Fort Bliss Army Air Defense Center and NAGE Local R14-22 (Authority decision, September 29, 1982)

Final FLRA decision. The Authority resolves exceptions to an arbitral award under 5 U.S.C. § 7122. Judicial review under 5 U.S.C. § 7123(a)(1) generally does not extend to orders involving arbitral awards unless an order involves an unfair labor practice under § 7116. This order does not decide an unfair labor practice.

Plain-English summary

An arbitrator found that Fort Bliss had delayed promotions for two employees and ordered retroactive promotions and backpay to November 1978. The Authority held that the Back Pay Act did not authorize that remedy because the delay occurred before the promotions were approved. It set aside paragraph 4 of the award, which granted retroactive promotions with backpay.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a).
• Outcome: Paragraph 4 of award set aside; remaining award left in place.
• Key point: Backpay for a delayed promotion required prior approval by the authorized official.

Full text (FLRA public release)

[ v10 p161 ]

10:0161(32)AR

The decision of the Authority follows:

10 FLRA No. 32

U.S. ARMY AIR DEFENSE CENTER,
FORT BLISS, TEXAS
Activity

and

NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES,
LOCAL R-14-22
Union

Case No. O-AR-314

DECISION

THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
ARBITRATOR ANNE HOLMAN WOOLF 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. THE UNION DID
NOT FILE AN OPPOSITION.

THE DISPUTE IN THIS MATTER CONCERNS A DELAY IN THE PROMOTION OF TWO
EMPLOYEES AT THE ACTIVITY. A GRIEVANCE WAS FILED PROTESTING THE DELAY
THAT WAS ULTIMATELY SUBMITTED TO ARBITRATION.

THE ARBITRATOR STATED THAT THE ACTIVITY HAD AN OBLIGATION UNDER THE
PARTIES' COLLECTIVE BARGAINING AGREEMENT TO ADMINISTER AND PROCESS
PROMOTION PROCEDURES AS EFFICIENTLY AS POSSIBLE. IN TERMS OF THIS CASE,
THE ARBITRATOR FOUND THAT THE PROMOTION ACTION APPROPRIATELY SHOULD HAVE
BEEN CONCLUDED AND EFFECTUATED BY NOVEMBER 28, 1978. CONSEQUENTLY, SHE
FOUND THAT THE DELAY IN THE PROMOTION ACTION BEYOND THAT DATE, WHICH
SUBJECTED THE ACTION TO A PROMOTION FREEZE SO THAT THE GRIEVANTS WERE
NOT PROMOTED UNTIL 1980, CONSTITUTED A VIOLATION OF THE PARTIES'
AGREEMENT BUT FOR WHICH THE GRIEVANTS WOULD HAVE BEEN PROMOTED ON
NOVEMBER 28, 1978. THEREFORE, AS HER AWARD IN THIS RESPECT THE
ARBITRATOR ORDERED THAT THE GRIEVANTS' SUBSEQUENT PROMOTIONS BE MADE
RETROACTIVE WITH BACKPAY TO NOVEMBER 28, 1978.

IN ITS EXCEPTION THE AGENCY CONTENDS THAT THE AWARD IS CONTRARY TO
THE BACK PAY ACT, 5 U.S.C. 5596. THE AUTHORITY AGREES. AS THE
AUTHORITY EXPLAINED IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, SAN
FRANCISCO REGION AND OFFICE OF PROGRAM OPERATIONS, FIELD OPERATIONS,
SOCIAL SECURITY ADMINISTRATION, SAN FRANCISCO REGION, 7 FLRA NO.
98(1982), THE BACK PAY ACT PROVIDES THE STATUTORY AUTHORITY TO AWARD A
RETROACTIVE PROMOTION AND BACKPAY IN PROMOTION DELAY CASES ONLY IF AN
UNWARRANTED DELAY IS SUBSEQUENT TO APPROVAL OF THE PROMOTION BY THE
PROPERLY AUTHORIZED OFFICIAL. ACCORD DEPARTMENT OF HEALTH AND HUMAN
SERVICES, SOCIAL SECURITY ADMINISTRATION, AREA III AND AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3231, 8 FLRA NO.
50(1982). THUS, IT IS ESSENTIAL THAT THE PROMOTION ALREADY HAVE BEEN
APPROVED BECAUSE IT IS ONLY WHEN THE UNWARRANTED DELAY IS SUBSEQUENT TO
THE PROMOTION DECISION THAT IT CAN PROPERLY BE DETERMINED CONSISTENT
WITH THE ACT THAT THE UNWARRANTED ACTION DIRECTLY RESULTED IN THE
AGGRIEVED EMPLOYEE'S PROMOTION BEING DELAYED BEYOND THE DATE THAT IT
OTHERWISE WOULD HAVE BEEN EFFECTIVE. SEE OFFICE OF PROGRAM OPERATIONS
AT 3. IN THIS CASE THE UNWARRANTED DELAY PRECEDED THE PROMOTION
DECISION, AND CONSEQUENTLY THE RETROACTIVE PROMOTION WITH BACKPAY OF THE
GRIEVANTS IS NOT AUTHORIZED BY THE BACK PAY ACT. ACCORDINGLY, PARAGRAPH
4 OF THE ARBITRATOR'S AWARD IS SET ASIDE.

ISSUED, WASHINGTON, D.C., SEPTEMBER 29, 1982

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY