U.S. Federal Labor Relations Authority

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17:0592(88)AR - Health Care Financing Administration and AFGE Local 1923 -- 1985 FLRAdec AR

[ v17 p592 ]
The decision of the Authority follows:

 17 FLRA No. 88
                                            Case No. 0-AR-428
    This matter is before the Authority on exceptions to the award of
 Arbitrator Arnold Ordman 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 of whether the grievant was entitled to a
 retroactive temporary promotion was submitted to arbitration pursuant to
 a grievance procedure negotiated by the parties.  Apart from this
 procedure there was no collective bargaining agreement in effect between
 the parties during the time material to this matter.  The Arbitrator
 determined that the grievant had performed the duties of a higher-grade
 position for more than 120 days without the approval of the Office of
 Personnel Management (OPM) and that at such time under the rationale of
 the decisions of the Comptroller General in Turner-Caldwell, 55
 Comp.Gen. 539 (1975), aff'd on reconsideration 56 Comp.Gen. 427 (1977),
 the Agency's practice was to grant claims for retroactive temporary
 promotions of employees who had been detailed to a higher-grade position
 for more than 120 days without prior OPM approval.  Accordingly, despite
 the order of the court in Wilson v. U.S., No. 324-81C (Ct. Cl. Oct. 23,
 1981), issued before the hearing and submitted to the Arbitrator, the
 Arbitrator awarded the grievant a retroactive temporary promotion with
 backpay for the period of time in which the grievant's detail exceeded
 120 days.
    In one of its exceptions the Agency essentially contends on the basis
 of the order in Wilson that the award is deficient because the
 Arbitrator's award of a retroactive promotion and backpay is not
 authorized by either applicable law and regulation pertaining to details
 or the Back Pay Act, 5 U.S.C. 5596.  The Authority agrees.
    In Wilson v. U.S. the plaintiff federal employee had sought on the
 basis of the Turner-Caldwell decisions of the Comptroller General a
 retroactive temporary promotion and backpay for an alleged extended
 detail to a higher-grade position.  In the Turner-Caldwell decisions the
 Comptroller General had essentially held that the remedy for an agency's
 failure to obtain the required prior approval to extend a detail to a
 higher-grade position beyond 120 days was a temporary promotion and
 backpay for the aggrieved employee retroactive to the 121st day of the
 detail.  Rejecting those decisions of the Comptroller General, the Court
 of Claims held that neither the statutory and Federal Personnel Manual
 provisions limiting details to 120 days, 5 U.S.C. 3341;  FPM chaps. 300,
 335, nor the Back Pay Act authorizes a retroactive temporary promotion
 with backpay for a detail to a higher-grade position for more than 120
 days when the required approval of OPM is not obtained.  Subsequently,
 the Comptroller General overruled the Turner - Caldwell decisions and
 stated that Wilson would be followed in all pending and future claims.
 Turner-Caldwell, 61 Comp.Gen. 408 (1982).  Thus, in terms of this case
 where the Arbitrator's award was issued after both the order in Wilson
 and the overruling of the Turner - Caldwell decisions by the Comptroller
 General, the Authority finds that the award is contrary to law and
 regulation pertaining to extended details and is contrary to the Back
 Pay Act.  The Authority further finds that with no collective bargaining
 agreement between the parties and with no apparent agency regulation
 mandating promotions, the Arbitrator's award is not otherwise authorized
 by his acknowledgement of the Agency's compliance at the time of the
 grievant's detail with Turner - Caldwell decisions.  Cf. U.S. Department
 of Justice, Immigration and Naturalization Service and National
 Immigration and Naturalization Service Council, American Federation of
 Government Employees, Local 2805, 15 FLRA No. 163 (1984) (in which the
 Authority stated that it had not been shown that Wilson precludes an
 arbitrator from appropriately awarding backpay to remedy a violation of
 a provision of a collective bargaining agreement);  61 Comp.Gen. 403
 (1982) (in which the Comptroller General held that a violation of a
 provision in an agency regulation making temporary promotions mandatory
 for details to higher-grade positions after 60 days was compensable
 under the Back Pay Act).  Accordingly, the award is set aside.  /1/
 Issued, Washington, D.C., April 19, 1985
                                       Henry B. Frazier III, Acting
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ In view of this decision it is not necessary to address the
 Agency's other exceptions.