American Federation of Government Employees, Local 2811 (Union) and Government District Office, Social Security Administration, St. Paul, Minnesota (Activity) 

 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.