21:0968(113)AR - Army, New Cumberland Army Depot and AFGE, Local 2004 -- 1986 FLRAdec AR
[ v21 p968 ]
The decision of the Authority follows:
21 FLRA No. 113 DEPARTMENT OF THE ARMY, NEW CUMBERLAND ARMY DEPOT Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2004 Union Case No. 0-AR-1003 DECISION I. STATEMENT OF THE CASE This matter is before the Authority on exceptions to the award of Arbitrator Ernest Weiss 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 Union filed an opposition. /1/ II. BACKGROUND AND ARBITRATOR'S AWARD The issue submitted to the Arbitrator questioned whether the Activity violated the parties' collective bargaining agreement when it failed to temporarily promote the grievant to a WG-5 position. According to the Arbitrator, the grievant, a WG-2 laborer, was granted a temporary promotion to warehouseman-forklift operator, WG-5, for the period February 17, 1980, to June 16, 1980, at which time the grievant returned to his position as laborer, WG-2. Subsequently, the grievant filed a grievance claiming that after the termination of the temporary promotion, he had continued to perform the duties of the WG-5 position. The Arbitrator found that the grievant was regularly and consistently assigned the duties of the WG-5 position. Noting that the parties' agreement provided for a temporary promotion rather than a detail for an extended assignment to a higher-grade position, the Arbitrator further found that the grievant should have been temporarily promoted to the WG-5 position and paid accordingly. Consequently, the Arbitrator ruled that the Activity had violated the collective bargaining agreement when it failed to temporarily promote the grievant to the WG-5 position. As a remedy the Arbitrator awarded as follows: The (Activity) is hereby directed to pay the grievant in accordance with 5 U.S.C. 5596, an amount equal to the difference between a WG-2, which he received, and a WG-5, which he should have received, from thirty (30) days after June 16, 1980, until May 15, 1984, when the assignments ceased. III. FIRST EXCEPTION A. Contentions In its first exception the Agengy contends that the award is contrary to section 7121(c)(5) of the Statute, which expressly precludes any grievance concerning the classification of a position which has not resulted in the reduction in grade or pay of an employee. Specifically, the Agency argues that the grievance was barred and the award is deficient because the substance of the dispute between the parties was the grade level of the duties performed by the grievant. B. Analysis and Conclusions In 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 862 (1984), the grievance concerned whether the grievant was assigned to perform substantially all the duties of a higher-grade position for an extended period of time for which she was entitiled under the parties' collective bargaining agreement to have been compensated at the higher rate of pay. In denying an exception that the grievance was barred by section 7121(c)(5) of the Statute, the Authority specifically ruled that the grievance pertained to whether the grievant should have been compensated at a higher rate of pay during the period of the asserted detail and that therefore the grievance did not directly concern the classification of any position. 15 FLRA at 863. The Authority similarly finds in this case that the grievance pertains to whether the grievant should have been temporarily promoted during the period of the asserted assignment to the WG-5 position and that therefore the grievance does not directly concern the classification of any position. Accordingly, the first exception fails to establish that the award is contrary to section 7121(c)(5) and therefore provides no basis for finding the award deficient. IV. SECOND EXCEPTION A. Contentions In its second exception the Agency contends that the award is contrary to the Back Pay Act, 5 U.S.C. Section 5596. Specifically, the Agency argues that the Arbitrator made no award of a retroactive promotion and made no finding that but for an unwarranted personnel action, the grievant would have been paid at the WG-5 level. The Agency also maintains that in any event the record does not establish that there was a vacant WG-5 position to which the grievant could have been promoted. B. Analysis and Conclusions The Authority has consistently recognized that in order for an award of backpay to be authorized by the Back Pay Act, the arbitrator must find that an agency personnel action was unjustified or unwarranted, that such action directly resulted in the withdrawal or reduction of the grievant's pay, allowances or differentials, and that but for such action, the grievant otherwise would not have suffered such withdrawal or reduction. U.S. Army Aberdeen Proving Ground and Local 2424, International Association of Machinists and Aerospace Workers, AFL-CIO, 19 FLRA No. 35 (1985). In this case the Arbitrator specifically ruled that the Activity had violated the parties' collective bargaining agreement when it failed to temporarily promote the grievant to the WG-5 position to which he had been assigned for an extended period of time. As a remedy the Arbitrator directed for that period of time that the grievant be paid an amount equal to the difference between a WG-2, which he received, and WG-5, which he should have received. Contrary to the argument of the Agency, the Authority finds that the Arbitrator effectively ordered the grievant temporarily promoted retroactively and that the Arbitrator made the findings necessary to an award of backpay under the Back Pay Act. See Department of Justice, INS, 15 FLRA at 863; American Federation of Government Employees, Local 1923 and Social Security Administration, Headquarters, Bureaus and Offices, 12 FLRA 511 (1983). Additionally, because the Arbitrator found that the agreement mandated that the grievant be temporarily promoted as a result of the extended assignment of the duties of the WG-5 position, the Authority also finds that the award of backpay is clearly consistent with the grievant's statutory entitlement under the Back Pay Act to receive the pay that he would have earned if the unwarranted action had not occurred without regard to whether the record in this case establishes that there was a vacant WG-5 position. See 5 U.S.C. Section 5596(b)(1)(A)(i); National Labor Relations Board Union, Local 19 and Office of the General Counsel, National Labor Relations Board, 7 FLRA 21 (1981). Accordingly, this exception fails to establish that the award is contrary to the Back Pay Act and therefore provides no basis for finding the award deficient. V. THIRD EXCEPTION A. Contentions In its third exception the Agency contends that the award is contrary to FPM chapter 335, subchapter 1-5, which limits the duration of a temporary promotion. B. Analysis and Conclusions The Authority has clearly indicated in these types of cases that the award by an arbitrator of a temporary promotion must be consistent with civil service law and regulation. Veterns Administration, V.A. Medical Center, Muskogee, Oklahoma and American Federation of Government Employees, Local 2250, 20 FLRA No. 48 (1985). Civil service regulations permit an agency to temporarily promote an employee to meet a temporary need for a definite period of one year or less and extend such a promotion for a definite period not to exceed one additional year.