AFGE Local 2811 and Social Security Administration, St. Paul District Office (Authority decision, January 15, 1982)

Final FLRA decision. This is a final order of the Authority involving an arbitral award under 5 U.S.C. § 7122. Judicial review under 5 U.S.C. § 7123(a) generally does not extend to such an order unless it involves an unfair labor practice under 5 U.S.C. § 7116. This promotion grievance does not state that it involves an unfair labor practice.

Plain-English summary

A Social Security employee challenged denial of a career-ladder promotion to GS-10. The arbitrator found that management had failed to develop promotion criteria and hold required progress reviews, then presumed the employee qualified and awarded a retroactive promotion with backpay. The Authority held that the award lacked the necessary finding that she would have received the promotion absent the agreement violation. It struck the retroactive pay provision while leaving the remaining award in place.

Decision snapshot

• Authority: 5 U.S.C. § 5596(b)(1), 5 U.S.C. § 7122(a).
• Outcome: Arbitration award modified by striking retroactive promotion and backpay.
• Key point: A contract violation alone did not prove the employee would have received the promotion.

Full text (FLRA public release)

[ v07 p618 ]

07:0618(97)AR

The decision of the Authority follows:

7 FLRA No. 97

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 2811
Union

and

U.S. GOVERNMENT DISTRICT
OFFICE, SOCIAL SECURITY
ADMINISTRATION, ST. PAUL,
MINNESOTA
Activity

Case No. O-AR-107

DECISION

THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
ARBITRATOR MARTIN E. CONWAY FILED BY THE AGENCY UNDER SECTION 7112(A) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) /1/
AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR PART
2425). THE UNION FILED AN APPOSITION.

ACCORDING TO THE ARBITRATOR, THE DISPUTE IN THIS MATTER AROSE WHEN,
ON THE BASIS OF DEFICIENCIES IN HER WORK PERFORMANCE, THE GRIEVANT WAS
DENIED A WITHIN-GRADE INCREASE AND WAS NOT RECOMMENDED FOR PROMOTION TO
THE FULL PERFORMANCE, JOURNEYMAN LEVEL OF HER CAREER LADDER. A
GRIEVANCE WAS FILED AND PROCESSED THROUGH THE STEPS OF THE NEGOTIATED
GRIEVANCE PROCEDURE. THE FINAL AGENCY DECISION ON THE GRIEVANCE
REVERSED THE DECISION WITHHOLDING THE GRIEVANT'S WITHIN-GRADE INCREASE,
BUT SUSTAINED THE DECISION TO DENY THE GRIEVANT A CAREER LADDER
PROMOTION TO HER JOURNEYMAN LEVEL OF GS-10. THEREAFTER, THE GRIEVANCE
WAS SUBMITTED TO ARBITRATION ON THE ISSUE OF WHETHER THE ACTIVITY
IMPROPERLY DENIED THE GRIEVANT A CAREER LADDER PROMOTION.

THE ACTIVITY'S CAREER LADDER PLAN PERTINENTLY REQUIRED MANAGEMENT TO
DEVELOP, COMMUNICATE, AND IMPLEMENT CRITERIA FOR THE PROMOTION FROM ONE
GRADE LEVEL TO THE NEXT AND TO MEET QUARTERLY WITH EMPLOYEES TO REVIEW
THEIR STATUS. FINDING THAT MANAGEMENT FAILED TO MAKE A REASONABLE AND
SUBSTANTIAL EFFORT TO INSTITUTE THE PLAN IN THESE RESPECTS, THE
ARBITRATOR DETERMINED THAT AN AWARD OF RETROACTIVE PROMOTION AND BACKPAY
IN FAVOR OF THE GRIEVANT WAS REQUIRED. HE EXPLAINED THAT IN VIEW OF
MANAGEMENT'S FAILURE TO PROPERLY INSTITUTE THE CAREER LADDER, WHICH
FAILURE HE FOUND TO VIOLATE THE PARTIES' COLLECTIVE BARGAINING
AGREEMENT, HE WOULD PRESUME THAT THE GRIEVANT WAS QUALIFIED FOR
PROMOTION TO THE JOURNEYMAN LEVEL OF GS-10 WHEN THE COMPLETED HER YEAR
AT GS-9. THUS, THE ARBITRATOR RULED THAT IN ORDER TO DENY THE GRIEVANT
A RETROACTIVE PROMOTION WITH BACKPAY, MANAGEMENT HAD TO REBUT THAT
PRESUMPTION BY PRESENTING CLEAR AND CONVINCING EVIDENCE THAT THE
GRIEVANT WAS NOT QUALIFIED FOR PROMOTION. MOREOVER, HE REJECTED ALL
EVIDENCE FOUNDED ON WHAT HE VIEWED AS SUBJECTIVE EVALUATIONS. HE
REFUSED TO CREDIT MANAGEMENT'S EVIDENCE THAT THE GRIEVANT WAS NOT
QUALIFIED FOR PROMOTION TO THE JOURNEYMAN LEVEL BECAUSE HER WORK
PERFORMANCE WAS DEFICIENT IN TERMS OF TIMELINESS, PLANNING, ORGANIZING,
SETTING PRIORITIES, AND DECISION MAKING. INSTEAD, THE ARBITRATOR RULED
THAT "(T)HE MATTER OF PERFORMANCE . . . BOILS DOWN TO A NUMERICAL,
QUANTITATIVE ANALYSIS, AND IS NOT A SUBJECTIVE QUALITATIVE QUESTION . .
. NUMBERS OF FILES COMPLETED CAN BE THE DISTINGUISHING FEATURE BETWEEN
THE VARIOUS GS LEVELS." THUS, THE ARBITRATOR HELD THAT ONLY THE
GRIEVANT'S PRODUCTIVITY WAS PROBATIVE OF THE GRIEVANT'S QUALIFICATION
FOR PROMOTION. AS TO THE GRIEVANT'S PRODUCTIVITY, THE ARBITRATOR
EXPRESSLY JUDGED THAT HER PRODUCTIVITY OFFERED "GOOD ARGUMENTS . . . PRO
AND CON, FOR HER PROMOTION AND AGAINST HER PROMOTION" AND THAT
CONSEQUENTLY "(T)HE STATISTICAL EVIDENCE SIMPLY IS NOT CONCLUSIVE."
NEVERTHELESS, BECAUSE SUCH EVIDENCE DID NOT CLEARLY AND CONVINCINGLY
DEMONSTRATE TO THE ARBITRATOR THAT THE GRIEVANT WAS NOT ENTITLED TO
PROMOTION, THE ARBITRATOR AS HIS AWARD SUSTAINED THE GRIEVANCE AND
ORDERED THE GRIEVANT RETROACTIVELY PROMOTED TO GS-10 AS OF MAY 6, 1979.

IN ITS FIRST EXCEPTION THE AGENCY CONTENDS THAT THE ARBITRATOR'S
AWARD OF RETROACTIVE PROMOTION WITH BACKPAY IS DEFICIENT BECAUSE IT IS
CONTRARY TO THE BACK PAY ACT OF 1966. /2/ IN SUPPORT OF THIS EXCEPTION,
THE AGENCY ARGUES THAT IN THE CIRCUMSTANCES OF THIS CASE AN AWARD OF
RETROACTIVE PROMOTION AND BACKPAY IS NOT AUTHORIZED BY THE ACT. IN
OPPOSITION THE UNION ARGUES THAT BECAUSE THE ARBITRATOR FOUND AN
UNJUSTIFIED AND UNWARRANTED PERSONNEL ACTION, THE STATUTORY REQUIREMENTS
OF THE BACK PAY ACT HAVE BEEN MET.

FOR THE REASONS THAT FOLLOW, THE AUTHORITY FINDS THAT THE AWARD IS
DEFICIENT AS CONTRARY TO THE BACK PAY ACT AND MUST BE MODIFIED
ACCORDINGLY. THE BACK PAY ACT MAKES IT CLEAR THAT AN AWARD OF
RETROACTIVE PROMOTION AND BACKPAY IS ONLY AVAILABLE WHEN THE EMPLOYEE
WOULD HAVE RECEIVED THE PROMOTION HAD THE EMPLOYEE NOT SUFFERED AN
UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION. 5 U.S.C. 5596(B)(1)(S)(I);
VETERANS ADMINISTRATION HOSPITAL AND AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LODGE 2201, 4 FLRA NO. 57(1980). THIS IS BECAUSE RELIEF
UNDER THE ACT IS INTENDED TO MAKE THE AGGRIEVED EMPLOYEE WHOLE-- THAT
IS, TO PLACE THE EMPLOYEE IN THE POSITION THE EMPLOYEE WOULD ORIGINALLY
HAVE ACHIEVED BUT FOR THE UNWARRANTED ACTION. SEE VA HOSPITAL AT 6 OF
DECISION. ACCORDINGLY, IN ORDER FOR A RETROACTIVE PROMOTION AND BACKPAY
TO BE AUTHORIZED UNDER THE ACT, THERE MUST BE A DETERMINATION NOT ONLY
THAT THE EMPLOYEE HAS SUFFERED AN UNJUSTIFIED OR UNWARRANTED PERSONNEL
ACTION WITHIN THE MEANING OF THE ACT, BUT ALSO THAT SUCH ACTION DIRECTLY
RESULTED IN THE DENIAL OF A PROMOTION TO THE AGGRIEVED EMPLOYEE THAT THE
EMPLOYEE WOULD OTHERWISE HAVE RECEIVED. ID.

IN TERMS OF THIS CASE, THE AUTHORITY FINDS THAT THE ARBITRATOR HAS
NOT MADE THE NECESSARY FINDING THAT BUT FOR MANAGEMENT'S VIOLATION OF
THE AGREEMENT BY FAILING TO PROPERLY INSTITUTE THE CAREER LADDER PLAN,
MANAGEMENT WOULD ORIGINALLY HAVE PROMOTED THE GRIEVANT TO THE FULL
PERFORMANCE, JOURNEYMAN LEVEL OF THE CAREER LADDER. THE ARBITRATOR'S
FINDING, THAT IT WAS ONLY FAIR TO GRANT THE GRIEVANT A PROMOTION IN VIEW
OF MANAGEMENT'S FAILURE TO PROVIDE HER WITH SPECIFIC SUGGESTIONS ON HOW
SHE COULD REMEDY HER WORK DEFICIENCIES AND FAILURE TO SPECIFICALLY
CHARACTERIZE THE PERFORMANCE NECESSARY FOR PROMOTION TO THE JOURNEYMAN
LEVEL, DOES NOT ESTABLISH THAT BUT FOR MANAGEMENT'S FAILURES, MANAGEMENT
WOULD ORIGINALLY HAVE PROMOTED THE GRIEVANT TO THE JOURNEYMAN LEVEL OF
THE CAREER LADDER. IN SUCH CIRCUMSTANCES IT IS NECESSARY TO
RECONSTRUCT, ON THE BASIS OF THE EVIDENCE PRESENTED, WHAT THE
RESPONSIBLE AGENCY OFFICIALS WOULD HAVE DONE IF THE UNWARRANTED ACTIONS
HAD NOT OCCURRED. THUS, IN THIS CASE, IN ORDER TO AWARD A RETROACTIVE
PROMOTION AND BACKPAY IN ACCORDANCE WITH THE BACK PAY ACT, THE
ARBITRATOR HAD TO FIND THAT IF THE CAREER LADDER HAD BEEN PROPERLY
INSTITUTED, MANAGEMENT WOULD HAVE PROMOTED THE GRIEVANT IN 1979.
HOWEVER, THE RECORD EVIDENCE AS SET FORTH BY THE ARBITRATOR INDICATES
THAT IN ANY EVENT MANAGEMENT WOULD NOT HAVE PROMOTED THE GRIEVANT
BECAUSE HER WORK PERFORMANCE WAS DEFICIENT IN TERMS OF TIMELINESS,
PLANNING, ORGANIZING, SETTING PRIORITIES, AND DECISION MAKING. IN SUM,
THE ARBITRATOR FAILED TO EXPRESSLY MAKE THE FINDINGS REQUISITE TO A
PROPER ORDER OF RETROACTIVE PROMOTION AND BACKPAY AND HIS AWARD MUST BE
MODIFIED ACCORDINGLY. /3/

FOR THE FOREGOING REASONS, AND PURSUANT TO SECTION 2425.4 OF THE
AUTHORITY'S RULES, THE ARBITRATOR'S AWARD IS MODIFIED BY STRIKING

JENA FOREST IS ENTITLED TO THE GS-10, STEP 1 RATE ON AND AFTER MAY 6,
1979.

ISSUED, WASHINGTON, D.C., JANUARY 15, 1982

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES: ---------------

/1/ 5 U.S.C. 7122(A) PROVIDES:

(A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
AUTHORITY ON EXCEPTION TO ANY ARBITRATOR'S AWARD PURSUANT TO THE
ARBITRATION (OTHER THAN AN AWARD RELATING TO A MATTER DESCRIBED IN
SECTION 7121(F) OF THIS TITLE). IF UPON REVIEW THE AUTHORITY FINDS THAT
THE AWARD IS DEFICIENT--

(1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION; OR

(2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
PRIVATE SECTOR

LABOR-MANAGEMENT RELATIONS;

THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
CONCERNING THE AWARD AS IT CONSIDERS NECESSARY, CONSISTENT WITH
APPLICABLE LAWS, RULES, OR REGULATIONS.

/2/ 5 U.S.C. 5596(1976 & SUPP. III 1979).

/3/ IN VIEW OF THIS DECISION, IT IS NOT NECESSARY FOR THE AUTHORITY
TO ADDRESS THE AGENCY'S OTHER EXCEPTION TO THE AWARD.