[ 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 warehouseman-forklift operator, WG-5, an award of a
retroactive temporary promotion and backpay for any period of time
during which the grievant was not qualified would be deficient and could
not be implemented.