Hill Air Force Base, Utah and American Federation of Government Employees, Local No. 1592 (Authority decision, November 10, 1987)

Final FLRA decision. The Authority modifies an arbitration award of retroactive temporary promotions and denies the union's exception concerning experience credit. Under 5 U.S.C. § 7123(a)(1), an order involving an arbitral award is generally excluded from judicial review unless it involves an unfair labor practice under 5 U.S.C. § 7116. This decision does not decide an unfair labor practice.

Plain-English summary

Two Hill Air Force Base employees performed higher-grade production controller work and sought temporary promotions with backpay and credit for the experience. The arbitrator awarded promotions despite finding that they did not meet the minimum qualification standard. The Authority held that the base could not waive that standard itself. It changed the award to require the base to ask the Office of Personnel Management for a variation that would authorize the promotions and backpay. It also rejected the union's challenge to the arbitrator's denial of experience credit to one employee, because the cited manual provision permitted but did not require such credit.

Decision snapshot

• Authority: Arbitration exceptions under 5 U.S.C. § 7122(a); OPM variation authority under 5 C.F.R. § 5.1.
• Outcome: Promotion award modified to require an OPM variation request; union's experience-credit exception denied.
• Key point: The base could not grant promotions by waiving qualification requirements on its own.

Full text (FLRA public release)

[ v30 p6 ]

30:0006(2)AR

The decision of the Authority follows:

30 FLRA NO. 2
30 FLRA 6

10 NOV 1987

HILL AIR FORCE BASE, UTAH

Activity

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL NO. 1592

Union

Case No. 0-AR-1372

DECISION

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Donald H. Wollett filed by both the Agency and the Union 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 filed an opposition to the Agency's exceptions.

II. Background and Arbitrator's Award

Two grievances were filed and jointly submitted to arbitration on the issues of whether the parties' collective bargaining agreement entitled the grievants to (1) retroactive temporary promotions for the nearly 2-year period during which they performed the duties of the higher-grade position of production controller, GS-7; and (2) credit at the GS-7 level for the experience gained during this time.

On the issue of whether the grievants were entitled to have been temporarily promoted, the Activity argued before the Arbitrator that they were not eligible for promotion under X-118 civil service qualification standards because they did not have the minimum qualifying experience of 5 years of total experience, which must include 3 years of specialized experience. The Activity further maintained that this requirement was not subject to waiver.

The Arbitrator agreed with the Activity that the X-118 qualification standard required 5 years of experience and that the grievants failed to meet this. minimum qualification requirement. However, the Arbitrator disagreed that the standard was not waivable, and he ordered the Activity to waive the qualification requirement. The Arbitrator awarded the grievants retroactive temporary promotions with backpay for the period of time commencing with the 31st day of the assignment and ending with the date of their reassignments.

The second issue concerned whether the grievants were entitled under the parties' collective bargaining agreement to credit at the GS-7 level for the experience gained during the period they performed the duties of the production controller position. The Arbitrator determined that under the terms of the collective bargaining agreement, Grievant Cook was entitled to credit, but Grievant Crane was not, except for the period of his formal detail.

III. Agency's Exception

A. Contentions

The Agency contends that the award is contrary to civil service regulations. Specifically, the Agency maintains that by awarding the grievants retroactive temporary promotions with backpay, the award is contrary to Federal Personnel Manual chapter 335, which prohibits promotions of employees who do not meet the minimum qualification requirements for the position. In addition, the Agency maintains that X-118 mini-mum qualification requirements cannot be waived by agencies.

The Union generally disputes the Agency's contentions. In addition, however, the Union maintains that the Activity should be required to comply with the award because it could and should have requested from the Office of Personnel Management under 5 C.F.R. 5.1 a variation from the X-118 standards in order to grant the temporary promotions.

B. Analysis and Conclusions

We conclude that the award is deficient. In order for an employee to be properly promoted consistent with civil service laws and regulations, 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, American Federation of Government Employees, Local 1631 and Veterans Administration Medical Center, Chillicothe Ohio, 23 FLRA 507 (1987). In this, we find that the Agency has established that the grievants did not meet the minimum qualification requirements for a temporary promotion to GS-7 for the disputed period.

We note that, on the basis of the Activity's evidence and testimony, the Arbitrator agreed with the Activity that the grievants did not meet the X-118 qualification standards for promotion to GS-7. Additionally, there is no provision for waiver by an agency of the X-118 qualification standard in dispute. Consequently, the award by the Arbitrator of temporary promotions in conjunction with the Activity's waiver of the qualification requirement is deficient and must be modified. However, the Director of the Office of Personnel Management (OPM) is authorized to grant variations from civil service regulations. 5 C.F.R. 5.1. Accordingly, we will modify the award to direct that such a request be made. See Department of the Army, New Cumberland Army Depot and American Federation of Government Employees, Local 2004, 21 FLRA 968 (1986) (award modified to direct the activity to request OPM to authorize a temporary promotion for the period involved that was in excess of 2 years).

IV. Union's Exception

A. Contentions

The Union contends that the award, to the extent that it denied Grievant Crane experience credit, is contrary to OPM Manual X-118. Specifically, the Union argues that Manual X-118 permits the crediting of experience in cases of "misassignment" and claims that consequently, the award is deficient by denying Grievant crane experience credit for his misassignment.

B. Analysis and Conclusions

We deny the Union's exception. The Arbitrator specifically determined that under the parties' collective bargaining agreement, Grievant Crane was not entitled to experience credit. Even assuming that Grievant Crane's situation was a misassignment within the meaning of the cited provision of manual X-118, the provision for crediting of experience is only permissive and not prescriptive.

Accordingly, the Union's exception constitutes nothing more than disagreement with the Arbitrator's interpretation and application of the collective bargaining agreement and provides no basis for finding the award deficient as alleged. See, for example, American Federation of Government Employees (AFL - CIO) Local 1770 and Headquarters XVIII Airborne Corps and Fort Bragg, Fort Bragg, N.C., 6 FLRA 348 (1981).

V. Decision

For the reasons discussed, the award is modified to substitute the following for paragraph 3 of the award which grants the grievant's retroactive temporary promotions with backpay:

The Activity shall request that the Director of the Office of Personnel Management grant a variation from civil service regulation and formally authorize the Activity to award the grievants retroactive temporary promotions with backpay for the period designated by the Arbitrator despite their not meeting minimum qualification requirements during the period.

Issued, Washington, D.C., November 10, 1987

Jerry L. Calhoun, Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY