National Labor Relations Board Union, Local 19 (Union) and Office of the General Counsel, National Labor Relations Board (Activity) 

 



[ v07 p21 ]
07:0021(7)AR
The decision of the Authority follows:


 7 FLRA No. 7
 
 NATIONAL LABOR RELATIONS
 BOARD UNION, LOCAL 19
 Union
 
 and
 
 OFFICE OF THE GENERAL COUNSEL,
 NATIONAL LABOR RELATIONS BOARD
 Activity
 
                                            Case No. O-AR-77
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR CARLTON J. SNOW FILED BY THE AGENCY UNDER SECTION 7122(A) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
 7122(A)) (THE STATUTE).
 
    ACCORDING TO THE ARBITRATOR, THIS CASE AROSE WHEN THE GRIEVANT, A
 FIELD EXAMINER, WAS NOT PROMOTED SO THE DISPUTE SUBMITTED TO ARBITRATION
 ONLY INVOLVED HIS FAILURE TO RECEIVE BACKPAY FOR THE PERIOD DURING WHICH
 HE HAD BEEN DENIED THE PROMOTION.  THE PARTIES AGREED THAT THE ISSUE
 BEFORE THE ARBITRATOR WAS:
 
    AS A RESULT OF THE ADVERSE RECOMMENDATION FOR PROMOTION OF (THE
 GRIEVANT) FROM GRADE GS-11
 
    TO GS-12, DID MANAGEMENT VIOLATE ARTICLE IV, SECTION 5;  ARTICLE VI,
 SECTIONS 1 AND 2;  AND
 
    ARTICLE VII, SECTION 2(A) OF THE AGREEMENT BETWEEN THE PARTIES?  IF
 SO, WHAT SHALL BE THE
 
    APPROPRIATE REMEDY?
 
    THE ARBITRATOR DETERMINED THAT THE ACTIVITY HAD FILED TO PROVIDE THE
 GRIEVANT WITH TRAINING ESSENTIAL TO CORRECT A WRITING DEFICIENCY AND
 THAT IN DOING SO IT VIOLATED ARTICLE VI, SECTION 2 AND ARTICLE IV,
 SECTION 5 OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT.  /1/ IN
 ARRIVING AT THIS CONCLUSION, THE ARBITRATOR SPECIFICALLY FOUND THAT THE
 GRIEVANT'S WRITING PROBLEM WAS THE MAJOR IMPEDIMENT TO HIS PROMOTION AND
 THAT THE EVIDENCE INDICATED THAT IN OTHER RESPECTS HE WAS PERFORMING
 ADEQUATE, JOURNEYMAN LEVEL WORK.  THUS, THE ARBITRATOR FOUND THAT THE
 FAILURE TO TRAIN THE GRIEVANT PLAYED A CRUCIAL ROLE IN THE DENIAL OF HIS
 PROMOTION AND THAT, BUT FOR THIS FAILURE BY THE ACTIVITY, THE GRIEVANT
 WOULD HAVE BEEN PROMOTED.  THE ARBITRATOR ISSUED THE FOLLOWING AWARD:
 
    HAVING CAREFULLY CONSIDERED ALL EVIDENCE SUBMITTED BY THE PARTIES IN
 THIS MATTER, THE
 
    ARBITRATOR CONCLUDES THAT THE EMPLOYER VIOLATED SECTION 5 OF THE
 ARTICLE IV AND SECTION 2 OF
 
    ARTICLE VI OF THE COLLECTIVE BARGAINING AGREEMENT BETWEEN THE
 PARTIES.
 
    THE REMEDY IS TWOFOLD.  THE EMPLOYER SHALL FASHION A CAREER PLANNING
 PROGRAM FOR THE
 
    GRIEVANT WHICH TAKES INTO CONSIDERATION THE FIVE FACTORS ENUMERATED
 IN SECTION 2 OF ARTICLE VI
 
    AND IS DESIGNED TO ALLEVIATE THE GRIEVANT'S WRITING PROBLEM.  SECOND,
 THE GRIEVANT SHALL BE
 
    MADE WHOLE REGARDING PAY OR ANY OTHER BENEFITS LOST BY HIM DURING THE
 PERIOD FROM JULY 4, 1976
 
    TO FEBRUARY 1, 1978 AS A RESULT OF THE CONTRACTUAL VIOLATIONS BY THE
 EMPLOYER.  BOTH PARTS OF
 
    THE REMEDY SHALL BE ACCOMPLISHED WITHIN SEVENTY-FIVE DAYS OF THE DATE
 OF THIS REPORT.
 
    THE ARBITRATOR SHALL RETAIN JURISDICTION OF THIS MATTER FOR NINETY
 DAYS FROM THE DATE OF
 
    THIS REPORT IN ORDER TO RESOLVE ANY PROBLEMS RESULTING FROM THE
 AWARD.  IT IS SO ORDERED AND
 
    AWARDED.
 
    THE AGENCY FILED AN EXCEPTION TO THE ARBITRATOR'S AWARD UNDER SECTION
 7122(A) OF THE STATUTE /2/ AND PART 2425 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR PART 2425).  THE UNION FILED AN OPPOSITION.
 
    IN ITS EXCEPTION THE AGENCY STATES THAT WHILE IT "BELIEVES THAT THE
 ARBITRATOR'S AWARD OF MONETARY COMPENSATION TO THE GRIEVANT IS A FAIR
 AND EQUITABLE WAY TO REMEDY THE CONTRACTUAL VIOLATIONS WHICH HAVE BEEN
 FOUND," THERE IS "A SERIOUS QUESTION" AS TO WHETHER IT CAN PAY THE AWARD
 UNDER THE PROVISIONS OF THE BACK PAY ACT OF 1966 /3/ AND ITS
 IMPLEMENTING REGULATIONS.  /4/ IN SUPPORT OF ITS EXCEPTION THE AGENCY
 ARGUES THAT A FEDERAL EMPLOYEE IS ENTITLED TO RECEIVE ONLY THE SALARY OF
 THE POSITION TO WHICH HE OR SHE WAS APPOINTED AND COMPENSATION MAY BE
 RETROACTIVELY ADJUSTED ONLY IF THE CRITERIA OF THE BACK PAY ACT AND
 IMPLEMENTING REGULATIONS ARE MET.  THE AGENCY ASSERTS THAT THESE
 CRITERIA REQUIRE THAT THE CONTRACT PROVISION FOUND TO HAVE BEEN VIOLATED
 MUST MANDATE THAT A PROMOTION OR OTHER PERSONNEL ACTION OCCUR IN ORDER
 TO CONSTITUTE A "NONDISCRETIONARY PROVISION" WITHIN WITH MEANING OF 5
 CFR 550.802(D).  /5/ IN THIS CASE THE AGENCY "QUESTION(S) WHETHER
 ARTICLE VI AND ARTICLE IV, SECTION 5 OF THE AGREEMENT ARE
 NONDISCRETIONARY PROVISIONS WITHIN THE MEANING OF THE (BACK PAY ACT) AND
 ITS IMPLEMENTING REGULATIONS." THE AGENCY ARGUES THAT "APPLICABLE CASE
 LAW SEEMS TO INDICATE THAT PARTICLE VI IS NOT A NONDISCRETIONARY
 PROVISION WHICH MANDATES THAT EMPLOYEES BE PROMOTED AFTER THEY RECEIVE
 TRAINING." /6/
 
    THE UNION ARGUES IN ITS OPPOSITION THAT ARTICLE VI, SECTION 2 OF THE
 AGREEMENT REQUIRES THE AGENCY TO TAKE A PRESCRIBED ACTION UNDER STATED
 CONDITIONS OR CRITERIA WHICH, COUPLED WITH THE ARBITRATOR'S FINDING THAT
 THE VIOLATION OF THIS PROVISION WAS THE DIRECT CAUSE OF THE DENIAL OF
 THE GRIEVANT'S PROMOTION, BRINGS THE GRIEVANT'S CLAIM SQUARELY WITHIN
 THE BACK PAY ACT AND ITS IMPLEMENTING REGULATIONS.
 
    THE AGENCY'S EXCEPTION, THAT THE AWARD IS CONTRARY TO THE BACK PAY
 ACT AND ITS IMPLEMENTING REGULATIONS, STATES A GROUND UPON WHICH THE
 AUTHORITY WILL FIND AN AWARD DEFICIENT UNDER SECTION 7122(A)(1) OF THE
 STATUTE.  HOWEVER, IN THIS CASE, THE AGENCY HAS FAILED TO ESTABLISH THAT
 THE AWARD, ORDERING THE AGENCY TO MAKE THE GRIEVANT "WHOLE REGARDING PAY
 OR ANY OTHER BENEFITS LOST BY HIM . . . AS A RESULT OF THE CONTRACTUAL
 VIOLATIONS," IS CONTRARY TO EITHER 5 U.S.C. 5596 OR 5 CFR PART 550,
 SUBPART H.  AS PREVIOUSLY NOTED, THE ARBITRATOR SPECIFICALLY FOUND THAT
 "MANAGEMENT'S FAILURE TO PROVIDE TRAINING (AS REQUIRED BY THE CONTRACT)
 PREVENTED THE GRIEVANT FROM RESOLVING HIS WRITING PROBLEM AND, IN
 EFFECT, CAUSED THE DENIAL OF HIS PROMOTION." AN "UNJUSTIFIED OR
 UNWARRANTED PERSONNEL ACTION" ENTITLING AN EMPLOYEE TO BACKPAY INCLUDES
 AN ACT OF OMISSION WHICH IS FOUND TO VIOLATE A PROVISION OF A COLLECTIVE
 BARGAINING AGREEMENT THAT "REQUIRES AN AGENCY TO TAKE A PRESCRIBED
 ACTION UNDER STATED CONDITIONS OR CRITERIA." 5 CFR 550.802(C) AND (D).
 THE ARBITRATOR DETERMINED THAT "THE PARTIES AGREED TO CONTRACTUAL
 PROVISIONS MANDATING SUCH SPECIALIZED TRAINING" AND CONCLUDED ON THE
 RECORD BEFORE HIM THAT "BUT FOR (THE GRIEVANT'S FAILURE TO RECEIVE) SUCH
 TRAINING, HE WOULD HAVE BEEN PROMOTED" SINCE "(I)N OTHER RESPECTS, THE
 GRIEVANT WAS PERFORMING ADEQUATE, JOURNEYMAN LEVEL WORK." THUS, THE
 ARBITRATOR DETERMINED THAT THE CONTRACTUAL PROVISIONS REQUIRED THE
 ACTIVITY TO TAKE PRESCRIBED ACTIONS UNDER STATED CONDITIONS AND
 FORMULATED A REMEDY TO MAKE THE EMPLOYEE WHOLE FOR THE ACTIVITY'S
 FAILURE TO DO SO.  THE ACTIVITY APPEARS TO BE ARGUING THAT THE AGREEMENT
 PROVISION FOUND TO BE VIOLATED MUST CONTAIN SPECIFIC LANGUAGE THEREIN
 MANDATING A PROMOTION BEFORE ONE CAN BE GIVEN AND BACKPAY PAID UNDER THE
 BACK PAY ACT.  HOWEVER THERE IS NOTHING IN EITHER THE BACK PAY ACT OR
 ITS IMPLEMENTING REGULATIONS TO SUPPORT SUCH AN ASSERTION.  THUS, WHERE
 AN ARBITRATOR HAS FOUND THAT THE AGREEMENT MANDATES THAT A PARTICULAR
 ACTION BE TAKEN (AS IN THIS CASE, PROVIDING AN EMPLOYEE WITH TRAINING IN
 A PARTICULAR AREA) AND THAT THE FAILURE TO TAKE THAT ACTION DIRECTLY
 RESULTED IN AN EMPLOYEE NOT RECEIVING A PROMOTION THE EMPLOYEE OTHERWISE
 WOULD HAVE RECEIVED, THAN AN ARBITRATOR'S AWARD DIRECTING THE PROMOTION
 AND CORRESPONDING BACKPAY IS CLEARLY CONSISTENT WITH THE EMPLOYEE'S
 STATUTORY ENTITLEMENT "TO RECEIVE FOR THE PERIOD FOR WHICH THE
 (UNJUSTIFIED AND UNWARRANTED) PERSONNEL ACTION WAS IN EFFECT . . .  AN
 AMOUNT EQUAL TO ALL OR ANY PART OF THE PAY, ALLOWANCES, OR
 DIFFERENTIALS, AS APPLICABLE WHICH THE EMPLOYEE NORMALLY WOULD HAVE
 EARNED OR RECEIVED DURING THE PERIOD IF THE PERSONNEL ACTION HAD NOT
 OCCURRED . . . ." /7/ THEREFORE, THE AGENCY'S EXCEPTION DOES NOT PROVIDE
 A BASIS FOR FINDING THE AWARD DEFICIENT UNDER 5 U.S.C. 7122 AND SECTION
 2425.3 OF THE AUTHORITY'S RULES AND REGULATIONS.  /8/
 
    FOR THE FOREGOING REASONS, THE AGENCY'S EXCEPTIONS ARE DENIED.
 
    ISSUED, WASHINGTON, D.C., OCTOBER 15, 1981.
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ ACCORDING TO THE ARBITRATOR, ARTICLE VI, SECTION 2 PROVIDES:
 
               ARTICLE VI:  CAREER DEVELOPMENT AND TRAINING
 
    SECTION 2.  FACTORS TO BE CONSIDERED IN DEVELOPING CAREER PLANNING
 AND TRAINING FOR UNIT
 
    EMPLOYEES SHALL INCLUDE:  (A) EDUCATION, (B) RELEVANT EXPERIENCE, (C)
 PAST AND PRESENT JOB
 
    PERFORMANCE, (D) RELEVANT INDIVIDUAL SKILLS AND CHARACTERISTICS, AND
 (E) ESTIMATION OF
 
    INDIVIDUAL POTENTIAL. THESE FACTORS DO NOT REFER TO THE CRITERIA FOR
 PROMOTION.
 
    ACCORDING TO THE ARBITRATOR, ARTICLE VI, SECTION 5 PROVIDES:
 
             ARTICLE IV:  RIGHTS AND OBLIGATIONS OF EMPLOYEES
 
    SECTION 5.  EMPLOYEES WILL NOT BE SUBJECT TO ARBITRARY OR
 UNREASONABLE ACTS BY SUPERVISORY
 
    PERSONNEL.  HOWEVER, THIS SECTION IS NOT INTENDED TO BE USED AS A
 PROCEDURE FOR PROTESTING THE
 
    GENERAL POLICIES, PRACTICES OR PROCEDURES OF THE AGENCY WITHIN THE
 MEANING OF ARTICLE III,
 
    SECTIONS 1(B) AND 2.
 
    /2/ 5 U.S.C. 7122(A) PROVIDES:
 
    (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
 AUTHORITY AN EXCEPTION
 
    TO ANY ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION (OTHER THAN AN
 AWARD RELATING TO A
 
    MATTER DESCRIBED IN SECTION 7121(F) OF THIS TITLE).  IF UPON REVIEW
 THE AUTHORITY FINDS THAT
 
    THE AWARD IS DEFICIENT--
 
    (1) BECAUSE IT IS CONTRARY TO ANY LAW, RULES, OR REGULATION;  OR
 
    (2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
 PRIVATE SECTOR
 
    LABOR-MANAGEMENT RELATIONS;  THE AUTHORITY MAY TAKE SUCH ACTION AND
 MAKE SUCH RECOMMENDATIONS
 
    CONCERNING THE AWARD AS IT CONSIDERS NECESSARY, CONSISTENT WITH
 APPLICABLE LAWS, RULES, OR
 
    REGULATIONS.
 
    /3/ 5 U.S.C. 5596 (1976 AND SUPP. III 1979) WHICH PROVIDES IN
 PERTINENT PART:
 
    (B)(1) AN EMPLOYEE OF AN AGENCY WHO, ON THE BASIS OF A TIMELY APPEAL
 OR AN ADMINISTRATIVE
 
    DETERMINATION (INCLUDING A DECISION RELATING TO AN UNFAIR LABOR
 PRACTICE OR A GRIEVANCE) IS
 
    FOUND BY APPROPRIATE AUTHORITY UNDER APPLICABLE LAW, RULE,
 REGULATION, OR COLLECTIVE
 
    BARGAINING AGREEMENT, TO HAVE BEEN AFFECTED BY AN UNJUSTIFIED OR
 UNWARRANTED PERSONNEL ACTION
 
    WHICH HAS RESULTED IN THE WITHDRAWAL OR REDUCTION OF ALL OR PART OF
 THE PAY, ALLOWANCES, OR
 
    DIFFERENTIALS OF THE EMPLOYEE--
 
    (A) IS ENTITLED, ON CORRECTION OF THE PERSONNEL ACTION, TO RECEIVE
 FOR THE PERIOD FOR WHICH
 
    THE PERSONNEL ACTION WAS IN EFFECT--
 
    (I) AN AMOUNT EQUAL TO ALL OR ANY PART OF THE PAY, ALLOWANCE, OR
 DIFFERENTIALS, AS
 
    APPLICABLE WHICH THE EMPLOYEE NORMALLY WOULD HAVE EARNED OR RECEIVED
 DURING THE PERIOD IF THE
 
    PERSONNEL ACTION HAD NOT OCCURRED, LESS ANY AMOUNTS EARNED BY THE
 EMPLOYEE THROUGH OTHER
 
    EMPLOYMENT DURING THAT PERIOD;
 
    (3) FOR THE PURPOSE OF THIS SUBSECTION, "GRIEVANCE" AND "COLLECTIVE
 BARGAINING
 
    AGREEMENT" HAVE THE MEANINGS SET FORTH IN SECTION 7103 OF THIS TITLE,
 "UNFAIR LABOR
 
    PRACTICE" MEANS AN UNFAIR LABOR PRACTICE DESCRIBED IN SECTION 7116 OF
 THIS TITLE, AND
 
    "PERSONNEL ACTION" INCLUDES THE OMISSION OR FAILURE TO TAKE AN ACTION
 OR CONFER A BENEFIT.
 
    /4/ 5 CFR PART 550, SUBPART H (1981).
 
    /5/ 5 CFR 550.802(D) PROVIDES:
 
    (D) "NONDISCRETIONARY PROVISION" MEANS ANY PROVISION OF LAW,
 EXECUTIVE ORDER, REGULATION,
 
    PERSONNEL POLICY ISSUED BY AN AGENCY TO TAKE A PRESCRIBED ACTION
 UNDER STATED CONDITIONS OR
 
    CRITERIA.
 
    /6/ IN SUPPORT OF THIS ARGUMENT THE AGENCY CITES NUMEROUS COMPTROLLER
 GENERAL DECISIONS, RELYING PRIMARILY ON THE DECISION IN THE MATTER OF
 JOHN CAHILL, 58 COMP.GEN 59(1978).
 
    /7/ 5 U.S.C. 5596(B)(1)(A)(I) (SUPP. III 1979).
 
    /8/ WE DO NOT FIND THE COMPTROLLER GENERAL GENERAL DECISIONS CITED BY
 THE AGENCY AND ISSUED PRIOR TO ENACTMENT OF THE CIVIL SERVICE REFORM ACT
 OF 1978 TO BE CONTROLLING IN THIS CASE.  THUS, WHERE AN ARBITRATOR HAS
 SPECIFICALLY FOUND THAT AN AGENCY IS REQUIRED UNDER A COLLECTIVE
 BARGAINING AGREEMENT TO TAKE A PRESCRIBED ACTION UNDER STATED CONDITIONS
 OR CRITERIA AND THAT ITS FAILURE TO DO SO HAS DIRECTLY RESULTED IN THE
 EMPLOYEE'S FAILURE TO RECEIVE A PROMOTION HE OR SHE WOULD OTHERWISE HAVE
 RECEIVED, THE AUTHORITY, IN ACCORDANCE WITH THE LIMITED REVIEW OF
 ARBITRATION AWARDS MANDATED BY THE STATUTE, WILL NOT RE-EXAMINE OR
 REINTERPRET THE COLLECTIVE BARGAINING AGREEMENT PROVISIONS WHICH WERE
 BEFORE THE ARBITRATOR.