Grievance Involving Restoration to Former Position

An agency petitioned for a review of a grievance examiner's award and asked if it may, pursuant to the examiner's award, properly restore an employee to his former position with backpay under the authority of the Back Pay Act of 1966. The employee accepted a reduction in grade rather than a reduction in force (RIF), and was accorded salary retention and an official promise of priority consideration for repromotion during the ensuing 2-year period. This period expired without the employee being repromoted. When his request for an extension of the priority consideration period was denied, he initiated the first stage of an informal grievance. Eventually a formal grievance in writing was presented and a subsequent hearing was held. The grievance examiner's report concluded that the initiation of the downgrading action, the documents connected with it, the placement failures during the 2-year priority consideration period, the agency delays, apparent lack of agency interest, and apparent ineptness in the advice and assistance to the employee clearly met the definition of unjustified or unwarranted personnel action. It recommended that the employee be restored to a position equal to the rank and grade of his former postion, and that all backpay be restored to him. On the basis of the record, GAO believed that the grievance examiner and the deciding official did have the authority to render a determination on the issue according to regulations. GAO found that the agency's demonstrated failure to provide the employee proper priority consideration in filling job vacancies constituted the unjustified or unwarranted personnel action. The agency's noncompliance with the nondiscretionary provisions of its directives which describe priority considerations and placement selection procedures incident to a RIF rendered the reduction to a lower grade procedurally defective. Its failure to carry out its promise of consideration for repromotion was a procedural violation of the agency's regulations, and thus, constituted unjustified or unwarranted personnel action within the meaning of the Back Pay Act. It was held that the employee was entitled to receive backpay under the authority of the act.