[ v42 p886 ]
42:0886(62)AR
The decision of the Authority follows:
42 FLRA No. 62
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 Thomas A. Cipolla. The Arbitrator directed the Agency to provide the grievant a retroactive temporary promotion, with backpay, for a period in which the grievant performed work of a higher-graded position.
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 conclude that, insofar as the award encompasses a retroactive temporary promotion for more than 2 years, it is contrary to Government-wide regulations. We will modify the award to comply with those regulations. We will deny the Agency's other exceptions.
II. Background and Arbitrator's Award
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: "[H]as the Agency violated the Master Labor Agreement in denying the Grievant's promotion from a WG-8 to a WG-9?" Award at 5.
The Arbitrator concluded that the grievant was not wrongfully denied a permanent, competitive promotion to WG-9. The Arbitrator found, however, that the grievant "was temporarily assigned the grade[-]controlling duties of a WG-9" employee from February 1987 to February 1990. Id. at 25. The Arbitrator concluded that the Agency's failure to temporarily promote the grievant violated the parties' collective bargaining agreement and resulted in an unjustified or unwarranted personnel action. The Arbitrator stated that "[b]ut for the Agency's failure to temporarily promote and pay the [g]rievant, the [g]rievant would have been . . . paid a WG-9 level salary." Id. The Arbitrator sustained the grievance, in part, and ordered the Agency to make the grievant whole for the loss of WG-9 pay from March 29, 1987 to February 2, 1990.
III. First and Second Exceptions
A. Position of the Agency
The Agency "concedes" that the grievant "is entitled to a retroactive noncompetitive temporary promotion" in this case. Exceptions at 4. The Agency argues, however, 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 asserts that because it did not use such procedures, the grievant may not be temporarily promoted for more than 120 days.
As its second exception, the Agency argues that, if the Authority agrees that competitive procedures were both required and used to effect the grievant's temporary promotion, 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.
B. Analysis and Conclusions
FPM chapter 335, subchapter 1-5a(1) provides, in pertinent part:
Competitive inservice procedures must be used for temporary promotions over 120 days in higher graded positions (prior service under all details to higher graded positions or temporary promotions is included whether competitive or noncompetitive during the preceding 12 months).
It is clear and undisputed that the Agency did not select the grievant for a temporary promotion pursuant to competitive procedures. Indeed, it was the Agency's failure to promote the grievant that resulted in the grievance in this case. However, it is also clear and undisputed that the Agency assigned the grievant the grade-controlling duties of a higher-graded position. Based on such assignment, the Arbitrator concluded that the Agency violated the parties' collective bargaining agreement by failing to temporarily promote the grievant.
The Agency argues, in effect, that its failure to act in accordance with the FPM excuses the actions it took in violation of the parties' agreement. We reject this argument as unfounded. Where parties to a collective bargaining agreement provide for the temporary promotion of employees assigned to perform the work of higher-graded positions, an arbitrator may order temporary promotions, with backpay, in accordance with that agreement. See U.S. Department of the Interior, Bureau of Reclamation, Lower Colorado Dams Project Office, Boulder City, Nevada and American Federation of Government Employees, Local No. 1978, 40 FLRA 1169, 1174 (1991). Consequently, and without addressing whether the Agency violated the FPM provision in this case, we conclude that the Agency's exception regarding the FPM provides no basis for finding the award deficient. The Agency's second exception is based solely on its argument regarding the FPM provision. As such, it is unnecessary to address the second exception further.
IV. Third Exception
A. Position of the Agency
The Agency contends that, to the extent the Arbitrator ordered the Agency to temporarily promote the grievant for a period of time in excess of 2 years, the award is contrary to 5 C.F.R.§ 335.102(f)(1) and FPM chapter 335, subchapter 1-5a(1).
B. Analysis and Conclusions
An award of a temporary promotion must comply with civil service law and regulation. 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 No. 45, slip op. at 5 (1991) (Tinker AFB). In this regard, 5 C.F.R.§ 335.102(f)(1) and FPM chapter 335, subchapter 1-5a "place an effective limit of 2 years on the duration of a temporary promotion." Id. However, these regulatory provisions permit agencies to temporarily promote an employee for more than 2 years with the formal approval of the Office of Personnel Management (OPM). Id.
The Arbitrator directed the Agency to provide the grievant a retroactive temporary promotion for a period of time in excess of 2 years. Therefore, we will modify the award to order the Agency to grant the grievant a temporary promotion, with backpay, for the 2-year period beginning on March 29, 1989, and to request authorization from OPM to grant the grievant a temporary promotion, with backpay, for the remaining period of time encompassed by the award.
V. Decision
The Agency's first and second exceptions are denied. The Arbitrator's award is modified to read as follows:
The grievance is sustained in part. The grievant shall be made whole for his loss of WG-9 pay for a 2-year period beginning on March 29, 1987. The Agency shall request the Office of Personnel Management to formally authorize the Agency to grant the grievant a retroactive temporary promotion, with backpay, from the end of the 2-year period to February 2, 1990.
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