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56 FLRA No. 53
U.S. Department of the Army, Army Missile Command Multiple Launch Rocket System Project Office Redstone, Alabama and AFGE, Local 1858 f (Ferguson, Arbitrator), 0-AR-3157 (Decided May 5, 2000)
The Arbitrator found that the Agency forced the grievant to transfer to another department in order to noncompetitively promote the grievant's co-worker from GS-12 to GS-13. The Arbitrator ordered the Agency to promote the grievant to GS-13 with backpay from July 25, 1995. The Agency challenged only the remedy portion of the award.
The Authority found that the award was contrary to the Back Pay Act. Noting the requirements of the Back Pay Act, the Authority found that there was no finding by the Arbitrator that the grievant would have been promoted but for the Agency's improper use of noncompetitive promotion procedures. Instead, the Arbitrator granted the grievant a noncompetitive promotion based solely on his understanding of Agency remedial policy once a misuse of noncompetitive promotion procedures has occurred.
The Back Pay Act specifically requires that the unjustified or unwarranted personnel action must have "resulted in the withdrawal or reduction of" the employee's pay. Here, the Authority found that the Arbitrator made no finding that the grievant would have been selected for this promotion but for the improper promotion of the other employee. Therefore, the award was deficient as contrary to the Back Pay Act, 5 U.S.C. § 5596. As the remedy awarded was contrary to the Back Pay Act, it was set aside. The Authority modified the award by striking the portion of the Arbitrator's decision providing the grievant with a promotion and backpay, and it was remanded to the parties for consideration of a remedy consistent with this decision.