Local 1867, American Federation of Government Employees (AFL-CIO) (Union) and United States Air Force Academy (Activity)  

 2 FLRA No. 86
 
 LOCAL 1867, AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES (AFL-CIO)
 Union
 
 and
 
 UNITED STATES AIR FORCE ACADEMY
 Activity
 
                                            FLRC NO. 78A-156
 
                 DECISION ON APPEAL FROM ARBITRATION AWARD
 
                            BACKGROUND OF CASE
 
    ACCORDING TO THE ARBITRATOR, THE GRIEVANT WAS EMPLOYED AS A COLLATOR
 OPERATOR IN THE ACTIVITY'S PRINTING PLANT.  DURING A PERIOD OF
 APPROXIMATELY 13 MONTHS, THE POSITION OF OFFSET PRESS BINDERY FOREMAN AT
 THE PLANT REMAINED OFFICIALLY VACANT AND THE GRIEVANT CLAIMED THAT
 DURING THIS PERIOD OF TIME HE PERFORMED THE DUTIES OF ACTING FOREMAN.
 THE GRIEVANT ALLEGED THAT THIS CONSTITUTED A DETAIL IN EXCESS OF 60
 DAYS, ENTITLING HIM, UNDER THE PARTIES' NEGOTIATED AGREEMENT, TO A
 TEMPORARY PROMOTION TO THE HIGHER GRADED POSITION.  THE MATTER
 ULTIMATELY WAS SUBMITTED TO ARBITRATION.
 
                          THE ARBITRATOR'S AWARD
 
    THE PARTIES STIPULATED THAT THE ISSUE BEFORE THE ARBITRATOR WAS:
 
    IN ACCORDANCE WITH ARTICLE 21, SECTION A, OR ARTICLE 22, SECTION E,
 WAS MANAGEMENT
 
    OBLIGATED TO TEMPORARILY PROMOTE GRIEVANT TO A WS-9 FOR THE PERIOD 20
 FEBRUARY 1977 THROUGH 18
 
    MARCH 1978 BASED ON THE GRIEVANT'S PERFORMANCE OF THE PRESS BINDERY
 FOREMAN'S JOB FOR MORE
 
    THAN 60 WORKDAYS?
 
    AT THE ARBITRATION HEARING, THE ACTIVITY ALLEGED IN PART THAT THE
 GRIEVANT DID NOT PERFORM THE HIGHER GRADED DUTIES ON A CONTINUAL BASIS
 BUT ACTED ONLY IN THE ABSENCE OF THE PRINTING PLANT MANAGER.  THE
 ARBITRATOR SUSTAINED THE GRIEVANCE, HOLDING THAT THE ACTIVITY VIOLATED
 THE AGREEMENT /1/ BY NOT TEMPORARILY PROMOTING THE GRIEVANT.  AS AN
 AWARD, HE FOUND THE GRIEVANT ENTITLED TO BACKPAY FOR THE PERIOD AT
 ISSUE, LESS 60 DAYS.
 
                              AGENCY'S APPEAL
 
    THE AGENCY FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD WITH
 THE FEDERAL LABOR RELATIONS COUNCIL.  THIS CASE WAS PENDING BEFORE THE
 COUNCIL ON DECEMBER 31, 1978.  IN ACCORDANCE WITH SECTION 2400.5 OF THE
 TRANSITION RULES OF THE FEDERAL LABOR RELATIONS AUTHORITY (44 FED.REG.
 44741) AND SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (92 STAT. 1215), THE RULES OF PROCEDURE OF THE
 COUNCIL, 5 C.F.R.PART 2411 (1978), REMAIN OPERATIVE WITH RESPECT TO THE
 PRESENT CASE, EXCEPT THAT THE WORD "AUTHORITY" IS SUBSTITUTED, AS
 APPROPRIATE, WHEREVER THE WORD "COUNCIL" APPEARS IN SUCH RULES.
 
    PURSUANT TO SECTION 2411.32 OF THE RULES AS SO AMENDED, THE AUTHORITY
 ACCEPTED THE AGENCY'S PETITION FOR REVIEW INSOFAR AS IT RELATED TO THE
 AGENCY'S EXCEPTION WHICH ALLEGED THAT THE AWARD VIOLATES APPROPRIATE
 REGULATION.  ALSO PURSUANT TO SECTION 2411.47(F) OF THE AMENDED RULES,
 THE AUTHORITY GRANTED THE AGENCY'S REQUEST FOR A STAY OF THE AWARD
 PENDING DETERMINATION OF THE APPEAL.
 
                                  OPINION
 
    SECTION 2411.37(A) OF THE AMENDED RULES OF PROCEDURE PROVIDES:
 
    (A) AN AWARD OF AN ARBITRATOR SHALL BE MODIFIED, SET ASIDE IN WHOLE
 OR IN PART, OR REMANDED
 
    ONLY ON GROUNDS THAT THE AWARD VIOLATES APPLICABLE LAW, APPROPRIATE
 REGULATION, OR THE ORDER,
 
    OR OTHER GROUNDS SIMILAR TO THOSE APPLIED BY THE COURTS IN PRIVATE
 SECTOR LABOR-MANAGEMENT
 
    RELATIONS.
 
    AS PREVIOUSLY NOTED, THE AUTHORITY ACCEPTED THE AGENCY'S PETITION FOR
 REVIEW INSOFAR AS IT RELATED TO THE AGENCY'S EXCEPTION WHICH ALLEGED
 THAT THE AWARD VIOLATES APPROPRIATE REGULATION.  BECAUSE THIS CASE
 INVOLVED A MATTER FOR WHICH THE CIVIL SERVICE COMMISSION WAS RESPONSIBLE
 FOR PRESCRIBING REGULATIONS, AND SINCE UNDER SECTION 902(B) OF THE CIVIL
 SERVICE REFORM ACT OF 1978 (92 STAT. 1224) THIS APPEAL MUST BE RESOLVED
 AS IF THE CIVIL SERVICE REFORM ACT HAD NOT BEEN ENACTED, THE AUTHORITY
 REQUESTED FROM THE OFFICE OF PERSONNEL MANAGEMENT (THE SUCCESSOR AGENCY
 TO THE CIVIL SERVICE COMMISSION WITH RESPECT TO THE MATTERS INVOLVED
 HEREIN) AN INTERPRETATION OF PERTINENT CIVIL SERVICE COMMISSION
 REGULATIONS AS THEY PERTAIN TO THE ARBITRATOR'S AWARD IN THIS CASE.  THE
 RESPONSE OF THE OFFICE OF PERSONNEL MANAGEMENT IS SET FORTH BELOW IN
 RELEVANT PART:
 
    IN THIS CASE THE UNION ALLEGED BEFORE THE ARBITRATOR THAT THE
 GRIEVANT, A WG-10 POWER
 
    COLLATOR OPERATOR, WAS DETAILED TO A HIGHER GRADE POSITION (OFFSET
 PRESS/BINDERY FOREMAN,
 
    WS-9) FOR A PERIOD OF 60 DAYS AND, IN ACCORDANCE WITH THE PARTIES'
 NEGOTIATED AGREEMENT, WAS
 
    ENTITLED TO A TEMPORARY PROMOTION COMMENCING WITH THE 61ST DAY.  THE
 PARTIES' NEGOTIATED
 
    AGREEMENT PROVIDES THAT DETAILS TO HIGHER GRADED POSITIONS WILL NOT
 EXCEED SIXTY (60) DAYS,
 
    AND ASSIGNMENT TO HIGHER GRADED POSITIONS FOR PERIODS IN EXCESS OF
 SIXTY (60) DAYS WILL BE
 
    ACCOMPLISHED BY TEMPORARY PROMOTION.  THE GRIEVANT ALLEGEDLY
 PERFORMED THE DUTIES OF FOREMAN
 
    FOR APPROXIMATELY 13 MONTHS.  MANAGEMENT ALLEGED IN PERTINENT PART
 THAT THE GRIEVANT DID NOT
 
    PERFORM THE HIGHER GRADED FOREMAN DUTIES ON A CONTINUAL BASIS BUT
 ACTED ONLY IN THE ABSENCE OF
 
    THE PRINTING PLANT MANAGER.  THE ARBITRATOR FOUND THAT THE GRIEVANT
 SHOULD HAVE RECEIVED A
 
    TEMPORARY PROMOTION AND, THEREFORE, IS ENTITLED TO BACK PAY FOR THE
 PERIOD AT ISSUE LESS THE
 
    60-DAY PERIOD PROVIDED FOR IN THE PARTIES' NEGOTIATED AGREEMENT.  WE
 HAVE BEEN ASKED WHETHER
 
    THE ARBITRATOR'S AWARD CONFLICTS WITH APPLICABLE REGULATIONS.
 
    WITH REFERENCE TO THE VARIOUS TIME CONSTRAINTS CONCERNING DETAILS AND
 TEMPORARY PROMOTIONS, IT HAS BEEN THE POLICY OF THE CIVIL SERVICE
 COMMISSION TO DEAL WITH THESE TIME FRAMES IN TERMS OF CONTINUOUS DAYS.
 THIS POLICY WAS AFFIRMED BY THE GENERAL ACCOUNTING OFFICE WHEN IT
 DECIDED THE MATTER OF WILLIAM G. ATHERTON, B-173783.200, JULY 31, 1978.
 (SEE ALSO U.S. CIVIL SERVICE COMMISSION BULLETIN NO. 300-43, GAO
 DECISIONS ON CONSECUTIVE DETAILS AND BACKPAY AWARDS, OCTOBER 30, 1978.)
 IN PERTINENT PART THE GAO NOTED:
 
    IT IS EVIDENT FROM ALL OF THE ABOVE THAT THE RULE CONCERNING
 RETROACTIVE TEMPORARY
 
    PROMOTIONS FOR EXTENDED DETAILS ONLY APPLIES WHEN A GIVEN DETAIL
 LASTS MORE THAN 120 DAYS, AS
 
    AN AGENCY MAY DETAIL AN EMPLOYEE FOR A LESSER PERIOD WITHOUT PRIOR
 COMMISSION APPROVAL.  THE
 
    FACT THAT AN EMPLOYEE MAY HAVE BEEN DETAILED TWO OR MORE TIMES, EACH
 DETAIL BEING LESS THAN
 
    120 DAYS BUT ALL OF THE DETAILS TOGETHER AGGREGATING MORE THAN 120
 DAYS, DOES NOT ALONE
 
    ENTITLE HIM TO A RETROACTIVE TEMPORARY PROMOTION.  EACH DETAIL IS A
 SEPARATE PERSONNEL ACTION
 
    AND FOR THE PURPOSE OF APPLYING OUR TURNER-CALDWELL DECISIONS EACH
 DETAIL MUST HAVE EXCEEDED
 
    120 DAYS BEFORE A DETERMINATION MAY BE MADE THAT THE EMPLOYEE MUST
 RECEIVE A RETROACTIVE
 
    TEMPORARY PROMOTION.
 
    (NOTE:  THE GAO'S REFERENCE TO 120 DAYS STEMS FROM CIVIL SERVICE
 COMMISSION INSTRUCTIONS WHICH PLACE A 120-DAY LIMITATION ON DETAILS TO
 HIGHER GRADED POSITIONS WITHOUT PRIOR CIVIL SERVICE COMMISSION APPROVAL.
  TURNER-CALDWELL ESTABLISHED THAT BACKPAY COULD BE AWARDED FOR
 RETROACTIVE TEMPORARY PROMOTIONS OF EMPLOYEES DETAILED TO THE HIGHER
 GRADED POSITION BEYOND 120 DAYS WITHOUT PRIOR CSC APPROVAL.  THESE
 ISSUES ARE DISCUSSED AT LENGTH IN CSC BULLETIN NO. 300-40, MAY 25,
 1977.)
 
    WHILE THE GAO DECISIONS DEAL IN TERMS OF 120 DAYS AS THE MAXIMUM
 ALLOWABLE DETAIL TO A HIGHER GRADED POSITION WITHOUT PRIOR CSC APPROVAL,
 IT IS WELL ESTABLISHED THAT AN AGENCY MAY PROPERLY INCLUDE WITHIN A
 COLLECTIVE BARGAINING AGREEMENT A COMMITMENT TO TEMPORARILY PROMOTE AN
 EMPLOYEE SERVING IN A HIGHER GRADED POSITION BEFORE REACHING THE 120-DAY
 CEILING (E.G., AFTER 60 DAYS).  IN THIS CASE, THE ARBITRATOR HAS NOTED,
 SEE BELOW, THAT THE PARTIES AGREED THAT THE 60 DAYS MUST BE CONTINUOUS.
 HOWEVER, OPM REGULATIONS DO NOT REQUIRE THAT A CONTRACTUALLY ARRIVED AT
 "TRIGGER" FOR TEMPORARY PROMOTION BE OF ANY SPECIFIC DURATION, NOR THAT
 IT MUST BE CONTINUOUS.  SUCH A LIMITATION THEN BECOMES A
 NONDISCRETIONARY AGENCY POLICY AND MUST BE COMPLIED WITH BY THE AGENCY
 WHEN THE STATED CRITERIA HAVE BEEN SATISFIED.  THEREFORE, WITH RESPECT
 TO THE INSTANT CASE, A FINDING MUST BE MADE THAT THE GRIEVANT SERVED 60
 CONTINUOUS DAYS IN THE HIGHER GRADED POSITION BEFORE THE EMPLOYEE WOULD
 BE ENTITLED TO A TEMPORARY PROMOTION.
 
    IN SUMMARY, THE EXTENT TO WHICH THE ARBITRATOR'S AWARD MAY BE
 IMPLEMENTED HINGES ON A SPECIFIC DETERMINATION OF WHEN THE GRIEVANT
 PERFORMED THE DUTIES OF THE HIGHER GRADED POSITION.  IF THE GRIEVANT
 PERFORMED THE DUTIES OF THE HIGHER GRADED POSITION FOR THE ENTIRE
 13-MONTH PERIOD THE ARBITRATOR'S AWARD DOES NOT CONFLICT WITH APPLICABLE
 RULES AND REGULATIONS.  HOWEVER, THE RECORD SUGGESTS THAT THE DUTIES
 WERE PERFORMED ON A SPORADIC BASIS:
 
    THE PARTIES HAVE STIPULATED THAT THE ONLY SENSIBLE MEANING OF 60 WORK
 DAYS WITHIN THE
 
    GOVERNING CONTRACT PROVISION IS 60 CONTINUOUS DAYS.  FROM TESTIMONY
 ADDUCED AT THE HEARING IT
 
    IS IMPOSSIBLE FOR THE ARBITRATOR TO SPECIFY WHAT 60-DAY PERIOD WAS
 SATISFIED AS IT RELATES TO
 
    THE GRIEVANT SINCE NEITHER SIDE PRODUCED HOURLY SCHEDULES DISCLOSING
 WHO WORKED IN WHAT
 
    CAPACITY, AND WHEN.  NONETHELESS, THE ARBITRATOR IS SUFFICIENTLY
 CONVINCED AND PERSUADED BY
 
    THE UNION'S CASE THAT GRIEVANT DID, IN FACT, ACT AS A SUPERVISOR FOR
 A PERIOD IN EXCESS OF 60
 
    DAYS, AND THAT BETWEEN FEBRUARY 20, 1977 AND MARCH 18, 1978 HE WAS
 NEITHER TEMPORARILY
 
    PROMOTED NOR PROVIDED WITH COMPENSATION COMMENSURATE WITH HIS ADDED
 JOB RESPONSIBILITIES.
 
    THE IMPLICATION OF THE ABOVE IS THAT THE GRIEVANT DID NOT SERVE IN
 THE HIGHER LEVEL POSITION FOR THE ENTIRE PERIOD BETWEEN FEBRUARY 20,
 1977, AND MARCH 18, 1978.  IF THAT IS SO, THE AWARD, AS GRANTED BY THE
 ARBITRATOR, IS IN CONFLICT WITH APPLICABLE RULES AND REGULATIONS.
 
    NEVERTHELESS, THE ARBITRATOR DID FIND THAT "THE GRIEVANT DID, IN
 FACT, ACT AS A SUPERVISOR FOR A PERIOD IN EXCESS OF 60 DAYS.  . . . " AN
 AWARD OF BACKPAY WOULD REQUIRE A DETERMINATION OF THE SPECIFIC PERIOD(S)
 OF TIME IN WHICH THE GRIEVANT SERVED AT THE HIGHER LEVEL, EXTENDING
 BEYOND THE "TRIGGER" OF 60 CONTINUOUS DAYS.
 
    BASED UPON THE FOREGOING INTERPRETATION OF APPLICABLE REGULATIONS BY
 THE OFFICE OF PERSONNEL MANAGEMENT, WE FIND THAT THE ARBITRATOR'S AWARD
 IN THIS CASE DOES NOT VIOLATE APPROPRIATE REGULATIONS.  HOWEVER,
 IMPLEMENTATION OF THIS AWARD MUST BE IN ACCORDANCE WITH APPLICABLE LAWS
 AND REGULATIONS AND THUS, IN COMPUTING THE AMOUNT OF BACKPAY DUE THE
 GRIEVANT, A DETERMINATION MUST BE MADE AS TO THE SPECIFIC PERIOD(S) OF
 TIME IN WHICH THE THE GRIEVANT PERFORMED IN THE HIGHER LEVEL POSITION
 BEYOND 60 CONTINUOUS DAYS AND THE PAYMENT OF BACKPAY LIMITED TO THAT
 PERIOD.  /2/
 
                                CONCLUSION
 
    FOR THE FOREGOING REASONS, AND PURSUANT TO SECTION 2411.37(B) OF THE
 AMENDED RULES OF PROCEDURE, WE SUSTAIN THE AWARD.  IMPLEMENTATION OF THE
 AWARD MUST BE CONSISTENT WITH THIS DECISION.  THE STAY OF THE AWARD IS
 HEREBY VACATED.  /3/
 
    ISSUED, WASHINGTON, D.C., FEBRUARY 21, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ ACCORDING TO THE ARBITRATOR, ARTICLE 21, SECTION A OF THE PARTIES
 AGREEMENT PROVIDES, IN RELEVANT PART:
 
    SECTION A.  DETAILS ARE OFFICIAL PERSONNEL ACTIONS BY WHICH AN
 EMPLOYEE RECEIVES CREDIT FOR
 
    EXPERIENCE AND TRAINING WHILE ASSIGNED AWAY FROM HIS/HER OFFICIAL
 POSITION, BUT RECEIVES THE
 
    SALARY ATTACHED TO HIS/HER POSITION.  DETAILS MAY BE USED TO MEET
 SITUATIONS SUCH
 
    AS:  IRREGULAR WORKLOADS, CHANGE IN ORGANIZATION, UNANTICIPATED
 ABSENCES SUCH AS SICK OR
 
    EMERGENCY LEAVE, PENDING OFFICIAL ASSIGNMENTS, PENDING DESCRIPTION
 AND CLASSIFICATION OF NEW
 
    POSITIONS, PENDING SECURITY CLEARANCE, AND FOR CROSS TRAINING TO
 POSITIONS OF LIKE GRADE.  TO
 
    THE MAXIMUM EXTENT FEASIBLE, DETAILS WILL NOT BE MADE TO LOWER GRADE
 DUTIES.  DETAILS TO
 
    HIGHER GRADE POSITIONS WILL NOT EXCEED SIXTY (60) DAYS.
 
    ARTICLE 22, SECTION E PROVIDES, IN RELEVANT PART:
 
    ASSIGNMENT TO HIGHER GRADE POSITIONS BY TEMPORARY PROMOTION IN LIEU
 OF DETAIL IS REQUIRED
 
    FOR PERIODS IN EXCESS OF SIXTY (60) DAYS.  NO TEMPORARY PROMOTION
 WILL BE MADE FOR LESS THAN
 
    SIXTY (60) DAYS OR TO EXCEED ONE YEAR.  SELECTION FOR TEMPORARY
 PROMOTION WILL BE MADE IN
 
    ACCORDANCE WITH THE COMPETITIVE PROVISIONS OF THIS ARTICLE.
 
    /2/ WE NOTE THAT THE ARBITRATOR, AS PART OF HIS AWARD, RETAINED
 LIMITED JURISDICTION OVER THE AWARD AS FOLLOWS:
 
    THE PARTIES STIPULATED AT THE HEARING THAT THEY WOULD HAVE 30 DAYS
 FROM THE DATE OF THIS
 
    DECISION TO AGREE UPON A SUITABLE BACK PAY SUM, AND SHOULD THEY NOT
 BE ABLE TO SO AGREE THE
 
    ARBITRATOR, IN HIS SOLE DISCRETION AND UPON THE REQUEST OF EITHER
 PARTY, WILL MAKE A DECISION
 
    CONCERNING THE AMOUNT OF COMPENSATION TO BE AWARDED.
 
    THUS IT WOULD APPEAR THAT SHOULD THE PARTIES BE UNABLE TO AGREE ON
 THE BACKPAY DUE THE GRIEVANT IN THIS CASE, EITHER PARTY MAY REQUEST A
 DECISION FROM THE ARBITRATOR AS TO THE AMOUNT OF COMPENSATION TO BE
 AWARDED.  HOWEVER, IN DETERMINING THE AMOUNT OF THAT COMPENSATION THE
 ARBITRATOR IS LIKEWISE BOUND BY APPLICABLE LAWS AND REGULATIONS AND MUST
 DETERMINE SPECIFIC PERIODS OF TIME IN WHICH THE GRIEVANT PERFORMED IN
 THE HIGHER LEVEL POSITION BEYOND 60 CONTINUOUS DAYS.
 
    /3/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE
 BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
 APPLICATION OF RELATED PROVISIONS OF THE NEW STATUTE OR THE RESULT WHICH
 WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
 STATUTE RATHER THAN THE ORDER.