43:1070(88)AR - - AFGE Local 916 and Air Force, OK City Air Logistics Center, Tinker AFB, OK - - 1992 FLRAdec AR - - v43 p1070
[ v43 p1070 ]
The decision of the Authority follows:
43 FLRA No. 88
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE AIR FORCE
OKLAHOMA CITY AIR LOGISTICS CENTER
TINKER AIR FORCE BASE, OKLAHOMA
January 17, 1992
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 Wallace B. Nelson. The Arbitrator sustained a grievance over the Agency's failure to promote the grievant and directed the Agency to provide the grievant a retroactive promotion.
The Agency filed exceptions to the award 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.
For the following reasons, 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 concerning the Agency's implementation of its vocational technical (Vo-Tech) training program. For example, American Federation of Government Employees, Local 916 and U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 43 FLRA 633 (1991) (Tinker AFB).
The grievant, a WG-8 employee, filed a grievance claiming that he 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 action to the Grievant of denying promotion from WG 5439-8 in violation of laws and/or regulations, and the Master Labor Agreement? If so, what shall the remedy be?
Award at 2.
The Union requested that the grievant be placed "where he should be were it not for management's action of unfairly denying him promotion to the WG-9 level." Id. at 9. Specifically, the Union sought the grievant's promotion to WG-9 retroactive to December 17, 1984. The Union also requested the grievant's promotion to WG-10 because, it argued, "most of the employees who were promoted to the WG-9 level" had also been promoted to WG-10. Id.
The Arbitrator determined that the grievant "was in fact consistently doing '9' level work." Id. at 20. The Arbitrator also determined that the Agency violated the parties' collective bargaining agreement by failing to promote the grievant to WG-9. The Arbitrator awarded the grievant the difference between what he had been paid and what he would have been paid as a WG-9 employee from June 15, 1985, "until he was/is in fact promoted" to the WG-9 level. Id. at 21. At the time exceptions to the award were filed, the Agency had not promoted the grievant to WG-9. The Arbitrator made no findings concerning the Union's request that the grievant be promoted to the WG-10 level.
III. The Agency's Exceptions
The Agency construes the award as granting the grievant a retroactive temporary promotion. The Agency argues that, insofar as the Arbitrator ordered a temporary promotion in excess of 120 days, the award conflicts with Federal Personnel Manual (FPM) chapter 335, subchapter 1-5a(1), which requires agencies to use competitive procedures to effect temporary promotions over 120 days. The Agency also asserts that, if the Authority agrees that competitive procedures were both required and used to effect a temporary promotion for the grievant, the award is contrary to, among other things, the Back Pay Act and the Agency's right to make selections for appointments under section 7106 of the Statute. Finally, the Agency argues that, insofar as the Arbitrator ordered a retroactive temporary promotion in excess of 2 years, the award is contrary to 5 C.F.R. § 335.102(f)(1) and FPM chapter 335, subchapter 1-5(a)(1).
IV. Analysis and Conclusions
The Arbitrator did not specify whether his award encompassed a permanent or a temporary promotion. We conclude, however, that the Arbitrator awarded a retroactive permanent promotion.
We note the Arbitrator's findings that the grievant was "consistently doing '9' level work," was eligible for promotion in June 1985, and "should have been promoted at that time." Award at 20. These findings are consistent with an award of a retroactive permanent promotion. Moreover, the Arbitrator did not rely on any contractual or regulatory authority concerning temporary promotions. Compare, for example, 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) (the arbitrator found no wrongful denial of a permanent promotion, but concluded that the agency violated the parties' agreement by failing to temporarily promote the grievant). Finally, in a previous Vo-Tech case, this same Arbitrator expressly concluded that the affected employee "'should have been temporarily promoted.'" Tinker AFB, 43 FLRA at 635 (quoting award). Here, by contrast, the Arbitrator made no mention of a temporary promotion. We conclude, therefore, that the award concerns a retroactive permanent promotion.
The Agency's exceptions are premised on a finding that the award encompassed a retroactive temporary promotion. Consequently, the exceptions do not provide a basis for finding the award deficient. We note, in this regard, that other awards of retroactive permanent promotions in Vo-Tech cases have been upheld by the Authority. For example, U.S. Department of the Air Force, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 42 FLRA 1342, 1347-49 (1991).
The Agency's exceptions are denied.