Service Employees International Union Local 200 and VA Medical Center (Authority decision, September 15, 1982)

Final FLRA decision. The Authority resolves exceptions to an arbitral award under 5 U.S.C. § 7122. Judicial review under 5 U.S.C. § 7123(a)(1) generally does not extend to orders involving arbitral awards unless an order involves an unfair labor practice under § 7116. This order does not decide an unfair labor practice.

Plain-English summary

A VA employee performed higher-grade duties before a temporary GS-7 position was established and approved. The arbitrator denied her claim for an earlier temporary-promotion date. The union alleged that management had delayed establishing the position. The Authority found the arbitrator had rejected that factual premise and denied the exception.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a).
• Outcome: Union exception denied; temporary-promotion award upheld.
• Key point: The union did not show the award overlooked an unwarranted approval delay.

Full text (FLRA public release)

[ v10 p49 ]

10:0049(11)AR

The decision of the Authority follows:

10 FLRA No. 11

SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 200
Union

and

VETERANS ADMINISTRATION
MEDICAL CENTER
Activity

Case No. O-AR-236

DECISION

THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
ARBITRATOR MARGERY GOOTNICK FILED BY 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 ACTIVITY FILED
AN OPPOSITION.

THE DISPUTE IN THIS MATTER CONCERNS THE DATE OF THE GRIEVANT'S
ENTITLEMENT TO A TEMPORARY PROMOTION. THE GRIEVANT, A GS-6, WAS
TEMPORARILY ASSIGNED THE DUTIES OF A GS-9 POSITION ON MARCH 31, 1980.
HOWEVER, BECAUSE OF HER GRADE AND LACK OF EDUCATIONAL QUALIFICATIONS,
THE GRIEVANT DID NOT QUALIFY FOR A TEMPORARY PROMOTION TO THE GS-9
POSITION. ACCORDINGLY, A TEMPORARY GS-7 POSITION WAS ESTABLISHED FOR
WHICH THE GRIEVANT QUALIFIED IN ORDER THAT SHE COULD BE TEMPORARILY
PROMOTED. THE ESTABLISHMENT OF THIS POSITION WAS APPROVED ON JUNE 23,
1980, AND THE GRIEVANT WAS TEMPORARILY PROMOTED TO IT EFFECTIVE JUNE 29,
1980, THE BEGINNING OF THE NEXT PAY PERIOD. A GRIEVANCE WAS FILED
CLAIMING THAT THE GRIEVANT WAS ENTITLED TO HAVE BEEN PROMOTED TO GS-7 AS
OF THE FIRST DAY SHE ASSUMED THE ADDITIONAL DUTIES. THE GRIEVANCE WAS
NOT RESOLVED AND WAS ULTIMATELY SUBMITTED TO ARBITRATION.

THE ARBITRATOR DETERMINED THAT UNDER CONTROLLING LAW AND REGULATION,
THE GRIEVANT COULD NOT PROPERLY HAVE BEEN PROMOTED UNTIL THE GS-7
POSITION WAS ACTUALLY ESTABLISHED AND APPROVED. ACCORDINGLY, SHE FOUND
THAT THE GRIEVANT HAD BEEN PROPERLY COMPENSATED, AND AS HER AWARD SHE
DENIED THE GRIEVANCE.

IN ITS EXCEPTION THE UNION PRINCIPALLY CONTENDS THAT THE AWARD IS
DEFICIENT BECAUSE THE ARBITRATOR OVERLOOKED THE FACT THAT MANAGEMENT
NEGLIGENTLY DELAYED THE ESTABLISHMENT OF THE GS-7 POSITION TO WHICH THE
GRIEVANT WAS PROMOTED. THE UNION'S EXCEPTION HOWEVER FAILS TO ESTABLISH
THAT THE AWARD IS IN ANY MANNER DEFICIENT. CONTRARY TO THE UNION'S
ASSERTION, THE ARBITRATOR EXPRESSLY FOUND THAT THERE WAS NO UNWARRANTED
DELAY IN THE ESTABLISHMENT AND APPROVAL OF THE GS-7 POSITION. MOREOVER,
IT IS CLEAR UNDER THE PROVISIONS OF THE BACK PAY ACT, 5 U.S.C. 5596, AND
THE U.S. SUPREME COURT'S DECISION IN UNITED STATES V. TESTAN, 424 U.S.
392(1976), THAT A RETROACTIVE PROMOTION WITH BACKPAY WAS NOT AUTHORIZED
IN THIS CASE FOR ANY PERIOD BEFORE THE GS-7 POSITION WAS ACTUALLY
CLASSIFIED. SEE U.S. ARMY AVIATION CENTER, FORT RUCKER, ALABAMA AND
WIREGRASS METAL TRADES COUNCIL, AFL-CIO, 6 FLRA NO. 35(1981). THUS, THE
UNION'S EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT AND
IS ACCORDINGLY DENIED.

ISSUED, WASHINGTON, D.C., SEPTEMBER 15, 1982

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY