EEOC and AFGE Local 3504 (Authority decision, May 24, 1985)

Final FLRA decision. The Authority resolves exceptions to an arbitration award. 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 under 5 U.S.C. § 7116. This decision does not state that it involves one.

Plain-English summary

An arbitrator awarded retroactive promotion and backpay after a delay in recommending an eligible employee for a career ladder promotion. The Authority found that a properly authorized official had never approved the promotion. Without that approval, the Back Pay Act did not support the retroactive award, so it set the award aside.

Decision snapshot

• Authority: Arbitration review under 5 U.S.C. § 7122(a) and the Back Pay Act.
• Outcome: Promotion and backpay award set aside.
• Key point: Eligibility and a delayed recommendation did not establish an approved promotion.

Full text (FLRA public release)

[ v18 p312 ]

18:0312(39)AR

The decision of the Authority follows:

18 FLRA No. 39

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
Agency

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3504
Union

Case No. 0-AR-864

DECISION

This matter is before the Authority on an exception to the award of Arbitrator E. J. Forsythe 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 in this case concerned a delay in the recommendation of the grievant for a career-ladder promotion. The Arbitrator found that the Agency had acted improperly when it failed to timely process the grievant's promotion action by her eligibility date which failure subjected the recommendation to a promotion freeze and apparently to a subsequent disapproval for lack of work at the higher-grade level when the freeze expired. Accordingly, the Arbitrator awarded the grievant a retroactive promotion and backpay.

In its exception the Agency contends that the award is contrary to the Back Pay Act, 5 U.S.C. Sec. 5596. The Authority agrees. The Authority has uniformly held with respect to cases where there has been a failure on the part of an agency to timely process a promotion action that the Back Pay Act provides the statutory authority to award a retroactive promotion and backpay only if an unwarranted delay is subsequent to approval of the promotion by the properly authorized official. Social Security Administration and American Federation of Government Employees, Local 2369, 10 FLRA 163 (1982); U.S. Army Air Defense Center, Fort Bliss, Texas and National Association of Government Employees, Local R-14-22, 10 FLRA 161 (1982). Approval by the properly authorized official is essential because it confirms the promotion and permits a determination that the unwarranted action directly resulted in the aggrieved employee's promotion being delayed beyond the date that it otherwise would have been effective. U.S. Army Air Defense Center at

162. In terms of this case, although the grievant was eligible for
     promotion before the freeze, the unwarranted delay occurred in recommending the grievant's promotion and the promotion was never approved. Accordingly, the award is deficient as contrary to the Back Pay Act and is set aside. Issued, Washington, D.C., May 24, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY