42:0886(62)AR - - OK City Air Logistics Center, Tinker AFB, OK and AFGE Local 916 - - 1991 FLRAdec AR - - v42 p886
[ v42 p886 ]
The decision of the Authority follows:
42 FLRA No. 62
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Thomas A. Cipolla. The Arbitrator directed the Agency to provide the grievant a retroactive temporary promotion, with backpay, for a period in which the grievant performed work of a higher-graded position.
The Agency filed exceptions to the award 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 did not file an opposition to the Agency's exceptions.
For the following reasons, we conclude that, insofar as the award encompasses a retroactive temporary promotion for more than 2 years, it is contrary to Government-wide regulations. We will modify the award to comply with those regulations. We will deny the Agency's other exceptions.
II. Background and Arbitrator's Award
The grievant, a WG-8 employee, filed a grievance claiming that he should have been promoted to the WG-9 level. When the grievance was not resolved, it was submitted to arbitration. As relevant here, the Arbitrator framed the issue as follows: "[H]as the Agency violated the Master Labor Agreement in denying the Grievant's promotion from a WG-8 to a WG-9?" Award at 5.
The Arbitrator concluded that the grievant was not wrongfully denied a permanent, competitive promotion to WG-9. The Arbitrator found, however, that the grievant "was temporarily assigned the grade[-]controlling duties of a WG-9" employee from February 1987 to February 1990. Id. at 25. The Arbitrator concluded that the Agency's failure to temporarily promote the grievant violated the parties' collective bargaining agreement and resulted in an unjustified or unwarranted personnel action. The Arbitrator stated that "[b]ut for the Agency's failure to temporarily promote and pay the [g]rievant, the [g]rievant would have been . . . paid a WG-9 level salary." Id. The Arbitrator sustained the grievance, in part, and ordered the Agency to make the grievant whole for the loss of WG-9 pay from March 29, 1987 to February 2, 1990.
III. First and Second Exceptions
A. Position of the Agency
The Agency "concedes" that the grievant "is entitled to a retroactive noncompetitive temporary promotion" in this case. Exceptions at 4. The Agency argues, however, that, insofar as the Arbitrator ordered a temporary promotion in excess of 120 days, the award conflicts with Federal Personnel Manual (FPM) chapter 335, subchapter 1-5a(1), which requires agencies to use competitive procedures to effect temporary promotions over 120 days. The Agency asserts that because it did not use such procedures, the grievant may not be temporarily promoted for more than 120 days.
As its second exception, the Agency argues that, if the Authority agrees t