21:0968(113)AR - Army, New Cumberland Army Depot and AFGE, Local 2004 -- 1986 FLRAdec AR



[ v21 p968 ]
21:0968(113)AR
The decision of the Authority follows:


 21 FLRA No. 113
 
 DEPARTMENT OF THE ARMY, 
 NEW CUMBERLAND ARMY DEPOT
 Activity
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 2004
 Union
 
                                            Case No. 0-AR-1003
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Ernest Weiss 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/
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    The issue submitted to the Arbitrator questioned whether the Activity
 violated the parties' collective bargaining agreement when it failed to
 temporarily promote the grievant to a WG-5 position.  According to the
 Arbitrator, the grievant, a WG-2 laborer, was granted a temporary
 promotion to warehouseman-forklift operator, WG-5, for the period
 February 17, 1980, to June 16, 1980, at which time the grievant returned
 to his position as laborer, WG-2.  Subsequently, the grievant filed a
 grievance claiming that after the termination of the temporary
 promotion, he had continued to perform the duties of the WG-5 position.
 The Arbitrator found that the grievant was regularly and consistently
 assigned the duties of the WG-5 position.  Noting that the parties'
 agreement provided for a temporary promotion rather than a detail for an
 extended assignment to a higher-grade position, the Arbitrator further
 found that the grievant should have been temporarily promoted to the
 WG-5 position and paid accordingly.  Consequently, the Arbitrator ruled
 that the Activity had violated the collective bargaining agreement when
 it failed to temporarily promote the grievant to the WG-5 position.  As
 a remedy the Arbitrator awarded as follows:
 
          The (Activity) is hereby directed to pay the grievant in
       accordance with 5 U.S.C. 5596, an amount equal to the difference
       between a WG-2, which he received, and a WG-5, which he should
       have received, from thirty (30) days after June 16, 1980, until
       May 15, 1984, when the assignments ceased.
 
                           III.  FIRST EXCEPTION
 
                              A.  Contentions
 
    In its first exception the Agengy contends that the award is contrary
 to section 7121(c)(5) of the Statute, which expressly precludes any
 grievance concerning the classification of a position which has not
 resulted in the reduction in grade or pay of an employee.  Specifically,
 the Agency argues that the grievance was barred and the award is
 deficient because the substance of the dispute between the parties was
 the grade level of the duties performed by the grievant.
 
                       B.  Analysis and Conclusions
 
    In 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 862 (1984), the
 grievance concerned whether the grievant was assigned to perform
 substantially all the duties of a higher-grade position for an extended
 period of time for which she was entitiled under the parties' collective
 bargaining agreement to have been compensated at the higher rate of pay.
  In denying an exception that the grievance was barred by section
 7121(c)(5) of the Statute, the Authority specifically ruled that the
 grievance pertained to whether the grievant should have been compensated
 at a higher rate of pay during the period of the asserted detail and
 that therefore the grievance did not directly concern the classification
 of any position.  15 FLRA at 863.  The Authority similarly finds in this
 case that the grievance pertains to whether the grievant should have
 been temporarily promoted during the period of the asserted assignment
 to the WG-5 position and that therefore the grievance does not directly
 concern the classification of any position.  Accordingly, the first
 exception fails to establish that the award is contrary to section
 7121(c)(5) and therefore provides no basis for finding the award
 deficient.
 
                           IV.  SECOND EXCEPTION
 
                              A.  Contentions
 
    In its second exception the Agency contends that the award is
 contrary to the Back Pay Act, 5 U.S.C. Section 5596.  Specifically, the
 Agency argues that the Arbitrator made no award of a retroactive
 promotion and made no finding that but for an unwarranted personnel
 action, the grievant would have been paid at the WG-5 level.  The Agency
 also maintains that in any event the record does not establish that
 there was a vacant WG-5 position to which the grievant could have been
 promoted.
 
                       B.  Analysis and Conclusions
 
    The Authority has consistently recognized that in order for an award
 of backpay to be authorized by the Back Pay Act, the arbitrator must
 find that an agency personnel action was unjustified or unwarranted,
 that such action directly resulted in the withdrawal or reduction of the
 grievant's pay, allowances or differentials, and that but for such
 action, the grievant otherwise would not have suffered such withdrawal
 or reduction.  U.S. Army Aberdeen Proving Ground and Local 2424,
 International Association of Machinists and Aerospace Workers, AFL-CIO,
 19 FLRA No. 35 (1985).  In this case the Arbitrator specifically ruled
 that the Activity had violated the parties' collective bargaining
 agreement when it failed to temporarily promote the grievant to the WG-5
 position to which he had been assigned for an extended period of time.
 As a remedy the Arbitrator directed for that period of time that the
 grievant be paid an amount equal to the difference between a WG-2, which
 he received, and WG-5, which he should have received.  Contrary to the
 argument of the Agency, the Authority finds that the Arbitrator
 effectively ordered the grievant temporarily promoted retroactively and
 that the Arbitrator made the findings necessary to an award of backpay
 under the Back Pay Act.  See Department of Justice, INS, 15 FLRA at 863;
  American Federation of Government Employees, Local 1923 and Social
 Security Administration, Headquarters, Bureaus and Offices, 12 FLRA 511
 (1983).  Additionally, because the Arbitrator found that the agreement
 mandated that the grievant be temporarily promoted as a result of the
 extended assignment of the duties of the WG-5 position, the Authority
 also finds that the award of backpay is clearly consistent with the
 grievant's statutory entitlement under the Back Pay Act to receive the
 pay that he would have earned if the unwarranted action had not occurred
 without regard to whether the record in this case establishes that there
 was a vacant WG-5 position.  See 5 U.S.C. Section 5596(b)(1)(A)(i);
 National Labor Relations Board Union, Local 19 and Office of the General
 Counsel, National Labor Relations Board, 7 FLRA 21 (1981).  Accordingly,
 this exception fails to establish that the award is contrary to the Back
 Pay Act and therefore provides no basis for finding the award deficient.
 
                            V.  THIRD EXCEPTION
 
                              A.  Contentions
 
    In its third exception the Agency contends that the award is contrary
 to FPM chapter 335, subchapter 1-5, which limits the duration of a
 temporary promotion.
 
                       B.  Analysis and Conclusions
 
    The Authority has clearly indicated in these types of cases that the
 award by an arbitrator of a temporary promotion must be consistent with
 civil service law and regulation.  Veterns Administration, V.A. Medical
 Center, Muskogee, Oklahoma and American Federation of Government
 Employees, Local 2250, 20 FLRA No. 48 (1985).  Civil service regulations
 permit an agency to temporarily promote an employee to meet a temporary
 need for a definite period of one year or less and extend such a
 promotion for a definite period not to exceed one additional year.  5
 CFR Section 335.102(f)(1);  FPM chapter 335, subchapter 1-5.  Agencies
 may temporarily promote an employee for more than two years only with
 the formal approval of the Office of Personnel Management (OPM).  5 CFR
 Section 335.102(g);  FPM chapter 335, subchapter 1-5.  In this case the
 Authority finds that to the extent the award has effectively ordered the
 grievant temporarily promoted retroactively for a period in excess of
 two years without formal approval of OPM, the award is deficient as
 contrary to civil service regulation and must be modified.  /2/
 
                           VI.  FOURTH EXCEPTION
 
                              A.  Contentions
 
    In its fourth exception the Agency contends that the award is
 contrary to civil service law and regulation to the extent it orders the
 grievant temporarily promoted for a period of time during which he was
 not minimally qualified for promotion.  Specifically, the Agency
 maintains that after the grievant's loss of his forklift operator's
 license in June 1981, he was no longer minimally qualified for promotion
 to the position of warehouseman-forklift operator, WG-5.
 
                       B.  Analysis and Conclusions
 
    The Authority has uniformly recognized that in order for an employee
 to be properly promoted consistent with civil service law and
 regulation, the employee must meet the minimum qualification
 requirements for the position to which the employee is promoted.
 Veterans Administration, V.A. Medical Center, Muskogee, Oklahoma and
 American Federation of Government Employees, Local 2250, 20 FLRA No. 48
 (1985).  Although the Arbitrator mentioned the grievant's loss of his
 forklift operator's license, he did not address the loss in terms of the
 grievant's qualification to be promoted to warehouseman-forklift
 operator.  In addition, the Authority finds that the Agency has not
 clearly substantiated that as a result of this loss, the grievant did
 not meet minimum qualification requirements for the position.  Thus,
 whether the grievant met minimum qualification requirements for the
 promotion is uncertain.  However, in order for the award to be
 consistent with governing law and regulation, the grievant must have met
 during the time of the disputed promotion the minimum qualification
 requirements for the position.  Consequently, in these circumstances,
 the Authority must modify the award to assure that it is consistent with
 civil service law and regulation.  Department of the Army, Headquarters
 XVIII Airborne Corps and Fort Bragg and American Federation of
 Government Employees, Local 1770, 18 FLRA No. 63 (1985).
 
                              VII.  DECISION
 
    Accordingly, for the reasons stated above, the Agency's first and
 second exceptions are denied, and the Arbitrator's award is modified to
 provide as follows:
 
          Provided that at all relevant times the grievant met the
       minimum qualification requirements for promotion to
       warehouseman-forklift operator, WG-5, the grievant is awarded a
       retroactive temporary promotion to such position for the period
       July 16, 1980, to July 15, 1982, with backpay, and the activity
       shall request that the Office of Personnel Management formally
       authorize the Activity to award the grievant a retroactive
       temporary promotion with backpay for the period July 16, 1982, to
       May 14, 1984.  /3/
 
    Issued, Washington, D.C., May 23, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) In its opposition the Union maintains that the exceptions were
 not timely filed.  However, contrary to the Union's assertion, the
 Authority finds that the exceptions were timely filed under the Statute
 and the Authority's Rules and Regulations.
 
    (2) In view of this decision, no basis is provided for finding the
 award contrary to section 7106(a)(2)(C) of the Statute because the
 Arbitrator assertedly awarded the grievant a permanant promotion.
 
    (3) If the grievant did not meet minimum qualification requirements
 for the position of warehou