17:0592(88)AR - Health Care Financing Administration and AFGE Local 1923 -- 1985 FLRAdec AR



[ v17 p592 ]
17:0592(88)AR
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 Gener