46:0846(74)AR - - AFGE Local 916 and Air Force, OK City Air Logistics Center, Tinker AFB, OK - - 1992 FLRAdec AR - - v46 p846
[ v46 p846 ]
The decision of the Authority follows:
46 FLRA No. 74
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 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 Raymond R. Hawkins filed by the Union 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 Agency did not file an opposition to the Union's exceptions.
The Arbitrator denied a grievance contesting the Agency's refusal to promote the grievant and to provide him with backpay and interest. The Arbitrator found, however, that the Agency had violated applicable regulations when it failed to document the grievant's work experience properly. As a remedy, the Arbitrator directed the Agency to: (1) review the grievant's personnel file; (2) correct and properly document the grievant's work experience retroactive to 1985; (3) credit the corrected work experience toward a GS-1152-08 and, subsequently, toward a GS-1152-09 Paint Scheduler position; and (4) establish the grievant's promotion date to the GS-1152-09 Paint Scheduler position.
For the following reasons, we conclude that the Union has not established that the Arbitrator's award is deficient under section 7122(a) of the Statute. Accordingly, we will deny the Union's exceptions.
II. Background and Arbitrator's Award
The grievant was employed as a WG-4701-07 Painter in June 1985, and worked in that capacity until he broke his wrist in December 1985. Following his injury, the "[g]rievant was then accepted on a medical loan as a Material Expediter WG-6910-07 . . . ." Award at 1.
From January 22, 1989, through May 20, 1989, the grievant was placed on a 120-day detail and his occupational code was changed from WG-6910-07 Material Expediter to GS-1152-09 Paint Scheduler. After the detail was completed, the grievant's occupational code was returned to that of a WG-6910-07 Material Expediter. The grievant was also placed on a detail from October 22, 1990, through February 19, 1991, and the Agency attempted to change his occupational code to that of a Paint Scheduler. This detail, however, was not approved by the Agency's Personnel Office as required by the parties' agreement.
With minor exceptions, the grievant performed GS-1152-09 Paint Scheduler duties from the time of his initial assignment as a WG-6910-07 Material Expediter until May 1990. With the exceptions noted above, the grievant's occupational code remained that of a WG-6910-07 Material Expediter and the grievant's performance was evaluated as a WG-6910-07 Material Expediter during that time.
On February 21, 1991, the grievant filed a grievance seeking promotion and backpay. The grievance was not resolved and was submitted to arbitration. The Arbitrator found that the grievance was both timely and arbitrable. On the merits, the Arbitrator considered the following issue as raised by the Union:
Was the [g]rievant . . . improperly denied promotion, documented work experience, in accordance with law, rule, and regulation? If so, what shall the remedy be?
Id. at 2.
Before the Arbitrator, the grievant testified that he: (1) was not aware of the WG-6910-07 Material Expediter occupational code given to him by the Agency until 1987 or 1988; (2) believed that he had been performing GS-1152-09 Paint Scheduler duties since 1985; and (3) had been told by supervisors that he was performing a GS-1152-09 Paint Scheduler's job and that efforts to correct his records to reflect this fact were being made. The parties stipulated that "[t]he [g]rievant and GS-09 schedulers did the same work between December 1985 and May 1990." Id.
The grievant also testified that he had been assigned to perform expediting duties for a period of approximately 3 or 4 weeks in an effort to "get him out into his assigned job series (Material Expediter [WG-]6910-07)." Id. at 20. However, when paint scheduling production fell, the grievant was returned to perform paint scheduling duties.
The Arbitrator found that the parties' stipulation as to the work performed by the grievant since 1985 was not intended as an assertion that the grievant performed the same duties as a GS-1152-09 Paint Scheduler. The Arbitrator noted the grievant's admission, as supported by his supervisor, that he did not perform all of the grade-controlling duties of the GS-1152-09 Paint Scheduler position as required by the job description for the position. The Arbitrator stated that "the clear wording of the [s]tipulation is that he was doing the same work which is materially different from 'duties.'" Id. at 17.
The Arbitrator further found that the grievant was not qualified for either a temporary or permanent promotion. The Arbitrator noted that Article 13, section 13.01 of the parties' agreement "requires [that] '[t]he employee must be qualified to fill the position on a permanent basis'" in order for an employee to be temporarily promoted. Id. at 19. Therefore, based on his interpretation of the parties' agreement and the grievant's admission that he had not performed all the grade-controlling duties of the GS-1152-09 Paint Scheduler position as required by the job description, the Arbitrator found that the "[g]rievant is not qualified at the present time to fill a GS-09 position on a permanent basis." Id.
The Arbitrator determined, however, that the Agency had improperly documented the grievant's work experience and, therefore, "did not enable [g]rievant to receive proper credit for all the scheduling work that he performed since 1985." Id. at 20. The Arbitrator stated that the documentation covering the period of grievant's work as a GS-1152-09 Paint Scheduler "is a facade." Id. The Arbitrator further stated that the Agency's "action of moving [g]rievant from a GS-07 Painter position to a WG[-]6910-07 job title and working him from December 1985 until 1991, with minor exception[s], as an 1152 scheduler without proper documentation violated AFR [Air Force Regulation] 40-321(1) and (2)." Id. The Arbitrator found that the Agency's actions "constitute [an] unjustified or unwarranted personnel action of the nature of omission." Id. at 21. The Arbitrator denied the grievant's claim for backpay and interest and made the following award:
The Agency is directed to review [g]rievant's 201 [Personnel] File and correct all work credits contained therein listed as WG-6910-07 - Material Expediter to GS-1152-07 - Scheduler retroactive to 1985. In addition, his 201 File is to include the credit for the detail that he performed as a [GS-]1152-09, including the extended time he was held on that job beyond the termination of the detail.
In view of the evidence that [g]rievant is not at this time qualified for the GS-09 position he seeks, he cannot be placed on a GS-09. However, the revised time he has been awarded in the GS-1152-07 and GS-1152-09 shall be credited to be years [of] experience toward a GS-1152-08 and subsequent to that toward a [GS-]1152-09. At the time [g]rievant qualifies for a [GS-]1152-09, the Agency shall go back for a period of two years and review promotion certificates and establish [g]rievant's date of promotion to a GS-1152-09.
In view of the circumstances of this case, the Agency is directed to handle this matter as expeditiously as possible and cooperate with [g]rievant in bringing this matter to an end with the same spirit of cooperation that [g]rievant has given to the Agency.
III. First and Second Exceptions
A. Union's Position
In its first exception, the Union contends that the Arbitrator's conclusion that the grievant was not qualified for permanent promotion to the GS-1152-09 Paint Scheduler position is inconsistent with the Federal Personnel Manual (FPM). The Union asserts that FPM Chapter 300, Subchapter 6-2(d)(a) establishes the general rule "that a person who has a total of one year of service at or above a particular grade may, if otherwise qualified, be advanced to any position one grade above that level." Exceptions at 2.
The Union argues, based on the parties' stipulation that the grievant and GS-1152-09 Paint Schedulers had performed the same work since 1985, that the grievant should have been permanently promoted to the GS-1152-09 Paint Scheduler position in December 1986. The Union claims that FPM Chapter 300, Subchapter 8-9(c) and the Qualifications Standards Handbook permit crediting the experience of an employee on detail "as an extension of work the employee was doing immediately prior to the detail, or on its own merits, whichever is more beneficial to the employee." Id. at 3. Therefore, the Union asserts that the "[g]rievant would have qualified for the position of GS-1152-09 Scheduler after one year[']s experience at the GS-09 [l]evel." Id. at 5.
In its second exception, the Union contends that the Arbitrator's conclusion that the grievant was not entitled to a temporary promotion with backpay and interest is inconsistent with the parties' agreement and with the Back Pay Act, 5 U.S.C. § 5596. The Union argues that the Arbitrator made the findings necessary for an award of backpay under the Back Pay Act. The Union notes that the Arbitrator found that the Agency's actions constituted an "unjustified or unwarranted personnel action of the nature of omission." Id. at 4.
The Union also argues that the grievant's work experience as a GS-1152-09 Paint Scheduler entitled him to a temporary promotion under Article 13, section 13.01 of the parties' agreement because he was temporarily assigned to a higher-graded position. According to the Union, the key wording of that section of the parties' agreement is "temporarily assigned higher[-]graded position or the grade controlling duties of a higher[-]graded position." Id. at 7 (emphasis in original).
B. Analysis and Conclusions
The Union essentially argues that the grievant is entitled to either a permanent or a temporary promotion based on his service in a higher-graded position. In this regard, it is well established that, if an agency's violation of a collective bargaining agreement results in the denial of a temporary promotion to which a grievant would otherwise be entitled under that agreement, an arbitrator may, consistent with applicable law and regulations, award a noncompetitive temporary promotion with backpay to that grievant for a period of up to 2 years. See, for example, 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).
Here, however, the Arbitrator found that the grievant was not entitled to a temporary promotion under the parties' agreement. The Arbitrator noted that under the parties' agreement, an employee must be qualified to fill the position on a permanent basis in order to be temporarily promoted. The Arbitrator found that the grievant was not qualified under the parties' agreement to fill the GS-1152-09 Paint Scheduler position on a permanent basis because he had not performed all of the grade-controlling duties of that position. Therefore, the Arbitrator found that the grievant was not entitled under the parties' agreement to a temporary promotion. The Union does not argue, and it is not otherwise apparent, that the grievant was entitled to a temporary or a permanent promotion under law. Rather, it is clear that the Arbitrator was merely interpreting and applying the parties' agreement. We conclude, therefore, that the Union's contentions that the grievant is entitled to either a temporary or a permanent promotion based on his performance in a higher-graded position constitute nothing more than disagreement with the Arbitrator's reasoning and conclusions. Such disagreement provides no basis for finding the award deficient. See, for example, American Federation of Government Employees, Local 2017 and U.S. Department of the Army, Army Signal Center and Fort Gordon, Fort Gordon, Georgia, 45 FLRA 817, 820 (1992). Accordingly, we will deny the Union's exceptions.
IV. Third Exception
A. Union's Position
The Union contends that the Arbitrator's second remedy is contrary to FPM Chapter 300, subchapter 8-9(c) because "it would be more beneficial to the employee to receive detail credit a[t] the GS-09 Level." Id. at 5. In essence, the Union argues that the grievant should not be disadvantaged by having his work experience as a GS-1152-09 Paint Scheduler for the period beginning in 1985 credited only for the 2-year period required by the Arbitrator's second remedy. The Union also asserts that the Agency does not keep promotion records beyond a 2-year period.
B. Analysis and Conclusions
It is well established that arbitrators have great latitude in fashioning remedies. U.S. Department of the Navy, United States Marine Corps Logistics Base, Albany, Georgia and American Federation of Government Employees, Local 2317,