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19:0325(46)AR - VA Medical Center, Nashville, TN and AFGE Local No. 2400 -- 1985 FLRAdec AR

[ v19 p325 ]
The decision of the Authority follows:

 19 FLRA No. 46
                                            Case No. O-AR-921
    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
                                       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.