AFGE Local 1631 and Veterans Administration Medical Center, Chillicothe (Authority decision, September 29, 1986)

Final FLRA decision. The Authority denies the union's exception and leaves an arbitration award denying a temporary promotion grievance in place. Under 5 U.S.C. § 7123(a)(1), orders involving arbitral awards are generally excluded from judicial review unless they involve an unfair labor practice under 5 U.S.C. § 7116. This decision does not state that it involves one.

Plain-English summary

A GS-3 clerk-stenographer at the Chillicothe VA Medical Center performed some GS-5 duties for about ten months. An arbitrator found the assignment inequitable but denied her grievance because she did not meet the qualification standards for promotion to the GS-5 position. AFGE Local 1631 sought a retroactive temporary promotion and backpay. The Authority held that an employee must meet the position's minimum qualifications at the time of promotion. It denied the union's exception, while saying that it did not condone the inequitable treatment.

Decision snapshot

• Authority: Review of arbitration exceptions under 5 U.S.C. § 7122(a).
• Outcome: Union exception denied; grievance denial left in place.
• Key point: Performing some higher grade duties did not permit a promotion without meeting the position's minimum qualifications.

Full text (FLRA public release)

[ v23 p507 ]

23:0507(69)AR

The decision of the Authority follows:

23 FLRA No. 69

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1631
Union

and

VETERANS ADMINISTRATION
MEDICAL CENTER,CHILLICOTHE, OHIO
Activity

Case No. 0-AR-1172

DECISION

I. STATEMENT OF THE CASE

This matter is before the Authority on an exception to the award of Arbitrator Louis V. Immundo, Jr. filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations.

II. BACKGROUND AND ARBITRATOR'S AWARD

A grievance was filed and submitted to arbitration where the Arbitrator framed the issue as whether management violated the parties' collective bargaining agreement by not temporarily promoting the grievant, a clerk-stenographer, GS-3, to the position of secretary-stenographer, GS-5. The Arbitrator found that the grievant performed some of the duties of the GS-5 position for a 10-month period and that she apparently performed those duties in a satisfactory manner. The Arbitrator concluded that by not detailing the grievant to the higher-graded position, management violated the spirit of Article 10 of the parties' collective bargaining agreement relating to equitable, nondiscriminatory treatment of employees. However, the Arbitrator further found, based on a determination by the Office of Personnel Management, that the grievant was not eligible for promotion to GS-5 under X-118 civil service qualification standards. The Arbitrator therefore concluded that management did not violate Article 16 of the parties' agreement by not temporarily promoting the grievant to the GS-5 position. Finding that no remedy could be applied for a violation of the spirit of Article 10, the Arbitrator, as his award, denied the grievance.

III. EXCEPTION

In its exception the Union contends that the award is contrary to law and regulation. Essentially, the Union argues that the award is deficient because the Arbitrator failed to award the grievant a retroactive temporary promotion and backpay for the period of time he found that she was assigned the duties of the GS-5 position.

IV. ANALYSIS AND CONCLUSIONS

We conclude that the exception fails to establish that the award is contrary to law or regulation. To the contrary, the award is strictly in accordance with civil service law and regulation. The Authority has recognized that in order for an employee to be properly promoted consistent with civil service law and regulation, whether temporarily or permanently, the employee must meet at the time of the promotion the minimum qualification requirements for the position to which the employee is to be promoted. For example, Veterans Administration, VA Medical Center, Muskogee, Oklahoma and American Federation of Government Employees, Local 2250, 20 FLRA No. 48 (1985) (and cases cited in the decision). As noted, the Arbitrator in concluding that the Activity did not violate the parties' agreement specifically found that the grievant did not meet the minimum qualification requirements for promotion to GS-5. Accordingly, while we do not condone management's inequitable treatment of the grievant as found by the Arbitrator, we are constrained to conclude that the award denying the grievance is not deficient as alleged.

V. DECISION

Accordingly, the Union's exception is denied.

Issued, Washington, D.C., September 29, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY