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15:0442(90)AR - Georgia Air NG, 165th Tactical Airlift Group, Savannah, GA and Georgia ACT -- 1984 FLRAdec AR

[ v15 p442 ]
The decision of the Authority follows:

 15 FLRA No. 90
                                            Case No. O-AR-337
    This matter is before the Authority on exceptions to the award of
 Arbitrator Geo. Savage King filed by the Agency under section 7122(a) of
 the Federal Service Labor-Management Relations Statute and part 2425 of
 the Authority's Rules and Regulations.  /1/
    The dispute in this matter concerns the grievant's claim that he had
 performed the duties of a higher-grade position for an extended period
 that entitled him to a temporary promotion under the provisions of the
 parties' collective bargaining agreement.  The Arbitrator determined
 that the grievant had performed the duties of a higher-grade position
 for an extended period for which under the parties' agreement he should
 have been temporarily promoted.  Accordingly, as his award the
 Arbitrator essentially ordered the grievant retroactively promoted with
 backpay for the period from November 1, 1978 to June 30, 1980.  The
 Arbitrator also awarded the grievant entitlement to the benefits of
 grade and pay retention of 5 U.S.C.subchapter VI.
    In its first exception the Agency essentially contends that the
 Arbitrator made a classification determination precluded by section
 7121(c)(5) of the Statute and in so doing exceeded his authority.  The
 Authority has expressly held that a grievance pertaining to whether the
 grievant was entitled to a promotion does not directly concern the
 classification of any position within the meaning of section 7121(c)(5).
  Warner Robins Air Logistics Center, Robins Air Force Base, Georgia and
 American Federation of Government Employees, Local 987, 10 FLRA 410
 (1982).  The Authority therefore concludes that this exception provides
 no basis for finding the award deficient, and accordingly the exception
 is denied.
    In its second exception the Agency essentially contends that the
 award is deficient because the date chosen by the Arbitrator to commence
 the retroactive promotion is erroneous under the terms of the parties'
 collective bargaining agreement.  However, this exception constitutes
 nothing more than disagreement with the Arbitrator's interpretation and
 application of the temporary promotion provision of the agreement, and
 accordingly this exception is denied.  See American Federation of
 Government Employees, Local 148, Council of Prison Locals and Bureau of
 Prisons, U.S. Penitentiary, Lewisburg, Pennsylvania, 7 FLRA 95 (1981).
    In its third exception, the Agency contends that the award of grade
 and pay retention benefits is contrary to 5 U.S.C.subchapter VI.  The
 Authority agrees.
    As noted, the Arbitrator in conjunction with his award of a
 retroactive temporary promotion also awarded the grievant entitlement to
 the benefits of retention of the grade and pay of the higher-grade
 position on his retroactive return to his officially appointed position.
  The grade and pay provisions of 5 U.S.C. 5362-5363 specifically apply,
 as is here relevant, to an employee who has been downgraded by placement
 in another position as the result of reduction-in-force procedures or
 has been downgraded as the result of a reclassification action.
 Furthermore, the Office of Personnel Management under 5 U.S.C. 5365 /2/
 not only has not extended such provisions to the situation occurring in
 this case, but moreover has consistently provided that an employee
 serving under a temporary promotion may not retain a grade or pay rate
 held during the temporary promotion.  5 Cfr part 536.  Consequently, the
 Authority concludes that the award is deficient in this respect as
 contrary to 5 U.S.C.subchapter VI and must be modified.  Accordingly,
 the award is modified by striking "and with the benefit of the Grade and
 Pay Retention provisions of Section 5362, Public Law 95-454 (1978)."
    Issued, Washington, D.C., August 9, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ The Office of Personnel Management filed an amicus curiae brief.
    /2/ Section 5365(a) directs the Office of Personnel Management (OPM)
 to prescribe regulations implementing the purpose of the subchapter, and
 section 5365(b) authorizes OPM in certain respects to extend under such
 regulations the application of all or portions of the provisions of the