjective and unsupported fears about the general
 'climate' for promotions." In addition, she separately and independently
 found that even if the grievants' supervisors were motivated by a
 good-faith belief that sufficient work was not available, their failure
 to promote the grievants was still arbitrary.  She concluded that the
 proper procedure in such circumstances is not to deny individual
 promotions but to challenge the career ladder itself.
 
                           III.  FIRST EXCEPTION
 
    A.  Contentions
 
    The Agency contends that the award is deficient by finding the
 grievance to be arbitrable.  The Agency maintains that the grievance
 concerns the classification of a position within the meaning of the
 exclusion of section 7121(c)(5) of the Statute and a corresponding
 exclusion of the collective bargaining agreement.
 
    B.  Analysis and conclusions
 
    The Agency fails to establish that the award is contrary to section
 7121(c)(5) and the collective bargaining agreement.  We have
 specifically held that a grievance and an award which pertain to whether
 a grievant is entitled to a career-ladder promotion do not concern the
 classification of any position within the meaning of section 7121(c)(5).
  American Federation of Government Employees, Local 3258 and U.S.
 Department of Housing and Urban Development, 21 FLRA No. 56 (1986).  In
 this case, we similarly find contrary to the contention of the Agency
 that the grievance and award pertain to whether the Agency properly
 refused to promote the grievants and do not directly concern the
 classification of any positions.
 
                           IV.  SECOND EXCEPTION
 
    A.  Contentions
 
    The Agency contends that the award is contrary to the Back Pay Act, 5
 U.S.C. Section 5596.  Specifically, the Agency argues that the
 Arbitrator failed to make all the findings necessary to an award of
 backpay and that some of her findings are not supportable.
 
    B.  Analysis and conclusions
 
    The Agency fails to establish that the award of a retroactive
 promotion and backpay is contrary to the Back Pay Act.  With respect to
 awards of backpay, the Authority has specifically stated that in order
 for an award of backpay to be authorized under the Back Pay 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.  For
 example, U.S. Army Aberdeen Proving Ground and Local 2424, International
 Association of Machinists and Aerospace Workers, AFL-CIO, 19 FLRA No. 35
 (1985).  We find contrary to the contention of the Agency that the
 Arbitrator made all the findings necessary to her award of a retroactive
 promotion and backpay.  She specifically found that by failing to
 promote the grievants on their eligibility date, the Agency violated
 Article 21 of the collective bargaining agreement and that but for this
 violation, the grievants would have been promoted to GS-11 on July 24,
 1983.  Furthermore, the Agency's contention that these findings are not
 supportable constitutes nothing more than disagreement with the
 Arbitrator's interpretation and application of the collective bargaining
 agreement and with her findings of fact and her reasoning and
 conclusions.  Such disagreement provides no basis for finding the award
 deficient.  For example, U.S. Department of Health and Human Services,
 Social Security Administration and American Federation of Government
 Employees, AFL-CIO, 22 FLRA No. 16 (1986).  Consequently, no basis is
 provided for finding the award contrary to the Back Pay Act.
 
                            V.  THIRD EXCEPTION
 
    A.  Contentions
 
    The Agency contends that the award is either contrary to the
 Classification Act, 5 U.S.C. Section 5101 et seq., and classification
 regulations, FPM chapter 511, or is contrary to section 7106(a) of the
 Statute.  The Agency explains that the Classification Act and the FPM
 require as part of any promotion re