[ v43 p399 ]
The decision of the Authority follows:
43 FLRA NO. 40 U.S. DEPARTMENT OF THE AIR FORCE OKLAHOMA CITY AIR LOGISTICS CENTER TINKER AIR FORCE BASE, OKLAHOMA (Agency) and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 916 (Union) 0-AR-2130 DECISION December 13, 1991 Before Chairman McKee and Members Talkin and Armendariz. I. Statement of the Case This matter is before the Authority on exceptions to an award of Arbitrator Don J. Harr filed by the Agency under section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union did not file an opposition to the Agency's exceptions. An employee filed a grievance challenging the Agency's failure to promote her. The Arbitrator sustained the grievance and, as a remedy, ordered the Agency to immediately promote the grievant to the WG-9 level and to provide the grievant with backpay and seniority retroactive from the date of the Arbitrator's award to June 1, 1985. For the following reasons, we conclude that the Agency has failed to establish that the Arbitrator's award is deficient. Therefore, we will deny the Agency's exceptions. II. Background and Arbitrator's Award The grievance in this case is one of a series of grievances that have come before the Authority on exceptions to arbitration awards, issued by different arbitrators, naming as parties the same Agency and Union that are named in this case. The grievances concern the Agency's failure to promote various wage grade employees who participated in, or were affected by, the Agency's implementation of its vocational technical (Vo - Tech) training program. See U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 43 FLRA 306 (1991) (Tinker Air Force Base IV); U.S. Department of the Air Force, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 42 FLRA 1342 (1991) (Tinker Air Force Base III); United States Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 42 FLRA 886 (1991) (Tinker Air Force Base II); U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 42 FLRA 680 (1991) (Tinker Air Force Base I). The grievant was hired on December 23, 1983, at the WG-5 level. In July 1984, the grievant was certified at Level II in Magnetic Particle Inspection and was authorized to use the "N" stamp. The authorization to use the "N" stamp signifies that the grievant was certified to perform certain work that only a qualified WG-9 employee could perform. See, for example, Tinker Air Force Base III, 42 FLRA at 1343. On December 2, 1984, the grievant was promoted to the WG-8 level. On July 5, 1987, the grievant was transferred to perform duties in a different career field. The grievant was not subsequently promoted to WG-9. On September 5, 1989, the grievant filed a grievance claiming that she should have been promoted to the WG-9 level. When the grievance was not resolved, it was submitted to arbitration. As relevant here, the Arbitrator framed the issue as follows: Is the Agency's denying the (g)rievant promotion from WG-8 to WG-9, (arbitrary) and capricious, and in violation of laws, rules, and regulations, and in violation of the spirit and intent of the Master Labor Agreement? If so, what is the proper remedy? Award at 2. The Union requested that the Arbitrator put the grievant "where she should be were it not for management's action of unfairly denying her promotion to the WG-9 level; promoted to the WG-9 level, retroactive to the date of certification at Level II which was July 18, 1984, and entitlement to all benefits which she has been denied." Id. at 6. Based on the evidence before him, the Arbitrator determined that the grievant had performed WG-9 work from July 18, 1984 through July 5, 1987. The Arbitrator rejected the Agency's argument that there were no positions available into which the grievant could be promoted. The Arbitrator found that the Agency "continually promoted other employees to the WG-9 level." Id. The Arbitrator noted that the Agency had not given any satisfactory reason for its failure to promote the grievant and determined that the grievant "would have qualified for the WG-9 level six months after she was promoted to WG-8; which was December 2, 1984." Id. at 7. The Arbitrator "compute(d) her eligibility for WG-9 at or about June 1, 1985" and concluded that the grievant should be "promoted immediately to the WG-9 level." Id. Therefore, the Arbitrator sustained the grievance and, in his award, stated the following: The Agency violated the Collective Bargaining Agreement by failing and refusing to promote (the grievant) to the Testing Equipment Operator at the WG-9 level. The Agency shall immediately promote (the grievant) to the WG-9 level. The Agency shall grant (the grievant) seniority at the WG-9 level from June 1, 1985. The Agency shall pay (the grievant) retroactive back pay at the WG-9 level from June 1, 1985. Id. III. Agency's Exceptions The Agency contends that, to the extent the award ordered either a retroactive noncompetitive permanent promotion with backpay or a prospective noncompetitive permanent promotion, it is contrary to the Back Pay Act, 5 U.S.C. 5596. The Agency also asserts that if the Authority construes the award as ordering a retroactive noncompetitive temporary promotion, with backpay, in excess of 120 days, the award is contrary to Federal Personnel Manual (FPM), chapter 335, subchapter 1-5.a.(1), which is a Government-wide regulation. The Agency further states that if the Authority construes the award as ordering a retroactive temporary promotion with backpay from September 1, 1985, to the date of the grievant's permanent promotion, on the basis that competitive procedures were used, the award interferes with management's right to select under section 7106(a)(2)(C) of the Statute and is contrary to FPM chapter 335, subchapter 1-4, requirement 4. Finally, the Agency contends that if the Authority determines that competitive in-service procedures are not required and construes the award as ordering a retroactive noncompetitive temporary promotion with backpay from September 1, 1985, to the date of the grievant's noncompetitive permanent promotion to WG-9, the award is contrary to 5 C.F.R. 335.102(f)(1) and FPM chapter 335, subchapter 1-5.a.(1)(a). IV. Analysis and Conclusions The Agency has offered alternative exceptions to the Arbitrator's award based, in part, on whether the award is viewed as ordering a permanent promotion of the grievant, or a temporary promotion, and, if permanent, whether the promotion is retroactive or prospective. We interpret the award as providing the grievant a retroactive permanent promotion with backpay. Although the Arbitrator's award discusses the temporary promotion article contained in the parties' collective bargaining agreement and does not explicitly include the term "retroactive permanent promotion," it is clear from the nature of the dispute presented to the Arbitrator, and the Arbitrator's findings, that the award concerns the wrongful denial of a permanent promotion. We note that the Arbitrator does not use the term "temporary promotion" and nothing in the award indicates that the award concerns the denial of a temporary promotion. Under these circumstances, we construe the award as concerning the denial of a permanent promotion. Accordingly, we find that the Agency's exceptions do not provide a basis for finding the award deficient. To the extent that the Agency contends that the award is contrary to the Back Pay Act because it provides the grievant a retroactive permanent promotion, we conclude that the award is not deficient on that basis. In Tinker Air Force Base III, 42 FLRA at 1347-49, we found that a retroactive noncompetitive permanent promotion ordered by the arbitrator was consistent with the Back Pay Act. We determined, in that case, that the arbitrator had implicitly found that: (1) but for the unfair treatment of the grievant in violation of the parties' collective bargaining agreement, the grievant would have been promoted; and (2) the violation of the collective bargaining agreement had resulted in the denial of a financial entitlement the grievant would have received during the period if the unjustified personnel action had not occurred. Here, the Arbitrator found that the Agency: (1) violated the parties' collective bargaining agreement by refusing to promote the grievant; and (2) did not give any satisfactory reasons for its failure to promote the grievant. The Arbitrator also found that the grievant would have qualified for the WG-9 level on December 2, 1984, and that she was entitled to receive backpay and seniority. Therefore, for the reasons stated in Tinker Air Force Base III, we find that the Arbitrator implicitly made the findings necessary for an award of backpay under the Back Pay Act. Accordingly, to the extent that the Agency's exceptions contend that the award is contrary to the Back Pay Act, those exceptions provide no basis for finding the award deficient. V. Decision The Agency's exceptions are denied.