American Federation of Government Employees, Local 148, Council of Prison Locals (Union) and Bureau of Prisons, U.S. Penitentiary, Lewisburg, Pennsylvania (Activity)

 

 7 FLRA No. 14
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 LOCAL 148, COUNCIL OF
 PRISON LOCALS
 Union
 
 and
 
 BUREAU OF PRISONS,
 U.S. PENITENTIARY,
 LEWISBURG, PENNSYLVANIA
 Activity
 
                                            Case No. O-AR-101
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR HERBERT D. ROSSMAN FILED BY THE AGENCY UNDER SECTION 7122(A)
 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
 7122(A)) (THE STATUTE).
 
    ACCORDING TO THE ARBITRATOR, THE DISPUTE IN THIS MATTER AROSE WHEN
 THE GRIEVANT, A WS-11, WAS APPOINTED ACTING GENERAL FOREMAN, WS-15,
 EFFECTIVE JULY 1, 1979.  ON AUGUST 1, 1979, THE GRIEVANT WAS TEMPORARILY
 PROMOTED TO THE WS-15 POSITION AND WAS PAID AT THE WS-15 RATE UNTIL
 AUGUST 19, 1979, WHEN HE RETURNED TO HIS REGULAR POSITION.  A GRIEVANCE
 WAS FILED WHICH WAS ULTIMATELY SUBMITTED TO ARBITRATION CLAIMING THAT
 UNDER THE PARTIES' COLLECTIVE BARGAINING AGREEMENT, THE GRIEVANT WAS
 ENTITLED TO HAVE BEEN PAID AT THE WS-15 RATE AS OF THE FIRST DAY OF THE
 ASSIGNMENT.
 
    THE ARBITRATOR DETERMINED THAT UNDER THE TEMPORARY PROMOTION
 PROVISION OF THE PARTIES' AGREEMENT, /1/ AN EMPLOYEE ASSIGNED TO A
 HIGHER GRADE POSITION, INCLUDING SUPERVISORY POSITIONS, MUST BE PAID AT
 THE HIGHER RATE OF PAY FROM THE FIRST DAY OF THE ASSIGNMENT WHENEVER THE
 ASSIGNMENT IS FOR THREE WEEKS OR LONGER.  ACCORDINGLY, THE ARBITRATOR
 AWARDED THE GRIEVANT THE DIFFERENCE IN PAY BETWEEN WS-11 AND WS-15 FOR
 THE PERIOD OF JULY 1, 1979, TO JULY 31, 1979.
 
    THE AGENCY FILED EXCEPTIONS TO THE ARBITRATOR'S AWARD UNDER SECTION
 7122(A) OF THE STATUTE /2/ AND PART 2425 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR PART 2425).  THE UNION FILED AN OPPOSITION.  /3/
 
    IN ITS FIRST EXCEPTION THE AGENCY CONTENDS THAT THE AWARD IS CONTRARY
 TO THE STATUTE.  IN SUPPORT OF THIS EXCEPTION, THE AGENCY MAINTAINS THAT
 THE ARBITRATOR VIOLATED THE STATUTE BY APPLYING THE TEMPORARY PROMOTION
 PROVISION OF THE AGREEMENT TO A SUPERVISORY POSITION IN DISREGARD TO
 SECTION 7112(B)(1) WHICH EXCLUDES SUPERVISORY POSITIONS FROM BARGAINING
 UNITS.  HOWEVER, THE AGENCY HAS FAILED TO ESTABLISH THAT THE AWARD IS
 CONTRARY TO THE STATUTE.  THE AUTHORITY IN AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO AND AIR FORCE LOGISTICS COMMAND,
 WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 2 FLRA NO. 77 AT 25-27(1980),
 ENFORCED SUB NOM. AS TO OTHER MATTERS IN DEPARTMENT OF DEFENSE V.
 FEDERAL LABOR RELATIONS AUTHORITY, . . . F.2D . . . (D.C. CIR.  1981),
 WITH RESPECT TO A SUBSTANTIALLY IDENTICAL TEMPORARY PROMOTION PROVISION,
 SPECIFICALLY REJECTED A CONTENTION SIMILAR TO THE AGENCY'S IN THIS CASE.
  IN WRIGHT-PATTERSON THE RELEVANT QUESTION BEFORE THE AUTHORITY WAS
 WHETHER A BARGAINING PROPOSAL, PROVIDING FOR A TEMPORARY PROMOTION WHEN
 AN EMPLOYEE IS ASSIGNED TO A HIGHER GRADE POSITION FOR MORE THAN 30
 DAYS, WAS INCONSISTENT WITH LAW TO THE EXTENT IT WOULD APPLY TO
 SUPERVISORY POSITIONS.  IN CONCLUDING THAT THE PROPOSAL WAS WITHIN THE
 DUTY TO BARGAIN, THE AUTHORITY EXPRESSLY REJECTED THE ALLEGATION THAT
 APPLICATION OF SUCH A PROVISION TO SUPERVISORY POSITIONS OUTSIDE THE
 BARGAINING UNI