30:0006(2)AR - Hill AFB, UT and AFGE Local 1592 -- 1987 FLRAdec AR



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30:0006(2)AR
The decision of the Authority follows:


30 FLRA NO. 2
 30 FLRA 6

10 NOV 1987

HILL AIR FORCE BASE, UTAH

                    Activity

      and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL NO. 1592

                    Union

Case No. 0-AR-1372

DECISION

     I. Statement of the Case

     This matter is before the Authority on exceptions to the
award of Arbitrator Donald H. Wollett filed by both the Agency
and the Union under section 7122(a) of the Federal Service Labor
- Management Relations Statute (the Statute) and part 2425 of the
Authority's Rules and Regulations. The Union filed an opposition
to the Agency's exceptions.

     II. Background and Arbitrator's Award

     Two grievances were filed and jointly submitted to
arbitration on the issues of whether the parties' collective
bargaining agreement entitled the grievants to (1) retroactive
temporary promotions for the nearly 2-year period during which
they performed the duties of the higher-grade position of
production controller, GS-7; and (2) credit at the GS-7 level for
the experience gained during this time.

     On the issue of whether the grievants were entitled to have
been temporarily promoted, the Activity argued before the
Arbitrator that they were not eligible for promotion under X-118
civil service qualification standards because they did not have
the minimum qualifying experience of 5 years of total experience,
which must include 3 years of specialized experience. The
Activity further maintained that this requirement was not subject
to waiver.

     The Arbitrator agreed with the Activity that the X-118
qualification standard required 5 years of experience and that
the grievants failed to meet this. minimum qualification
requirement. However, the Arbitrator disagreed that the standard
was not waivable, and he ordered the Activity to waive the
qualification requirement. The Arbitrator awarded the grievants
retroactive temporary promotions with backpay for the period of
time commencing with the 31st day of the assignment and ending
with the date of their reassignments.

     The second issue concerned whether the grievants were
entitled under the parties' collective bargaining agreement to
credit at the GS-7 level for the experience gained during the
period they performed the duties of the production controller
position. The Arbitrator determined that under the terms of the
collective bargaining agreement, Grievant Cook was entitled to
credit, but Grievant Crane was not, except for the period of his
formal detail.

     III. Agency's Exception

     A. Contentions

     The Agency contends that the award is contrary to civil
service regulations. Specifically, the Agency maintains that by
awarding the grievants retroactive temporary promotions with
backpay, the award is contrary to Federal Personnel Manual
chapter 335, which prohibits promotions of employees who do not
meet the minimum qualification requirements for the position. In
addition, the Agency maintains that X-118 mini-mum qualification
requirements cannot be waived by agencies.

     The Union generally disputes the Agency's contentions. In
addition, however, the Union maintains that the Activity should
be required to comply with the award because it could and should
have requested from the Office of Personnel Management under 5
C.F.R. 5.1 a variation from the X-118 standards in order to grant
the temporary promotions.

     B. Analysis and Conclusions

     We conclude that the award is deficient. In order for an
employee to be properly promoted consistent with civil service
laws and regulations, whether temporarily or permanently, the
employee must meet at the time of the promotion the minimum
qualification requirements for the position to which the employee
is to be promoted. For example, American Federation of Government
Employees, Local 1631 and Veterans Administration Medical Center,
Chillicothe Ohio, 23 FLRA  507 (1987). In this, we find that the
 Agency has established that the grievants did not meet
the minimum qualification requirements for a temporary promotion
to GS-7 for the disputed period.

     We note that, on the basis of the Activity's evidence and
testimony, the Arbitrator agreed with the Activity that the
grievants did not meet the X-118 qualification standards for
promotion to GS-7. Additionally, there is no provision for waiver
by an agency of the X-118 qualification standard in dispute.
Consequently, the award by the Arbitrator of temporary promotions
in conjunction with the Activity's waiver of the qualification
requirement is deficient and must be modified. However, the
Director of the Office of Personnel Management (OPM) is
authorized to grant variations from civil service regulations. 5
C.F.R. 5.1. Accordingly, we will modify the award to direct that
such a request be made. See Department of the Army, New
Cumberland Army Depot and American Federation of Government
Employees, Local 2004, 21 FLRA  968 (1986) (award modified to
direct the activity to request OPM to authorize a temporary
promotion for the period involved that was in excess of 2
years).

     IV. Union's Exception

     A. Contentions

     The Union contends that the award, to the extent that it
denied Grievant Crane experience credit, is contrary to OPM
Manual X-118. Specifically, the Union argues that Manual X-118
permits the crediting of experience in cases of "misassignment"
and claims that consequently, the award is deficient by denying
Grievant crane experience credit for his misassignment.

     B. Analysis and Conclusions

     We deny the Union's exception. The Arbitrator specifically
determined that under the parties' collective bargaining
agreement, Grievant Crane was not entitled to experience credit.
Even assuming that Grievant Crane's situation was a misassignment
within the meaning of the cited provision of manual X-118, the
provision for crediting of experience is only permissive and not
prescriptive.

     Accordingly, the Union's exception constitutes nothing more
than disagreement with the Arbitrator's interpretation and
application of the collective bargaining agreement and provides
no basis for finding the award deficient as alleged. See, for
example, American Federation of Government Employees 
(AFL - CIO) Local 1770 and Headquarters XVIII Airborne Corps and
Fort Bragg, Fort Bragg, N.C., 6 FLRA  348 (1981).

     V. Decision

     For the reasons discussed, the award is modified to
substitute the following for paragraph 3 of the award which
grants the grievant's retroactive temporary promotions with
backpay:

     The Activity shall request that the Director of the Office
of Personnel Management grant a variation from civil service
regulation and formally authorize the Activity to award the
grievants retroactive temporary promotions with backpay for the
period designated by the Arbitrator despite their not meeting
minimum qualific