New Cumberland Army Depot and AFGE Local 2004 (Authority decision, May 23, 1986)

Final FLRA decision. The Authority resolves exceptions to an arbitration award. Under 5 U.S.C. § 7123(a)(1), ordinary judicial review is generally unavailable for an order concerning an arbitration award unless it involves an unfair labor practice under § 7116; this decision does not decide one.

Plain-English summary

An arbitrator awarded a warehouse employee a retroactive temporary promotion and backpay. The Authority found the record uncertain about whether the employee met the position’s minimum qualifications throughout the period. It modified the award to make the promotion and backpay contingent on those qualifications and required the agency to seek approval for the later period.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a).
• Outcome: Temporary promotion award modified to require minimum qualifications.
• Key point: A retroactive promotion cannot cover a period when the employee lacked the position’s minimum qualifications.

Full text (FLRA public release)

[ 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.