44:0247(21)AR - - AFGE, Local 916 and Air Force, OK City Air Logistics Center, Tinker AFB, OK - - 1992 FLRAdec AR - - v44 p247
[ v44 p247 ]
The decision of the Authority follows:
44 FLRA No. 21
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
March 3, 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 Robert L. Taylor 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 exceptions.
A grievance was filed alleging, among other things, that the grievant was not properly reassigned as the result of a reduction-in-force (RIF). The Arbitrator sustained the grievance. For the following reasons, we will remand the case to the parties for further processing consistent with our decision.
II. Background and Arbitrator's Award
As part of a RIF, the grievant was "bumped" from her position as a WG-8 testing equipment operator in "Engines." Award at 2. The grievant was detailed, as were other employees in Engines, to a position as an aircraft mechanic "in advance of the RIF action[.]" Id. at 8. The grievant received training as an aircraft mechanic. After that training, the grievant was permanently assigned to a WG-8 sheet metal worker position.
The grievant filed a grievance alleging, in part, that the Agency violated the parties' collective bargaining agreement and the Federal Personnel Manual (FPM) by failing to permanently assign her to an aircraft mechanic position. An aircraft mechanic position, unlike a sheet metal worker position, has potential for noncompetitive promotion to WG-10. As a remedy, the grievant sought assignment to an aircraft mechanic position as a WG-10.
The Arbitrator found that there were three employees who, like the grievant, were WG-8 employees in Engines prior to the RIF and who were trained as aircraft mechanics. The Arbitrator also found that, although the grievant was senior to these employees, they were "assigned for duty as Aircraft Mechanics, WG-8, Step 5, after their training[.]" Id. at 15.
The Arbitrator further concluded that:
Accepting Agency's assertions that there were no vacancies as Aircraft Mechanics, WG-8, there is no question but that there were vacancies as WG-5's because Management assigned at least three displaced employees from her section assigned to the same position as she, all being WG-8's, as WG-8's, Level 5, all of whom were less senior than Grievant. At least 2 of them have now been promoted to WG-8.
I find that Grievant could have been, and should have been, assigned as an Aircraft WG-8, Level 5.
I can not promote Grievant to the position of Aircraft Mechanic, 8852-10, because it would be speculative for me to say that she would now have been promoted to WG-8, much less WG-10.
Id. at 16. The Arbitrator awarded the grievant a position as an Aircraft Mechanic at "WG-8, Level 5." Id. at 17.
III. The Agency's Exceptions
The Agency contends that the award is: (1) inconsistent with Air Force Regulation (AFR) 40-351 and FPM Supplement 351-1; and (2) ambiguous and contradictory.
The Agency asserts that, under the Air Force Regulation(1) and the FPM Supplement,(2) an employee such as the grievant is entitled to assignment to the highest-graded position for which the employee is qualified. According to the Agency, it was required to assign the grievant to the WG-8 sheet metal worker position because, at the time of the reassignment, the only aircraft mechanic positions available were at the WG-5 level. The Agency notes that, under subchapter S5-3(c) of the FPM Supplement, the fact that aircraft mechanic positions offer greater promotion potential than sheet metal worker positions is irrelevant to determining the grievant's assignment rights.
The Agency also asserts that the award is "ambiguous and contradictory . . . ." Id. at 8. The Agency argues that the Arbitrator confused the difference between grades and steps of positions and that it is difficult to determine "exactly what position and at what grade and step he believed the grievant should be placed in." Id. at 6.
IV. Analysis and Conclusions
At the outset, we note three things. First, it is undisputed that, under FPM Supplement 351-1, subchapter S5-3, the grievant was entitled at the time of her reassignment to the position with the highest representative rate for which she was qualified. Second, it also is undisputed that, under the FPM Supplement, the promotion potential of a position is irrelevant in determining its representative rate. Third, although the exact rates are not in the record before us, it is reasonable to assume, and we do assume, that the representative rate of a WG-8 position is higher than the representative rate of a WG-5 position. See FPM Supplement 351-1, subchapter S5-7(e)(2).
Based on the foregoing, we conclude that, as a WG-8 sheet metal worker position was available at the time of the grievant's reassignment, she could not be assigned to an aircraft mechanic position at a level lower than WG-8. Put simply, as a WG-8 position was available and the grievant was assigned to it, the grievant may not now properly be assigned to a WG-5 aircraft mechanic position, whatever the promotion potential of that position may be. As such, if the Arbitrator awarded the grievant a WG-5 aircraft mechanic position, the award is inconsistent with FPM Supplement 351-1, subchapter S5-3. FPM Supplement 351-1, subchapter S5-3 is a Government-wide regulation within the meaning of section 7117 of the Statute because it generally applies throughout the Federal sector. See, for example, Overseas Education Association Inc. and Department of Defense, Office of Dependent Schools, 22 FLRA 351, 354 (1986), aff'd sub nom. Overseas Education Association, Inc. v. FLRA, 827 F.2d 814 (D.C. Cir. 1987). Accordingly, if the Arbitrator awarded the grievant a WG-5 position, the award is deficient as contrary to Government-wide regulations.
Having examined the entire award, we are unable to determine whether the Arbitrator awarded the grievant a WG-8 or a WG-5 aircraft mechanic position.
On one hand, the award may be read as granting the grievant a WG-8 aircraft mechanic position. The Arbitrator found, in this regard, that the grievant "could have been, and should have been, assigned as an "Aircraft [Mechanic] WG-8, Level 5." Award at 16. The Arbitrator also stated that the grievant would "have to accept [the aircraft mechanic] position at WG-8, Level 5." Id. at 17.
On the other hand, the Arbitrator may have awarded the grievant a WG-5 aircraft mechanic position. The Arbitrator stated that "there were vacancies as WG-5's because [m]anagement assigned . . . employees from [the grievant's] section . . . as WG-8's, Level 5[.]" Id. at 16. That the Arbitrator intended "WG-8, Level 5" to mean WG-5 is supported by his statement that at least two of these employees had "been promoted to WG-8." Id. Moreover, in denying the grievant's request that she be assigned to a WG-10 position, the Arbitrator noted that "it would be speculative for me to say that [the grievant] would now have been promoted to WG-8[.]" Id.
As we are unable to determine whether the Arbitrator awarded the grievant a WG-5 or a WG-8 aircraft mechanic position, we are also unable to determine whether the award conflicts with FPM Supplement 351-1. Accordingly, we will remand this decision to the parties for resubmission to the Arbitrator for clarification of his award.
The award is remanded to the parties for further action consistent with this decision.
(If blank, the decision does not have footnotes.)
1. The Agency asserts that AFR 40-351, paragraph 7b, provides that "'an employee is entitled to the position that represents the best offer in terms of grade at or below his or her current grade or representative rate.'" Exceptions at 4. The Agency did not provide either a copy of or the full text of AFR 40-351.
2. The Agency cites the following portions of FPM Supplement 351-1, subchapter S5-3:
b. More than one available position. When more than one available position will satisfy an employee's assignment right, the employee is entitled to the position with the highest representative rate. When two or more positions exist all with the same representative rate, the agency may offer the employee any one of them. An employee has no right to choose a position.
c. Promotion potential of the position. The promotion potential of a position is not a consideration in the identification of an available position for satisfying an assignment right. . . .
. . . .
e. Limits on offer. An employee is entitled to only one proper offer . . . . Regardless of an employee's entitlement to only one proper offer, the agency must make a better offer if a position with a higher representative rate . . . becomes