10:0410(69)AR - Warner Robins Air Logistics Center, Robins AFB, GA and AFGE Local 987 -- 1982 FLRAdec AR
[ v10 p410 ]
The decision of the Authority follows:
10 FLRA No. 69 WARNER ROBINS AIR LOGISTICS CENTER, ROBINS AIR FORCE BASE, GEORGIA Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 987 Union Case No. O-AR-194 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Henry B. Welch 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 filed an opposition. The parties in this case submitted to arbitration with the basic facts stipulated a dispute concerning whether the grievant was entitled to a permanent noncompetitive promotion. At all material times the grievant has held the position of electronic mechanic, WG-10. In 1977 the grievant was detailed to perform work on the MX-3533 frequency selector. On the basis of a classification audit in August 1979, it was determined that the duties of the position to which the grievant had been and at the time remained detailed were the duties of a higher grade position-- electronic mechanic, WG-11. The grievant's detail was terminated September 1, 1979, at which time the grievant returned to his permanent WG-10 position. Because of this determination that the grievant had been detailed to a higher grade position for such an extended period, he was temporarily promoted to WG-11 for the period of August 28, 1977, to September 1, 1979, on a retroactive basis with backpay. However, the grievant in addition claimed an entitlement to a permanent noncompetitive promotion to the position to which he had been detailed on the basis that it had been upgraded without significant change in the duties and responsibilities due to the correction of a classification error. /1/ Before the Arbitrator the Activity maintained that the grievant was not entitled to a permanent promotion because he was not the incumbent of the upgraded position, but instead remained the incumbent of his permanent position from which he had been detailed. The Arbitrator however rejected the Activity's position as an exercise in semantics. To the Arbitrator it was sufficient that the grievant was performing and had been performing at least since August 1977 the duties of the position which the Arbitrator found was upgraded in August 1979 without significant change in the duties and responsibilities due to the correction of a classification error. Accordingly, as his award, the Arbitrator ordered the grievant permanently promoted noncompetitively to WG-11 effective September 1, 1979. In its first exception the Agency contends that the award is deficient because the Arbitrator was without jurisdiction in this matter under section 7121(c)(5) of the Statute. /2/ However, the grievance in this case pertains to whether the grievant was entitled to a permanent noncompetitive promotion and does not directly concern the classification of any position. Thus, the Agency has not established that the Arbitrator was without jurisdiction in this matter by reason of section 7121(c)(5), and accordingly this exception is denied. As one of its other exceptions to the award, the Agency contends that the award is contrary to governing provisions of the Federal Personnel Manual. Specifically, the Agency argues that under the FPM the grievant was not the incumbent of the upgraded position, and consequently he could not properly be granted a permanent noncompetitive promotion to WG-11 as awarded by the Arbitrator. The Authority agrees. FPM chapter 300, subchapter 8-1 expressly defines a detail as a "temporary assignment of an employee to a different position for a specified period, with the employee returning to his regular duties at the end of the detail." It is further provided that "a position is not filled by a detail, as the employee continues to be the incumbent of the position from which detailed." Thus, in terms of this case, the grievant was the incumbent of his permanent position which as specifically stipulated by the parties and expressly acknowledged by the Arbitrator was, at all material times, electronic mechanic, WG-10. Likewise, in view of the parties' stipulation as to the grievant's detail, the grievant under the provisions of the FPM did not encumber by virtue of his detail the upgraded position, and the grievant in accordance with the provisions of the FPM reverted to his permanent WG-10 position at the termination of his detail. In this respect the narrow exception of FPM chapter 335 to the general requirement of competitive promotion procedures has at all relevant times only entitled the incumbent of the position which has been upgraded without significant change in the duties and responsibilities due to the correction of a classification error to permanent noncompetitive promotion. Thus, contrary to the Arbitrator's determination, it is not sufficient for purposes of the limited authorization under FPM chapter 335 of a permanent noncompetitive promotion that the grievant was and had been temporarily assigned to perform the duties of a position which during the period of his detail was upgraded. Because the grievant was not the incumbent of that position during the period of his detail to it, but rather remained the incumbent of his WG-10 position to which he was properly returned at the termination of his detail, the grievant was not entitled to a permanent noncompetitive promotion to the upgraded position, and the Arbitrator's award of such a promotion is not authorized by FPM chapter 335. Consequently, the Arbitrator's award is deficient as contrary to the Federal Personnel Manual and accordingly is set aside. /3/ Issued, Washington, D.C., October 29, 1982 Ronald W. Haughton, Chairman Henry B. Frazier III, Member Leon B. Applewhaite, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ At all relevant times Federal Personnel Manual chapter 335 has provided that competitive promotion procedures do not apply to the promotion of the incumbent of a position which has been upgraded without significant change in the duties and responsibilities due to the correction of a classification error. /2/ 5 U.S.C. 7121(c)(5) provides that any grievance concerning "the classification of any position which does not result in the reduction in grade or pay of an employee" is excluded from coverage by a grievance procedure negotiated under the Statute. /3/ In view of this decision, it is not necessary that the Authority resolve the other exceptions to the award.