American Federation of Government Employees, Local 1857 and Sacramento Air Logistics Center, McClellan Air Force Base



[ v02 p110 ]
02:0110(11)AR
The decision of the Authority follows:


 2 FLRA No. 11
 
 MR. DON A. DRESSER
 CHIEF, LABOR RELATIONS DIVISION
 DIRECTORATE OF CIVILIAN PERSONNEL
 DEPARTMENT OF THE AIR FORCE
 WASHINGTON, D.C.  20330
 
                     RE:  AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
                          LOCAL 1857 AND SACRAMENTO AIR LOGISTICS CENTER,
                          McCLELLAN AIR FORCE BASE, (ANDERSON, ARBITRATOR),
                          Case No. 0-AR-4
 
 DEAR MR. DRESSER:
 
    THE AUTHORITY HAS CAREFULLY CONSIDERED THE AGENCY'S PETITION FOR
 REVIEW AND REQUEST FOR A STAY OF THE ARBITRATOR'S AWARD IN THE ABOVE
 ENTITLED CASE.  /1/
 
    ACCORDING TO THE ARBITRATOR, THE GRIEVANT IN THIS CASE, AN EMPLOYEE
 OF MCCLELLAN AIR FORCE BASE (THE ACTIVITY), WAS ASSIGNED IN JULY 1973 TO
 THE POSITION OF WORKER-TRAINEE WG-2.  SHE WAS SUBSEQUENTLY PROMOTED TO
 THE POSITION OF WORKER-TRAINEE, WG-3.  HOWEVER, THE GRIEVANT CLAIMED
 THAT WHILE IN THESE POSITIONS SHE WAS ACTUALLY ASSIGNED THE DUTIES OF AN
 ELECTRONICS MECHANIC HELPER, WG-2614-5.  THEREFORE, IN APPROXIMATELY
 JUNE 1976, SHE FILED A GRIEVANCE REQUESTING THAT SHE BE PROMOTED TO AN
 ELECTRONICS MECHANIC HELPER, WG-2614-5, POSITION.
 
    THE GRIEVANCE WAS MUTUALLY RESOLVED AT THE THIRD STEP OF THE PARTIES'
 NEGOTIATED GRIEVANCE PROCEDURE BY THE CONVENING OF A JOINT
 LABOR-MANAGEMENT GRIEVANCE COMMITTEE.  THE COMMITTEE MADE FIVE
 RECOMMENDATIONS WHICH WERE APPROVED BY THE BASE VICE COMMANDER ON JUNE
 8, 1977.  /2/
 
    THEREAFTER, IN SEPTEMBER 1977, THE UNION FILED A NEW GRIEVANCE,
 CLAIMING THAT THE ACTIVITY HAD NOT IMPLEMENTED THE RECOMMENDATIONS OF
 THE JOINT GRIEVANCE COMMITTEE.  THE MATTER ULTIMATELY WAS SUBMITTED TO
 ARBITRATION.  THE ISSUE BEFORE THE ARBITRATOR, AS STIPULATED BY THE
 PARTIES, WAS:
 
    A.  HAS THE COMMANDER COMPLIED WITH THE 3D STEP COMMITTEE'S
 RECOMMENDATIONS, SIGNED BY THE
 
    COMMANDER ON 8 JUNE 1977(?)
 
    B.  IF YES, HAS THE COMMANDER DONE SO IN A TIMELY AND REASONABLE
 MANNER?
 
    C.  IF NOT COMPLIED WITH IN A TIMELY AND REASONABLE MANNER;  WHAT, IF
 ANYTHING, SHOULD THE
 
    REMEDY BE?
 
    IN THE DISCUSSION AND OPINION ACCOMPANYING HIS AWARD THE ARBITRATOR
 ADDRESSED EACH OF THE COMMITTEE'S RECOMMENDATIONS AND THE ACTIONS THAT
 HAD BEEN TAKEN WITH RESPECT TO THEM.  AS TO RECOMMENDATION NUMBER 3,
 THAT "IMMEDIATE ACTION BE TAKEN TO ASSIGN GRIEVANT TO DUTIES
 COMMENSURATE WITH HER WG-3 GRADE," THE ARBITRATOR CONCLUDED THAT THE
 ACTION TAKEN BY THE ACTIVITY HAD NOT BEEN "IMMEDIATE." IN THIS REGARD
 THE ARBITRATOR NOTED THAT TESTIMONY AT THE ARBITRATION HEARING INDICATED
 THAT THE GRIEVANT HAD CONTINUED TO PERFORM THE DUTIES OF AN ELECTRONICS
 MECHANIC HELPER, WG-2614-5, FROM JUNE 8, 1977, THE DATE THE COMMITTEE'S
 RECOMMENDATIONS WERE APPROVED, UNTIL JANUARY 15, 1978, WHEN SHE WAS
 REASSIGNED TO THE POSITION OF SUPPLY CLERK, GS-2005-3.  THEREFORE, HE
 FOUND THAT THE COMMANDER HAD NOT COMPLIED WITH THE JOINT COMMITTEE'S
 THIRD RECOMMENDATION IN A TIMELY AND REASONABLE MANNER.
 
    THE ARBITRATOR'S AWARD WAS AS FOLLOWS:
 
    1.  THE COMMANDER HAS COMPLIED WITH THE JOINT LABOR-MANAGEMENT
 GRIEVANCE COMMITTEE
 
    RECOMMENDATIONS APPROVED BY THE BASE VICE COMMANDER ON JUNE 8, 1977,
 EXCEPT THAT, WHILE HE
 
    TOOK ACTION WITH RESPECT TO RECOMMENDATION NO. 3, SUCH ACTION WAS NOT
 IMMEDIATE.
 
    2.  THE COMMANDER COMPLIED WITH ALL OF THE COMMITTEE'S
 RECOMMENDATIONS IN A TIMELY AND
 
    REASONABLE MANNER EXCEPT FOR RECOMMENDATION NO. 3.
 
    3.  THE COMMANDER SHALL EFFECTUATE A TEMPORARY RETROACTIVE PROMOTION
 OF THE GRIEVANT FOR
 
    THE PERIOD FROM 8 JUNE 1977 TO 15 JANUARY 1978.
 
    THE AGENCY REQUESTS THAT THE AUTHORITY ACCEPT ITS PETITION FOR REVIEW
 OF THE ARBITRATOR'S AWARD BASED UPON THE EXCEPTION DISCUSSED BELOW. THE
 UNION DID NOT FILE AN OPPOSITION.
 
    PURSUANT TO SECTION 2400.5 OF THE TRANSITION RULES AND REGULATIONS OF
 THE FEDERAL LABOR RELATIONS AUTHORITY (44 FED. REG. 44741), WHICH ARE IN
 EFFECT WITH RESPECT TO THIS CASE, THE RULES OF PROCEDURE SET FORTH IN 5
 C.F.R. PART 2411(1978) REMAIN OPERATIVE WITH RESPECT TO ARBITRATION
 CASES, 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, REVIEW OF AN
 ARBITRATOR'S AWARD WILL BE GRANTED "ONLY WHERE IT APPEARS, BASED UPON
 THE FACTS AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE
 EXCEPTIONS TO THE AWARD PRESENT GROUNDS THAT THE AWARD VIOLATES
 APPLICABLE LAW, APPROPRIATE REGULATION, OR THE ORDER, OR OTHER GROUNDS
 SIMILAR TO THOSE UPON WHICH CHALLENGES TO ARBITRATION AWARDS ARE
 SUSTAINED BY COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS."
 
    IN ITS EXCEPTION TO THE AWARD, THE AGENCY CONTENDS THAT THE AWARD
 VIOLATES APPLICABLE LAW AND APPROPRIATE REGULATIONS.  IN SUPPORT OF THIS
 EXCEPTION, THE AGENCY CITES A PRIOR DECISION OF THE FEDERAL LABOR
 RELATIONS COUNCIL AND CIVIL SERVICE REGULATIONS REGARDING OVERLONG
 DETAILS TO HIGHER GRADED JOBS AND ALLEGES THAT THE GRIEVANT'S RIGHT IN
 THIS CASE TO A RETROACTIVE PROMOTION DID NOT ARISE UNTIL THE 121ST DAY
 OF HER DETAIL, WHICH ACCORDING TO THE AGENCY DID NOT BEGIN FOR PURPOSES
 OF THIS CASE UNTIL JUNE 8, 1977.  THE AGENCY THEREFORE REQUESTS THAT THE
 AUTHORITY MODIFY THE ARBITRATOR'S AWARD SO THAT THE GRIEVANT'S
 RETROACTIVE TEMPORARY PROMOTION WOULD EFFECTIVE THE 121ST DAY AFTER JUNE
 8, 1977.
 
    THE AUTHORITY WILL ACCEPT A PETITION FOR REVIEW OF AN ARBITRATION
 AWARD WHERE IT APPEARS, BASED UPON THE FACTS AND CIRCUMSTANCES DESCRIBED
 IN THE PETITION, THAT THE AWARD VIOLATES APPLICABLE LAW OR APPROPRIATE
 REGULATIONS.  IN THIS CASE, HOWEVER, THE AGENCY'S PETITION DOES NOT
 CONTAIN A DESCRIPTION OF FACTS AND CIRCUMSTANCES TO SUPPORT ITS
 EXCEPTION.  IN THIS REGARD, WHILE THE ARBITRATOR NOTED THAT HIS
 AUTHORITY WAS LIMITED ONLY TO THE QUESTION OF COMPLIANCE WITH THE JOINT
 GRIEVANCE COMMITTEE'S RECOMMENDATIONS AFTER THE JUNE 8, 1977, DATE OF
 THEIR APPROVAL, THE AGENCY CITES NO LAW OR REGULATION WHICH WOULD
 PRECLUDE THE ARBITRATOR FROM GRANTING THE GRIEVANT, IN THE CIRCUMSTANCES
 OF THIS CASE, A RETROACTIVE TEMPORARY PROMOTION FOR THE FULL PERIOD
 BETWEEN JUNE 8, 1977, AND JANUARY 15, 1978.  NOR DOES THE AGENCY PRESENT
 ANY SUPPORT FOR ITS APPARENT ASSERTION THAT SUCH A LIMITATION ON THE
 ARBITRATOR'S AUTHORITY ALSO LIMITS THE LENGTH OF THE GRIEVANT'S DETAIL
 TO ONLY THAT PERIOD AFTER JUNE 8, 1977.  THE AUTHORITY NOTES THAT THE
 AGENCY CONCEDES THAT THE GRIEVANT IS ENTITLED TO THE TEMPORARY
 PROMOTION, CONTESTING ONLY THE FIRST 120 DAYS THEREOF.  EVEN IF THE
 AGENCY IS CORRECT IN ITS ASSERTION THAT THE GRIEVANT IS ONLY ENTITLED TO
 A TEMPORARY PROMOTION ON OR AFTER THE 121ST DAY OF HER DETAIL, IT IS
 CLEAR FROM THE ARBITRATOR'S AWARD THAT THE GRIEVANT'S CONTINUOUS
 ASSIGNMENT TO THE HIGHER GRADED DUTIES BEGAN MORE THAN 120 DAYS BEFORE
 JUNE 8, 1977.  IN THIS CASE THE ARBITRATOR FOUND THAT THE ACTIVITY DID
 NOT COMPLY WITH THE JOINT COMMITTEE'S RECOMMENDATION REGARDING THE
 GRIEVANT'S CONTINUOUS ASSIGNMENT TO HIGHER GRADED DUTIES IN A TIMELY AND
 REASONABLE MANNER AND HE AWARDED A REMEDY FOR THAT NONCOMPLIANCE.  THE
 FACTS AND CIRCUMSTANCES DESCRIBED BY THE AGENCY DO NOT SUPPORT ITS
 ASSERTION THAT SUCH AN AWARD VIOLATES LAW OR REGULATION.  THEREFORE, THE
 AGENCY'S EXCEPTION PROVIDES NO BASIS FOR ACCEPTANCE OF ITS PETITION
 UNDER SECTION 2411.32 OF THE AMENDED RULES.
 
    ACCORDINGLY, THE AGENCY'S PETITION FOR REVIEW OF THE ARBITRATOR'S
 AWARD IS DENIED BECAUSE IT FAILS TO MEET THE REQUIREMENTS OF SECTION
 2411.32 OF THE RULES FOR ACCEPTANCE BY THE AUTHORITY OF A PETITION FOR
 REVIEW OF AN ARBITRATOR'S AWARD.  THE AGENCY'S REQUEST FOR A STAY OF THE
 AWARD IS ALSO DENIED.
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
    CC:  R. D. KING
 
    AFGE
 
    /1/ MEMBER LEON B. APPLEWHAITE DID NOT PARTICIPATE IN THE PRESENT
 CASE, WHICH HAD BEEN PROCESSED PRIOR TO HIS CONFIRMATION BY THE UNITED
 STATES SENATE AS A MEMBER OF THE AUTHORITY.
 
    /2/ THE COMMITTE'S RECOMMENDATIONS WERE AS FOLLOWS:
 
    1.  THAT THE GRIEVANCE BE SUSTAINED.
 
    2.  THAT, DUE TO LEGAL AND REGULATORY PROHIBITIONS, THE REMEDY SO