[ v19 p325 ]
The decision of the Authority follows:
19 FLRA No. 46 VETERANS ADMINISTRATION MEDICAL CENTER, NASHVILLE, TENNESSEE Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL NO. 2400 Union Case No. O-AR-921 DECISION This matter is before the Authority on an exception to the award of Arbitrator Ralph C. Barnhart 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 Union filed an opposition. /1/ The grievance in this case concerned, in relevant part, whether the grievant was entitled to a retroactive temporary promotion for having been detailed to a higher-grade position for an extended period of time. According to the Arbitrator, the detail of the grievant commenced in January 1980 and extended until March 22, 1983. Under the terms of the parties' collective bargaining relating to extended details to higher-grade positions, which agreement was effective August 13, 1982, the Activity granted the grievant a retroactive temporary promotion and backpay for the period of August 13, 1982 to March 22, 1983. When the grievant's entitlement to a retroactive promotion for the period prior to August 13 remained unresolved, this issue was submitted to arbitration. The Arbitrator ruled that although the parties' agreement provision relating to extended details was not effective until August 13, 1982, the Federal Personnel Manual at all times during the grievant's detail generally limited details to 120 days. Accordingly, on the basis of the FPM provisions, the Arbitrator on January 7, 1985, found that the Agency's failure to seek prior approval of the extension of the detail beyond 120 days or to grant a temporary promotion to the grievant constituted an unjustified or unwarranted personnel action and, thus, awarded the grievant a retroactive promotion and backpay for the period from the commencement of the detail to August 13, 1982. In its exception the Agency essentially contends on the basis of the order of the court in Wilson v. U.S., 229 Ct.Cl. 510 (1981) and the decision of the Comptroller General in Turner-Caldwell, 61 Comp.Gen. 408 (1982), that the retroactive promotion and backpay is contrary to law and regulation. The Authority agrees. In Wilson v. U.S. the plaintiff federal employee had sought on the basis of the decisions of the Comptroller General in Turner-Caldwell, 55 Comp.Gen. 539 (1975), aff'd on reconsideration 56 Comp.Gen. 427 (1977), 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 held that neither the statutory and Federal Personnel Manual provisions limiting details to 120 days (5 U.S.C. 3341 and FPM chaps. 300, 335) nor the Back Pay Act, 5 U.S.C. 5596, entitles an employee to a retroactive temporary promotion with backpay in circumstances where the employee has been detailed to a higher-grade position for more than 120 days. Subsequently, the Comptroller General overruled the Turner - Caldwell decisions and stated that Wilson would be followed in all pending and future claims. 61 Comp.Gen. 408 (1982). Thus, in terms of this case, the Authority finds that the Arbitrator's award, which granted a retroactive temporary promotion with backpay for an extended detail based on the FPM provisions addressed in Wilson and Turner-Caldwell and which was issued after both the order in Wilson and the overruling of the Turner-Caldwell decisions by the Comptroller General, is contrary to law and regulation pertaining to extended details and is contrary to the Back Pay Act. Accord Health Care Financing Administration and American Federation of Government Employees, Local 1923, AFL-CIO, 17 FLRA No. 88 (1985); 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. Issued, Washington, D.C., July 26, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ In its opposition, the Union moves to dismiss the exception as untimely. Because the Authority finds that the exception was timely filed, the motion is denied.