15:0862(163)AR - Justice, INS and National INS Council, AFGE Local 2805 -- 1984 FLRAdec AR

 15 FLRA No. 163
 
 U.S. DEPARTMENT OF JUSTICE,
 IMMIGRATION AND NATURALIZATION
 SERVICE
 Agency
 
 and
 
 NATIONAL IMMIGRATION AND
 NATURALIZATION SERVICE COUNCIL,
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 2805
 Union
 
                                            Case No. O-AR-427
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Edgar A. Jones, Jr. 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.
 
    The dispute in this matter concerns the alleged detail of the
 grievant to a higher-grade position.  A grievance was filed and the
 matter was ultimately submitted to arbitration.  The Arbitrator
 essentially determined that the grievant had been detailed to perform
 substantially all the duties of a higher-grade position for an extended
 period of time for which she was entitled under the parties' collective
 bargaining agreement to have been compensated at the higher rate of pay
 from the first day of the detail.  Accordingly, he awarded her backpay
 for the period of the detail in the amount of the difference in what she
 was paid and what she should have been paid.
 
    In its first and second exceptions the Agency contends that the award
 is contrary to law and regulation and is based on a nonfact.  However,
 in American Federation of Government Employees, Local 1923 and Social
 Security Administration, Headquarters, Bureaus and Offices, 12 FLRA No.
 96 (1983), the Authority expressly denied such exceptions to an
 arbitration award which, as in this case, essentially determined that an
 employee performed the duties of a higher-grade position for a period of
 time which entitled the employee under the parties' collective
 bargaining agreement to have been temporarily promoted to the
 higher-grade position and awarding the grievant backpay for the
 Activity's failure to do so in violation of the agreement.  The
 Authority concluded that the agency's exceptions that such award was
 contrary to law, rules or regulation and was based on a nonfact
 constituted nothing more than disagreement with the arbitrator's
 interpretation and application of the parties' agreement.  The Agency's
 first and second exceptions in this case , likewise constitute
 disagreement with the Arbitrator's interpretation and application of the
 parties' collective bargaining agreement.  Accordingly, they provide no
 basis for finding the award deficient and are denied.  See also 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 is
 deficient because the Arbitrator was without jurisdiction in this matter
 under section 7121(c)(5) of the Statute which excludes from grievance
 and arbitration most grievances concerning the classification of any
 position.  However, the grievance in this case pertains to whether the
 grievant was entitled to have been compensated at a higher-rate of pay
 during the period of an asserted detail and does not directly concern
 the classification of any position, and accordingly this exception is
 denied.  See U.S. Army Missile Readiness Command and American Federation
 of Government Employees, Local 1858, 15 FLRA No. 64 (1984);  U.S.
 Department of Labor and American Federation of Government Employees,
 Local 641, 5 FLRA 60 (1981).
 
    In its fourth exception the Agency essentially contends that the
 award is contrary to the order in Wilson v. U.S., No. 324-81C (Ct. of
 Cl. Oct. 23, 1981).  The Authority concludes that the Agency fails to
 establish in what manner the award is contrary to the order of the court
 in Wilson.  The court in Wilson held that the statutory and FPM
 provisions limiting details to 120 days contain no language authorizing
 either a constructive promotion to or the pay of the position to which
 detailed when the detail is to a higher-grade position and exceeds the
 permissible duration.  It has not been shown that the order of the court
 in Wilson precludes an arbitrator from awarding backpay to remedy a
 violation of a provision of a collective bargaining agreement that has
 resulted in a reduction of an aggrieved employee's pay, allowances, or
 differentials.  See 5 U.S.C. 5596;  Veterans Administration Hospital and
 American Federation of Government Employees, Lodge 2201, 4 FLRA 419
 (1980);  accord 61 Comp.Gen. 403 (1982).  Accordingly, this exception is
 denied.
 
    In its exceptions, the Agency has also contended that the award is
 deficient as to the date on which the award of backpay commences.  The
 Agency maintains that because of the time-after-competitive-appointment
 restriction of 5 CFR 330.501, /1/ the Arbitrator could not award the
 grievant by a constructive retroactive temporary promotion the pay of
 the higher-grade position until the grievant had served 3 months (i.e.,
 90 days) in her appointed position.  With the grievant having been hired
 and appointed on June 1, 1980, the Agency argues that the award must be
 modified to commence the award of backpay on August 30, 1980, rather
 than June 16, 1980.  The Authority agrees.
 
    The Authority has expressly held that 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 qualified for
 promotion to that position.  Adjutant General, State of Michigan,
 Department of Military Affairs and National Association of Government
 Employees, 11 FLRA No. 7 (1983).  Because it is substantiated that the
 grievant could not have been temporarily promoted to the higher-grade
 position until August 30, 1980, rather than June 16, 1980, the award is
 modified accordingly.
 
    Issued, Washington, D.C., August 31, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ 5 CFR 330.501 pertinently provides:  "An agency may promote an
 employee . . . only after 3 months have elapsed since the employee's
 latest nontemporary competitive appointment."