17:0592(88)AR - Health Care Financing Administration and AFGE Local 1923 -- 1985 FLRAdec AR
[ v17 p592 ]
The decision of the Authority follows:
17 FLRA No. 88 HEALTH CARE FINANCING ADMINISTRATION Agency and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1923, AFL-CIO Union Case No. 0-AR-428 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Arnold Ordman 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 of whether the grievant was entitled to a retroactive temporary promotion was submitted to arbitration pursuant to a grievance procedure negotiated by the parties. Apart from this procedure there was no collective bargaining agreement in effect between the parties during the time material to this matter. The Arbitrator determined that the grievant had performed the duties of a higher-grade position for more than 120 days without the approval of the Office of Personnel Management (OPM) and that at such time under the rationale of the decisions of the Comptroller General in Turner-Caldwell, 55 Comp.Gen. 539 (1975), aff'd on reconsideration 56 Comp.Gen. 427 (1977), the Agency's practice was to grant claims for retroactive temporary promotions of employees who had been detailed to a higher-grade position for more than 120 days without prior OPM approval. Accordingly, despite the order of the court in Wilson v. U.S., No. 324-81C (Ct. Cl. Oct. 23, 1981), issued before the hearing and submitted to the Arbitrator, the Arbitrator awarded the grievant a retroactive temporary promotion with backpay for the period of time in which the grievant's detail exceeded 120 days. In one of its exceptions the Agency essentially contends on the basis of the order in Wilson that the award is deficient because the Arbitrator's award of a retroactive promotion and backpay is not authorized by either applicable law and regulation pertaining to details or the Back Pay Act, 5 U.S.C. 5596. The Authority agrees. In Wilson v. U.S. the plaintiff federal employee had sought on the basis of the Turner-Caldwell decisions of the Comptroller General a retroactive temporary promotion and backpay for an alleged extended detail to a higher-grade position. In the Turner-Caldwell decisions the Comptroller General had essentially held that the remedy for an agency's failure to obtain the required prior approval to extend a detail to a higher-grade position beyond 120 days was a temporary promotion and backpay for the aggrieved employee retroactive to the 121st day of the detail. Rejecting those decisions of the Comptroller General, the Court of Claims held that neither the statutory and Federal Personnel Manual provisions limiting details to 120 days, 5 U.S.C. 3341; FPM chaps. 300, 335, nor the Back Pay Act authorizes a retroactive temporary promotion with backpay for a detail to a higher-grade position for more than 120 days when the required approval of OPM is not obtained. Subsequently, the Comptroller General overruled the Turner - Caldwell decisions and stated that Wilson would be followed in all pending and future claims. Turner-Caldwell, 61 Comp.Gen. 408 (1982). Thus, in terms of this case where the Arbitrator's award was issued after both the order in Wilson and the overruling of the Turner - Caldwell decisions by the Comptroller General, the Authority finds that the award is contrary to law and regulation pertaining to extended details and is contrary to the Back Pay Act. The Authority further finds that with no collective bargaining agreement between the parties and with no apparent agency regulation mandating promotions, the Arbitrator's award is not otherwise authorized by his acknowledgement of the Agency's compliance at the time of the grievant's detail with Turner - Caldwell decisions. Cf. U.S. Department of Justice, Immigration and Naturalization Service and National Immigration and Naturalization Service Council, American Federation of Government Employees, Local 2805, 15 FLRA No. 163 (1984) (in which the Authority stated that it had not been shown that Wilson precludes an arbitrator from appropriately awarding backpay to remedy a violation of a provision of a collective bargaining agreement); 61 Comp.Gen. 403 (1982) (in which the Comptroller General held that a violation of a provision in an agency regulation making temporary promotions mandatory for details to higher-grade positions after 60 days was compensable under the Back Pay Act). Accordingly, the award is set aside. /1/ Issued, Washington, D.C., April 19, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ In view of this decision it is not necessary to address the Agency's other exceptions.