10:0049(11)AR - Service Employees International Union, Local 200 and VA Medical Center -- 1982 FLRAdec AR

 10 FLRA No. 11
 
 SERVICE EMPLOYEES INTERNATIONAL
 UNION, LOCAL 200
 Union
 
 and
 
 VETERANS ADMINISTRATION
 MEDICAL CENTER
 Activity
 
                                            Case No. O-AR-236
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR MARGERY GOOTNICK 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 ACTIVITY FILED
 AN OPPOSITION.
 
    THE DISPUTE IN THIS MATTER CONCERNS THE DATE OF THE GRIEVANT'S
 ENTITLEMENT TO A TEMPORARY PROMOTION.  THE GRIEVANT, A GS-6, WAS
 TEMPORARILY ASSIGNED THE DUTIES OF A GS-9 POSITION ON MARCH 31, 1980.
 HOWEVER, BECAUSE OF HER GRADE AND LACK OF EDUCATIONAL QUALIFICATIONS,
 THE GRIEVANT DID NOT QUALIFY FOR A TEMPORARY PROMOTION TO THE GS-9
 POSITION.  ACCORDINGLY, A TEMPORARY GS-7 POSITION WAS ESTABLISHED FOR
 WHICH THE GRIEVANT QUALIFIED IN ORDER THAT SHE COULD BE TEMPORARILY
 PROMOTED.  THE ESTABLISHMENT OF THIS POSITION WAS APPROVED ON JUNE 23,
 1980, AND THE GRIEVANT WAS TEMPORARILY PROMOTED TO IT EFFECTIVE JUNE 29,
 1980, THE BEGINNING OF THE NEXT PAY PERIOD.  A GRIEVANCE WAS FILED
 CLAIMING THAT THE GRIEVANT WAS ENTITLED TO HAVE BEEN PROMOTED TO GS-7 AS
 OF THE FIRST DAY SHE ASSUMED THE ADDITIONAL DUTIES.  THE GRIEVANCE WAS
 NOT RESOLVED AND WAS ULTIMATELY SUBMITTED TO ARBITRATION.
 
    THE ARBITRATOR DETERMINED THAT UNDER CONTROLLING LAW AND REGULATION,
 THE GRIEVANT COULD NOT PROPERLY HAVE BEEN PROMOTED UNTIL THE GS-7
 POSITION WAS ACTUALLY ESTABLISHED AND APPROVED.  ACCORDINGLY, SHE FOUND
 THAT THE GRIEVANT HAD BEEN PROPERLY COMPENSATED, AND AS HER AWARD SHE
 DENIED THE GRIEVANCE.
 
    IN ITS EXCEPTION THE UNION PRINCIPALLY CONTENDS THAT THE AWARD IS
 DEFICIENT BECAUSE THE ARBITRATOR OVERLOOKED THE FACT THAT MANAGEMENT
 NEGLIGENTLY DELAYED THE ESTABLISHMENT OF THE GS-7 POSITION TO WHICH THE
 GRIEVANT WAS PROMOTED.  THE UNION'S EXCEPTION HOWEVER FAILS TO ESTABLISH
 THAT THE AWARD IS IN ANY MANNER DEFICIENT.  CONTRARY TO THE UNION'S
 ASSERTION, THE ARBITRATOR EXPRESSLY FOUND THAT THERE WAS NO UNWARRANTED
 DELAY IN THE ESTABLISHMENT AND APPROVAL OF THE GS-7 POSITION.  MOREOVER,
 IT IS CLEAR UNDER THE PROVISIONS OF THE BACK PAY ACT, 5 U.S.C. 5596, AND
 THE U.S. SUPREME COURT'S DECISION IN UNITED STATES V. TESTAN, 424 U.S.
 392(1976), THAT A RETROACTIVE PROMOTION WITH BACKPAY WAS NOT AUTHORIZED
 IN THIS CASE FOR ANY PERIOD BEFORE THE GS-7 POSITION WAS ACTUALLY
 CLASSIFIED.  SEE U.S. ARMY AVIATION CENTER, FORT RUCKER, ALABAMA AND
 WIREGRASS METAL TRADES COUNCIL, AFL-CIO, 6 FLRA NO. 35(1981).  THUS, THE
 UNION'S EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT AND
 IS ACCORDINGLY DENIED.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 15, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY