20:0684(78)AR - SSA and AFGE Local 1923 -- 1985 FLRAdec AR



[ v20 p684 ]
20:0684(78)AR
The decision of the Authority follows:


 20 FLRA No. 78
 
 SOCIAL SECURITY ADMINISTRATION
 Agency
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 1923
 Union
 
                                            Case No. 0-AR-1002
 
                                 DECISION
 
    This matter is before the Authority on an exception to the award of
 Arbitrator James C. Oldham 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 Arbitrator determined that the grievant had been temporarily
 assigned to a position of higher grade from October 25, 1981, until
 March 1984, and that under the express terms of the parties' collective
 bargaining agreement, she was entitled to a temporary promotion
 effective the first day of the assignment.  Accordingly, he awarded the
 grievant a retroactive temporary promotion and backpay from October 25,
 1981, until the day in March 1984 that she returned to her original
 position.
 
    In its exception the Agency contends that the award, in part, is
 contrary to the Back Pay Act, 5 U.S.C. Sec. 5596.  Specifically, the
 Agency maintains that the parties' collective bargaining agreement on
 which the Arbitrator based his award did not become effective until June
 11, 1982.  Thus, the Agency argues that there is no basis under the Back
 Pay Act for the award of retroactive promotion and backpay for the
 period from October 25, 1981, to June 10, 1982.  The Authority agrees.
 
    The Authority has clearly indicated with respect to assignments of
 the duties of, or details to, a higher-grade position for an extended
 period of time that absent a collective bargaining agreement provision
 or agency regulation mandating a temporary promotion in such
 circumstances, an award by an arbitrator of a retroactive temporary
 promotion and backpay is not authorized for such extended assignments or
 details.  Veterans Administration Medical Center, Nashville, Tennessee
 and American Federation of Government Employees, Local No. 2400, 19 FLRA
 No. 46 (1985);  Health Care Financing Administration and American
 Federation of Government Employees, Local 1923, AFL-CIO, 17 FLRA No. 88
 (1985);  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 particular, in VA Medical Center, Nashville, the grievant
 had been detailed to a higher-grade position from January 1980, to March
 22, 1983.  Under the express terms of the parties' collective bargaining
 agreement, which was effective August 13, 1982, the activity had granted
 the grievant a retroactive temporary promotion and backpay for the
 period from August 13, 1982, to March 22, 1983.  When the grievant
 continued to claim an entitlement to a temporary promotion before the
 effective date of the collective bargaining agreement, that claim was
 submitted to arbitration and the arbitrator awarded the grievant a
 retroactive temporary promotion and backpay for the period of the detail
 before the effective date of the agreement.  On the basis of the order
 of the court in Wilson v. U.S., 229 Ct.C1. 510 (1981) and the decision
 of the Comptroller General in Turner-Caldwell, 61 Comp.Gen. 408 (1982),
 the Authority determined that without the contractual basis of the
 parties' collective bargaining agreement, the award was contrary to law
 and regulation pertaining to extended details and was contrary to the
 Back Pay Act.  In terms of this case, the Authority finds that the award
 is likewise contrary to law and regulation pertaining to extended
 details and to the Back Pay Act to the extent that a retroactive
 temporary promotion and backpay has been awarded for the period of the
 assignment that preceded the effective date of the parties' 1982
 agreement.
 
    Accordingly, the award is modified to provide as follows:
 
          The grievance in this case is sustained.  It is ordered that
       the grievant be reimbursed for the difference between her earnings
       and what she would have earned at the CS-4 level from the period
       June 11, 1982, until her return to her original position in March
       1984.
 
    Issued, Washington, D.C., November 14, 1985