37:1144(98)AR - - HHS, SSA and AFGE Local 1923 - - 1990 FLRAdec AR - - v37 p1144



[ v37 p1144 ]
37:1144(98)AR
The decision of the Authority follows:


37 FLRA No. 98

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1923

(Union)

0-AR-1655

DECISION

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 Henry L. Jalette filed by the Union pursuant to section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency did not file an opposition to the Union's exceptions.

The Union filed a grievance on behalf of the grievant, alleging that the Agency violated provisions of the parties' collective bargaining agreement which require that details to higher-graded positions in excess of 30 days be made through a temporary promotion. The grievant requested temporary promotions and backpay for time spent performing higher-graded duties on three occasions.

The Arbitrator ruled that the grievant had not met the agreement's requirements for a temporary promotion and, therefore, that the Agency did not violate the temporary promotion provisions of the parties' agreement. The Arbitrator further ruled that the grievant was in actuality claiming that her GS-9 position should be reclassified at a GS-11 and GS-12 level. The Arbitrator determined that the grievance was not arbitrable under section 7121(c)(5) of the Statute and the parties' agreement because the grievance concerned the classification of the grievant's position.

For the reasons stated below, the Union's exceptions are denied.

II. Background and Arbitrator's Award

In 1981, the grievant occupied a position classified as Social Insurance Claims Examiner, GS-8. Her duties consisted of reviewing claims and authorizing or terminating benefits. On December 12, 1981, she was detailed for 120 days to the Office of Operational Policy and Procedures, Division of Vocational Rehabilitation Programs (OOPP). Her duties at OOPP "consisted of summarizing comments from vocational rehabilitation agencies to be used to coincide with regulations established to pay advances to state rehabilitation agencies." Award at 2. Some of the duties performed by the grievant while she was on detail "were also performed by GS-12s and no distinction was made in the assignments given her and them." Id.

In April 1982, the grievant's detail was extended for another 120 days to August 17, 1982. In August, the detail was extended for an undisclosed period of time. On October 3, 1982, she was given a temporary promotion to Social Insurance Specialist, GS-9 and assigned to the OOPP, Office of Program Directives, as a facilitator in a rewrite of the Program Operations Management System (POMS).

In January 1983, the grievant's temporary promotion expired. She "reverted" to the position of Social Insurance Specialist, GS-8, although she continued to work in the Office of Program Directives reviewing transmittals. Award at 3. In June 1984, the grievant was promoted to Social Insurance Specialist, GS-9. In April 1985, she was assigned to a POMS project to write procedures covering the Office of Disability Instructions.

The Union filed a grievance requesting that the grievant be given a temporary promotion and backpay for a "GS-9 from 12/21/81 to 4/10/83; promotion to a GS-11 from 4/11/83 to 5/10/84; and promotion to a GS-12 from 5/11/84 to [the] date" of the arbitration hearing (June 20-21, 1988). Id. at 5. The Agency denied the grievance on the basis that the grievant "had not performed the duties of a GS-11/12, but only those duties of her assigned position since October, 1982." Id.

The Arbitrator framed the issues as: (1) whether the grievance was timely filed; (2) whether the subject matter of the grievance was arbitrable; and (3) whether the grievant was entitled to backpay because she performed the duties of higher-graded employees.

The Arbitrator determined that the grievance was untimely filed as it related to the first two details that took place prior to October 1982, but was timely filed as to the duties the grievant performed from October 3, 1982, to the date of the hearing. He noted that since October 3, 1982, except for her detail to POMS in April 1985, the grievant had been assigned to the OOPP, Office of Program Directives as a GS-8 and a GS-9 employee reviewing transmittals. Id. at 8.

The Arbitrator determined that the Agency did not violate the temporary promotion provisions of the parties' agreement. He noted that Article 26, Section 16 of the agreement provides that "where employees are temporarily assigned to a position of a higher grade for a period in excess of 30 days, the assignment must be made via a temporary promotion effective the first day of the assignment." Id. at 10-11. He also noted the Union's reliance on Article 27, Section 4, "Higher Graded Duties," which provides: "'Those details to higher graded positions or to positions with known promotion potential which require competition will be handled in accordance with Article 26.'" Id. at 11.

The Arbitrator noted the Union's assertion that decisions of the Comptroller General stand "for the proposition that the violation of a mandatory provision of a negotiated agreement could be found to be an unjustified or unwarranted personnel action entitling an aggrieved employee to back pay, and that inasmuch as Article 26, Section 16 of the National Agreement is a mandatory provision the [Agency] had no discretion about giving her a temporary promotion, and its failure to do so is a breach of the agreement." Id. However, the Arbitrator found no evidence that the grievant had been detailed to a position of a higher grade for purposes of the agreement provisions. Rather, he found that the record "merely indicates that she was assigned to certain duties, or, as the [Agency] refers to it, to certain functions." Id. at 12. The Arbitrator further stated that, although the grievant performed certain duties performed by employees in higher graded positions, he was "not persuaded that the evidence would support a finding that she performed the full range of functions of the higher grade positions." Id. at 15.

The Arbitrator also determined that the dispute concerned classification of the duties performed or to be performed by the grievant and stated that "the subject matter of the grievance is not arbitrable by virtue of 5 USC 7121(c)(5) and Article 24, Section 2. D. 5 of the National Agreement." Id. at 14. Article 24 excludes from the grievance procedure "the classification of any position which does not result in the reduction in grade or pay of any employee." Id. at 9. The Arbitrator found that "regardless of how the [g]rievant tries to formulate the issue, it is clear that she is seeking a pay rate for a grade level higher than her official grade and position description." Id. Therefore, he concluded that the "dispute involves a classification matter which is not arbitrable." Id. at 15.

The Arbitrator denied the grievance.

III. Union's Exceptions

The Union contends that the Arbitrator's award does not draw its essence from the agreement and "cannot in any rational way be derived from the Agreement." Exceptions at 1. The Union also contends that the award is based on a nonfact and "is contrary to the applicable law, regulations, and rules governing claims for back pay relief." Id.

The Union asserts that the Arbitrator misinterpreted Article 24, Section 2.D(5) of the parties' collective bargaining agreement by finding that the grievance concerns classification of the grievant's position. The Union argues that under that provision of the agreement, an employee may file a grievance where the classification of the position results in a reduction in grade or pay. The Union contends that requiring an employee to perform higher-graded duties results in a reduction in pay and consequently the grievance is arbitrable.

The Union contends that the Arbitrator erred in stating the substance of the grievance. The Union maintains that the substance of the grievance was whether the grievant was entitled to backpay for performing higher-graded duties, and not whether she was seeking a pay rate for a higher grade. The Union argues that only "[p]rospective changes in grade and work are classification issues and are not subject to the grievance procedure." Id. at 4. The Union also argues that the Arbitrator erred in applying the burden of proof and that the Agency failed to show that the grievance was not arbitrable.

IV. Analysis and Conclusions

We conclude that the Union's exceptions fail to establish that the Arbitrator's award is deficient. The essence of the exceptions is that the Arbitrator erred by finding that the grievance was removed from the grievance procedure under section 7121(c)(5) of the Statute and Article 24 of the collective bargaining agreement. However, the Union fails to show that the Arbitrator erred by finding that the grievant was not entitled to a temporary promotion under Articles 26 and 27 of the agreement. The Union is only disagreeing with the Arbitrator's findings. Because the Arbitrator found that the grievant was not entitled to a temporary promotion under the agreement, it was unnecessary for him to make a finding on whether the grievance concerned the classification of a position within the meaning of section 7121(c)(5) of the Statute.

The Authority has consistently held to be negotiable, and enforceable in arbitration, agreement provisions which permit employees to receive temporary promotions when they are assigned to perform the duties of higher-graded positions. See, for example, American Federation of Government Employees, Local 987 and U.S. Department of the Air Force, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 37 FLRA No. 25 (1990); U.S. Department of the Air Force, Warner Robins Air Force Logistics Center, Robins Air Force Base, Georgia and American Federation of Government Employees, Local 987, 37 FLRA 155 (1990) (Robins AFB).

In the instant case, the grievant claimed that she was entitled under Articles 26 and 27 of the parties' agreement to a temporary promotion for the time she spent allegedly performing GS-11 and GS-12 duties. However, when the Arbitrator examined that claim, he found that while the grievant had been assigned to perform certain duties and functions which were also performed by employees in higher graded positions, there was no evidence that the grievant was detailed to any higher-graded position other than to the GS-9 position to which she was temporarily, and later permanently, promoted. The Arbitrator ruled that the grievant was not entitled to a temporary promotion under Articles 26 and 27 of the agreement because he found that the record did not support a finding that she was in fact assigned to a position of a higher grade. Award at 12.

Our finding in this case is consistent with the principles set forth in Robins AFB. In Robins AFB, the Authority found deficient and remanded an award in which the Arbitrator ruled that the underlying grievance seeking a temporary promotion under an agreement provision was not arbitrable because it concerned a classification under section 7121(c)(5) of the Statute. In that case, the arbitrator ruled that he had no jurisdiction under section 7121(c)(5) and did not further address the merits of the grievant's claim under the relevant terms of the agreement. We found that the arbitrator erred in refusing to address the merits of the grievance because he was required to decide only whether the grievant was assigned the duties of a higher-graded position and, therefore, entitled to a temporary promotion under the terms of the agreement. Id., slip op. at 6. In contrast, in the instant case, the Arbitrator did consider whether the grievant was entitled to a temporary promotion under Articles 26 and 27 of the agreement and concluded that the grievant was not entitled to a temporary promotion because there was not evidence that she "was detailed to a position of higher grade." Award at 12. Consequently, the Arbitrator concluded that the requirements of the parties' agreement were not met.

After the Arbitrator ruled that the grievant had not met the agreement's requirements for a temporary promotion, he further ruled that the grievant was in actuality claiming that her GS-9 position should be reclassified at a GS-11 and a GS-12 level. Consequently, he ruled that the grievance was not arbitrable under section 7121(c)(5) of the Statute and Article 24 of the agreement. However, the Arbitrator was required to decide only whether the grievant was assigned the duties of a higher-graded position and, therefore, entitled to a temporary promotion under the terms of the agreement. See Robins AFB, and cases cited therein. The grievance was arbitrable because collective bargaining provisions which provide for temporary promotions for employees assigned to perform the duties of higher-graded position are enforceable in arbitration proceedings. Id. Once the Arbitrator ruled that the grievant was not entitled to a temporary promotion under the parties' agreement, there remained no question of arbitrability. Therefore, because the Union has not established that the Arbitrator erred by finding that the grievant was not entitled to a temporary promotion, we conclude that the Union's exceptions fail to show that the Arbitrator's award is contrary to law, rules or regulations.

We also have examined the Union's contentions that the award fails to draw its essence from the parties' agreement and that it is based on a nonfact.

For an award to be found deficient because it fails to draw its essence from a collective bargaining agreement, the party making the allegation must demonstrate that the award: (1) cannot in any rational way be derived from the agreement; or (2) is so unfounded in reason and fact, and so unconnected with the wording and the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; or (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See, for example, U.S. Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 35 FLRA 1267, 1270-71 (1990). Furthermore, we will find an award deficient on the ground that it is based on a nonfact when it is demonstrated that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached. See, for example, Department of the Navy, Naval Surface Warfare Center, Dahlgren, Virginia and American Federation of Government Employees, Local 2096, 35 FLRA 809, 813 (1990). In order for an award to be found deficient on this ground, it must be established that the alleged "nonfact" was the central fact underlying the award, was erroneous, and that but for the arbitrator's erroneous finding, the arbitrator would have reached a different result. Id.

The Union has failed to demonstrate that the Arb