Social Security Administration and AFGE Local 1923 (Authority decision, November 14, 1985)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority on an exception to an arbitration award. Judicial review under 5 U.S.C. § 7123(a)(1) generally does not extend to an Authority order involving an arbitration award unless the order involves an unfair labor practice under 5 U.S.C. § 7116.

Plain-English summary

An arbitrator awarded an SSA employee a retroactive temporary promotion and backpay for a higher grade assignment beginning in October 1981. The agency objected because the contract requiring temporary promotion did not take effect until June 11, 1982. The Authority agreed that the award lacked a contractual basis for the earlier period and modified it. Backpay remained available from the contract's effective date until the employee returned to her prior position in March 1984.

Decision snapshot

• Authority: Back Pay Act, 5 U.S.C. § 5596.
• Outcome: Award modified to begin backpay on June 11, 1982.
• Key point: The temporary promotion remedy could not reach a period before the agreement supporting it took effect.

Full text (FLRA public release)

[ v20 p684 ]

20:0684(78)AR

The decision of the Authority follows:

20 FLRA No. 78

SOCIAL SECURITY ADMINISTRATION
Agency

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1923
Union

Case No. 0-AR-1002

DECISION

This matter is before the Authority on an exception to the award of Arbitrator James C. Oldham 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 Arbitrator determined that the grievant had been temporarily assigned to a position of higher grade from October 25, 1981, until March 1984, and that under the express terms of the parties' collective bargaining agreement, she was entitled to a temporary promotion effective the first day of the assignment. Accordingly, he awarded the grievant a retroactive temporary promotion and backpay from October 25, 1981, until the day in March 1984 that she returned to her original position.

In its exception the Agency contends that the award, in part, is contrary to the Back Pay Act, 5 U.S.C. Sec. 5596. Specifically, the Agency maintains that the parties' collective bargaining agreement on which the Arbitrator based his award did not become effective until June 11, 1982. Thus, the Agency argues that there is no basis under the Back Pay Act for the award of retroactive promotion and backpay for the period from October 25, 1981, to June 10, 1982. The Authority agrees.

The Authority has clearly indicated with respect to assignments of the duties of, or details to, a higher-grade position for an extended period of time that absent a collective bargaining agreement provision or agency regulation mandating a temporary promotion in such circumstances, an award by an arbitrator of a retroactive temporary promotion and backpay is not authorized for such extended assignments or details. Veterans Administration Medical Center, Nashville, Tennessee and American Federation of Government Employees, Local No. 2400, 19 FLRA No. 46 (1985); Health Care Financing Administration and American Federation of Government Employees, Local 1923, AFL-CIO, 17 FLRA No. 88 (1985); 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 No. 163 (1984). In particular, in VA Medical Center, Nashville, the grievant had been detailed to a higher-grade position from January 1980, to March 22, 1983. Under the express terms of the parties' collective bargaining agreement, which was effective August 13, 1982, the activity had granted the grievant a retroactive temporary promotion and backpay for the period from August 13, 1982, to March 22, 1983. When the grievant continued to claim an entitlement to a temporary promotion before the effective date of the collective bargaining agreement, that claim was submitted to arbitration and the arbitrator awarded the grievant a retroactive temporary promotion and backpay for the period of the detail before the effective date of the agreement. On the basis of the order of the court in Wilson v. U.S., 229 Ct.C1. 510 (1981) and the decision of the Comptroller General in Turner-Caldwell, 61 Comp.Gen. 408 (1982), the Authority determined that without the contractual basis of the parties' collective bargaining agreement, the award was contrary to law and regulation pertaining to extended details and was contrary to the Back Pay Act. In terms of this case, the Authority finds that the award is likewise contrary to law and regulation pertaining to extended details and to the Back Pay Act to the extent that a retroactive temporary promotion and backpay has been awarded for the period of the assignment that preceded the effective date of the parties' 1982 agreement.

Accordingly, the award is modified to provide as follows:

The grievance in this case is sustained. It is ordered that the grievant be reimbursed for the difference between her earnings and what she would have earned at the CS-4 level from the period June 11, 1982, until her return to her original position in March 1984.

Issued, Washington, D.C., November 14, 1985

(s)---
Henry B. Frazier III, Acting
Chairman
(s)---
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY