15:0862(163)AR - Justice, INS and National INS Council, AFGE Local 2805 -- 1984 FLRAdec AR
[ v15 p862 ]
The decision of the Authority follows:
15 FLRA No. 163 U.S. DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE Agency and NATIONAL IMMIGRATION AND NATURALIZATION SERVICE COUNCIL, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2805 Union Case No. O-AR-427 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Edgar A. Jones, Jr. 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. The dispute in this matter concerns the alleged detail of the grievant to a higher-grade position. A grievance was filed and the matter was ultimately submitted to arbitration. The Arbitrator essentially determined that the grievant had been detailed to perform substantially all the duties of a higher-grade position for an extended period of time for which she was entitled under the parties' collective bargaining agreement to have been compensated at the higher rate of pay from the first day of the detail. Accordingly, he awarded her backpay for the period of the detail in the amount of the difference in what she was paid and what she should have been paid. In its first and second exceptions the Agency contends that the award is contrary to law and regulation and is based on a nonfact. However, in American Federation of Government Employees, Local 1923 and Social Security Administration, Headquarters, Bureaus and Offices, 12 FLRA No. 96 (1983), the Authority expressly denied such exceptions to an arbitration award which, as in this case, essentially determined that an employee performed the duties of a higher-grade position for a period of time which entitled the employee under the parties' collective bargaining agreement to have been temporarily promoted to the higher-grade position and awarding the grievant backpay for the Activity's failure to do so in violation of the agreement. The Authority concluded that the agency's exceptions that such award was contrary to law, rules or regulation and was based on a nonfact constituted nothing more than disagreement with the arbitrator's interpretation and application of the parties' agreement. The Agency's first and second exceptions in this case , likewise constitute disagreement with the Arbitrator's interpretation and application of the parties' collective bargaining agreement. Accordingly, they provide no basis for finding the award deficient and are denied. See also 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 is deficient because the Arbitrator was without jurisdiction in this matter under section 7121(c)(5) of the Statute which excludes from grievance and arbitration most grievances concerning the classification of any position. However, the grievance in this case pertains to whether the grievant was entitled to have been compensated at a higher-rate of pay during the period of an asserted detail and does not directly concern the classification of any position, and accordingly this exception is denied. See U.S. Army Missile Readiness Command and American Federation of Government Employees, Local 1858, 15 FLRA No. 64 (1984); U.S. Department of Labor and American Federation of Government Employees, Local 641, 5 FLRA 60 (1981). In its fourth exception the Agency essentially contends that the award is contrary to the order in Wilson v. U.S., No. 324-81C (Ct. of Cl. Oct. 23, 1981). The Authority concludes that the Agency fails to establish in what manner the award is contrary to the order of the court in Wilson. The court in Wilson held that the statutory and FPM provisions limiting details to 120 days contain no language authorizing either a constructive promotion to or the pay of the position to which detailed when the detail is to a higher-grade position and exceeds the permissible duration. It has not been shown that the order of the court in Wilson precludes an arbitrator from awarding backpay to remedy a violation of a provision of a collective bargaining agreement that has resulted in a reduction of an aggrieved employee's pay, allowances, or differentials. See 5 U.S.C. 5596; Veterans Administration Hospital and American Federation of Government Employees, Lodge 2201, 4 FLRA 419 (1980); accord 61 Comp.Gen. 403 (1982). Accordingly, this exception is denied. In its exceptions, the Agency has also contended that the award is deficient as to the date on which the award of backpay commences. The Agency maintains that because of the time-after-competitive-appointment restriction of 5 CFR 330.501, /1/ the Arbitrator could not award the grievant by a constructive retroactive temporary promotion the pay of the higher-grade position until the grievant had served 3 months (i.e., 90 days) in her appointed position. With the grievant having been hired and appointed on June 1, 1980, the Agency argues that the award must be modified to commence the award of backpay on August 30, 1980, rather than June 16, 1980. The Authority agrees. The Authority has expressly held that an arbitrator cannot consistent with governing civil service law and regulation award as corrective action for an aggrieved employee a temporary promotion to a position made retroactive to a date on which the employee was not qualified for promotion to that position. Adjutant General, State of Michigan, Department of Military Affairs and National Association of Government Employees, 11 FLRA No. 7 (1983). Because it is substantiated that the grievant could not have been temporarily promoted to the higher-grade position until August 30, 1980, rather than June 16, 1980, the award is modified accordingly. Issued, Washington, D.C., August 31, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ 5 CFR 330.501 pertinently provides: "An agency may promote an employee . . . only after 3 months have elapsed since the employee's latest nontemporary competitive appointment."