By David Worley
In Department of Justice, 131 LA 550 (Moreland 2013), the arbitrator held that the denial of a promotion to a federal corrections officer was improper when the only reason for the denial was the existence of an excessively long ongoing investigation that implicated the grievant by mistake. Because the only clear reason for the denial of promotion was the improper investigation, and the employer did not enjoy unfettered discretion in determining promotions as dictated by statute, the CBA, and relevant regulations, the denial was improper and the grievance was sustained. The arbitrator also determined it was within arbitral authority to compel a promotion.
The grievant was implicated in an investigation when an inmate accused another officer, with a similar name, of misconduct. Through an innocent error, the investigation was opened in the grievant’s name instead. The grievant, after being called back from his vacation, explained the mix up, but the investigation remained open for over two years. During this period, the grievant was denied a promotion that was awarded to the officer who was actually accused of the misconduct.
While the employer contended that they could assign promotions as they felt proper, the arbitrator found this was clearly not the case. Both the CBA and federal regulations required that promotions be based on merit. Further, there was no allowance that an open investigation could derail a promotion. Finally, the arbitrator noted that the investigation should have been closed at the time of the promotion anyway.
Had the Agency simply taken competent and responsible steps to immediately correct their mistake and close the unwarranted investigation of the Grievant, even after the Grievant demonstrated to the Agency that their investigation of him was in error, then the Grievant’s stellar career would not have become damaged and stymied from a clearly deserved promotion.
Finally, the arbitrator addressed the issue of whether he had the authority to grant a promotion. The agency argued this was an infringement on their management rights, but as the arbitrator noted previously, the agency had no right to improperly deny a promotion.
In the case at bar, management lacked the legal right to consider hiring/promotion factors other than those prescribed by law, regulation, negotiated program statement, and/or contract. Accordingly, the correction of the Agency’s unlawful conduct pursuant to this arbitration award cannot logically be deemed an infringement upon the Agency’s rights, as there is no inconsistency between the two.
Finding sufficient support for the grievance and arbitral authority to support the decision, the grievant was awarded the promotion, back-dated with pay from the time of the denial.
