American Federation of Government Employees, Local 17 and Veterans Administration Central Office (Authority decision, December 10, 1986)

Final FLRA decision. The Authority denies the agency's exceptions to an arbitration award granting a retroactive career ladder promotion and back pay. Under 5 U.S.C. § 7123(a)(1), orders involving arbitral awards are generally excluded from judicial review unless they involve an unfair labor practice. This decision does not state that it involves one.

Plain-English summary

A Veterans Administration employee grieved the agency's failure to promote her to GS-11 when her supervisor said she could perform the higher grade's duties. The arbitrator found that the agency violated the parties' agreement and awarded a retroactive promotion and back pay for the period before she was promoted. The agency argued that the award interfered with its selection rights and lacked the findings needed for back pay. The Authority held that a career ladder promotion implements an earlier selection, and that the arbitrator had found the employee met the agreement's promotion requirements. It also found the arbitrator had sufficiently connected the agency's failure to follow the agreement with the missed promotion. The Authority denied both exceptions, leaving the award in place.

Decision snapshot

• Authority: Management selection rights under 5 U.S.C. § 7106(a)(2)(C) and the Back Pay Act, 5 U.S.C. § 5596.
• Outcome: Agency exceptions denied; retroactive promotion and back pay award stands.
• Key point: The arbitrator's finding that the employee met the career ladder requirements supported the promotion and back pay remedy.

Full text (FLRA public release)

[ v24 p424 ]

24:0424(43)AR

The decision of the Authority follows:

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