American Federation of Government Employees, Local 148, Council of Prison Locals (Union) and Bureau of Prisons, U.S. Penitentiary, Lewisburg, Pennsylvania (Activity) 

 7 FLRA No. 14
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 LOCAL 148, COUNCIL OF
 PRISON LOCALS
 Union
 
 and
 
 BUREAU OF PRISONS,
 U.S. PENITENTIARY,
 LEWISBURG, PENNSYLVANIA
 Activity
 
                                            Case No. O-AR-101
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR HERBERT D. ROSSMAN FILED BY THE AGENCY UNDER SECTION 7122(A)
 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
 7122(A)) (THE STATUTE).
 
    ACCORDING TO THE ARBITRATOR, THE DISPUTE IN THIS MATTER AROSE WHEN
 THE GRIEVANT, A WS-11, WAS APPOINTED ACTING GENERAL FOREMAN, WS-15,
 EFFECTIVE JULY 1, 1979.  ON AUGUST 1, 1979, THE GRIEVANT WAS TEMPORARILY
 PROMOTED TO THE WS-15 POSITION AND WAS PAID AT THE WS-15 RATE UNTIL
 AUGUST 19, 1979, WHEN HE RETURNED TO HIS REGULAR POSITION.  A GRIEVANCE
 WAS FILED WHICH WAS ULTIMATELY SUBMITTED TO ARBITRATION CLAIMING THAT
 UNDER THE PARTIES' COLLECTIVE BARGAINING AGREEMENT, THE GRIEVANT WAS
 ENTITLED TO HAVE BEEN PAID AT THE WS-15 RATE AS OF THE FIRST DAY OF THE
 ASSIGNMENT.
 
    THE ARBITRATOR DETERMINED THAT UNDER THE TEMPORARY PROMOTION
 PROVISION OF THE PARTIES' AGREEMENT, /1/ AN EMPLOYEE ASSIGNED TO A
 HIGHER GRADE POSITION, INCLUDING SUPERVISORY POSITIONS, MUST BE PAID AT
 THE HIGHER RATE OF PAY FROM THE FIRST DAY OF THE ASSIGNMENT WHENEVER THE
 ASSIGNMENT IS FOR THREE WEEKS OR LONGER.  ACCORDINGLY, THE ARBITRATOR
 AWARDED THE GRIEVANT THE DIFFERENCE IN PAY BETWEEN WS-11 AND WS-15 FOR
 THE PERIOD OF JULY 1, 1979, TO JULY 31, 1979.
 
    THE AGENCY FILED EXCEPTIONS TO THE ARBITRATOR'S AWARD UNDER SECTION
 7122(A) OF THE STATUTE /2/ AND PART 2425 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR PART 2425).  THE UNION FILED AN OPPOSITION.  /3/
 
    IN ITS FIRST EXCEPTION THE AGENCY CONTENDS THAT THE AWARD IS CONTRARY
 TO THE STATUTE.  IN SUPPORT OF THIS EXCEPTION, THE AGENCY MAINTAINS THAT
 THE ARBITRATOR VIOLATED THE STATUTE BY APPLYING THE TEMPORARY PROMOTION
 PROVISION OF THE AGREEMENT TO A SUPERVISORY POSITION IN DISREGARD TO
 SECTION 7112(B)(1) WHICH EXCLUDES SUPERVISORY POSITIONS FROM BARGAINING
 UNITS.  HOWEVER, THE AGENCY HAS FAILED TO ESTABLISH THAT THE AWARD IS
 CONTRARY TO THE STATUTE.  THE AUTHORITY IN AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO AND AIR FORCE LOGISTICS COMMAND,
 WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 2 FLRA NO. 77 AT 25-27(1980),
 ENFORCED SUB NOM. AS TO OTHER MATTERS IN DEPARTMENT OF DEFENSE V.
 FEDERAL LABOR RELATIONS AUTHORITY, . . . F.2D . . . (D.C. CIR.  1981),
 WITH RESPECT TO A SUBSTANTIALLY IDENTICAL TEMPORARY PROMOTION PROVISION,
 SPECIFICALLY REJECTED A CONTENTION SIMILAR TO THE AGENCY'S IN THIS CASE.
  IN WRIGHT-PATTERSON THE RELEVANT QUESTION BEFORE THE AUTHORITY WAS
 WHETHER A BARGAINING PROPOSAL, PROVIDING FOR A TEMPORARY PROMOTION WHEN
 AN EMPLOYEE IS ASSIGNED TO A HIGHER GRADE POSITION FOR MORE THAN 30
 DAYS, WAS INCONSISTENT WITH LAW TO THE EXTENT IT WOULD APPLY TO
 SUPERVISORY POSITIONS.  IN CONCLUDING THAT THE PROPOSAL WAS WITHIN THE
 DUTY TO BARGAIN, THE AUTHORITY EXPRESSLY REJECTED THE ALLEGATION THAT
 APPLICATION OF SUCH A PROVISION TO SUPERVISORY POSITIONS OUTSIDE THE
 BARGAINING UNIT WAS INCONSISTENT WITH LAW.  INSTEAD, THE AUTHORITY HELD
 THAT THE REQUIRED TEMPORARY PROMOTION SIMPLY WOULD PROVIDE THE EMPLOYEE
 WITH COMPENSATION COMMENSURATE WITH THE HIGHER GRADE POSITION TO WHICH
 MANAGEMENT HAS ASSIGNED THE EMPLOYEE.  ACCORD, AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, INTERNATIONAL COUNCIL OF U.S. MARSHALS
 SERVICE LOCALS AND DEPARTMENT OF JUSTICE, U.S. MARSHALS SERVICE, 4 FLRA
 NO. 52(1980);  METHODS AND STANDARDS ASSOCIATION AND NAVAL AIR REWORK
 FACILITY, NAVAL AIR STATION, PENSACOLA, FLORIDA, 2 FLRA NO. 34(1979).
 BECAUSE THE AGREEMENT PROVISION APPLIED BY THE ARBITRATOR IS
 SUBSTANTIALLY IDENTICAL TO THE PROPOSAL IN WRIGHT-PATTERSON AND BECAUSE
 THAT APPLICATION IS FULLY CONSISTENT WITH THE AUTHORITY'S DECISION IN
 WRIGHT-PATTERSON, THE AGENCY'S FIRST EXCEPTION PROVIDES NO BASIS FOR
 FINDING THE ARBITRATOR'S AWARD DEFICIENT.
 
    IN ITS SECOND EXCEPTION THE AGENCY CONTENDS THAT THE AWARD VIOLATES
 AN EXPRESS LIMITATION CONTAINED IN THE COLLECTIVE BARGAINING AGREEMENT.
 SPECIFICALLY, THE AGENCY MAINTAINS THAT THE ARBITRATOR FAILED TO
 RECOGNIZE THAT THE TEMPORARY PROMOTION PROVISION OF THE AGREEMENT WAS
 EXPRESSLY LIMITED TO POSITIONS WITHIN THE BARGAINING UNIT.  HOWEVER,
 THIS EXCEPTION CONSTITUTES NOTHING MORE THAN DISAGREEMENT WITH THE
 ARBITRATOR'S INTERPRETATION AND APPLICATION OF THE AGREEMENT PROVISION
 BEFORE HIM AND CONSEQUENTLY PROVIDES NO BASIS FOR FINDING THE AWARD
 DEFICIENT.  E.G., DEPARTMENT OF DEFENSE, 375 AIR BASE GROUP, SCOTT AIR
 FORCE BASE, ILLINOIS AND NATIONAL ASSOCIATION OF ARMY MISSILE MATERIAL
 READINESS COMMAND (USAMIRCOM) AND AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1858, AFL-CIO, 2 FLRA NO. 60(1980).
 
    FOR THE FOREGOING REASONS, THE AGENCY'S EXCEPTIONS ARE DENIED.
 
    ISSUED, WASHINGTON, D.C., OCTOBER 30, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ ACCORDING TO THE ARBITRATOR, THIS PROVISION, ARTICLE 31, SECTION
 P, PROVIDES:
 
    THE EMPLOYER AGREES THAT ANY EMPLOYEE IN THE UNIT FOR WHOM A KNOWN
 DETAIL IS PLANNED TO A
 
    HIGHER GRADE POSITION IN THE UNIT AND WHICH IS FOR THREE FULL WEEKS
 OR MORE AND WHO IS
 
    QUALIFIED SHALL BE TEMPORARILY PROMOTED AND SHALL RECEIVE THE RATE OF
 PAY FOR THE POSITION TO
 
    WHICH TEMPORARILY ASSIGNED.  IN SUCH CASES THE PAY WILL START AS OF
 THE FIRST DAY OF THE
 
    ASSIGNMENT.  TEMPORARY PROMOTIONS SHALL NOT BE MADE FOR LESS THAN
 THREE FULL WEEKS.  SHORT
 
    DETAILS WILL NOT BE USED FOR THE PURPOSE OF AVOIDING TEMPORARY
 PROMOTIONS.
 
    /2/ 5 U.S.C. 7122(A) PROVIDES:
 
    SEC. 7122.  EXCEPTIONS TO ARBITRAL AWARDS
 
    (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
 AUTHORITY AN EXCEPTION TO ANY ARBITRATOR'S AWARE PURSUANT TO THE
 ARBITRATION (OTHER THAN AN AWARD RELATING TO A MATTER DESCRIBED IN
 SECTION 7121(F) OF THIS TITLE).  IF UPON REVIEW THE AUTHORITY FINDS THAT
 THE AWARD IS DEFICIENT--
 
    (1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION;  OR
 
    (2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
 PRIVATE SECTOR
 
    LABOR-MANAGEMENT RELATIONS;
 
    THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
 CONCERNING THE AWARD AS IT CONSIDERS NECESSARY, CONSISTENT WITH
 APPLICABLE LAWS, RULES OR REGULATIONS.
 
    /3/ IN ITS OPPOSITION THE UNION ALSO CONTENDS THAT THE AGENCY'S
 EXCEPTIONS WERE UNTIMELY.  HOWEVER, THE AGENCY'S EXCEPTIONS WERE TIMELY
 FILED WITH THE AUTHORITY AND CONSEQUENTLY THIS MATTER IS PROPERLY BEFORE
 THE AUTHORITY FOR DECISION.