43:0399(40)AR - U.S. DEPARTMENT OF THE AIR FORCE, OKLAHOMA CITY AIR LOGISTICS CENTER TINKER AIR FORCE BASE, OKLAHOMA and AFGE, LOCAL 916 -- 1991 FLRAdec AR

  43 FLRA NO. 40

                   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-2130

                              DECISION

                         December 13, 1991


     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.

     An employee filed a grievance challenging the Agency's
failure to promote her. The Arbitrator sustained the grievance
and, as a remedy, ordered the Agency to immediately promote the
grievant to the WG-9 level and to provide the grievant with
backpay and seniority retroactive from the date of the
Arbitrator's award to June 1, 1985.

     For the following reasons, we conclude that the Agency has
failed to establish that the Arbitrator's 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. See 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 was hired on December 23, 1983, at the WG-5
level. In July 1984, the grievant was certified at Level II in
Magnetic Particle Inspection and was authorized to use the "N"
stamp. The authorization to use the "N" stamp signifies that the
grievant was certified to perform certain work that only a
qualified WG-9 employee could perform. See, for example, Tinker
Air Force Base III, 42 FLRA  at 1343. On December 2, 1984, the
grievant was promoted to the WG-8 level. On July 5, 1987, the
grievant was transferred to perform duties in a different career
field. The grievant was not subsequently promoted to WG-9.

     On September 5, 1989, the grievant filed a grievance
claiming that she 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 denying the (g)rievant promotion from WG-8
     to WG-9, (arbitrary) and capricious, and 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 Union requested that the Arbitrator put the grievant
"where she should be were it not for management's action of
unfairly denying her promotion to the WG-9 level; promoted to the
WG-9 level, retroactive to the date of certification at Level II
which was July 18, 1984, and entitlement to all benefits which
she has been denied." Id. at 6.

     Based on the evidence before him, the Arbitrator determined
that the grievant had performed WG-9 work from July 18, 1984
through July 5, 1987. The Arbitrator rejected the Agency's
argument that there were no  positions available into which the
grievant could be promoted. The Arbitrator found that the Agency
"continually promoted other employees to the WG-9 level." Id.

     The Arbitrator noted that the Agency had not given any
satisfactory reason for its failure to promote the grievant and
determined that the grievant "would have qualified for the WG-9
level six months after she was promoted to WG-8; which was
December 2, 1984." Id. at 7. The Arbitrator "compute(d) her
eligibility for WG-9 at or about June 1, 1985" and concluded that
the grievant should be "promoted immediately to the WG-9 level."
Id. Therefore, the Arbitrator sustained the grievance and, in his
award, stated the following:

     The Agency violated the Collective Bargaining Agreement by
     failing and refusing to promote (the grievant) to the Testing
     Equipment Operator at the WG-9 level. The Agency shall
     immediately promote (the grievant) to the WG-9 level. The Agency
     shall grant (the grievant) seniority at the WG-9 level from June
     1, 1985. The Agency shall pay (the grievant) retroactive back pay
     at the WG-9 level from June 1, 1985.

Id.

III. Agency's Exceptions

     The Agency contends that, to the extent the award ordered
either a retroactive noncompetitive permanent promotion with
backpay or a prospective noncompetitive permanent promotion, 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 1-5.a.(1), which is a Government-wide regulation.

     The Agency further states that if the Authority construes
the award as ordering a retroactive temporary promotion with
backpay from September 1, 1985, to the date of the grievant's
permanent promotion, on the basis that competitive procedures
were used, the award interferes with management's right to select
under section 7106(a)(2)(C) of the Statute and is contrary to 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 from September 1,
1985, to the date of the grievant's noncompetitive permanent
promotion to WG-9, the award is contrary to 5 C.F.R.
335.102(f)(1) and FPM chapter 335, subchapter 1-5.a.(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 retroactive permanent promotion with backpay.

     Although the Arbitrator's award discusses the temporary
promotion article contained in the parties' collective bargaining
agreement and does not explicitly include the term "retroactive
permanent promotion," 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 concerning the denial of
a permanent promotion. Accordingly, we find that the Agency's
exceptions do not provide a basis for finding the award
deficient.

     To the extent that the Agency contends that the award is
contrary to the Back Pay Act because it provides the grievant a
retroactive permanent promotion, we conclude that  the
award is not deficient on that basis. In Tinker Air Force Base
III, 42 FLRA  at 1347-49, we found that a retroactive
noncompetitive permanent promotion ordered by the arbitrator 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 the Agency: (1) violated the
parties' collective bargaining agreement by refusing to promote
the grievant; and (2) did not give any satisfactory reasons for
its failure to promote the grievant. The Arbitrator also found
that the grievant would have qualified for the WG-9 level on
December 2, 1984, and that she was entitled to receive backpay
and seniority. Therefore, for the reasons stated in Tinker Air
Force Base III, we find that the Arbitrator implicitly made the
findings necessary for an award of backpay under the Back Pay
Act. Accordingly, to the extent that the Agency's exceptions
contend that the award is contrary to the Back Pay Act, those
exceptions provide no  basis for finding the award deficient.

V. Decision

     The Agency's exceptions are denied.