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11:0013(7)AR - Adjutant General, State of Michigan, Department of Military Affairs and NAGE -- 1983 FLRAdec AR

[ v11 p13 ]
The decision of the Authority follows:

 11 FLRA No. 7
                                            Case No. O-AR-195
    This matter is before the Authority on an exception to the award of
 Arbitrator George T. Roumell, Jr. 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 dispute in this matter concerns the performance by the grievant,
 a national guard technician, of the duties of the position of painter,
 WG-9, from March 25 to August 4, 1979, while occupying the lower grade
 position of clerk/typist, GS-4.  The grievant filed a grievance claiming
 that under the parties' collective bargaining agreement he was entitled
 to have been temporarily promoted to the painter position because he had
 performed the duties of the higher grade position for a period in excess
 of 30 days.  In its answer to the grievance, the Activity acknowledged
 the temporary promotion provisions of the agreement, but maintained that
 in order to be temporarily promoted, an employee must meet the statutory
 and regulatory requirements of the higher grade position.  Specifically,
 the Activity emphasized that one of the minimum qualification
 requirements for the painter position is for the employee to possess a
 military occupational specialty (MOS) of metal body repairman.  Because
 the grievant did not obtain the necessary MOS until June 30, 1979, the
 Activity rejected the grievant's claim for the period from March 25 to
 June 30 on the basis that the grievant was not qualified to be promoted.
  However, because the grievant had become qualified for the painter
 position as of July 1, the Activity granted the grievant a retroactive
 temporary promotion and backpay for the period from July 1 to August 4,
 1979, during which the grievant performed the duties of the painter
 position.  The grievance remained unresolved with respect to the period
 from March 25 to June 30 and was submitted to arbitration.
    Although the Arbitrator expressly acknowledged that the metal body
 repairman MOS was a qualification requirement for the painter position,
 the Arbitrator nevertheless awarded the grievant a temporary promotion
 to the painter position retroactive to the period from April 20 to June
 30, 1979, with backpay.  The Arbitrator based his award on the parties'
 agreement provision obligating the Activity to "advis(e) and assis(t)
 technicians in developing themselves for promotion." The Arbitrator
 ruled that had the Activity advised and assisted the grievant as
 required by the agreement, the grievant would have obtained the
 necessary MOS by April 20 rather than June 30 and that consequently he
 was entitled to corrective action of a retroactive promotion with
    In its exception the Agency contends that the award is deficient as
 contrary to governing law and regulation.  The Authority agrees.
    It is well established that in order for an employee to be properly
 promoted consistent with governing law and regulation, whether
 temporarily or permanently, the employee must meet at the time of the
 promotion all statutory and regulatory requirements governing promotions
 including minimum qualification requirements for the position to which
 the employee is to be promoted.  See Federal Personnel Manual chapter
 338 (Qualification Requirements (General)), subchapter 3 (Qualification
 Standards).  Accordingly, an arbitrator cannot consistent with governing
 civil service law and regulation award as corrective action for an
 aggrieved employee a temporary promotion to a position made retroactive
 to a date on which the employee was not minimally qualified for
 promotion to that position.  In terms of this case, it is undisputed
 that the grievant did not possess the necessary MOS until June 30, 1979.
  Consequently, the Arbitrator's award to the grievant of a temporary
 promotion to the painter position made retroactive to the period from
 April 20 to June 30, a period during which the grievant was not
 qualified for promotion to that position, is deficient and is set aside.
  Issued, Washington, D.C., January 7, 1983
                                       Ronald W. Haughton, Chairman
                                       Henry B. Frazier III, Member
                                       Leon B. Applewhaite, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY