38:0089(13)AR - - AFGE Local 1923 and HHS, SSA, Baltimore, MD - - 1990 FLRAdec AR - - v38 p89



[ v38 p89 ]
38:0089(13)AR
The decision of the Authority follows:


38 FLRA No. 13

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1923

(Union)

and

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

BALTIMORE, MARYLAND

(Agency)

0-AR-1715

DECISION

November 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 Fred Blackwell 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 Agency's exceptions.

Three employees filed grievances seeking backpay for a period when each employee assertedly had performed work of a higher-graded position. The Arbitrator found the grievances to be arbitrable and ruled that the Agency had violated the parties' collective bargaining agreement by failing to compensate one of the employees at a higher rate of pay for a portion of the period in question. The Arbitrator directed the Agency to compensate the employee with backpay in the amount that she would have received during that period of time if she had been temporarily promoted. The Arbitrator denied the two other grievances.

For the reasons stated below, we deny the Agency's exceptions. We conclude, however, that the Arbitrator's award is unclear as to whether the grievant met the minimum qualification requirements for the GS-11 position. Accordingly, we will modify the award to be consistent with law and regulation.

II. Background and Arbitrator's Award

The grievants are employed as Management Analysts in the Agency's Office of Material Resources, Division of Publications Management, Forms Management Section. Each of the employees filed grievances in November 1986, contending that while they were employed as and compensated at the rate of Management Analyst, GS-9, they were assigned duties of the higher-graded position of Management Analyst, GS-11/12 for varying periods of time beginning in 1981. The grievants claimed that they were illegally detailed and requested the Agency to: (1) give them backpay for the difference between the rate of the GS-9 position and the GS-11 position; (2) have their GS-9 position upgraded to a GS-11 position; and (3) take any other relief action that was proper under law and regulation. The grievances were denied and subsequently consolidated and submitted to arbitration.

A. Preliminary Issue

As a preliminary matter, the Agency asserted that the grievances concerned the classification of the grievants' positions and therefore were not arbitrable under section 7121(c)(5) of the Statute and Article 24, Section 2(D)(5) of the parties' agreement. However, the Arbitrator found, contrary to the Agency's assertion, that the grievances were not barred from arbitration under those provisions of law and the agreement. He distinguished precedent cited by the Agency which found comparable grievances to be nonarbitrable. The Arbitrator concluded that "the subject matters [sic] of the grievances in those prior authorities and the herein grievances are dissimilar to an extent which renders the cited authorities inapplicable to the facts of this case." Award at 20.

The Arbitrator stated that the "'classification dispute' nature" of the cases cited by the Agency "is readily apparent" and found that "the results of those authorities [are] appropriate in all respects." Id. at 22. He determined, however, that the case before him involved "salary differential grievances which seek a compensatory award" for performing on a "substantial, regular, recurring basis" the grade-controlling duties of a GS-11 position while being compensated at the GS-9 level. Id. at 23. He found that the grievances "are of a type which [have] been historically recognized as arbitrable under collective bargaining agreements." Id. The Arbitrator noted that each of the grievances included a request that the GS-9 positions be upgraded to GS-11 positions, but concluded that the request for an upgrade "was not urged by the Union in the hearing proceeding or in its post-hearing brief" and therefore "such request is found superfluous to the grievances." Id. He concluded that the grievances "must therefore be considered and determined on their merits." Id.

B. The Merits

The Arbitrator next considered the merits of the grievances. He found that the evidence submitted on behalf of two of the grievants did not establish that either employee was performing work at the GS-11 level. Accordingly, he denied their grievances.

The Arbitrator determined, however, that a third grievant, who had been subsequently promoted to the GS-11 level, had shown by a preponderance of the evidence that the Agency's actions with respect to her "constituted a constructive assignment to her of duties of a higher graded position," in violation of Article 27 of the parties' agreement. Id. at 24.

Article 27 provides, in relevant part:

Details

Section 1 - Definition

A detail is the temporary assignment of an employee to a different position or the same position for a specific period, with the employee returning to his/her regular duties at the end of the detail.

Section 2 - Documentation

Details in excess of 30 calendar days will be reported on Standard Form 52 and maintained as a permanent record.

Id. at 9.

The Arbitrator found that the grievant had met the criteria as stated by an Agency official that "[e]mployees are considered to be performing a higher grade work so that it would be grade-controlling if the [e]mployee's performance of the higher grade work is 'a regular and recurring part of their job, and performed for a substantial period of time.[']" Id. at 25. The Arbitrator sustained the grievance for the period May 8, 1984, to January 31, 1988, the date of the grievant's promotion to Management Analyst, GS-11 and directed the Agency to pay the grievant backpay for that period.

III. Positions of the Parties

A. Agency

The Agency contends that the Arbitrator's award "fails to draw its essence from the parties' collective bargaining agreement[,] specifically Article 24 [setting forth the parties' negotiated grievance procedure]," and fails "to give the required legal difference [sic] to limitations placed on the grievance by virtue of [section 7121(c)(5) of the Statute]." Exceptions at 1. The Agency argues that the grievances concern the classification of positions and are, therefore, excluded from coverage under the negotiated grievance procedure and section 7121(c)(5).

Further, the Agency contends that the award interferes with management's right to assign employees under section 7106(a)(2)(A) of the Statute. The Agency states that the right to assign employees "includes the discretion to determine the qualifications and skills needed to perform the duties of a position and to determine whether an employee possesses those qualifications and skills." Id. at 10. The Agency asserts that by directing it to pay the grievant at the GS-11 level, the Arbitrator substituted his judgment for that of management and determined, contrary to the Agency, that the grievant possessed sufficient capacity and skill to perform the higher-graded duties.

Finally, the Agency asserts that the Arbitrator exceeded his authority because the award "fails to draw its essence from the agreement of the parties, with respect to the issue presented for him to decide." Id. at 11. The Agency argues that the Union raised the issue of reclassification at all three levels of the grievance procedure as well as in the Union's opening statement before the Arbitrator. The Agency contends that, based upon Authority precedent, matters involving classification in which a grievant is seeking a pay rate for a grade level higher than his or her grade and position description are not arbitrable. The Agency states that the Arbitrator did not correctly address the classification issue posed by section 7121(c)(5) and that he erroneously found that the Union's request that the grievants' positions be reclassified "was not urged by the Union in the hearing proceeding [and was] superfluous to the grievances." Id., citing Award at 23.

B. Union

The Union contends that the Arbitrator's award does not concern the classification of the grievant's position but rather, whether the grievant was constructively detailed to the GS-11 Management Analyst position. The Union states that Articles 26 and 27 of the parties' agreement require that an employee assigned to a higher-graded position for a period in excess of 30 days be temporarily promoted.

Article 26, Section 16, provides:

When 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 temporary promotion effective the first day of the assignment.

Opposition at 5. The Union argues that the issue of reclassification was only raised "as part of the relief sought in the grievance, and was clearly a separate issue from the constructive detail to [the GS-11 Management Analyst] position." Id. at 5.

The Union further contends that the award did not deny the Agency's right to determine whether the grievant possessed the qualifications and skills needed to perform the duties of the GS-11 Management Analyst position. The Union argues that the Agency first raised this issue in its exceptions and states that "[a]t no time during the grievance process did the Agency assert that the grievants lacked the qualifications necessary for temporary promotion to the position of GS-11 Management Analyst." Id. at 7. The Union states that the Agency "fail[s] to identify any specific qualifications for promotion which the grievants are alleged to have lacked." Id.

In response to the Agency's exceptions, the Union requested the Arbitrator to clarify his award, specifically, his finding that the grievant had performed the duties of a GS-11 Management Analyst position. The Union interpreted that aspect of the award as a finding that "the grievant had been assigned the duties of the GS-11 position specified in the grievance." Id. at 5.

IV. Clarification of Award

Notwithstanding the Agency's opposition to the Union's request for clarification of the award, the Arbitrator granted the Union's request. The Arbitrator stated that:

In my Opinion I found that Agency action constituted a constructive assignment of [the grievant] to a higher graded GS-11 position of Management Analyst, thereby sustaining her grievance allegation that she was illegally detailed from a GS-9 position to a GS-11 position; and that said Agency action violated the Article 27, Section 4 requirement that details to higher grade positions be handled in accordance with Article 26, and the Article 26, Section 16 requirement that temporary assignments to a higher graded position for more than 30 days must be made via temporary promotion effective the first day of the assignment.

Opposition, Attachment B.

V. Analysis and Conclusions

A. The Arbitrator's Award Is Not Contrary to Section 7121(c)(5) of the Statute

The essence of the Agency's exceptions is that the Arbitrator erred by not finding that the grievances were excluded from the grievance procedure and arbitration under section 7121(c)(5) of the Statute and Article 24 of the parties' collective bargaining agreement. However, the Agency fails to show that the Arbitrator erred by finding that the grievances were arbitrable and that one of the grievants was entitled to a temporary promotion under Articles 26 and 27 of the agreement. The Agency is only disagreeing with the Arbitrator's findings.

The Authority will enforce provisions in negotiated agreements which require that employees assigned or detailed to higher-graded positions must be temporarily promoted to those positions. See American Federation of Government Employees, Local 987 and U.S. Department of the Air Force, Warner Robins Air Force Logistics Center, Robins Air Force Base, Georgia, 37 FLRA 155 (1990) (Robins AFB); U.S. Department of Agriculture, Forest Service and National Federation of Federal Employees, Local 450, 35 FLRA 542 (1990) (sustaining arbitrator's award granting temporary promotion for a detail to higher-graded duties where grievant did not claim that his position was wrongly classified); Lexington-Blue Grass Army Depot and International Association of Machinists and Aerospace Workers, Local 859, 32 FLRA 256, 259 (1988) (Lexington-Blue Grass Army Depot) (arbitrator properly decided question of whether grievant was entitled to higher pay for performance of higher-graded duties under terms of the collective bargaining agreement). Such provisions do not concern the classification of positions under section 7121(c)(5) of the Statute. See Lexington-Blue Grass Army Depot; Department of the Army, New Cumberland Army Depot and American Federation of Government Employees, Local 2004, 21 FLRA 968, 969-70 (1986).

In the present case, the grievances concerned the grievants' claims that they had been assigned the duties of higher-graded positions and that they should be paid the difference between the rate of a GS-9 position and a GS-11 position. The grievants also requested that their GS-9 positions be upgraded to the GS-11 level. The Arbitrator denied the grievances of two of the grievants and found that the remaining grievance of the subsequently promoted grievant was arbitrable. He ruled that the Agency violated the parties' collective bargaining agreement by failing to compensate that grievant at a higher rate of pay for performing higher-graded duties. The Arbitrator ruled that although the grievance included a request that the GS-9 positions be upgraded to GS-11 positions, it was "superfluous to the grievances" because the request "was not urged by the Union in the hearing proceeding or in its post-hearing brief." Award at 23. The Arbitrator did not make a classification determination, but decided only that the grievant was assigned the duties of a higher-graded position and was entitled to compensation for the performance of those duties under the terms of the parties' agreement. See Lexington-Blue Grass Army Depot. Therefore, based on the above findings, we conclude that the grievance was not barred under section 7121(c)(5) of the Statute.

B. The Arbitrator Did Not Exceed His Authority Because His Award Did Not Fail to Draw its Essence From the Parties' Agreement

The Agency's exceptions fail to show that the Arbitrator exceeded his authority because his award does not draw its essence from the parties' agreement. To demonstrate that an award fails to draw its essence from an agreement, it must be shown 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).

The Agency has not demonstrated that the award is deficient under any of these tests. The Arbitrator's interpretation is not implausible, irrational, or unconnected to the wording of the agreement. As such, the Agency has not demonstrated that the award fails to draw its essence from the agreement.

C. The Arbitrator's Award is Not Contrary to Law

The Agency has failed to establish that the Arbitrator's award is contrary to law because it interferes with management's right to assign employees under section 7106(a)(2)(A) of the Statute. The Arbitrator's award does not interfere with management's right to assign the grievant to the higher-graded GS-11 position. The Agency had already exercised that right when it assigned GS-11 duties to the grievant. The Arbitrator merely determined that the Agency's "constructive assignment" of higher-graded duties to the grievant entitled her to compensation for the performance of those duties under Article 27 of the parties' agreement. Award at 24. The Arbitrator then found that after the Agency assigned the higher-graded duties to the grievant, she was entitled to a temporary promotion as provided for by Articles 26 and 27 of the parties' agreement. Clarification of Award at 2.

The Authority has found that proposals concerning temporary promotions do not interfere with management's right to determine whether and whom temporarily to promote. See American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 628-30 (1980), enforced sub nom. Department of Defense v. FLRA, 659 F.2d 1140, 1148-49 (D.C. Cir. 1981), cert. denied as to other matters sub nom. AFGE v. FLRA, 455 U.S. 945 (1982); Methods and Standards Association and Naval Air Rework Facility, Naval Air Station, Pensacola, Florida, 2 FLRA 286 (1979). We find that the Arbitrator's award does not interfere with the Agency's discretion to assign employees to higher-graded duties. Rather, the Arbitrator's award merely interprets and enforces the temporary promotion provisions of the parties' collective bargaining agreement for an employee who was already assigned higher-graded duties by the Agency. Accordingly, we conclude that the Arbitrator's interpretation and application of Articles 26 and 27 does not violate the Agency's right to assign employees under section 7106(a)(2)(A) of the Statute.

D. The Grievant's Qualifications to Be Promoted to the GS-11 Position Were Not Established

For an employee to be properly promoted, whether temporarily or permanently, the employee must meet the minimum qualification requirements for the position to which the employee is to be promoted. See U.S. Department of Veterans Affairs Medical Center, Buffalo, New York and Service Employees International Union, Local 200-C, 37 FLRA 379 (1990); Hill Air Force Base, Utah and American Federation