29:1303(103)AR - NAGE, LOCAL R2-98 VS ARMY, ARSENAL, WATERVLIET



[ v29 p1303 ]
29:1303(103)AR
The decision of the Authority follows:


 29 FLRA NO. 103

NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R2-98

     Union

     and

DEPARTMENT OF THE ARMY
WATERVLIET ARSENAL
WATERVLIET, NEW YORK

     Activity

Case No. 0-AR-1344

DECISION

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Felician F. Foltman filed by the Department of the Army (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. For the following reasons, we deny the Agency's exceptions.

II. Background and Arbitrator's Award

In April 1985, the Union filed a grievance contending that two WG-8 employees of the Activity had met the requirements for noncompetitive promotion to the full performance level in their career ladders and therefore were entitled to be promoted to the WG-10 level. After an investigation at Step II of the grievance procedure, a representative of the Commanding General of the Activity determined on May 22, 1985, that the grievants had been working at the WG-10 level for 1 year. Arbitrator's Award at 12. On May 29, 1985, the Commanding General directed the promotion of the grievants, concluding that they had been performing at the WG-10 level as early as May 24, 1984. The Commanding General also stated: "However, due to recent court decisions, specifically (Wilson v. United States, 229 Ct. Cl. 510 (1981)), I am not directing the payment of backpay." Arbitrator's Award at 4.

The Activity promoted the grievants on June 26, 1985. Because of a clerical delay in processing the promotions, the Activity awarded the grievants backpay to June 10, 1985. The Union requested that the grievants be awarded backpay from May 24, 1984--the date the Activity agreed that both grievants were performing at the WG-10 level. The Activity refused, and the matter was submitted to arbitration.

The Activity contended before the Arbitrator that an award of backpay would violate the Back Pay Act, 5 U.S.C. SS 5596 and further, that the Back Pay Act does not apply to statutes and regulations governing promotions which are solely within the Agency's discretion. The Activity stated that, under Wilson, an employee "illegally detailed to a higher position to which he had been detailed or misassigned but not appointed" was not entitled to backpay unless it is mandated or required by law. Arbitrator's Award at 6.

The Activity conceded before the Arbitrator that it had violated Article 8, Section 4 (management shall assure that its officials are aware of their obligation to comply with the parties' agreement); Article 11 (except as specifically provided in the agreement, nothing shall alter or supersede existing employee-management practices and relationships); and Article 32, Section 2 (management shall assure that employees are treated fairly and equitably) of the parties' agreement by failing to promote the grievants. However, the Activity contended that none of the provisions contained a mandate for retroactive promotions.

The Union contended before the Arbitrator that the grievants were in career ladder positions which entitled them to be noncompetitively promoted from the WG-8 level to the WG-10 level once they demonstrated the ability to perform at the higher grade level. According to the Union, the grievants were therefore never in a temporary assignment or detail status. The Union argued that since it is undisputed that the grievants performed for over a year at the WG-10 level, they were entitled to pay at the higher level from May 28, 1984.

The Arbitrator determined that the grievants were not in a detail status but in career ladder positions and therefore the Activity's reliance on Wilson was inappropriate. The Arbitrator found that the Activity's Commanding General determined after an investigation by his representative that the grievants had been working at the WG-10 level for 1 year.

The Arbitrator stated that the formal vacancy announcements concerning the grievants' positions provided that the grievants would be promoted "almost automatically without further competition to a WG-10 level upon demonstrated full performance." Arbitrator's Award at 11. The Arbitrator relied on the Activity's finding and the testimony of the grievants' supervisor--to the effect that the grievants had been working at the WG-10 level for over a year--as evidence of the grievants' full performance and as an acknowledgment that the grievants could have been promoted retroactively. Based on these findings, the Arbitrator also found that "the grievants were not receiving fair and equitable treatment as required in section 2 Article 32 when they received Grade 8 level pay while performing at an acknowledged Grade 10 level." Id. at 13.

The Arbitrator concluded that "(t)here is a preponderance of evidence in the record to suggest that the grievants could have and should have been promoted on May 28, 1984 ... (and that) the contract was violated as charged by the Union." Id. at 13-14. The Arbitrator also found that the Commanding General acknowledged that the failure to promote the grievants was improper and contrary to the collective bargaining agreement. In short, the Arbitrator found that the Agency's failure to timely promote the grievants was unwarranted under the contract.

The Arbitrator determined further that the Activity had established a past practice, during the term of the parties' agreement, of providing backpay for untimely promotions and misassignments and had, in the instant case, provided retroactive pay to the grievants for a period of 16 days. The Arbitrator concluded therefore that inasmuch as the Activity had conceded that the grievants' promotions were untimely and that it had violated several articles of the collective bargaining agreement, including an article which binds the Activity to its past practices, the Activity's argument that it could not provide backpay in this case was without merit. The Arbitrator held that the Commanding General improperly denied backpay when he directed the promotion of the grievants.

As his award, the Arbitrator directed the Activity to promote the grievants retroactively to May 28, 1984, and awarded backpay from that date to June 10, 1985.

III. Positions of the Parties

A. Agency's Exceptions

The Agency contends that the Arbitrator's award is contrary to law, rule, and regulation--specifically, the Back Pay Act and implementing regulations in Federal Personnel Manual (FPM) Supplement 990-2, Book 550, Subchapter S-8. The Agency argues that a necessary element to support an award of backpay--an "unjustified or unwarranted personnel action"--is absent in this case. The Agency argues on this point that the Arbitrator had two bases for determining that an unjustified or unwarranted personnel action had occurred, and neither supports his award of backpay.

First, the Agency contends that even if the grievants were improperly detailed or misassigned (a finding which the Arbitrator did not make), the grievants are not entitled to backpay. The Agency also contends that the second basis--that the grievants should have been promoted because they were in career ladder postions and therefore were entitled to noncompetitive promotions to the WG-10 level--also does not warrant backpay because a properly authorized official did not approve the promotions. The Agency contends that the career ladder promotions were not mandated but instead required further discretionary approval by management, and that further discretionary approval (approval by the Civilian Personnel Officer of the supervisor's Standard Form (SF) 52 request for the promotion of the grievants) was not accomplished. In sum, the Agency contends that the award of backpay should be set aside because "there are no nondiscretionary administrative, regulatory, or collective bargaining agreement provisions which would have required the promotion of the grievants." Agency's Exceptions at 10.

B. Union's Opposition

The Union states that the Arbitrator concluded, based on the parties' agreement, that the grievants' promotions should have occurred on May 28, 1984, rather than June 24, 1985. The Union rejects the Agency's argument that the execution of an SF-52 form is required in determining whether a promotion is effective. In essence, the Union contends that the Agency is simply requesting the Authority to substitute its judgment for that of the Arbitrator in interpreting the provisions of the parties' collective bargaining agreement.

C. Amicus Curiae

In support of the Agency's exceptions and contentions, OPM argues in its amicus curiae brief that the award of retroactive promotions with backpay is contrary to the Back Pay Act and implementing regulations in the Federal Personnel Manual. Specifically, OPM argues that if the basis for the Arbitrator's award is his determination that the grievants were improperly detailed or misassigned, such a finding would not, by itself, support an entitlement to retroactive promotion or backpay. OPM also argues that even if the award is not based on a misassignment or extended detail, but rather on the finding that the grievants have been performing at the full performance level of their career-ladder, retroactive promotion and backpay are not authorized.

OPM states that performance at the full performance level in a career ladder position does not entitle an employee to a career ladder promotion unless the action has been approved by a properly authorized official. OPM asserts that the first line supervisor, who testified that the grievants had been performing at the higher-graded level, did not have approving authority and that approval by a properly authorized official cannot be found on the basis of the evidence before the Arbitrator. OPM also contends that in a career ladder situation, backpay is warranted only if an agency's failure to promote an employee constitutes a violation of a nondiscretionary policy or collective bargaining agreement provision.

The Union filed a response to OPM's brief. The Union stated that the grievants' supervisor knew on May 28, 1984, that the grievants were performing at the WG-10 level and that if the supervisor had submitted timely SF-50's requesting the noncompetitive promotion of each grievant at that time, as he should have, an approving official of the Civilian Personnel Office would have routinely executed a form effectuating the request.

IV. Discussion

In order for an award of backpay to be authorized under the Back Pay Act, an arbitrator must find that an unwarranted agency personnel action directly resulted in the withdrawal or reduction of a grievant's pay, allowances, or differentials; and that but for such action, the grievant otherwise would not have suffered such withdrawal or reduction of pay, allowances, or differentials. See, for example, Department of the Army, New Cumberland Army Depot and American Federation of Government Employees, Local 2004, 21 FLRA No. 113 (1986) (second exception); U.S. Army Aberdeen Proving Ground and Local 2424, International Association of Machinists and Aerospace Workers, AFL-CIO, 19 FLRA 258 (1985). Neither the Agency nor OPM has established that the Arbitrator's award in this case is inconsistent with the Back Pay Act.

The essence of the Agency's and OPM's arguments is that the Arbitrator failed to establish that an "unjustified or unwarranted personnel action" occurred in this case. As set forth above, both claim that neither of the two possible bases for concluding that there was an unjustified or unwarranted personnel action--that is, (1) the grievants were improperly detailed or misassigned or (2) the grievants were entitled to retroactive noncompetitive promotions because they were in career ladder positions--exists in this case. We find that the Arbitrator's award has not been shown to be contrary to the Back Pay Act.

As to the first contention that any improper detail or misassignment of the grievants does not support an award of backpay, we conclude that this contention does not demonstrate that the award is deficient under the Statute. The Arbitrator agreed with the Union and found that the grievants had not been detailed. His award is not based on a theory of an improper detail or misassignment. Therefore, the Agency's and OPM's arguments before us on that issue provide no basis for finding the award of backpay to be improper.

To the extent that the Agency and OPM contend that the Arbitrator should have found that the grievants were improperly detailed or misassigned, such an argument constitutes nothing more than mere disagreement with the Arbitrator's findings of fact and his interpretation of the provisions in the parties' collective bargaining agreement concerning "details." Such disagreement is not a basis for finding the Arbitrator's award deficient on any statutory ground. See Overseas Federation of Teachers and Department of Defense Dependents Schools, Mediterranean Region, 26 FLRA No. 43 (1987); American Federation of State County and Municipal Employees, Local 2478, AFL-CIO and U.S. Commission on Civil Rights, 26 FLRA No. 17 (1987) (first exception). In light of the Arbitrator's finding that the grievants were not detailed, we need not address the Agency's and OPM's arguments concerning retroactive promotion and backpay (including the alleged applicability of FPM Supp. 990-2, Book 550, S-8-3) when an employee is improperly detailed.

We now turn to the second possible basis on which to find an unwarranted or unjustified personnel action in this case--the argument that the grievants were entitled to retroactive noncompetitive promotions because they had met the requirements in their career ladder positions. In our view, the Arbitrator concluded that the Activity was under a nondiscretionary requirement to promote the grievants in their career ladder positions to the WG-10 level upon demonstrated full performance at that level, and further concluded that the Activity's failure to promote them at that time constituted an unwarranted or unjustified personnel action within the meaning of the Back Pay Act. Nothing in the Agency's or OPM's arguments demonstrates that the Arbitrator's award contravenes the Back Pay Act.

We have held, in similar circumstances, that an award of retroactive promotion and backpay was authorized under the Back Pay Act where an arbitrator found that an agency failed to promote employees in career ladder positions on their eligibility date in violation of the collective bargaining agreement and that, but for the violation, the grievants would have been promoted at the appropriate time. U.S. Department of Labor and Local 12, American Federation of Government Employees, 24 FLRA No. 46 (1986). In U.S. Department of Labor, the parties' contract provided that employees could be promoted in their career ladder once they demonstrated the ability to perform at the higher level. The grievants' supervisors had not promoted them even though they had demonstrated the ability to perform at the higher level. The Arbitrator ruled that the agency's failure to promote the grievants was arbitrary and capricious and in violation of the collective bargaining agreement.

In this case, the Arbitrator found that the formal vacancy announcements concerning the grievants' positions provided that the grievants would be promoted "almost automatically without further competition to a WG-10 level upon demonstrated full performance." Arbitrator's Award at 11. He also found that the Activity's Commanding General determined after an investigation by his representative that the grievants had been working at the WG-10 level for 1 year. The Arbitrator viewed these findings as evidence of the grievants' full performance at the WG-10 level, and further found that "the grievants were not receiving fair and equitable treatment as required in Section 2 Article 32 when they received Grade 8 level pay while performing at an acknowledged Grade 10 level." Arbitrator's Award at 13. The Arbitrator concluded that "(t)here is a preponderance of evidence in the record to suggest that the grievants could have and should have been promoted on May 28, 1984 ... (and that) the contract was violated as charged by the Union." Arbitrator's Award at 13-14. In short, the Arbitrator found that the Activity's failure to timely promote the grievants once they had demonstrated full performance at the higher level, which the Activity acknowledged had occurred as early as May 28, 1984, was unwarranted under the contract. This finding by the Arbitrator in the circumstances of this case satisfies the requirement under the Back Pay Act that an award of backpay must be supported by a finding of an unwarranted or unjustified personnel action.

The Agency and OPM contend that nothing required the Activity to promote the grievants in their career ladders at any particular time in this case. The Authority has held that a career ladder promotion is the direct result of an agency's decision to select an employee and place the employee in a career ladder position in the agency. The agency's selection of an employee and the placement of that employee in a career ladder position also constitutes the agency's decision to promote that employee noncompetitively at appropriate stages in the employee's career up to the full performance level of the position, once the requisite conditions have been met. American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C., 8 FLRA 460, 465 (1982), aff'd in part and rev'd and remanded in part as to other matters sub nom. Local 32, AFGE v. FLRA, 728 F.2d 1526 (D.C. Cir. 1984). Therefore, a career ladder promotion is merely a ministerial act implementing the agency's earlier decision to select and to place the employee involved in a career ladder position, with the intention of preparing the employee for successful noncompetitive promotions when the conditions prescribed by agreement or regulations are met. Id. at 465.

In this case, the Arbitrator found that the Agency had previously established that the grievants would be promoted in their career ladder upon demonstrated full performance at the higher level. Once that condition had been met, as it was when the Commanding General determined that the grievants had been performing at the full performance level for a year, and there was no dispute that other routine requirements were also met (for example, time in grade), the ministerial act of promotion could not be withheld without a valid and lawful reason. See AFGE, Local 32 and OPM, at 465.

As to whether there was a loss of pay or other benefits resulting from the untimely promotion, that element of the Back Pay Act clearly was also present in this case since the grievants were compensated at the WG-8 level from May 28, 1984 to June 10, 1985, when they should have been compensated at the WG-10 level. As the Arbitrator found, the Activity had established a past practice of providing backpay for untimely promotions and misassignments during the term of the collective bargaining agreement. In particular, the Arbitrator interpreted Article 11 of the Agreement as binding the Activity "to continue existing practices, which flow naturally from past practices, specifically in this case, providing backpay for untimely promotions and misassignments." Arbitrator's Award at 13. Therefore, the Arbitrator in essence concluded that Article 11 and Article 32 of the parties' collective bargaining agreement mandated that the grievants receive the pay which they had lost during the time that they had worked at the WG-10 level while still assigned at the WG-8 level. See American Federation of Government Employees, Local 1233 v. FLRA, 796 F.2d 530, 532 (D.C. Cir. 1986), affirming Health Care Financing Administration, 17 FLRA 650 (1985) (for purposes of the Back Pay Act an established past practice is just as much a part of a collective bargaining agreement as its actual written provisions). See also Council of District Office Locals, American Federation of Government Employees, San Francisco Region, AFL-CIO and Office of Program Operations, Field Operations, Social Security Administration, San Francisco Region, 5 FLRA 759, 760 (1981).

In sum, the Arbitrator reviewed the requirements of the Back Pay Act and found that "the action requested by the Union is not excluded nor does it contravene existing laws, rules or regulations." Arbitrator's Award at 9-10. The facts as found by the Arbitrator support his conclusion that the requirements for a proper award of backpay under the Back Pay Act have been met in the circumstances in this case. That is, the Arbitrator found that the grievants had been affected by an unwarranted personne