32:1141(152)AR - - NTEU and Customs Service, Pacific Region - - 1988 FLRAdec AR - - v32 p1141
[ v32 p1141 ]
The decision of the Authority follows:
32 FLRA No. 152
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL TREASURY EMPLOYEES UNION
U.S. CUSTOMS SERVICE
Case No. 0-AR-1495
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Leo Kanowitz 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 to the Agency's exceptions.
The grievant, a GS-7 Customs Inspector, alleged that the Agency's failure to promote him to the GS-9 level violated the parties' collective bargaining agreement. The Arbitrator sustained the grievance. As a remedy, the Arbitrator ordered the Agency to promote the grievant to the GS-9 level retroactively and to award him backpay from the effective date of the retroactive promotion.
We find that the Agency has not established that the award is deficient and, therefore, we deny the Agency's exceptions.
II. Background and Arbitrator's Award
In April 1976, the grievant was hired as an excepted service intermittent Customs Inspector at the GS-7 level. When the grievant was hired, he was informed in writing that:
The intermittent inspector usually is hired at a grade level of GS-5 or GS-7 and can move up to GS-9. Promotion to the next higher grade occurs after completion of 2080 hours in the next lower grade.
Award at 7. The grievant completed 2080 hours of service on September 17, 1983.
The grievant's immediate supervisor noted on the grievant's 1984 time record that the grievant had become "eligible for promotion to GS-9, step 1" on September 17, 1983, and further stated on that record that "I certify [that the grievant] is performing assigned duties at a satisfactory level." Award at 18.
The parties stipulated that "prior to September 17, 1983, a number of non-permanent Customs inspectors were promoted to GS-9 upon completion of 2,080 hours of service at the GS-7 level." Award at 9. In May 1984, the Agency decided not to promote the grievant to the GS-9 level. The record does not indicate what reason, if any, was given for the decision.
On September 28, 1984, the Agency issued a directive stating that promotions to the GS-9 level for intermittent inspectors would be authorized only for those employees working at "remote" duty stations where there was work available for intermittent employees. The grievant did not work at a remote duty station.
The grievance protesting the failure to promote the grievant was filed on November 1, 1985. The Agency denied the grievance solely on the basis that, under the provisions of the September 28, 1984 directive, the grievant failed to meet the qualification requirements of the GS-9 level. Award at 8-9. The matter was then submitted to arbitration.
The following issues were stipulated by the parties:
(1) Is the nonpromotion of [the grievant] to GS-9 a grievable matter?
(2) Is the matter of nonpromotion of [the grievant] to GS-9 subject to arbitration?
(3) If the arbitrator determines the first two issues in the affirmative, was [the grievant] eligible for promotion to GS-9 level upon completion of 2,080 hours of time in grade at the GS-7 level subject to other requirements specified in pertinent regulations and the collective bargaining agreement; if so, what shall the remedy be?
Award at 3.
The Arbitrator noted the parties' stipulation that the matter complained of in the grievance was continuing in nature and found that the grievance was timely filed. The Arbitrator found that the subject matter of the grievance concerned nonpromotion and did not concern a matter of improper appointment or classification. He also found that: (1) the grievant did not raise any issue as to the validity of his classification; (2) the stipulated issues in this case were all phrased in terms of nonpromotion; and (3) the Agency did not raise the issue of nongrievability during the processing of the grievance prior to reaching the arbitration stage. The Arbitrator determined that the grievance was grievable and arbitrable. Award at 13-14.
The Arbitrator rejected the Agency's contention that the grievant was not capable of performing work at the GS-9 level. The Arbitrator noted that during the processing of the grievance the Agency had not asserted that reason for denying the grievant's promotion. The Arbitrator found that the Agency's sole basis for denying the promotion was that it had no obligation to promote nonpermanent Customs Inspectors from the GS-7 level to the GS-9 level under the September 1984 directive. Award at 15.
The Arbitrator found that when the grievant was hired as an intermittent Customs Inspector at the GS-7 level, he was informed that intermittent inspectors could move up to the GS-9 level after 2080 hours of work. He also found that this information suggested a "promise of automatic promotion." Award at 17. He noted that, in addition, Article 17, Section 13.A. of the parties' collective bargaining agreement provides that:
All employees in career ladder positions will be promoted on the first pay period after a period of one (1) year or whatever lesser period may be applicable provided the employee has demonstrated the ability to perform at the higher-grade level, qualification requirements are met, and there is sufficient higher level work to be performed.
The Arbitrator noted that the grievant's supervisor had certified that the grievant was performing assigned duties at a satisfactory level. The Arbitrator concluded, therefore, that the grievant's supervisor was satisfied that the grievant was qualified to perform work at the GS-9 level and that there was work at that level for the grievant to perform. Award at 18-19.
The Arbitrator rejected the Agency's claim that the career ladder provisions of the collective bargaining agreement did not apply to the grievant. The Arbitrator noted that the information as to promotion potential given to the grievant when he was hired made no distinction between intermittent and nonintermittent employees. He concluded, therefore, that the grievant "qualifies as a career ladder employee notwithstanding the intermittent nature of his work." Award at 19.
The Arbitrator noted that the September 1984 directive concerning nonpermanent Customs Inspectors provided that promotions of nonpermanent inspectors "will" be authorized only at "remote" duty stations. Award at 20. He found that the grievant became eligible for promotion before the directive was issued and that the directive was "phrased in prospective terms." Id. The Arbitrator concluded that retroactive application of the directive to the grievant was, therefore, unwarranted. He also concluded that retroactive application was unwarranted because nonpermanent inspectors who were at the GS-9 level when the directive was issued continued to receive work assignments after the issuance of the directive. The Arbitrator found that these continuing assignments demonstrated that, contrary to the Agency's claim, intermittent employees are capable of performing work at the GS-9 level. Award at 22. The Arbitrator found, therefore, that the grievant had become eligible for promotion to the GS-9 level on September 17, 1983, and that the Agency's failure to promote him violated the collective bargaining agreement. Award at 23.
The Arbitrator determined that under the parties' collective bargaining agreement, a retroactive promotion would be an appropriate remedy. He also concluded that the Agency's violation of the collective bargaining agreement constituted an "administrative error" that prevented the grievant from receiving a promotion he would otherwise have received. He, therefore, ordered that the grievant be promoted to the GS-9 level as of the first pay period after September 17, 1983, and that the grievant receive backpay from the effective date of that promotion. The Arbitrator retained jurisdiction over any disputes arising from the award of backpay. Award at 24-25.
III. Positions of the Parties
A. Agency's Exceptions
The Agency contends that the grievant's job duties and responsibilities have been and are only at the GS-7 level, with no promotion potential to the GS-9 level. The Agency concludes that since the grievance seeks promotion of the grievant to the GS-9 level, it is "in essence a challenge to the classification" of the grievant's position at the GS-7 level and is, therefore, a matter excluded from the grievance procedure under section 7121(c)(5) of the Statute. Exceptions at 2-3.
The Agency further contends that the grievant is not a career ladder employee as defined by the parties' negotiated agreement. The Agency asserts that the agreement provides for career ladder promotions only of career and career-conditional employees. The Agency argues that the grievant, as an excepted service employee, is precluded under Federal law and regulation from receiving a career ladder promotion. Exceptions at 3-7.
The Agency also argues that the Arbitrator's award interferes with management's right under section 7106(a)(1) of the Statute to determine its organization. Citing Congressional Research Employees Association and Library of Congress, Congressional Research Service, 25 FLRA 306 (1987), the Agency argues that under section 7106(a)(1), an agency cannot be required to establish career ladder positions. The Agency argues that, contrary to its determination that the grievant's position should be classified at the GS-7 level only, the Arbitrator's award would establish a career ladder ending at the GS-9 level for the position. Exceptions at 7-8.
Finally, the Agency contends that the Arbitrator's backpay award violates the Back Pay Act because the failure to promote the grievant was not an unjustified or unwarranted personnel action. Exceptions at 9-10.
B. Union's Opposition
The Union argues that the Agency's contentions as to the grievability and arbitrability of the grievance are supported by nothing more than a "pro forma" reference to the management rights provisions of the Statute. Further, the Union asserts that these contentions were not raised in response to the grievance, but were raised for the first time before the Arbitrator. The Union also argues that the Arbitrator correctly distinguished between a classification action and a promotion action in determining that the grievance was not excluded from the grievance procedure under section 7121(c)(5) of the Statute.
The Union contends that the Agency has provided no support for its claim that the grievant is not entitled to rights under the career ladder provisions of the parties' agreement. The Union argues that the issue before the Arbitrator was whether the directive precluded the promotion of the grievant to the GS-9 level. The Union maintains that according to the record, the grievant was informed when he was hired as an excepted service intermittent inspector that the position had promotion potential to the GS-9 level. The Union argues that the directive did not preclude intermittent inspectors from being promoted to the GS-9 level. The Union contends that the Agency's Personnel Manual provides that employment requirements for excepted service employees be comparable to those for competitive service employees. The Union argues that the requirement for comparability means that excepted service employees are eligible for career ladder promotions and that the Arbitrator's award implements the Agency's own policy.
The Union also argues that the Arbitrator's award is distinguishable from decisions in which the Authority held that proposals requiring management to establish career ladder positions interferes with management's right to determine its organization under section 7106(a)(1) of the Statute. The Union maintains that the contract provision enforced by the Arbitrator concerns the effective date of a career ladder promotion and does not require the creation of a career ladder position.
Finally, the Union contends that the Agency's exceptions constitute nothing more than disagreement with the Arbitrator's findings and conclusions.
A. The Grievance Concerns a Matter of Nonpromotion and Does Not Concern a Classification Matter Under Section 7121(c)(5) of the Statute
The Arbitrator found that the grievance concerned the Agency's failure to promote the grievant rather than the Agency's classification of his position. We agree. The grievance alleged that the grievant became eligible for promotion on September 17, 1983, and was entitled to promotion to the GS-9 level. The grievance did not concern whether the grievant was performing duties warranting classification at the GS-9 level.
A grievance and an award which pertain to whether a grievant is entitled to a career ladder or noncompetitive promotion do not concern the classification of a position within the meaning of section 7121(c)(5) of the Statute. See U.S. Department of Labor and Local 12, American Federation of Government Employees, 24 FLRA 435, 437 (1986). Compare Social Security Administration and American Federation of Government Employees, Local 1923, AFL-CIO, 31 FLRA 933 (1988), in which we found that a grievance concerning the appropriateness of the grade level attached to the performance of the duties of a position was a matter concerning the classification of that position. We find that the grievance concerns the promotion of the grievant, and does not concern a classification matter under section 7121(c)(5) of the Statute.
B. The Grievant Is Not Barred From Receiving A Career Ladder Promotion
The Agency contends that by finding the grievant eligible for a career ladder promotion, the Arbitrator's award violates Federal law and regulation, specifically the Federal Personnel Manual (FPM) chapter 302, subchapter 1, 1-1.b and 1-1.c and chapter 315, subchapter 2, 2-4 and 5 U.S.C. § 2103 and 5 C.F.R. § 213.101. We find no merit in this contention. The materials cited by the Agency concern the retention of career status by employees already serving under career appointments and the definition of the "excepted service"; they do not address the question of the rights of excepted service employees. Moreover, FPM chapter 302, subchapter 4-2.a provides that "[a]n agency may promote . . . an employee serving under an excepted appointment to another excepted position . . . when the employee meets the requirements for appointment to that position[.]"
We find no merit in the Agency's contention that the Arbitrator's award violates Federal law and regulation. We further find that the grievant, as an excepted service employee, is not barred from receiving a career ladder promotion.
C. The Arbitrator's Award Does Not Interfere with the Agency's Right Under Section 7106(a)(1) of the Statute to Determine Its Organization
The Agency also contends that by ordering the Agency to promote the grievant, the Arbitrator's award interferes with the Agency's right under section 7106(a)(1) of the Statute to determine its organization. The Agency relies on Library of Congress, 25 FLRA 306, in support of its contention.
The issues before the Authority and the Authority's holding in Library of Congress are distinguishable. In Library of Congress, the Authority found that a proposal which required the agency to create career ladder positions directly interfered with the agency's section 7106(a)(1) right to determine its organization. Library of Congress, 25 FLRA at 324-25 (Proposal 11). The Arbitrator's award in this case, however, does not require the creation of a position. The Agency already had created a career ladder, which was embodied in the parties' negotiated agreement. The Arbitrator found that the Agency also had determined that intermittent inspectors who qualified by completing 2080 hours of work at the GS-7 level were eligible for promotion to the GS-9 level within that career ladder, and in the past had promoted some GS-7 inspectors to that level.
A career ladder promotion is merely a ministerial act implementing an agency's earlier decision to place employees in a career ladder position with the intention of preparing the employee for successful noncompetitive promotions when the conditions prescribed by agreement or regulation are met. See National Federation of Federal Employees, Local 2052 and Department of the Interior, Bureau of Land Management, Boise District Office, 30 FLRA 797, 822 (1987); National Association of Government Employees, Local R2-98 and Department of the Army, Watervliet Arsenal, Watervliet, New York, 29 FLRA 1303, 1310 (1987). See also American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C., 8 FLRA 460, 465-66 (1982) (Proposal III, which provided that employees below the journeyman level would be promoted to the next higher level in the career ladder upon meeting the qualification requirements of the higher level, did not violate an agency's section 7106(a)(1) rights and was negotiable).
We find that the Arbitrator's order that the Agency promote the grievant to the GS-9 level does not interfere with the Agency's right under section 7106(a)(1) of the Statute to determine its organization.
D. The Arbitrator's Award Does Not Violate the Back Pay Act
The Agency contends that the Arbitrator's award of backpay violates the Back Pay Act because the failure to promote the grievant was not an unjustified or unwarranted personnel action. We find no merit in this contention.
The Arbitrator noted that the parties' negotiated agreement provides that an arbitrator may grant retroactive promotion and backpay as a remedy for an unjustified or unwarranted personnel action. He then found that the failure of the Agency to promote the grievant violated the parties' agreement and "was the result of an administrative error that prevented a personnel action from taking effect as originally intended." Award at 24. The Arbitrator cited Authority and Comptroller General decisions in support of his remedy.
In sum, the Arbitrator found that the grievant was affected by an unwarranted personnel action--the failure to promote him to the GS-9 level in violation of the career ladder provisions of the parties' negotiated agreement. The Arbitrator then found that this unwarranted personnel action resulted in a withdrawal, reduction or denial of pay--pay at the GS-9 level instead of at the GS-7 level--and that but for the failure to promote him, the grievant would not have suffered a loss of pay. We find that the