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56 FLRA No. 110
National Federation of Federal Employees Local 2030 and U.S. Department of the Interior Bureau of Land Management Idaho Falls District Office, Idaho Falls, Idaho (Wren, Arbitrator), 0-AR-3224 (Decided September 21, 2000)
The Arbitrator sustained a grievance alleging that the Agency failed to promote the grievant in a timely manner. The Arbitrator ordered the Agency to retroactively promote the grievant with back pay. Also, in a cover letter to the award, the Arbitrator split the arbitration costs and requested payment from each party. The Authority concluded that the Agency and the Union failed to establish that the award was deficient under section 7122(a) of the Statute.
The Authority found that the Arbitrator's determination requiring the costs and expenses of the arbitration to be split between the parties was consistent with the parties' agreement and rejected the claim that the award failed to draws its essence from the agreement. The Authority also rejected the allegation that the award was based on nonfacts.
Lastly, the Authority concluded that the award of retroactive promotion and back pay was consistent with the Back Pay Act. ··___··In this regard the Authority noted that a career-ladder promotion is the direct result of an agency's decision to select an employee and place the employee in a career-ladder position in the agency. The agency's selection of an employee and the placement of that employee in a career-ladder position also constitutes the agency's decision to promote that employee noncompetitively at appropriate stages in the employee's career up to the full performance level of the position, once the requisite conditions have been met. The Arbitrator found that provisions in the parties' Agreement, including Article 15.6B, required management to initiate the "nondiscretionary" process whereby an employee is promoted to the next higher grade once the employee has satisfied all the requirements for a career ladder promotion, and that the Agency failed to comply with these provisions. The Arbitrator further found that the grievant had not only satisfied all the requirements for promotion from GS-5 to GS-6, but was actually working at the full performance level of GS-7.
Thus, the Arbitrator's findings established that the grievant occupied a career ladder position and, in accordance with the terms of the Agreement, was entitled to a nondiscretionary career ladder promotion when the requisite conditions were met. Further, the Arbitrator's finding that the Agency failed to comply with the Agreement by failing to initiate the nondiscretionary process to timely promote the grievant satisfied the requirement under the Back Pay Act for an unjustified or unwarranted personnel action but for which the grievant would have been promoted to GS-6 as of April, 1998.