Federal Correctional Institution, Petersburg, Virginia and American Federation of Government Employees, Appomattox Local 2052 (Authority decision, November 30, 1984)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority setting aside an arbitration award. The order concerns an arbitration award under 5 U.S.C. § 7122. Section 7123(a)(1) generally excludes such orders from judicial review unless they involve an unfair labor practice under § 7118.

Plain-English summary

A GS-5 clerk at the Petersburg federal prison performed most duties of a GS-6 secretary position during a four-month detail, but she lacked the stenography skills required for that position. An arbitrator awarded her the pay difference as a retroactive temporary promotion. The Authority held that civil service rules require an employee to meet a position's minimum qualifications before being promoted to it. Because she did not qualify for the GS-6 position, the Authority set aside the backpay award.

Decision snapshot

• Authority: Arbitration review under 5 U.S.C. § 7122(a) and civil service qualification requirements.
• Outcome: Arbitrator's retroactive promotion and backpay award set aside.
• Key point: A higher grade detail did not support promotion backpay when the employee lacked the position's minimum qualifications.

Full text (FLRA public release)

[ v16 p600 ]

16:0600(86)AR

The decision of the Authority follows:

16 FLRA No. 86

FEDERAL CORRECTIONAL INSTITUTION,
PETERSBURG, VIRGINIA
Activity

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, APPOMATTOX LOCAL 2052
Union

Case No. O-AR-419

DECISION

This matter is before the Authority on exceptions to the award of Arbitrator James C. Oldham 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 dispute in this matter concerns the detail of the grievant, a GS-5 clerk-typist, for four months to perform duties of the Associate Warden's secretary's position, Secretary (Steno.), GS-6. Because the grievant had no stenographic skills, she performed the duties of the higher-grade position except for stenography. During the period of the detail the grievant requested that she be paid at the grade 6 level. Management indicated that a promotion was not available because of her lack of stenographic skills, but did inquire of the Office of Personnel Management (OPM) as to the grievant's eligibility to be temporarily promoted to the position of Secretary (Steno.), GS-6. In response OPM advised that the grievant was not qualified for temporary promotion because she had no experience or proficiency in stenography, and accordingly the Activity did not promote the grievant for the period of the detail. The grievant filed a grievance claiming that during the detail she was entitled to have been paid at the grade 6 level, and the grievance was submitted to arbitration. The Arbitrator essentially determined that for purposes of the parties' collective bargaining agreement, the grievant in effect had performed the duties of a higher-grade position for which she was entitled to have been temporarily promoted. Accordingly, the Arbitrator awarded the grievant backpay for the difference between her pay at the GS-5 level and what she would have earned at the GS-6 level for the period of the detail.

As one of its exceptions, the Agency contends that this award is deficient as contrary to governing law and regulation.

In Adjutant General, State of Michigan, Department of Military Affairs and National Association of Government Employees, 11 FLRA No. 7 (1983), the Authority 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. Therefore, the Authority held that an arbitrator cannot properly award as corrective action for an aggrieved employee a retroactive temporary promotion with backpay to a position for which the employee is not minimally qualified. In terms of this case, as already noted, the grievant did not meet the minimum qualification requirements for a temporary promotion to Secretary (Steno.), GS-6 for the period of her detail. In these circumstances, the Authority finds that the award of backpay by the Arbitrator based on what the grievant would have earned as a GS-6 during the period of the detail when that detail was to a position for which she did not meet the minimum qualification requirements for promotion is deficient as contrary to civil service law and regulation and is accordingly set aside. /1/ See id. at 2. Issued, Washington, D.C., November 30, 1984 Henry B. Frazier, III, Acting Chairman Ronald W. Haughton, Member FEDERAL LABOR RELATIONS AUTHORITY

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/1/ In view of this decision, it is not necessary to address the other exceptions to the award.