U.S. Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base and American Federation of Government Employees, Local 916 (Authority decision, May 17, 1984)

Final FLRA decision. The Authority modified an arbitration award under 5 U.S.C. § 7122(a), replacing retroactive promotion and backpay with special consideration for repromotion. Judicial review under 5 U.S.C. § 7123(a) generally does not extend to an order involving an arbitral award unless the order involves an unfair labor practice under 5 U.S.C. § 7116.

Plain-English summary

An arbitrator found that Tinker Air Force Base failed to give a demoted employee the special consideration owed to a person eligible for repromotion to WG-12. The arbitrator ordered retroactive promotion with backpay and benefits. The Authority held that the Back Pay Act required a finding that the employee would have been selected but for the violation, and the award contained no such finding. It replaced the remedy with special consideration for repromotion to an appropriate WG-12 vacancy.

Decision snapshot

• Authority: Back Pay Act requirements under 5 U.S.C. § 5596.
• Outcome: Arbitration remedy modified; retroactive promotion and backpay removed.
• Key point: Failure to give special consideration alone did not prove the employee would have received a promotion.

Full text (FLRA public release)

[ v14 p642 ]

14:0642(88)AR

The decision of the Authority follows:

14 FLRA No. 88

UNITED STATES AIR FORCE,
OKLAHOMA CITY AIR LOGISTICS CENTER,
TINKER AIR FORCE BASE, OKLAHOMA
Agency

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES UNION, LOCAL 916, AFL-CIO
Union

Case No. O-AR-529

DECISION

This matter is before the Authority on exceptions to the award of Arbitrator Edmund W. Schedler 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 dispute in this matter concerns the Activity's failure to repromote the grievant, a repromotion eligible, to a WG-12 position, the grade from which he had been demoted without personal cause and not at his request. The Arbitrator determined that the Activity violated the repromotion eligible provisions of Federal Personnel Manual (FPM) chapter 335 /1/ and ordered that the grievant be offered repromotion to WG-12, retroactive to March 30, 1982, with backpay and benefits.

In one of its exceptions, the Agency contends that the award is contrary to the Back Pay Act, 5 U.S.C. 5596. The Authority agrees.

The Authority has consistently held in cases involving a failure to promote that in order for an award of retroactive promotion and backpay to be authorized under the Back Pay Act, there must not only be a determination that the grievant was affected by an unjustified or unwarranted personnel action, but also a determination that such unwarranted action directly resulted in the denial of a promotion that the employee would otherwise have received. E.g., Action and Action Employees Union, American Federation of State, County and Municipal Employees, Local 2027, 11 FLRA No. 89 (1983). Moreover, the Authority has expressly held that the failure to accord a repromotion-eligible employee the special consideration for promotion to which the employee is entitled cannot constitute the requisite finding that but for such unwarranted action, the grievant would in fact have been selected for promotion. Id. at 2. Consequently, in terms of this case, the Arbitrator failed to make the determination necessary for a proper award of a retroactive promotion and backpay. Therefore, the award is deficient as contrary to the Back Pay Act and must be modified to provide an appropriate remedy. Id. Accordingly, the award is modified to provide as follows: /2/

The grievant is entitled to special consideration for repromotion to any appropriate vacancy at the WG-12 level.

Issued, Washington, D.C., May 17, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ The Arbitrator cited to provisions of FPM chapter 335 which had been superseded. However, the repromotion eligible provisions have at all relevant times remained substantially unchanged. See FPM Letter 335-12, December 29, 1978.

/2/ In view of this decision, it is not necessary to address the other exceptions.