43:0958(76)AR - - Air Force, OK City Air Logistics Center, Tinker AFB, OK and AFGE Local 916 - - 1992 FLRAdec AR - - v43 p958
[ v43 p958 ]
The decision of the Authority follows:
43 FLRA No. 76
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE AIR FORCE
OKLAHOMA CITY AIR LOGISTICS CENTER
TINKER AIR FORCE BASE, OKLAHOMA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
January 10, 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 Henry M. Grether 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 did not file an opposition to the Agency's exceptions.
An employee filed a grievance alleging that he was entitled to backpay because he had performed the work of a WG-9 position for an extended period of time prior to his permanent promotion to the WG-9 level. The Arbitrator sustained the grievance and, as a remedy, ordered the Agency to provide the grievant with backpay from November 12, 1985, to May 14, 1989, the date on which the grievant was permanently promoted to the WG-9 level.
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 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, for example, American Federation of Government Employees, Local 916 and U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 43 FLRA 633 (1991) (Tinker Air Force Base VI); 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).
The grievant was certified in certain job-related tasks in October 1985, and was promoted to the WG-8 level on October 12, 1985. The grievant worked in a WG-8 position until he was promoted to the WG-9 level on May 14, 1989.
On March 27, 1990, the grievant filed a grievance claiming that he was entitled to backpay because he had performed duties at the WG-9 level for an extended period of time. The grievance was not resolved and was submitted to arbitration. The parties stipulated the issue as follows:
Is the Agency's action of denying the grievant backpay from WG-8 to WG-9 in violation of laws, rules, and regulations, and in violation of the spirit and intent of the Master Labor Agreement? If so, what shall be the remedy?
Award at 2.
The Union requested that the grievant "be awarded backpay from October 12, 1985[,] to May 14, 1989[,] for his pay differential between the WG-8 level and the WG-9 level and to all benefits which he missed because of being denied promotion." Id. at 5.
Relying on section 13.01 of the parties' collective bargaining agreement, addressing temporary promotions, the Arbitrator found that "the grievant had been assigned to, and performed, WG-9 level work continuously from October 12, 1985[,] until his promotion to the WG-9 level [on] May 14, 1989." Id. at 7. Based on the evidence before him, the Arbitrator found that "[t]he Agency [had] created a gross surplus of employees . . . that delayed competitive promotions of WG-8 employees to the WG-9 level." Id.
The Arbitrator determined that "because of the Agency's misjudged Vo-Tech Training Program, the grievant [had] trained other employees who were promoted over him on non-competitive promotions." Id. Therefore, the Arbitrator made the following award:
The grievance is sustained. The Agency is directed to compensate the grievant with backpay for the difference in the WG-8 and the WG-9 pay levels from November 12, 1985[,] to May 14, 1989.
III. First and Second Exceptions
A. Positions of the 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, 5 U.S.C. § 5596 and the Agency's right to make selections for appointments under section 7106 of the Statute.
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. The Arbitrator found, relying on the parties' collective bargaining agreement, that the grievant had performed WG-9 work from October 12, 1985, until May 14, 1989, a period of time well in excess of the 30 consecutive days required by the parties' collective bargaining agreement for a temporary promotion. The Arbitrator also found that the Agency's misjudgment of the Vo-Tech Training Program caused employees who had been trained by the grievant to be promoted over him. In finding that the Agency's actions caused the denial of a temporary promotion to which the grievant was entitled, the Arbitrator implicitly found that the grievant had been affected by an unjustified or unwarranted personnel action. See, for example, American Federation of Government Employees, Local 31 and U.S. Department of Veterans Affairs Medical Center, Cleveland, Ohio, 41 FLRA 514, 519 (1991) (arbitrator implicitly found that, but for the agency's unfair and unjust use of an evaluation factor regarding leave, the grievant would have been one of the six highest-rated candidates and would have been selected for promotion).
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. Positions 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