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43 FLRA No. 54

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE AIR FORCE
OKLAHOMA CITY AIR LOGISTICS CENTER
TINKER AIR FORCE BASE, OKLAHOMA
(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 916
(Union)

0-AR-2142

December 20, 1991

DECISION

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 Don J. Harr filed by the Agency 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.

The Arbitrator directed the Agency to promote the grievant and provide the grievant with backpay and seniority retroactive from the date of the award to December 31, 1987. For the following reasons, we conclude that the Agency has failed to establish that the award is deficient. Therefore, 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, issued by different arbitrators, naming as parties the same Agency and Union that are named in this case. The grievances concern the Agency's failure to promote various wage grade employees who participated in, or were affected by, the Agency's implementation of its vocational technical (Vo-Tech) training program. For example, 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, 43 FLRA No. 40 (1991) (Tinker Air Force Base V); 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, 43 FLRA 306 (1991) (Tinker Air Force Base IV); U.S. Department of the Air Force, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 42 FLRA 1342 (1991) (Tinker Air Force Base III); 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) (Tinker Air Force Base II); 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 680 (1991) (Tinker Air Force Base I).

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 of denying the [g]rievant promotion from WG-8 to WG-9 in violation of laws, rules, and regulations, and in violation of the spirit and intent of the Master Labor Agreement? If so, what is the proper remedy?

Award at 2.

The Arbitrator concluded that the grievant "was performing WG-9 level work and should have been promoted by the end of 1987." Id. at 4. The Arbitrator further concluded that the Agency violated the parties' collective bargaining agreement "by failing and refusing to promote" the grievant. Id. The Arbitrator sustained the grievance and ordered the Agency to promote the grievant immediately to the WG-9 level and provide the grievant with backpay and seniority retroactive to December 31, 1987.

III. The Agency's Exceptions

The Agency contends that, to the extent the award ordered either a retroactive or a prospective noncompetitive permanent promotion with backpay, it is contrary to the Back Pay Act, 5 U.S.C. § 5596.

The Agency also asserts that, if the Authority construes the award as ordering a retroactive noncompetitive temporary promotion with backpay in excess of 120 days, the award is contrary to Federal Personnel Manual (FPM) chapter 335, subchapter 1-5a(1), which is a Government-wide regulation.

The Agency further states that, if the Authority agrees that competitive procedures were both required and used to effect the grievant's temporary promotion, the award interferes with management's right to select under section 7106(a)(2)(C) of the Statute and is contrary to the Back Pay Act and FPM chapter 335, subchapter 1-4, requirement 4.

Finally, the Agency contends that, if the Authority determines that competitive in-service procedures are not required and construes the award as ordering a retroactive noncompetitive temporary promotion with backpay 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)(a).

IV. Analysis and Conclusions

The Agency has offered alternative exceptions to the Arbitrator's award based, in part, on whether the award is viewed as ordering a permanent promotion of the grievant or a temporary promotion, and, if permanent, whether the promotion is retroactive or prospective.

We interpret the award as providing the grievant a permanent promotion with backpay. Although the Arbitrator's award references provisions in the parties' collective bargaining agreement addressing both temporary and permanent promotions, it is clear from the nature of the dispute presented to the Arbitrator, and the Arbitrator's findings, that the award concerns the wrongful denial of a permanent promotion. We note that the Arbitrator does not use the term "temporary promotion" and nothing in the award indicates that the award concerns the denial of a temporary promotion. Under these circumstances, we construe the award as encompassing a permanent promotion. See Tinker Air Force Base V. Accordingly, the exceptions which are dependent on a finding that the Arbitrator awarded a temporary promotion do not provide a basis for concluding that the award is deficient.

In Tinker Air Force Base V, 43 FLRA No. 40, we found that a retroactive noncompetitive permanent promotion ordered by the same Arbitrator involved in this case was consistent with the Back Pay Act. We determined, in that case, that the Arbitrator had implicitly found that: (1) but for the unfair treatment of the grievant in violation of the parties' collective bargaining agreement, the grievant would have been promoted; and (2) the violation of the collective bargaining agreement had resulted in the denial of a financial entitlement the grievant would have received during the period if the unjustified personnel action had not occurred.

Here, the Arbitrator found that: (1) the Agency violated the parties' collective bargaining agreement by refusing to promote the grievant; and (2) the grievant was performing WG-9 level work and should have been promoted by the end of 1987. The Arbitrator also found that the grievant would have qualified for the WG-9 level on December 31, 1987, and that the grievant was entitled to receive backpay and seniority retroactive to that date. For the reasons stated in Tinker Air Force Base V, we find that the Arbitrator implicitly made the findings necessary for an award of backpay under the Back Pay Act. See also Tinker Air Force Base III. Accordingly, we reject the Agency's exception that, insofar as the award encompasses a permanent promotion, it is contrary to the Back Pay Act.

V. Decision

The Agency's exceptions are denied.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

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