43:0633(53)AR - - AFGE Local 916 and Air Force, OK City Air Logistics Center, Tinker AFB, OK - - 1991 FLRAdec AR - - v43 p633
[ v43 p633 ]
The decision of the Authority follows:
43 FLRA No. 53
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE AIR FORCE
OKLAHOMA CITY AIR LOGISTICS CENTER
TINKER AIR FORCE BASE, OKLAHOMA
December 20, 1991
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 Wallace B. Nelson. The Arbitrator sustained a grievance over the Agency's failure to promote the grievant and directed the Agency to provide the grievant a retroactive temporary promotion.
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, and we will deny the Agency's other exceptions.
II. Background and Arbitrator's Award
The grievance in this case is one of a series of grievances that have come before the Authority on exceptions to arbitration awards, issued by different arbitrators, naming as parties the same Agency and Union that are named in this case. The grievances concern the Agency's failure to promote various wage grade employees who participated in, or were affected by, the Agency's implementation of its vocational technical (Vo-Tech) training program. See U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 43 FLRA 306 (1991) (Tinker Air Force Base IV); U.S. Department of the Air Force, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 42 FLRA 1342 (1991) (Tinker Air Force Base III); United States Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 42 FLRA 886 (1991) (Tinker Air Force Base II); U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 42 FLRA 680 (1991) (Tinker Air Force Base I).
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 parties described the issue as follows:
Is the Agency's action to the Grievant of denying promotion from WG[-]5439-8 in violation of laws and/or regulations, and the Master Labor Agreement? If so, what shall the remedy be?
Award at 2.
At arbitration, the Union asked that the grievant be placed "where he should be were it not for management's action of unfairly denying him promotion to the WG-9 level[.]" Id. at 9. Specifically, the Union sought a promotion to the WG-9 level retroactive to April 22, 1985. The Union also requested a promotion to the WG-10 level at the same time as "most of the employees who were promoted to the WG-9 level in a timely manner" and "are now [at the] WG-10 level." Id.
Relying on Section 13.01 of the parties' collective bargaining agreement, addressing temporary promotions, the Arbitrator concluded that the grievant "should have been temporarily promoted" to the WG-9 level. Id. at 19. Based on the evidence before him, the Arbitrator determined that the grievant was performing WG-9 level work on a continuous basis at least from June 1986, and "should have been promoted to the '9' level and paid accordingly not later than July 1, 1986." Id. at 21.
The Arbitrator concluded that the Agency violated the parties' collective bargaining agreement and sustained the grievance, in part. The Arbitrator ordered the Agency to pay the grievant the difference between what he had been paid and what he should have been paid as a WG-9 employee from July 1, 1986, "until he was or is in fact promoted" to the WG-9 level. Id. at 22. It is undisputed that at the time exceptions were filed the Agency had not promoted the grievant to WG-9.
III. First and Second Exceptions
A. Position of the Agency
The Agency argues 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 contends that, if the Authority agrees that competitive procedures were both required and used to effect a temporary promotion for the grievant, the award is contrary to, among other things, the Back Pay Act and the Agency's right to make selections for appointments under section 7106 of the Statute.
B. Analysis and Conclusions
The Arbitrator concluded that the grievant "should have been temporarily promoted" and awarded the grievant a temporary promotion from June 1986 until such time as the grievant is promoted to the WG-9 level. Award at 19. FPM chapter 335, subchapter 1-5a(1) provides, in pertinent part, the following with respect to temporary promotions:
Competitive inservice procedures must be used for temporary promotions over 120 days in higher graded positions (prior service under all details to higher graded positions or temporary promotions is included whether competitive or noncompetitive during the preceding 12 months).
It is undisputed that the Agency did not select the grievant for a temporary promotion pursuant to competitive procedures. However, it was the Agency's failure to promote the grievant that resulted in the grievance in this case. Further, the Arbitrator found that the grievant performed WG-9 duties from June 1986 to the date of the award, a period of time well in excess of the 30 consecutive days required by the parties' agreement for a temporary promotion. The Arbitrator concluded, in this regard, that the Agency violated the collective bargaining agreement by failing to promote the grievant to the WG-9 level.
The Agency argues, in effect, that its failure to act in accordance with the FPM excuses the actions it took in violation of the parties' agreement. We reject this argument as unfounded. Where parties to a collective bargaining agreement provide for the temporary promotion of employees assigned to perform the work of higher-graded positions, an arbitrator may order temporary promotions, with backpay, in accordance with that agreement. See Tinker Air Force Base II, 42 FLRA at 888. Consequently, and without addressing whether the Agency violated the FPM provision in this case, we conclude that the Agency's exception regarding the FPM provides no basis for finding the award deficient. The Agency's second exception is based solely on its argument regarding the FPM provision. As such, it is unnecessary to address the second exception further.
IV. Third Exception
A. Position of the Agency
The Agency contends that, to the extent that the Arbitrator ordered the Agency to temporarily promote the grievant for a period of time in excess of 2 years, the award is contrary to 5 C.F.R. § 335.102(f)(1) and FPM chapter 335, subchapter 1-5a(1).
B. Analysis and Conclusions
An award of a temporary promotion must comply with civil service law and regulation. Tinker Air Force Base II, 42 FLRA at 889. In this regard, 5 C.F.R. § 335.102(f)(1) and FPM chapter 335, subchapter 1-5a place an effective limit of 2 years on the duration of a temporary promotion. However, these regulatory provisions permit agencies to temporarily promote an employee for more than 2