Adjutant General of Michigan, Department of Military Affairs and National Association of Government Employees (Authority decision, January 7, 1983)

Final FLRA decision. The Authority set aside an arbitration award. Judicial review of an arbitration order is generally excluded by 5 U.S.C. § 7123(a)(1) unless it involves an unfair labor practice under § 7118. This order does not address an unfair labor practice.

Plain-English summary

A Michigan National Guard technician performed painter duties while holding a lower-grade clerk position. The agency paid a temporary promotion from July 1, 1979, after he met a required military occupational specialty, but an arbitrator awarded earlier promotion pay beginning April 20. The Authority held that an employee must actually meet the position’s minimum qualifications at the promotion date. Because the technician did not have the required specialty before June 30, it set aside the earlier promotion award.

Decision snapshot

• Authority: Arbitration review under 5 U.S.C. § 7122(a).
• Outcome: Retroactive temporary-promotion award for April 20 through June 30 set aside.
• Key point: An arbitrator could not award a promotion for a period when the employee lacked a required qualification.

Full text (FLRA public release)

[ v11 p13 ]

11:0013(7)AR

The decision of the Authority follows:

11 FLRA No. 7

ADJUTANT GENERAL,
STATE OF MICHIGAN,
DEPARTMENT OF
MILITARY AFFAIRS
Activity

and

NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES
Union

Case No. O-AR-195

DECISION

This matter is before the Authority on an exception to the award of Arbitrator George T. Roumell, Jr. filed by the Agency 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.

The dispute in this matter concerns the performance by the grievant, a national guard technician, of the duties of the position of painter, WG-9, from March 25 to August 4, 1979, while occupying the lower grade position of clerk/typist, GS-4. The grievant filed a grievance claiming that under the parties' collective bargaining agreement he was entitled to have been temporarily promoted to the painter position because he had performed the duties of the higher grade position for a period in excess of 30 days. In its answer to the grievance, the Activity acknowledged the temporary promotion provisions of the agreement, but maintained that in order to be temporarily promoted, an employee must meet the statutory and regulatory requirements of the higher grade position. Specifically, the Activity emphasized that one of the minimum qualification requirements for the painter position is for the employee to possess a military occupational specialty (MOS) of metal body repairman. Because the grievant did not obtain the necessary MOS until June 30, 1979, the Activity rejected the grievant's claim for the period from March 25 to June 30 on the basis that the grievant was not qualified to be promoted. However, because the grievant had become qualified for the painter position as of July 1, the Activity granted the grievant a retroactive temporary promotion and backpay for the period from July 1 to August 4, 1979, during which the grievant performed the duties of the painter position. The grievance remained unresolved with respect to the period from March 25 to June 30 and was submitted to arbitration.

Although the Arbitrator expressly acknowledged that the metal body repairman MOS was a qualification requirement for the painter position, the Arbitrator nevertheless awarded the grievant a temporary promotion to the painter position retroactive to the period from April 20 to June 30, 1979, with backpay. The Arbitrator based his award on the parties' agreement provision obligating the Activity to "advis(e) and assis(t) technicians in developing themselves for promotion." The Arbitrator ruled that had the Activity advised and assisted the grievant as required by the agreement, the grievant would have obtained the necessary MOS by April 20 rather than June 30 and that consequently he was entitled to corrective action of a retroactive promotion with backpay.

In its exception the Agency contends that the award is deficient as contrary to governing law and regulation. The Authority agrees.

It is well established that in order for an employee to be properly promoted consistent with governing law and regulation, whether temporarily or permanently, the employee must meet at the time of the promotion all statutory and regulatory requirements governing promotions including minimum qualification requirements for the position to which the employee is to be promoted. See Federal Personnel Manual chapter 338 (Qualification Requirements (General)), subchapter 3 (Qualification Standards). Accordingly, an arbitrator cannot consistent with governing civil service law and regulation award as corrective action for an aggrieved employee a temporary promotion to a position made retroactive to a date on which the employee was not minimally qualified for promotion to that position. In terms of this case, it is undisputed that the grievant did not possess the necessary MOS until June 30, 1979. Consequently, the Arbitrator's award to the grievant of a temporary promotion to the painter position made retroactive to the period from April 20 to June 30, a period during which the grievant was not qualified for promotion to that position, is deficient and is set aside. Issued, Washington, D.C., January 7, 1983 Ronald W. Haughton, Chairman Henry B. Frazier III, Member Leon B. Applewhaite, Member FEDERAL LABOR RELATIONS AUTHORITY