Veterans Administration Medical Center, Muskogee and AFGE Local 2250 (Authority decision, September 30, 1985)

Final FLRA decision. The Authority resolves an exception to an arbitration award. 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 prosthetic clerk at the Muskogee VA Medical Center sought temporary promotion and backpay for performing duties of higher grade positions. An arbitrator awarded compensation for that work. The VA argued that the employee did not meet the required qualifications for either higher grade position. The Authority agreed that the employee could not lawfully be promoted to either position during the disputed period. It set aside the award of higher grade compensation.

Decision snapshot

• Authority: Arbitration review under 5 U.S.C. § 7122(a); civil service promotion qualifications.
• Outcome: Arbitration award set aside.
• Key point: Performing higher grade duties alone did not permit a temporary promotion when the employee lacked the position's minimum qualifications.

Full text (FLRA public release)

[ v20 p441 ]

20:0441(48)AR

The decision of the Authority follows:

20 FLRA No. 48

VETERANS ADMINISTRATION,
V.A. MEDICAL CENTER,
MUSKOGEE, OKLAHOMA
Activity

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2250
Union

Case No. 0-AR-937

DECISION

This matter is before the Authority on exceptions to the award of Arbitrator Francis X. Quinn 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 grievance in this case concerned the claim of the grievant, a Prosthetic Clerk, GS-5, that she performed the duties of Prosthetic Representative, GS-7, and those of Chief, Prosthetic Service, GS-11, for the period of November 23, 1983 through April 1, 1984. The grievant filed a grievance claiming that under the parties' collective bargaining agreement she was entitled to have been temporarily promoted. In answer to the grievance, the Activity claimed that the grievant was not entitled to have been temporarily promoted because she did not meet the minimum qualification requirements for either position. The grievance was not resolved and was submitted to arbitration. The Arbitrator without discussing the qualification requirements for either position determined that the grievant did the work of a higher-grade position for the period of November 23, 1983 through April 1, 1984, and effectively ordered her retroactively promoted with backpay for that period by directing that she be compensated for the work she performed.

In its exception the Agency contends that the award is deficient as contrary to civil service law and regulation because the grievant was not qualified for promotion to either Prosthetic Representative, GS-672-7, or Chief, Prosthetic Service, GS-11. In support of the exception, the Agency has submitted the qualification standard for Prosthetic Representative, GS-672-5/15. /1/ The standard provides that for all positions other than in the Agency's Central Office, a minimum qualification requirement is that the employee must meet the following:

1. Have sustained a major amputation (hand, arm, foot, leg,
   etc.) or other permanent major injury; (and)

2. Must habitually use an obvious prosthetic appliance or
   sensory aid(.)

Because the grievant failed to meet this requirement, the Agency argues that to the extent the award orders her temporarily promoted with backpay to Prosthetic Representative, GS-672-7, the award is deficient. With respect to the position of Chief, Prosthetic Service, GS-11, the Agency maintains that the grievant as a GS-5 in the competitive service was not minimally qualified for promotion to GS-11 because of the time-in-grade restrictions of 5 CFR part 300, subpart F, which pertinently require for promotion to GS-11 that the grievant have served a minimum of one year at GS-9. Consequently, the Agency argues that to the extent the award orders the grievant temporarily promoted with backpay to Chief, Prosthetic Service, GS-11, the award is also deficient. The Authority agrees.

The Authority has uniformly 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 and for which the employee is to be compensated. See, e.g., Veterans Administration Medical Center, Lyons, New Jersey and American Federation of Government Employees, Local No. 1012, 19 FLRA No. 16(1985). In terms of this case, the Authority finds that the Agency has established that the grievant did not meet the minimum qualification requirements for a temporary promotion to either Prosthetic Representative, GS-672-7, of Chief, Prosthetic Service, GS-11, for the disputed period. See Federal Correctional Institution, Petersburg, Virginia and American Federation of Government Employees, Appomattox Local 2052, 16 FLRA No. 86(1984); Adjutant General, State of Michigan, Department of Military Affairs and National Association of Government Employees, 11 FLRA 13(1983). Consequently, the award, by directing that the grievant be compensated for performing the duties of those higher-grade positions for a period of time during which the grievant was not qualified for promotion to either higher-grade position, is deficient as contrary to civil service law and regulation and is accordingly set aside.

Issued, Washington, D.C., September 30, 1985

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

--------------- FOOTNOTES$ ---------------

/1/ The qualification requirements for this position are part of a single-agency qualification standard that has been established by the Administrator of Veterans' Affairs under authority of 38 U.S.C. 4105. Such classification standards cover occupations that are unique to a single agency.