15:0442(90)AR - Georgia Air NG, 165th Tactical Airlift Group, Savannah, GA and Georgia ACT -- 1984 FLRAdec AR
[ v15 p442 ]
The decision of the Authority follows:
15 FLRA No. 90 GEORGIA AIR NATIONAL GUARD, 165th TACTICAL AIRLIFT GROUP, SAVANNAH, GEORGIA Activity and GEORGIA ASSOCIATION OF CIVILIAN TECHNICIANS Union Case No. O-AR-337 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Geo. Savage King filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. /1/ The dispute in this matter concerns the grievant's claim that he had performed the duties of a higher-grade position for an extended period that entitled him to a temporary promotion under the provisions of the parties' collective bargaining agreement. The Arbitrator determined that the grievant had performed the duties of a higher-grade position for an extended period for which under the parties' agreement he should have been temporarily promoted. Accordingly, as his award the Arbitrator essentially ordered the grievant retroactively promoted with backpay for the period from November 1, 1978 to June 30, 1980. The Arbitrator also awarded the grievant entitlement to the benefits of grade and pay retention of 5 U.S.C.subchapter VI. In its first exception the Agency essentially contends that the Arbitrator made a classification determination precluded by section 7121(c)(5) of the Statute and in so doing exceeded his authority. The Authority has expressly held that a grievance pertaining to whether the grievant was entitled to a promotion does not directly concern the classification of any position within the meaning of section 7121(c)(5). Warner Robins Air Logistics Center, Robins Air Force Base, Georgia and American Federation of Government Employees, Local 987, 10 FLRA 410 (1982). The Authority therefore concludes that this exception provides no basis for finding the award deficient, and accordingly the exception is denied. In its second exception the Agency essentially contends that the award is deficient because the date chosen by the Arbitrator to commence the retroactive promotion is erroneous under the terms of the parties' collective bargaining agreement. However, this exception constitutes nothing more than disagreement with the Arbitrator's interpretation and application of the temporary promotion provision of the agreement, and accordingly this exception is denied. See American Federation of Government Employees, Local 148, Council of Prison Locals and Bureau of Prisons, U.S. Penitentiary, Lewisburg, Pennsylvania, 7 FLRA 95 (1981). In its third exception, the Agency contends that the award of grade and pay retention benefits is contrary to 5 U.S.C.subchapter VI. The Authority agrees. As noted, the Arbitrator in conjunction with his award of a retroactive temporary promotion also awarded the grievant entitlement to the benefits of retention of the grade and pay of the higher-grade position on his retroactive return to his officially appointed position. The grade and pay provisions of 5 U.S.C. 5362-5363 specifically apply, as is here relevant, to an employee who has been downgraded by placement in another position as the result of reduction-in-force procedures or has been downgraded as the result of a reclassification action. Furthermore, the Office of Personnel Management under 5 U.S.C. 5365 /2/ not only has not extended such provisions to the situation occurring in this case, but moreover has consistently provided that an employee serving under a temporary promotion may not retain a grade or pay rate held during the temporary promotion. 5 Cfr part 536. Consequently, the Authority concludes that the award is deficient in this respect as contrary to 5 U.S.C.subchapter VI and must be modified. Accordingly, the award is modified by striking "and with the benefit of the Grade and Pay Retention provisions of Section 5362, Public Law 95-454 (1978)." Issued, Washington, D.C., August 9, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Office of Personnel Management filed an amicus curiae brief. /2/ Section 5365(a) directs the Office of Personnel Management (OPM) to prescribe regulations implementing the purpose of the subchapter, and section 5365(b) authorizes OPM in certain respects to extend under such regulations the application of all or portions of the provisions of the subchapter.