34:0537(90)AR - - HQ Army Training and Doctrine Command, Fort Monroe, Virginia and NAGE Local R4-7 - - 1990 FLRAdec AR - - v34 p537



[ v34 p537 ]
34:0537(90)AR
The decision of the Authority follows:


34 FLRA No. 90

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

HEADQUARTERS

U.S. ARMY TRAINING AND DOCTRINE COMMAND

FORT MONROE, VIRGINIA

and

LOCAL R4-7

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

0-AR-1658

DECISION

January 24, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator James P. Whyte. The grievants filed grievances claiming that they had been improperly promoted to GS-6 rather than GS-7 level positions. The Arbitrator determined that the grievants were not entitled to have been promoted to the GS-7 level, and he denied the grievances.

National Association of Government Employees Local R4-7 (the Union) filed exceptions under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. Headquarters, U.S. Army Training and Doctrine Command, Fort Monroe, Virginia (the Activity) did not file an opposition to the Union's exceptions.(*)

For the reasons stated below, we conclude that the Union has failed to establish that the Arbitrator's award is deficient. Accordingly, we will deny the Union's exceptions.

II. Background

In February 1987, the Activity announced vacancies for accounting technicians both at the GS-5 level (with a target grade of GS-7) and at the full performance level of GS-7. In June 1987, the grievants were selected for the GS-5 positions. The grievants' supervisor recommended their promotion to GS-7 in December 1987. In February 1988, the grievants were informed that they could not be promoted from GS-5 to GS-7 because in October 1987, the Activity had adopted Office of Personnel Management (OPM) qualification standards providing for one-grade interval promotions for positions in the accounting technician series. The grievants were promoted to GS-6 in February 1988.

The grievants filed grievances protesting management's refusal to promote them to GS-7 which were subsequently submitted to arbitration.

III. The Arbitrator's Award

Before the Arbitrator, the Union maintained that at the time the grievants were selected, they would have been entitled to be promoted from GS-5 to GS-7 within a year or less. The Union argued that the Activity's new policy should not be applied retroactively. The Union also argued that: (1) other employees were promoted directly from GS-5 to GS-7; (2) regulations do not require that promotions in the accounting technician position series must be at one-grade intervals; (3) management failed to properly consider previous experience and training of the grievants; (4) the new requirements should have been waived on the basis of hardship or inequity; and (5) management's actions were violations of merit principles under 5 U.S.C. § 2301(b)(3) and (8).

The Activity maintained that under Federal Personnel Manual (FPM) regulations which predated the grievants' selections, the accounting technician position series is classified at one-grade intervals. The Activity conceded that an error was made by not establishing a GS-6 position when the vacancies were announced both at the trainee and full performance levels. However, the Activity argues that the error was corrected before the grievants were promoted. The Activity claimed that the grievants were properly promoted to GS-6 and did not meet the requirement of at least 1 year of service at GS-6 in order to have been promoted to GS-7.

The Arbitrator determined that OPM qualification requirements and FPM regulations which predated the grievants' selection for the accounting technician trainee positions classified the accounting technician position series at one-grade intervals. Consequently, the Arbitrator found that the grievants did not meet the requirements for promotion to GS-7 because they had not served at least 1 year at GS-6 as required for a position series classified at one-grade intervals.

The Arbitrator also found that his determination was consistent with the vacancy announcements. He noted that: (1) although the announcements did not expressly state that the progression from GS-5 to GS-7 was to be in one-grade intervals, the announcements also did not state that the promotion sequence would be at a two-grade interval; and (2) the announcements did state that promotion to the target grade required meeting all qualification and eligibility requirements. The Arbitrator concluded that these requirements included the time-in-grade requirement and that the grievants failed to meet it.

The Arbitrator rejected the Union's claim that the existence of regulations permitting the waiver of time-in- grade requirements on the basis of hardship or inequity warranted the promotions of the grievants to GS-7. He found that the Activity had no authority on its own to act with respect to a waiver of time-in-grade requirements. The Arbitrator determined that the obligation to request a waiver was the obligation of the grievants and that there was no evidence that they had made any such request. The Arbitrator also rejected the Union's claim that the grievants should have been promoted to GS-7 because other employees had been promoted to GS-7. The Arbitrator found that except for an employee who had been erroneously promoted, there was no evidence that employees similarly situated to the grievants had been promoted to GS-7 directly from GS-5.

The Arbitrator further rejected the Union's claims that merit principles had been violated. He found no arbitrary action and no violation of the merit principle of equal pay for equal work. He concluded that although the grievants were performing GS-7 work, they were performing the work for the purposes of training and experience. The Arbitrator ruled that the performance of higher-level work under these circumstances did not violate 5 U.S.C. § 2301(b)(3) and did not entitle the grievants to be promoted to GS-7.

Accordingly, the Arbitrator denied the grievance.

IV. Union's Exceptions

The Union contends that the award is deficient because of erroneous determinations by the Arbitrator. The Union argues that the Arbitrator's determination that the Activity adopted a one-grade interval promotion progression from GS-5 to the target grade of GS-7 for the grievants is contrary to the facts. The Union also argues that the Arbitrator's determination that the grievants were not qualified for promotion to GS-7 is incorrect.

The Union also contends that the award is deficient because it is contrary to law. The Union argues that the Arbitrator erred in his interpretation of 5 U.S.C. § 2301(b)(3), which requires equal pay for equal work. The Union also argues that management's actions were arbitrary and capricious and that, therefore, the Arbitrator should have found a violation of 5 U.S.C. § 2301(b)(8), which protects employees against arbitrary management actions.

The Union further contends that the award is contrary to regulations. The Union argues that the Arbitrator erred in finding that OPM qualification standards and FPM regulations precluded the two-grade interval promotion of the grievants to GS-7. The Union also argues that the Arbitrator erred in failing to consider 5 C.F.R. § 300.603, as revised, effective October 6, 1988. The Union maintains that the new provisions regarding training agreements and the use of training as a substitute for time-in-grade requirements apply to the grievants. The Union also asserts that the Arbitrator erred in failing to find that the Activity should have waived time-in-grade requirements based on undue hardship or inequity under the revised provisions of 5 C.F.R. § 300.603.

V. Discussion

We conclude that the Union has not established that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute. The Union fails to establish that the award is contrary to any law, rule, or regulation or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor relations cases.

A. The Award Is Not Contrary to Law

The Union contends that the award is contrary to 5 U.S.C. § 2301(b)(3), which requires "[e]qual pay . . . for work of equal value[.]" The Arbitrator found no violation of 5 U.S.C. § 2301(b)(3) because the grievants were performing the GS-7 work for purposes of training and experience. The Union provides no citations of authority to establish that the Arbitrator's refusal to order the grievants promoted to GS-7 violates 5 U.S.C. § 2301(b)(3). We find that the Union provides no basis for finding that the Arbitrator's refusal to order the grievants promoted to GS-7 is contrary to 5 U.S.C. § 2301(b)(3).

The Union also contends that management's actions were arbitrary and capricious and that, therefore, the Arbitrator should have found a violation of 5 U.S.C. § 2301(b)(8), which protects employees from arbitrary management actions. We are not persuaded that the award is contrary to 5 U.S.C. § 2301(b)(8). We conclude that the Union's contention constitutes nothing more than disagreement with the Arbitrator's findings and conclusions that the grievants were not improperly denied promotion to GS-7 and provides no basis for finding the award deficient. See, for example, Federal Aviation Administration, Atlantic City, New Jersey and Local 1340, National Federation of Federal Employees, 32 FLRA 426 (1988) (FAA, Atlantic City) (disagreement with an arbitrator's findings and conclusions provides no basis for finding an award deficient).

B. The Award Is Not Contrary to Regulation

The Union also contends that the award is contrary to regulation because the Arbitrator erred: (1) in finding that OPM qualification standards and FPM regulations precluded the two-grade interval promotion of the grievants to GS-7; and (2) in failing to consider 5 C.F.R. § 300.603, as revised, effective October 6, 1988.

We conclude that the Union fails to establish that the Arbitrator erred in finding that a two-grade interval promotion was precluded. OPM position-classification standards which predate the grievants' selections classify the position series of accounting technician, GS-525 at one-grade intervals. Position-Classification Standard for Accounting Technician Series, GS-525, Handbook of Occupational Groups and Series of Classes Established Under the Federal Position-Classification Plan. In addition, the FPM does not identify accounting technician, GS-525, as a position series which may properly be classified at two-grade intervals. Consequently, as found by the Arbitrator, the grievants failed to meet the advancement requirement of 5 C.F.R. § 300.602(b)(2)--1 year at GS-6--in a position properly classified at one-grade intervals.

We also conclude that the Union fails to establish that the Arbitrator erred in failing to consider the revised provisions of 5 C.F.R. § 300.603, pertaining to delegations of authority to agencies to waive time-in-grade requirements and to accelerate promotions on the basis of intensive training under training agreements. The Arbitrator refused to consider the substance of any waiver provisions for time-in-grade requirements because the grievants did not request any waiver of the requirements.

The Union does not address the grievants' failure to request a waiver and does not argue that the Arbitrator was required to consider whether a waiver was warranted even though the grievants did not request a waiver. The Union contends only that the Arbitrator erred in failing to consider the revised waiver provisions. Because the Union does not establish--or even contend--that the Arbitrator's consideration of the grievants' failure to request waivers was improper, we find that the Union has failed to establish that the Arbitrator erred in failing to consider the revised provisions of 5 C.F.R. § 300.603.

The Union also fails to establish that the award is deficient based on the revised provisions of 5 C.F.R. § 300.603 pertaining to accelerated promotions under training agreements. Accelerated promotions on the basis of intensive training under provisions of training agreements established in accordance with FPM instructions must be made pursuant to training agreements in effect at the time an employee is selected for the lower-graded position in the series in which the employee is being promoted. See FAA, Atlantic City, 32 FLRA at 427. The Union does not contend that such a training agreement existed in June 1987, at the time the grievants were selected for the accounting technician position. Consequently, no basis is provided for finding the award contrary to the revised provisions of 5 C.F.R. § 300.603 on training agreements.

C. The Award Is Not Deficient On Any Other Ground

The Union also contends that the award is deficient because of erroneous factual determinations by the Arbitrator. In our view, these contentions constitute nothing more than disagreement with the Arbitrator's findings of fact and provide no basis for finding the award deficient under the Statute. See, for example, Air Force Logistics Command, Tinker Air Force Base and American Federation of Government Employees, Local 916, 33 FLRA 96 (1988) (an exception contending that the arbitrator erred in his findings of fact was denied because the exception constituted nothing more than disagreement with the arbitrator's findings of fact).

D. Summary

The Union's exceptions provide no basis for finding the award deficient