37:1193(102)AR - - AFGE Local 1760 and HHS, SSA, Office of Hearings and Appeals, Region II - - 1990 FLRAdec AR - - v37 p1193



[ v37 p1193 ]
37:1193(102)AR
The decision of the Authority follows:


37 FLRA No. 102

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1760

(Union)

and

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

OFFICE OF HEARINGS AND APPEALS, REGION II

(Agency)

0-AR-1742

DECISION

October 25, 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 Irving T. Bergman filed by the Agency pursuant to section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exceptions.

The Union filed a grievance claiming that the Agency's refusal to promote a group of GS-11 Hearing Analysts to the GS-12 level violated the parties' collective bargaining agreement. The Arbitrator found that the grievance was arbitrable under the parties' collective bargaining agreement and ruled that the grievants should be recommended for promotion. He directed the Agency to process the promotion requests and retained jurisdiction over implementation of the award. The Arbitrator also ruled that backpay is justified if the promotions are acted upon favorably.

The Agency contends that the award is deficient because it is contrary to section 7121(c)(5) of the Statute and to civil service law and regulations. The Agency also contends that the award violates the principle of "functus officio" because the Arbitrator improperly extended his jurisdiction over the case. For the reasons stated below, we deny the Agency's exceptions.

II. Background and Arbitrator's Award

The Union filed a grievance on behalf of a group of GS-11 hearing analysts who claimed that they were entitled to career ladder promotions to the GS-12 level. The grievants claimed that they had been recommended for promotion by their supervisors and that they met the qualifications for promotion. The Agency contended that the grievance was not grievable or arbitrable under Article 24 of the parties' collective bargaining agreement because the grievance concerned the classification of positions. The grievance was submitted to arbitration.

The parties were unable to agree on an issue. The Arbitrator formulated the following issues:

May the Agency state for the first time at the hearing of this matter that the grievance is neither grievable nor arbitrable in view of the provisions set forth in Article 24 Section 6? If the Agency may raise at the hearing for the first time that the grievance is neither grievable nor arbitrable may it be considered as a threshold issue? Is the grievance in this matter excluded as provided in Article 24, Section 2, D. 5. as, "the classification of any position which does not result in the reduction in grade or pay of an employee?"

Award at 8.

The Arbitrator then stated that if he found the grievance to be arbitrable, he would consider the issue on the merits as follows:

Has the Agency violated Articles 3 and 26 of the National Agreement between Social Security Administration and AFGE (AFL-CIO) by failing to effectuate the promotion of Hearing Analysts GS-11 who have qualified for promotion to Hearing Analysts GS-12? If the answer is "yes" what shall be the remedy?

Id.

The Agency argued before the Arbitrator that the grievance was not arbitrable under Article 24 of the parties' agreement because the grievance concerned a classification matter involving the reclassification of GS-11 Hearing Analysts to the GS-12 level. The Agency asserted that the career ladder for hearing analysts extended only to the GS-11 level and that a promotion to the GS-12 level would require a reclassification of an employee's GS-11 position. The Agency also alleged that there was a freeze on promoting hearing analysts to the GS-12 level because of an ongoing study being conducted by the Office of Personnel Management concerning the grade status of the GS-12 position. The Union denied that the grievance concerned classification and maintained that the grievants were only claiming retroactive promotions with backpay to which they were entitled. The Union argued that "the Agency has conceded that past practice and consistent application has created a 'de facto career ladder' for Hearing Specialists now termed Hearing Analysts." Id. at 5.

The Arbitrator ruled that there was no "substantial credible evidence or citation of authority that employees proceeding from GS-11 to GS-12 [were] being reclassified rather than being promoted." Id. at 18. The Arbitrator found that there was no request for reclassification by the grievants or any contention that there was an accretion of duties to the GS-12 positions. Therefore, he found that "the major premise upon which the Agency's position is predicated is an assertion that is not supported by proof." Id. Consequently, the Arbitrator determined that the grievance before him was arbitrable.

The Arbitrator stated that Article 26 of the parties' agreement "encourages the formulation of a career ladder" and ensures procedures for its administration. Id. at 19.(*) In this regard, the Arbitrator found "substantial evidence . . . that a de facto career ladder has existed, [and] that there has been a practice of advancing employees by promotion upon recommendation by a proper authority (ALJ) within the career ladder." Id. at 20. The Arbitrator stated that "there is substantial credible evidence . . . to support the finding that the parties negotiated an agreement to establish a career ladder, that a de facto career ladder was recognized, that the existence of GS-12 within the Office of Hearings and Appeals and the description of the duties of both GS-11 and GS-12, indicate that the career ladder would extend to GS-12 and that promotion was directed by an authorized authority." Id. at 21.

The Arbitrator found "[no] credible evidence to support the fact of a study or authorization for the freeze" and he found that there were "[n]o written directives or authorizations . . . introduced in evidence from any source that would in any way detract from the fact that a GS-12 position for Hearing Analyst exists[.]" Id. at 22.

The Arbitrator sustained the grievance and found that the Agency had violated the provisions of Article 26 of the parties' collective bargaining agreement. The Arbitrator ruled that "recommendations and certifications for the promotion of Hearing Analysts to GS-12 shall be acted upon and decisions made with reference thereto as provided in the Agreement." Id. The Arbitrator did not make a finding regarding the merits of the recommended promotions and directed that they should be processed as they were in October 1987 and in accordance with the parties' agreement and past practice. Id. at 23. The Arbitrator stated that "if the recommended promotions are acted upon favorably, Back Pay to the effective date of the promotion is justified by the unwarranted action that has delayed the processing of the recommended promotions." Id. at 23-24.

The Arbitrator directed the Agency to process the recommended promotions as soon as possible, but not more than 30 days from receipt of his award. The Arbitrator stated that he considered his award to be an "INTERIM AWARD" so that he could address questions concerning its interpretation and matters affecting its orderly and expeditious implementation. Id. at 24.

III. Positions of the Parties

A. Agency's Exceptions

The Agency contends that the award is deficient on the ground that the grievance is precluded from arbitration by Article 24 of the parties' collective bargaining agreement and by section 7121(c)(5) of the Statute. The Agency argues that the "grievance is neither grievable nor arbitrable because it concerns the classification of the grievant's position which did not result in a reduction-in-grade[.]" Exceptions at 4-5. The Agency acknowledges testimony that "there was a 'de facto' career ladder from GS-9 to GS-11," but the Agency contends that the career ladder did not extend to the GS-12 position. Id. at 7. The Agency maintains that it does not have the authority to promote the incumbents of GS-11 positions noncompetitively to GS-12 positions and states that the GS-12 promotions made in the past resulted from a "review and reclassification" by the Classification Officer of the Agency. Id. at 6.

The Agency further contends that the award is deficient because it is contrary to law, rule or regulation in that it violates merit promotion principles "including Chapter 335 of the Federal Personnel Manual and 5 U.S.C. [§§] 2301(b)(1), 2302(b)(6), and 3301 et seq. [and] public policy." Id. at 10. Therefore, the Agency argues, "[a] de facto career ladder is legally impossible, and repugnant to merit principles and Title VII of the Civil Service Reform Act of 1978." Id. The Agency asserts that competitive procedures must be applied to all promotions under 5 C.F.R. § 335 of the civil service regulations. The Agency argues that de facto career ladders are illegal and an award ordering the Agency to recognize such a career ladder would "require it to commit a prohibited personnel practice." Id. at 11. Citing United Paper Workers International Union v. Misco, 484 U.S. 29 (1987), the Agency asserts that "judicial deference to arbitration decisions is not applicable in the case where public policy is violated." Id.

Finally, the Agency asserts that the Arbitrator exceeded his authority when he issued an "Interim Award." Id. at 12. The Agency notes that Article 25 of the parties' collective bargaining agreement provides, in part, that the "arbitrator's decision shall be final and binding" and that "[t]he arbitrator shall have no power to add to, subtract from, disregard, alter, or modify [the] terms of this agreement." Id. (emphasis in original). The Agency contends that the effect of the award is that "[it] is a violation of the principle of functus officio." Id. The Agency argues that once an arbitrator rendered his decision he has no further authority unless the award is returned for clarification. The Agency argues that the Arbitrator is restricted in making an "Interim Award" in this case because Article 26 of the parties' agreement provides that "[all] disputes of grievability/arbitrability shall be referred as threshold issues in the related grievance, except where the parties agree to hear the threshold issue and merits of the grievance separately." Id. at 14 (emphasis in original).

B. Union's Opposition

The Union contends that the Agency is only attempting to relitigate the case before the Authority. The Union maintains that the Agency is "arguing before the Authority the same contentions it raised before the [A]rbitrator in its brief with a wish for a different conclusion." Opposition at 2. The Union argues that the Arbitrator's award is final and binding, and that the Arbitrator retained jurisdiction only "to oversee compliance[.]" Id. at 5.

IV. Analysis and Conclusions

A. The Grievance Does Not Concern a Classification Matter under Section 7121(c)(5) of the Statute

The Agency has failed to show that the grievance is not grievable or arbitrable because it concerns the classification of a position within the meaning of section 7121(c)(5) of the Statute or Article 24 of the parties' collective bargaining agreement. Section 7121(c)(5) provides that any grievance concerning "the classification of any position which does not result in the reduction in grade or pay of an employee" must be excluded from a negotiated grievance procedure under the Statute. Classification of a position is defined in 5 C.F.R. § 511.101(c) as "the analysis and identification of a position and placing it in a class under the position-classification plan established by OPM [Office of Personnel Management] under chapter 51 of title 5, United States Code."

The grievance in this case did not concern the grade level of the duties assigned to and performed by the grievants--whether the grievants were performing duties warranting reclassification of their GS-11 positions at the GS-12 level. See U.S. Department of Veterans Affairs, Medical Center, Buffalo, New York and Service Employees International Union, Local 200-C, 37 FLRA 379, 383-84 (1990). Rather, the issue of the grievance was whether the grievants were entitled to career ladder promotions to GS-12 positions based on the Agency's practice of promoting other GS-11 Hearing Analysts to the GS-12 level. The Arbitrator found no "credible evidence" that Agency Hearing Analysts who were promoted to GS-12s were "being reclassified rather than being promoted," or that there was an accretion of duties to the GS-12 positions. Award at 18.

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 National Treasury Employees Union and U.S. Customs Service, Pacific Region, 32 FLRA 1141, 1147 (1988). 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 U.S. Department of Housing and Urban Development, Greensboro, North Carolina and American Federation of Government Employees, Local 3409, 33 FLRA 81, 85 (1988). The grievance in this case alleged that the Agency refused to promote the grievants to the GS-12 level under the career ladder which the Union contended existed in Agency past practice. Consequently, we conclude that the Arbitrator properly found that the matter was grievable and arbitrable under the parties' collective bargaining agreement because the grievance concerned the promotion of the grievants and did not concern a classification of positions under section 7121(c)(5) of the Statute.

B. The Arbitrator's Award Is Not Contrary to Civil Service Law, Rule or Regulation

We find no merit in the Agency's contention that the Arbitrator's award is contrary to 5 U.S.C. §§ 2301(b)(1), 2302(b)(6) and 3301 et seq. Those provisions of law cited by the Agency concern general requirements regarding merit system principles and the promotion of qualified employees under merit promotion plans. We also find that the Agency has failed to show that the award is contrary to Chapter 335 of the Federal Personnel Manual. Nothing in the above provisions of law or regulation precludes a finding by the Arbitrator that the grievants in this case are eligible for a career ladder promotion to GS-12 based on the past practice which he found to exist.

After rejecting the Agency's contentions that the grievance concerned the reclassification of the grievants' positions from GS-11 to GS-12, the Arbitrator addressed the effect of Article 26 of the collective bargaining agreement, which deals with noncompetitive actions and provides, among other things, for career ladder promotions. The Arbitrator determined that GS-11 Hearing Analysts are promoted, not reclassified, to the GS-12 level. In that regard, he found that there was a career ladder to the GS-12 level at the Agency and that employees have been promoted from GS-11 to GS-12 through that ladder. See Award at 19-21. He noted that Article 26 of the parties' agreement encouraged the formulation of a career ladder. He rejected the Agency's contention that there was a freeze on promotions to the GS-12 level. Id. at 22. The Arbitrator concluded that the Agency's failure to evaluate and process promotion recommendations for GS-11 Hearing Analysts to the GS-12 level violated the parties' agreement.

We find that the Agency has not demonstrated that the Arbitrator's award directing the Agency to process recommended promotions of GS-11 Hearing Analysts to the GS-12 level in accordance with Article 26 of the collective bargaining agreement, with backpay for employees selected for promotion, violates any Federal law or regulation. See National Association of Government Employees, Local R2-98 and Department of the Army, Watervliet Arsenal, Watervliet, New York, 29 FLRA 1303, 1310-11 (1987) (arbitrator made proper award of backpay to grievants whom agency failed to promote when career ladder conditions prescribed by collective bargaining agreement were met). We find that the Agency's exceptions merely constitute disagreement with the Arbitrator's interpretation of the collective bargaining agreement and are an attempt to relitigate the issue before the Authority. Such a contention provides no basis for finding the award deficient. See, for example, U.S. Department of the Treasury, Internal Revenue Service, Indianapolis District and The National Treasury Employees Union, Chapter 49, 36 FLRA 227 (1990).

C. The Arbitrator's Award Does Not Violate the Principle of Functus Officio

Although the Arbitrator characterized his award as an "Interim Award," it was clearly final. The Arbitrator retained jurisdiction over implementation of the award for 30 days so that he could address questions concerning its interpretation and matters affecting its orderly and expeditious implementation. In arbitration cases that have come before the Authority, it is not uncommon for an arbitrator to have retained jurisdiction for a period of time to resolve questions or problems that might arise concerning the award. Retention for these purposes does not render an award interlocutory. Portsmouth Naval Shipyard and Federal Employees Metal Trades Council, AFL-CIO, 15 FLRA 181, 182 (1984). The Arbitrator's award in this case constitutes a complete determination of every issue submitted. Compare U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, SSA General Committee, 34 FLRA 373 (1990) (the Authority will not ordinarily resolve exceptions filed to an arbitration award unless the arbitration award constitutes a complete determination of all issues submitted to arbitration).

The Agency fails to establish that the Arbitrator was functus officio. The principle of functus officio is that once an official has fulfilled the function or accomplished the designated purpose of his or her office, that official has no further authority. Social Security Administration and American Federation of Government Employees, Local 2369, 34 FLRA 866, 870-71 (1990). This principle applies to preclude an arbitrator from reopening an award which has become final unless the parties agree to confer such authority on the arbitrator. Id. at 870. The Arbitrator issued a final award in this case and, as found above, retained jurisdiction only for the purpose of answering questions that may arise because of the award's implementation. Therefore, we reject the Agency's exception that the award is deficient because the Arbitrator did not issue a final award and improperly extended his jurisdiction.

V. Decision

The Agency's exceptions are denied.

APPENDIX

Article 24, "Grievance Procedure," provides in relevant part:

Section 2 - Coverage and Scope

. . . .

D. Grievances on the following matters are excluded from the scope of this procedure:

. . . .

5. the classification of any position which does not result in the reduction in grade or pay of an employee.

. . . .

Section 6 - Grievability/Arbitrability Questions

In the event either party should declare a grievance non-grievable or non-arbitrable the original grievance shall be considered amended to include this issue. The parties agree to raise any questions of grievability or arbitrability of a grievance prior to the limit for the written answer in the final step of this procedure. All disputes of grievability/arbitrability shall be referred as threshold issues in the related grievance, except where the parties agree to hear the threshold issue and merits of the grievance.

Article 26, section 4, "Applicability of Non Competitive Actions," provides in relevant part:

A. Promotions. The following promotions may be taken on a non-competitive basis unless otherwise provided:

1. Promotion of the incumbent of a position that is reclassified at a higher grade due to the accretion of additional duties and responsibilities and not on planned management action. To be eligible for a non-competitive promotion in this situation the employee must have performed the higher level duties for at least 6 months, must have continued