Army Missile Command Redstone Arsenal and AFGE Local 1858 (Authority decision, July 25, 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 ordered retroactive promotion and backpay for a secretary who had been reassigned. The Authority found no determination that she would have received the promotion but for the improper reassignment. It removed the promotion and backpay provisions from the award.

Decision snapshot

• Authority: Arbitration review under 5 U.S.C. § 7122(a) and the Back Pay Act.
• Outcome: Retroactive promotion and backpay provisions struck.
• Key point: A finding of improper reassignment alone did not establish a lost promotion.

Full text (FLRA public release)

[ v19 p265 ]

19:0265(38)AR

The decision of the Authority follows:

19 FLRA No. 38

U.S. ARMY MISSILE COMMAND
REDSTONE ARSENAL
Activity

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1858
Union

Case No. O-AR-936

DECISION

This matter is before the Authority on an exception to the award of Arbitrator William D. Ferguson 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.

A grievance was filed and submitted to arbitration essentially challenging the reassignment of the grievant. According to the Arbitrator's award, the grievant was one of two GS-6 secretaries in a project office, and the dispute arose as the result of an attempt, which was rejected by the Activity's personnel office, to noncompetitively promote the other secretary to GS-7, but not the grievant. Thereafter, the grievant was reassigned because of an anticipated reduction-in-force and the promotion to GS-7 was announced competitively. The grievant was one of the final three candidates for the promotion, but the other secretary in the project office was selected for the competitive promotion. The Arbitrator determined that the Activity had violated provisions of the parties' collective bargaining agreement by failing to inform the Union of the anticipated reduction-in-force that resulted in the reassignment of the grievant. The Arbitrator further found that the reassignment of the grievant violated the parties' agreement because the reassignment was for the purpose of preventing her from being promoted. Accordingly, the Arbitrator ruled that the grievant was entitled, on her request, to be promoted the same as the other project office secretary with backpay.

In its exception the Agency contends that the award of retroactive promotion with backpay is contrary to the Back Pay Act, 5 U.S.C. 5596. The Authority agrees.

The Authority has uniformly stated that the Back Pay Act requires not only a determination that the aggrieved employee was affected by an unwarranted personnel action, but also a determination that such unwarranted action directly resulted in the withdrawal or reduction in the pay, allowances, or differentials that the employee otherwise would have earned or received. Thus, in order for an award of backpay by an arbitrator to be authorized by the Act, the arbitrator must find that an agency personnel action with respect to the grievant was unjustified or unwarranted, that such unjustified or unwarranted personnel action directly resulted in the withdrawal or reduction of the grievant's pay, allowances, or differentials, and that but for such action, the grievant otherwise would not have suffered such withdrawal or reduction of pay, allowances, or differentials. E.g., American Federation of Government Employees, Local 3553, AFL-CIO and Veterans Administration Medical Center, New Orleans, Louisiana, 18 FLRA No. 65 (1985). In terms of this case, the Arbitrator, as noted, determined that the reassignment of the grievant violated the parties' collective bargaining agreement. However, the Arbitrator did not expressly find that this unwarranted action directly resulted in the failure of the grievant to be promoted, especially the failure to be promoted "the same as" the other secretary who was promoted competitively instead of the grievant. In this respect, the Arbitrator expressly concluded that if the objective was to merely promote the other secretary and not promote the grievant, this could have been accomplished without having reassigned the grievant by the competitive promotion procedures which in fact resulted in the competitive promotion of the other secretary and not the grievant. Thus, there is no finding that but for the unwarranted reassignment, the grievant otherwise definitely would have been promoted. Accordingly, the Authority concludes that the Arbitrator has not made the findings necessary for an award of a retroactive promotion and backpay, and consequently the award in this respect is deficient as contrary to the Back Pay Act. Therefore, the award is modified to strike all provisions for retroactive promotion and backpay. Issued, Washington, D.C., July 25, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY