35:0542(62)AR - - Agriculture, Forest Service and NFFE Local 450 - - 1990 FLRAdec AR - - v35 p542



[ v35 p542 ]
35:0542(62)AR
The decision of the Authority follows:


35 FLRA No. 62

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF AGRICULTURE

FOREST SERVICE

(Agency)

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 450

(Union)

0-AR-1670

DECISION

April 13, 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 Janet L. Gaunt. The Arbitrator found that the Agency violated the parties' collective bargaining agreement by assigning the grievant the duties of a higher-graded position for more than 60 days without temporarily promoting the grievant to that position. The Arbitrator ordered that the grievant be given a retroactive temporary promotion and be made whole for the difference in wages between the higher-graded position and his regular position.

Exceptions to the award were 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 exceptions.

For the following reasons, we conclude that the Agency has not established that the Arbitrator's award is contrary to law, rule, or regulation or is deficient on grounds similar to those applied by the Federal courts in private sector labor relations cases. Accordingly, we deny the Agency's exceptions.

II. Background

Since October 1982, the grievant has been employed by the Agency as a Forestry Technician, GS-9, working in the Wallowa Valley Ranger District (the District), one of seven ranger districts in the Wallowa-Whitman National Forest. According to the Arbitrator, the grievant's responsibilities consisted of handling firewood sales, functioning as an inspector on timber sales, and administering contracts on timber sales of less than 15 million board feet as a Forest Service Representative (FSR). In 1985, when a Timber Management Assistant, GS-11 (TMA) was on a 3-month detail, the grievant was assigned his duties. Thereafter, the grievant was assigned either as primary or alternate FSR on all District timber sales.

In August or September 1986, the grievant took over the FSR duties of a GS-11, TMA. The Arbitrator noted that up to this point, the grievant had not been assigned timber sales of "over 15 million board feet because that volume or higher was considered to represent GS-11 work." Award at 6-7. The Arbitrator also noted, however, that after August 1986, the grievant "completely administered sales well in excess of that amount" and "was designated Timber Project Officer [TPO] for half of the District's large sales." Id. at 7. The Arbitrator found that as the result of assuming the FSR duties from the GS-11 TMA, the grievant "had the authority to perform and did perform, . . . major duties listed in the job description for the position of Forestry Technician, GS-462-11, which was classified on the Baker Ranger District[.]" Id.

In January 1987, a vacancy was advertised in the District as a Forester/Forestry Technician GS-11. The grievant applied, but was not selected, for the vacant position. The Arbitrator noted that although the grievant was not selected for the vacant position, he continued to act as an FSR until August 7, 1987, when he was notified that the individual who was selected for the vacant position had been designated as the primary FSR.

The grievant filed a grievance challenging the selection process and his failure to be selected for the vacant GS-11 position. The grievance was submitted to arbitration.

III. Arbitrator's Award

The parties agreed at the arbitration hearing that the issues to be resolved by the Arbitrator were as follows:

1. Did the Agency violate Article 16.12 of the parties' collective bargaining agreement by assigning the Grievant to perform the duties of a higher grade for more than sixty (60) days without being temporarily promoted into that position?

2. Did the Agency violate Article 16.13 by failing to grant the Grievant a noncompetitive promotion to Forestry Technician, GS-11?

3. Did the Agency violate Article 16, Sections 1, 3, 7 and 15 by failing to properly rank and certify employees seeking promotion to the above position?

4. In the event of a violation, what is an appropriate remedy?

Award at 2.

The Arbitrator rejected the Union's claims with respect to issues 2 and 3. The Arbitrator's findings with respect to these issues were not excepted to and, therefore, will not be addressed in this decision.

With respect to issue 1, the Arbitrator concluded that the Agency violated Article 16.12 of the parties' collective bargaining agreement by assigning the grievant the duties of a higher-graded position for more than 60 days without temporarily promoting the grievant to that position. According to the Arbitrator, the Agency conceded that "if an individual in a GS-9 position takes on the core duties of a GS-11 for more than sixty (60) days, that individual should be temporarily promoted." Award at 26-27.

The Arbitrator noted that from September 1986, until August 1987, the grievant was assigned to serve as either the primary or alternate FSR on all the District's large timber sales. According to the Arbitrator, the grievant "performed as FSR on most all large [timber] sales because the other primary FSR was unable to handle the . . . workload or be readily available[.]" Id. at 26. The Arbitrator noted that the Agency conceded that the grievant "was assigned duties as an FSR during the period in question." Id. at 27.

The Arbitrator found further that the duties performed by the grievant were at the GS-11 level. In particular, the Arbitrator found that the grievant performed the following GS-11 duties: (1) planning and coordinating difficult timber sales with little in-process review; (2) managing the District's sales administration program; and (3) providing day-to-day supervision for subordinate employees. The Arbitrator also found that the grievant provided training, planned and assigned work, monitored performance, scheduled days off, and responded to work inquiries of at least three employees. The Arbitrator noted that other individuals who performed FSR duties were classified at the GS-10 level or above and that all but one of the individuals shown to have performed FSR duties in the District were classified as GS-11s.

The Arbitrator rejected the Agency's argument that the grievant could not be temporarily promoted because a classified Forestry Technician, GS-11 position did not exist in the Wallowa Valley Ranger District. The Arbitrator noted that Article 16.12 of the parties' collective bargaining agreement requires a temporary promotion if an employee is either placed in a higher-graded position or "'assigned a group of duties properly classified at a higher grade.'" Id. at 30. The Arbitrator found that the grievant was assigned a group of duties that were properly classified in two other ranger districts within the Wallowa-Whitman National Forest as a grade GS-11. Id. The Arbitrator further found that although organizational differences between ranger districts could lead to different classifications of the same duties, "in this case, . . . the record is persuasive that the District regarded [the] duties being temporarily performed by the Grievant as Grade 11 in nature." Id. at 31.

In conclusion, the Arbitrator found that between September 1, 1986, and August 7, 1987, the grievant was assigned the duties of a Forestry Technician, GS-11, a classified position within the Wallowa-Whitman National Forest's timber operations activity. The Arbitrator found that although such a position was not actually encumbered in the District, the advertisement of the Forestry Technician, GS-11 position indicated that the duties the grievant was performing were properly classified at the GS-11 level. Accordingly, the Arbitrator concluded that the grievant should have been temporarily promoted to the Forestry Technician, GS-11 position. Id.

According to the Arbitrator, the Agency's failure to promote temporarily the grievant to GS-11 violated Article 16.12 of the parties' collective bargaining agreement and resulted in "a denial of wages the [g]rievant would otherwise have received but for the unwarranted personnel action." Id. at 32 (footnote omitted). To remedy the violation of the collective bargaining agreement, the Arbitrator ordered that the grievant "be given a retroactive temporary promotion to the position of Forestry Technician, GS-11, for the period of November 1, 1986 to August 7, 1987 and [be] made whole for the difference in wages between that position and his regular GS-9 [position]." Id. at 33.

IV. Exceptions

The Agency excepts to the Arbitrator's finding that the Agency violated Article 16.12 of the parties' collective bargaining agreement by assigning the grievant the duties of a higher grade for more than 60 days without temporarily promoting the grievant to the higher-graded position. The Agency also excepts to the portion of the Arbitrator's award ordering that the grievant be (1) granted a retroactive promotion to the position of Forestry Technician, GS-11; and (2) made whole for the difference in wages between that position and his regular GS-9 classification. The Agency claims that these portions of the Arbitrator's award are deficient because they are inconsistent with the Back Pay Act, 5 C.F.R. § 511.701(a)(1), 5 C.F.R. § 511.703, and Federal Personnel Manual (FPM) Chapter 335 Appendix 1.

The Agency notes that Article 16.12 of the parties' collective bargaining agreement requires a temporary promotion only if "'an employee is either placed into a higher-graded position or assigned a group of duties properly classified at a higher grade.'" Exceptions at 3. In the Agency's view, Article 16.12 requires that a position be classified at a higher grade in a particular ranger district before an employee can be placed in it and be compensated at the higher grade. The Agency argues that the grievant cannot be promoted temporarily because he was not placed in a higher-graded position and the group of duties he performed were not properly classified at a higher grade.

The Agency claims that the Arbitrator's award is deficient because "5 CFR 511.703 permits a retroactive effective date only in a situation where the employee is wrongfully downgraded." Exceptions at 4. The Agency also claims that there can be no temporary promotion because "no individual with delegated authority for classification had approved (certified) the group of duties that [the grievant] was doing for the period of time in question." Id. The Agency contends that "5 CFR 511.701(a)(1) states that 'the effective date of a position action taken by an agency shall be the date an official with properly delegated authority approves the proposed classification.'" Id.

The Agency claims that the "grade of a position is affected by the setting, the duties assigned, how closely the position is supervised, and other factors that may be unique to the position." Id. The Agency also claims that applicable regulations require a classifier's certification before a classification determination made in one location may be applied to a different position in another location. Accordingly, the Agency maintains that the Arbitrator erroneously found that because Forestry Technician, GS-11 duties existed in other ranger districts, that position would have been classified as a GS-11 in the Wallowa Valley Ranger District.

The Agency contends that because (1) an arbitrator is not authorized to award pay for a position that has not been classified, and (2) there was no classified Forestry Technician, GS-11 position in the Wallowa Valley Ranger District, a retroactive temporary promotion with backpay is not authorized in this case. In support of its position, the Agency relies on United States v. Testan, 424 U.S. 392 (1976); American Federation of Government Employees, Local 1960 and Department of the Navy, Development Center, 26 FLRA 250 (1987) (Department of the Navy); Service Employees International Union, Local 200 and Veterans Administration Medical Center, 10 FLRA 49 (1982); and U.S. Army Aviation Center, Fort Rucker, Alabama and Wiregrass Metal Trades Council, AFL-CIO, 6 FLRA 209 (1981).

V. Opposition

The Union asserts that the Arbitrator's award does not violate the Back Pay Act. The Union contends that the Arbitrator's finding that the Agency's violation of the parties' collective bargaining agreement resulted in a denial of wages the grievant otherwise would have received satisfies the requirements of the Back Pay Act. In support of its position, the Union relies on Department of the Army, New Cumberland Army Depot and American Federation of Government Employees, Local 2004, 21 FLRA 968 (1986) (New Cumberland Army Depot).

The Union asserts that the Arbitrator found that the Agency had properly classified the Forester/Forestry Technician, GS-11 position in other districts of the Wallowa-Whitman National Forest. The Union also asserts that the Arbitrator found that the grievant performed the entire range of duties described in the properly classified GS-11 position description. According to the Union, FPM Chapter 300, Subchapter 8-3(b)(2) provides that a position may be considered classified "'if it has a written statement of duties to which a grade has been assigned by an appropriate authority even if the position has not been officially established.'" Opposition at 6. In addition, the Union disputes the Agency's claim that the Arbitrator's award violated FPM Chapter 335, Appendix A-1. According to the Union, nothing in FPM Chapter 335, Appendix A, A-1 supports the Agency's claim that the Arbitrator's award is contrary to the cited regulation.

The Union concludes that because the Arbitrator found that the grievant performed the full range of duties properly classified at a higher GS-11 level, the Arbitrator properly ordered the temporary promotion of the grievant from the 61st day of the assignment until the assignment ended.

VI. Analysis and Conclusion

We conclude that the Agency has failed to establish that the Arbitrator's award is contrary to 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.

In order for an award of backpay to be authorized by the Back Pay Act, the arbitrator must find that an agency personnel action was unjustified or unwarranted, that the action directly resulted in the withdrawal or reduction of the grievant's pay, allowances or differentials, and that but for the action, the grievant otherwise would not have suffered the withdrawal or reduction. See National Association of Government Employees, Local R2-98 and Department of the Army, Watervliet Arsenal, Watervliet, New York, 29 FLRA 1303 (1987). An agency's violation of a collective bargaining agreement constitutes an unjustified or unwarranted personnel action for purpose of the Back Pay Act. See Department of Health and Human Services, Health Care Financing Administration, Region IV, Atlanta, Georgia and National Treasury Employees Union, Chapter 210, 21 FLRA 910, 913 (1986).

The Agency does not dispute the Arbitrator's finding that Article 16.12 of the parties' agreement requires an employee to be promoted temporarily if the employee is placed in a higher-graded position or assigned to a group of duties that have been properly classified at a higher grade for more than 60 days. The Agency maintains only that the grievant cannot receive a temporary promotion because there was no classified Forestry Technician, GS-11 position in the Wallowa Valley Ranger District during the time period in which the grievant performed the duties in question.

We agree with the Agency's contention that a grievant may not properly be awarded backpay for performing duties which have not properly been classified. See Social Security Administration and American Federation of Government Employees, Local 1923, AFL-CIO, 31 FLRA 933, 937 (1988). For the following reasons, however, we find no basis in the circumstances of this case on which to conclude that the requirement was not satisfied.

First, the Arbitrator interpreted the portion of Article 16.12 of the parties' agreement which required the performance of "properly classified" duties to include duties which had been properly classified in ranger districts other than the district in which a grievant is employed. The Arbitrator stated that a Union witness at the arbitration hearing "testified without rebuttal that if duties were classified at a higher grade on one ranger district, and an employee was doing the same duties for another district, the provisions of Article 16.12 requiring promotion were intended to apply." Award at 30. Although the Agency disagrees with the Arbitrator's interpretation of Article 16.12, disagreement with an arbitrator's interpretation of a collective bargaining agreement provides no basis for finding an award deficient. See Commander, Griffiss Air Force Base and Local 2612, American Federation of Government Employees, AFL-CIO, 31 FLRA 1187 (1988).

The Agency has not alleged, and we find no basis for concluding, that the Arbitrator's interpretation evidences a manifest disregard of the parties' collective bargaining agreement so as to fail to draw its essence from the agreement. See American Federation of Government Employees, Local 547 and Tampa Veterans Administration Hospital, 19 FLRA 725, 726-727 (1985). Accordingly, the Arbitrator's award is deficient only if Article 16.12, as interpreted by the Arbitrator, is unenforceable because it conflicts with applicable law, rule, or regulation. See Social Security Administration, Office of Hearing and Appeals and National Treasury Employees Union, Chapter 224, 31 FLRA 1172 (1988).

The Agency has not cited or otherwise established that any applicable law or regulation supports its claim that a position which is properly classified in the Activity also must be classified in the same subdivision of the Activity in which the grievant is assigned in order for the grievant to be promoted temporarily to perform the duties of that position. Accordingly, we reject the Agency's claim that the Arbitrator's award is contrary to law. We note, in this regard, that FPM Chapter 300, Subchapter 8-3(b)(2) provides that a position is considered classified for the purpose of a detail if the position has a written statement of duties to which a grade level has been assigned by an appropriate authority, even if the position has not been officially established.

Third, there is no dispute that (1) GS-11 Forestry Technician positions existed in other districts within the Wallowa-Whitman National Forest; (2) the GS-11 positions in the other districts were properly classified at the GS-11 level; and (3) the grievant performed the full range of duties listed in the Forestry Technician, GS-11 position description which were properly classified in the other districts. Although the Agency asserts that "the grade of a position is affected by the setting, the duties assigned, how closely the position is supervised, and other factors that may be unique to the position," the Agency has not established, or alleged, that the grade level of the duties which the Agency concedes were performed by the grievant were affected by any of these factors. Further, the duties performed by the grievant ultimately were advertised and classified at the GS-11 level within the Wallowa Valley Ranger District. The Agency does not allege that the duties which ultimately were classified at the GS-11 level differed in any way from the duties performed by the grievant during the time period in question.

Accordingly, we find that the absence of a classified Forestry Technician GS-11 position in the Wallowa Valley Ranger District does not preclude the grievant from being promoted temporarily. See New Cumberland Army Depot, in which the Authority rejected an agency contention that a grievant could not receive a temporary promotion to WG-5 because there was no WG-5 position to which the grievant could have been promoted. The Authority held that because the Arbitrator found that the parties' collective bargaining agreement mandated that the grievant be promoted temporarily as a result of the extended assignment of the duties of the WG-5 position, an award of backpay was consistent with the grievant's statutory entitlement under the Back Pay Act.

Further, we reject the Agency's assertions that the Supreme Court's decision in U.S. v. Testan, as well as the Authority's decisions in Department of the Navy, Veterans Administration Medical Center, and U.S. Army Aviation Center, Fort Rucker, require the Arbitrator's award to be set aside. In U.S. v. Testan, the Court concluded that "neither the Classification Act nor the Back Pay Act creates a substantive right in the respondents to backpay for the period of their claimed wrongful classifications." 424 U.S. at 407. In the instant case, the grievant did not claim, and the Arbitrator did not find, that the grievant's position was wrongly classified. To the contrary, the Arbitrator found that the grievant improperly had been denied a temporary promotion for performing the duties of a properly classified position. Likewise, in Department of the Navy, Veterans Administration Medical Center and U.S. Army Aviation Center, Fort Rucker, the Authority noted that a retroactive promotion with backpay is not authorized for any period of time before a position is actually classified. In this case, the Arbitrator found that duties identical to those performed by the grievant were classified by the Agency at the GS-11 level, albeit in other ranger districts within the forest. Because duties identical to those performed by the grievant were classified at the GS-11 level, we find that the Arbitrator's award is consistent with the Back Pay Act.

We also reject the Agency's reliance on 5 C.F.R. §§ 511.701(a)(1) and 511.703. 5 C.F.R. § 511.701(a)(1) concerns, among other things, the date an agency decides to establish or change the grade of a position based on the application of published classification standards or guidelines. In this case, the Arbitrator did not require the Agency to establish or change the classification of the grievant's position. Rather, the Arbitrator ordered the grievant to be promoted temporarily with backpay to the GS-11 level for the period covering November 1, 1986 to August 7, 1987. Thus, 5 C.F.R. § 511.701(a)(1) is not relevant.

The Agency's reliance on 5 C.F.R. § 511.703 also is misplaced. 5 C.F.R. § 511.703 concerns the retroactive date for a classification decision which corrects an earlier classification action which resulted in a loss of grade or pay. This case, however, concerns a temporary promotion as a result of a detail to higher-graded duties, not a wrongful demotion resulting from a classification action. Thus, 5 C.F.R. § 511.703 is also not applicable in this case.

Finally, we reject the Agency's reliance on FPM Chapter 335, Appendix A to support its position. FPM Chapter 335 addresses merit promotion programs. Appendix A of FPM Chapter 335 sets out general requirements applicable to merit promotion actions. The Agency has made no attempt to explain the relevance of FPM Chapter 335, Appendix A to the Arbitrator's award of a temporary promotion and backpay.

In sum,