43:0915(71)AR - - AFGE Local 916 and Air Force, Air Logistics Center, Tinker AFB, OK - - 1991 FLRAdec AR - - v43 p915

[ v43 p915 ]
The decision of the Authority follows:

43 FLRA No. 71













January 6, 1992

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 Julius Rezler filed by the Agency 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.

An employee filed a grievance challenging the Agency's failure to temporarily promote him. The Arbitrator sustained the grievance and, as a remedy, ordered the Agency to provide the grievant with a retroactive temporary promotion to the WG-6 level with backpay from August 22, 1985, to January 1988.

For the following reasons, we conclude that, to the extent that the award encompasses a retroactive temporary promotion for more than 2 years, it is contrary to Government-wide regulations. Therefore, we will modify the award to comply with those regulations. We will deny the Agency's remaining exceptions.

II. Background and Arbitrator's Award

The grievant was hired on February 11, 1985, at the WG-5 level. He sustained an on-the-job injury in November 1987. Because of his injury, the grievant was permanently assigned to limited duty in January 1988, and was detailed from August 13, 1988, until December 1988, to a different WG-5 position.

The grievant contended that he had performed the duties of a WG-7 position from February 1985 to January 1988. On January 23, 1990, the grievant filed a grievance claiming that he should have been promoted to the WG-7 level. The grievance was not resolved and was submitted to arbitration. As relevant here, the Arbitrator described the issue as follows:

[D]id the Employer violate Section 13.01 of [the Master Labor Agreement] MLA and AFR 40-321 when it failed to temporarily promote [the] [g]rievant to a higher[-]graded position between February 1985[,] and November 1987? If so, what is the proper remedy?

Award at 2.

Relying on Section 13.01 of the parties' collective bargaining agreement, addressing temporary promotions, the Arbitrator found that the Agency had "fail[ed] to temporarily promote [the] [g]rievant to WG-06." Id. at 13. Based on the evidence before him, the Arbitrator determined that the grievant had performed the grade-controlling duties of a WG-6 position from August 22, 1985, until the date on which he was permanently assigned to limited duty. The Arbitrator also found, however, that the grievant had not performed the grade-controlling duties of the WG-7 position.

The Arbitrator concluded that the Agency's failure "to process the necessary documentation to temporarily promote [the] [g]rievant and pay him the appropriate wage rate violated the Contract and the Regulations . . . ." Id. Therefore, the Arbitrator made the following award:

The grievance herein is partially sustained. The Employer is directed to temporarily promote [the] [g]rievant . . . to the position of WG-7009-06 for the period of time between August 22, 1985[,] and the date when he was permanently assigned to limited duty. The Employer is further directed to make [the] [g]rievant whole for the differential between the rate for WG-7009-05 and WG-7009-06 for the period of time stated above.

The Arbitrator retains jurisdiction over the implementation of the terms of this award for 30 days from its date.


III. First and Second Exceptions

A. Positions of the Parties

1. Agency

The Agency argues that, insofar as the Arbitrator ordered a retroactive temporary promotion with backpay 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.

2. Union

The Union contends that "it was the Agency who in effect temporarily promoted the [g]rievant when they assigned the [g]rievant to higher grade duties for more than 30 consecutive days . . . ." Opposition at 4. According to the Union, the Arbitrator's award is based solely on the Arbitrator's interpretation of Section 13.01 of the parties' collective bargaining agreement. The Union notes the Arbitrator's finding that the Agency's violation of the parties' agreement constituted an unjustified and/or unwarranted personnel action within the meaning of the Back Pay Act. The Union states that the award "simply makes the experience gained by the [g}rievant a matter of record and compensates the grievant for work performed." Id.

B. Analysis and Conclusions

FPM chapter 335, subchapter 1-5a(1) provides, in pertinent part, as follows:

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 use competitive procedures and did not select the grievant for a temporary promotion. The Agency's failure to promote the grievant resulted in the grievance in this case. Further, the Arbitrator found that the grievant performed WG-6 duties from August 22, 1985, to January 1988, 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-6 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 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, 888 (1991). 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. Positions of the Parties

1. 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).

2. Union

The Union states that the minimum experience requirement for the WG-6 position is 6 months and notes that the grievant meets the minimum experience requirement of the position. The Union argues that "[t]here is no requirement stated" in AFR 40-335 "for any 'outside' approval before said temporary promotion may be extended to the maximum of 4 years." Id. at 7. According to the Union, therefore, under AFR 40-335, temporary pr