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