37:1111(95)AR - - Navy, Long Beach Naval Shipyard, Long Beach, CA and IFPTE Local 174 - - 1990 FLRAdec AR - - v37 p1111
[ v37 p1111 ]
The decision of the Authority follows:
37 FLRA No. 95
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE NAVY
LONG BEACH NAVAL SHIPYARD
LONG BEACH, CALIFORNIA
INTERNATIONAL FEDERATION OF PROFESSIONAL
AND TECHNICAL ENGINEERS
October 22, 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 Robert M. Leventhal filed on behalf of the Activity by the Department of the Navy (Agency) pursuant to section 7122(a) of the Federal Service Labor-Management Relations Statute (Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exceptions.
The Arbitrator found that the grievant, a GS-9 production controller, performed the duties of a GS-11 production controller and awarded the grievant a temporary promotion, with backpay, for the period of December 3, 1987, to November 6, 1988.
For the following reasons, we conclude that the Arbitrator's award is not contrary to law or Government-wide regulations. Accordingly, we will deny the Agency's exceptions.
II. Preliminary Matters
The Agency's exceptions to the Arbitrator's award were timely filed with the Authority on February 7, 1990. On March 13, 1990, the Agency sought leave to file a supplemental exception, addressing a recent Comptroller General decision. On March 23, 1990, the Union filed an opposition to the Agency's exceptions and supplemental exception.
The Authority's Regulations do not provide for the filing of supplemental exceptions to arbitration awards. Moreover, pursuant to section 2425.1 of the Authority's Regulations, any Union opposition to the Agency's original exception had to be filed with the Authority within 30 days of service of the Agency's exception. The Union's opposition was filed well beyond the 30-day period.
Neither party opposes the other's submission, however. Accordingly, as neither party was prejudiced, and as the Union addressed the Agency's supplemental exception in its opposition, we will accept, and consider, both the Agency's supplemental exception and the Union's opposition.
The grievant, a GS-9 production controller, filed a grievance in July 1988 alleging that his position description was inaccurate. In pertinent part, Article 17 of the parties' collective bargaining agreement provided the following with respect to position descriptions:
Section 1. The Employer will maintain current and accurate descriptions for positions in the bargaining units in accordance with federal law, regulations and Shipyard instructions. If an employee believes that he is performing duties beyond the scope of his position description to such an extent as to constitute misassignment, he may file a grievance as provided by this Agreement.
. . . .
Section 4. The Employer will notify the Union after officially informing the incumbent when his position is reclassified.
Section 5. The Union may make recommendations concerning the adequacy of position descriptions or classification of positions.
Award at 3-4.
Pursuant to this grievance, the grievant's supervisor requested a classification audit of the grievant's position. The audit was performed and in September 1988, the Head of the Personnel Operations Division issued a memorandum stating, in pertinent part:
The [grievant's] P.D. is classifiable as Production Controller (Ships) GS 1152-11. If subject individual is performing the duties as described, this constitutes a misassignment which must be corrected.
Id. at 5. After receipt of this memorandum, the grievance was processed to step 2 of the parties' procedure. The Activity's second-step response to the grievant provided, in pertinent part:
1. [A grievance] was filed by the [Union] . . . concerning an allegation that you had been performing duties above the level of your production controller GS-1152-9 position. As relief, you requested correction of the [misassignment].
2. On 17 October 1988, a meeting was held to discuss your grievance. . . . During the meeting, you verbally requested as relief that a statement be placed in your official personnel record attesting to the fact that you had been performing GS-11 level work for several years; and that you be immediately qualified for a vacant GS-12 production controller position in the Planning Department.
3. Your grievance was thoroughly investigated. Based on this investigation, and the statements made in the 17 October 1988 meeting, you were in fact performing some of the duties of a production controller GS-1152-11 for at least a portion of the last six years.
4. Relief. The original relief requested by [the grievance] was to correct the [misassignment]. This was done at the time you were reassigned as a result of the recent reduction in force. The additional relief requested at the 17 October 1988 meeting cannot be granted . . . .
The grievance was not resolved and was submitted to arbitration.
IV. Arbitrator's Award
Before the Arbitrator, the Activity argued that the Arbitrator could not award the grievant a temporary promotion, with backpay, because the original grievance did not request monetary relief. The Activity asserted that as the original grievance requested only correction of the misassignment, and as that correction occurred when the grievant was reassigned due to a reduction in force, the grievance was resolved. The Activity maintained also that the Arbitrator had no authority to address, or resolve, classification disputes.
The Activity maintained that the requirements for a temporary promotion, established in the parties' collective bargaining agreement (1), were not satisfied in this case because: (1) as an official request to reclassify the grievant's position was not made, and as the grievant performed higher-level duties as a result of oral instructions, the grievant was not detailed to a higher-level position (2); (2) the agreement provides an option, not a requirement, for temporary promotions; and (3) competitive procedures were not used.
The Union argued, in arbitration, that the issue of a temporary promotion was properly before the Arbitrator because Article 15 of the parties' agreement provides the remedy for violations of Article 17. The Union asserted also that no facts were in dispute because the Activity's representative had concluded that the grievant had performed the higher-level duties.
The Arbitrator concluded, based on his interpretation of the parties' agreement, that the fact that the original grievance did not allege a violation of Article 15 did not preclude the Union from claiming that the grievant should be temporarily promoted, with backpay, for the time period during which he performed the higher level duties. Accordingly, noting that the parties did not agree on the issue to be resolved in arbitration, the Arbitrator framed the issue as follows:
Did the Employer violate the collective bargaining agreement when it declined to grant the Grievant a temporary promotion and back pay for the period of December 3, 1987 to November 6, 1988?
Award at 2. (3)
The Arbitrator determined first that the Activity was "held to the findings of its agent. The work the Grievant was performing was that of a GS-11." Id. at 11. The Arbitrator found, in this regard, that "it is apparent the GS-11 and 12 work was readily identifiable, those positions existed and the duties in question were assigned by a representative of management." Id. at 11-12.
The Arbitrator determined also that the grievance did not involve a classification dispute. The Arbitrator stated that it was "important to differentiate between questions as to the propriety of classification as contrasted to rights that may inure once a classification error has been acknowledged or determined by an appropriate [agency] of the [Activity]." Id. at 12. According to the Arbitrator, "[a]pplication of contractual rights, once the classification question has been resolved, as it has been in this case, may be properly addressed in the negotiated grievance procedure." Id. at 14.
The Arbitrator noted that, under Article 15, section 15 of the parties' agreement, temporary promotions are "normally" effected for details to higher-graded positions. Id. at 16. The Arbitrator interpreted this provision as requiring a temporary promotion "absent the demonstration of some criteria that makes a given set of facts abnormal or unusual." Id. The Arbitrator found that the Activity had not asserted that any unusual circumstances existed in this case.
With respect to the issue of whether the grievant was detailed to the higher-graded position, the Arbitrator stated:
[S]ome representative of management found it necessary to assign the Grievant higher level work. The fact this was not done properly does not change the underlying facts, the work was available to be performed, the work should have been assigned to an individual classified as a GS-11, it was assigned to and performed by the Grievant as a GS-9. The Grievant was, therefore, detailed or temporarily promoted. The Grievant performed as directed and therefore had a de facto detail to a higher grade bargaining unit position.
Id. at 17.
Finally, the Arbitrator rejected the Activity's assertion that the grievant was not entitled to a temporary promotion under Article 15 of the parties' agreement because a detail of more than 120 days to a higher graded position required competitive procedures. The Arbitrator found that "[t]he error was that of management and management cannot escape its obligation for one error by some subsequent procedural error." Id. at 18. The Arbitrator concluded as follows:
Clearly one way to correct the improper assignment was to change the Grievant's assigned duties. The change that occurred in this case, be it because of a RIF or some other managerial act (which did not violate other provisions of the contract), cured the problem prospectively. A prospective remedy does not cure the inequity that was called to management's attention when this grievance was filed, the impropriety confirmed by management's agent responsible for evaluating classification, then perpetuated until the RIF required the Grievant's reassignment.
Accordingly, the Union's prayer for relief is granted. The Grievant is to be awarded his temporary promotion and back pay from December 3, 1987 to November 6, 1988.
Id. at 19.
V. The Parties' Positions
A. The Agency's Exceptions
The Agency contends that the award is deficient because it is inconsistent with law and Government-wide regulations.
First, in its original exception, the Agency asserts that the award conflicts with Federal Personnel Manual (FPM) chapter 511-5, subchapter 1-6(a), which provides that:
whenever an employee is appointed, promoted, reassigned, demoted or transferred to a position subject to the General Schedule, there must be a position available which has been described, evaluated, and classified . . . so that the proper rate of pay and the qualifications necessary to perform the work may be determined.
Exceptions at 2 (emphasis omitted). According to the Agency, this provision requires that there be "an existing and unencumbered" position in order to effect a retroactive temporary promotion with backpay. The Activity acknowledges that the GS-11 production controller position was in existence during the time periods relevant to this case.
The Agency asserts, however, that the position was encumbered by another employee. Accordingly, the Agency maintains that the award is inconsistent with the FPM.
Second, the Agency claims that, consistent with Comptroller General decisions, a retroactive temporary promotion may be effected only if the parties' agreement establishes a "nondiscretionary policy" requiring that promotion. The Agency maintains that because Article 15 of the parties' agreement states only that temporary promotions "normally" will be effected, it does not constitute a nondiscretionary policy.
In its supplemental exception, the Agency cites the Comptroller General's decision in Cassandra G. McPeak and Wayne E. Dabney, 69 Comp. Gen. 93 (1989) (McPeak). According to the Agency, McPeak stands "for the proposition that temporary promotion provisions in collective bargaining agreements, like the provision in the instant case, do not provide sufficient authority to pay employees backpay where there is no evidence that employees were, in fact, detailed to higher-graded positions." Supplemental Exception at 3.
B. The Union's Opposition
The Union asserts that the Agency has provided no basis for finding the award deficient. The Union notes that the grievant was in a career-ladder position "providing for full performance at the GS-11 level and promotion without competition." Opposition at 3. The Union argues that, on this basis alone, this case can be distinguished from McPeak. The Union argues also that, unlike McPeak, in this case there "is copious evidence of a de facto detail, recognized by the Navy's Chief Classifier[.]" Id.
Finally, the Union claims that the Agency's position that there was no detail conflicts with the Activity's argument to the Arbitrator that, under Article 15, its liability for backpay to the grievant was limited to 121 days. The Union notes also, in this regard, that before the Arbitrator, the Activity did not deny that the grievant was assigned higher-graded duties by his supervisor.
VI. Analysis and Conclusions
The Agency has provided no basis for finding the Arbitrator's award deficient under section 7122 of the Statute.
As the Agency acknowledges, and as confirmed by the Comptroller General in McPeak, an exception to the general rule that an employee is entitled only to the salary of the position to which the employee actually is appointed exists "where the parties to a collective bargaining agreement agree to make temporary promotions mandatory for details to higher grade positions, thereby establishing a nondiscretionary agency policy which would provide a basis for backpay." McPeak, 69 Comp. Gen. at 94. The Comptroller General concluded that the affected employees in McPeak were not entitled to retroactive temporary promotions because "there [was] no evidence of a detail of the employees to the higher-graded position. Instead, it appear[ed] that over a period of several years they either assumed or were assigned some duties which were associated with the higher-graded position." Id.
In this case, by contrast, the Arbitrator concluded that the grievant performed the work of the GS-11 position. According to the Arbitrator, "the GS-11 . . . work was readily [available] . . . and the duties in question were assigned by a representative of management." Award at 11-12. In addition, the Arbitrator found that the grievant "was detailed or temporarily promoted." Id. at 17. Based on his interpretation of Article 15 of the parties' agreement, the Arbitrator concluded that the Activity was required to temporarily promote the grievant, with backpay, unless the Activity could demonstrate that unusual circumstances existed. According to the Arbitrator, the Activity did not assert that such circumstances existed.
Consequently, unlike the situation in McPeak, it is clear here that, as found by the Arbitrator, the grievant performed the duties of the GS-11 position and was entitled under the parties' agreement to a temporary promotion. We find nothing in McPeak which indicates that in these circumstances, the Arbitrator could not order the grievant a temporary promotion with backpay.
Next, nothing in the plain wording of the FPM provision relied on by the Agency supports the conclusion that the GS-11 position to which the grievant was retroactively promoted had to be vacant during the time periods in question. Instead, the FPM requires only that there be a "position available which has been described, evaluated, and classified . . . ." Exceptions at 2. (emphasis omitted). By the Agency's own admission, a GS-11 position was available, described, evaluated, and classified during the time periods relevant to this case. The Agency cites no authority for its argument that, in addition to the other requirements li