10:0410(69)AR - Warner Robins Air Logistics Center, Robins AFB, GA and AFGE Local 987 -- 1982 FLRAdec AR



[ v10 p410 ]
10:0410(69)AR
The decision of the Authority follows:


 10 FLRA No. 69
 
 WARNER ROBINS AIR
 LOGISTICS CENTER, ROBINS
 AIR FORCE BASE, GEORGIA
 Activity
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 LOCAL 987
 Union
 
                                            Case No. O-AR-194
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Henry B. Welch filed by the Agency under section 7122(a) of
 the Federal Service Labor-Management Relations Statute (the Statute) and
 part 2425 of the Authority's Rules and Regulations.  The Union filed an
 opposition.
 
    The parties in this case submitted to arbitration with the basic
 facts stipulated a dispute concerning whether the grievant was entitled
 to a permanent noncompetitive promotion.  At all material times the
 grievant has held the position of electronic mechanic, WG-10.  In 1977
 the grievant was detailed to perform work on the MX-3533 frequency
 selector.  On the basis of a classification audit in August 1979, it was
 determined that the duties of the position to which the grievant had
 been and at the time remained detailed were the duties of a higher grade
 position-- electronic mechanic, WG-11.  The grievant's detail was
 terminated September 1, 1979, at which time the grievant returned to his
 permanent WG-10 position.  Because of this determination that the
 grievant had been detailed to a higher grade position for such an
 extended period, he was temporarily promoted to WG-11 for the period of
 August 28, 1977, to September 1, 1979, on a retroactive basis with
 backpay.  However, the grievant in addition claimed an entitlement to a
 permanent noncompetitive promotion to the position to which he had been
 detailed on the basis that it had been upgraded without significant
 change in the duties and responsibilities due to the correction of a
 classification error.  /1/
 
    Before the Arbitrator the Activity maintained that the grievant was
 not entitled to a permanent promotion because he was not the incumbent
 of the upgraded position, but instead remained the incumbent of his
 permanent position from which he had been detailed.  The Arbitrator
 however rejected the Activity's position as an exercise in semantics.
 To the Arbitrator it was sufficient that the grievant was performing and
 had been performing at least since August 1977 the duties of the
 position which the Arbitrator found was upgraded in August 1979 without
 significant change in the duties and responsibilities due to the
 correction of a classification error.  Accordingly, as his award, the
 Arbitrator ordered the grievant permanently promoted noncompetitively to
 WG-11 effective September 1, 1979.
 
    In its first exception the Agency contends that the award is
 deficient because the Arbitrator was without jurisdiction in this matter
 under section 7121(c)(5) of the Statute.  /2/ However, the grievance in
 this case pertains to whether the grievant was entitled to a permanent
 noncompetitive promotion and does not directly concern the
 classification of any position.  Thus, the Agency has not established
 that the Arbitrator was without jurisdiction in this matter by reason of
 section 7121(c)(5), and accordingly this exception is denied.
 
    As one of its other exceptions to the award, the Agency contends that
 the award is contrary to governing provisions of the Federal Personnel
 Manual.  Specifically, the Agency argues that under the FPM the grievant
 was not the incumbent of the upgraded position, and consequently he
 could not properly be granted a permanent noncompetitive promotion to
 WG-11 as awarded by the Arbitrator.  The Authority agrees.
 
    FPM chapter 300, subchapter 8-1 expressly defines a detail as a
 "temporary assignment of an employee to a different position for a
 specified period, with the employee returning to his regular duties at
 the end of the detail." It is further provided that "a position is not
 filled by a detail, as the employee continues to be the incumbent of the
 position from which detailed." Thus, in terms of this case, the grievant
 was the incumbent of his permanent position which as specifically
 stipulated by the parties and expressly acknowledged by the Arbitrator
 was, at all material times, electronic mechanic, WG-10.  Likewise, in
 view of the parties' stipulation as to the grievant's detail, the
 grievant under the provisions of the FPM did not encumber by virtue of
 his detail the upgraded position, and the grievant in accordance with
 the provisions of the FPM reverted to his permanent WG-10 position at
 the termination of his detail.  In this respect the narrow exception of
 FPM chapter 335 to the general requirement of competitive promotion
 procedures has at all relevant times only entitled the incumbent of the
 position which has been upgraded without significant change in the
 duties and responsibilities due to the correction of a classification
 error to permanent noncompetitive promotion.  Thus, contrary to the
 Arbitrator's determination, it is not sufficient for purposes of the
 limited authorization under FPM chapter 335 of a permanent
 noncompetitive promotion that the grievant was and had been temporarily
 assigned to perform the duties of a position which during the period of
 his detail was upgraded.  Because the grievant was not the incumbent of
 that position during the period of his detail to it, but rather remained
 the incumbent of his WG-10 position to which he was properly returned at
 the termination of his detail, the grievant was not entitled to a
 permanent noncompetitive promotion to the upgraded position, and the
 Arbitrator's award of such a promotion is not authorized by FPM chapter
 335.  Consequently, the Arbitrator's award is deficient as contrary to
 the Federal Personnel Manual and accordingly is set aside.  /3/ 
 
 Issued, Washington, D.C., October 29, 1982
 
                                       Ronald W. Haughton, Chairman
                                       Henry B. Frazier III, Member
                                       Leon B. Applewhaite, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ At all relevant times Federal Personnel Manual chapter 335 has
 provided that competitive promotion procedures do not apply to the
 promotion of the incumbent of a position which has been upgraded without
 significant change in the duties and responsibilities due to the
 correction of a classification error.
 
 
    /2/ 5 U.S.C. 7121(c)(5) provides that any grievance concerning "the
 classification of any position which does not result in the reduction in
 grade or pay of an employee" is excluded from