42:1342(93)AR - - Air Force, Tinker AFB, OK and AFGE Local 916 - - 1991 FLRAdec AR - - v42 p1342
[ v42 p1342 ]
The decision of the Authority follows:
42 FLRA No. 93
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator John F. Caraway 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 did not file an opposition to the Agency's exceptions.
An employee filed a grievance challenging the Agency's failure to promote him. The Arbitrator sustained the grievance and, as a remedy, ordered the Agency to provide the grievant a retroactive promotion to the level of WG-9, with backpay for the period from September 1, 1985, to the date of his promotion to the WG-9 level. The Arbitrator also ordered the Agency to provide the grievant seniority at the WG-9 level retroactive to September 1, 1985.
For the following reasons, we conclude that the Agency has failed to establish that the Arbitrator's award is deficient. Therefore, we will deny the Agency's exceptions.
II. Background and Arbitrator's Award
The grievance in this case is one of a series of grievances that have come before the Authority on exceptions to arbitration awards, issued by different arbitrators, naming as parties the same Agency and Union that are named in this case. The grievances concern the failure to promote various wage grade employees who participated in Vocational Technical (Vo-Tech) training. See United States Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 42 FLRA No. 62 (1991) (Tinker Air Force Base II); U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 42 FLRA 680 (1991) (Tinker Air Force Base I).
The record in this case establishes that in January 1984, the grievant was hired as a testing equipment operator at the WG-5 level. From July 26, 1984, to August 11, 1984, the grievant completed a 240-hour Fluorescent Penetrant and Magnetic Particle inspection course that was conducted by the Vo-Tech School. Also, in August 1984, the grievant was authorized to use the "N" stamp, which signifies that the grievant was certified to perform certain work that only a qualified WG-9 could perform. Sometime in 1985, the grievant was promoted to the WG-8 level, but was not subsequently promoted to WG-9. Other employees who had completed Vo-Tech training, however, were promoted to WG-9.
As found by the Arbitrator, the dispute here involves a claim by the grievant that he was entitled to a noncompetitive promotion to the WG-9 level. The Arbitrator also found that the following threshold issues were raised by the Union: (1) whether the Agency acted "contrary to the rules and regulations . . ." by failing to provide requested documents to the Union, Award at 12; and (2) whether the Agency violated the parties' master labor agreement by failing to attempt settlement of the grievance at the lowest possible level, failing to meet contractual time limits, and forestalling the Union's attempts to settle the dispute.
The Arbitrator first addressed the Union's threshold arguments and found no merit to them. The Arbitrator rejected the Union's contentions concerning the timeliness of the Agency's responses on the basis that the Union was not prejudiced. As to the Union's request for information, the Arbitrator found that the Union was eventually supplied the information and that the Union did not establish that it was prejudiced by the delay in receiving the information.
As to the merits of the grievant's claimed entitlement to a promotion, the Arbitrator cited testimony adduced at the arbitration hearing that there was an oral understanding that persons who finished Vo-Tech training would be guaranteed promotion to the WG-9 level and, further, that representations had been made to the grievant that he would be promoted to WG-9 if he attended the Vo-Tech class. The Arbitrator also noted record testimony supporting the grievant's claim that he had performed duties at the WG-9 level since 1984. Additionally, the Arbitrator cited the Union's arguments that various employees had been promoted to the WG-9 level despite the Agency's claim that there was an excess of personnel in the WG-9 category.
The Arbitrator noted the Agency's assertions that there was no evidence that it had entered into any agreement obligating it to promote the grievant to WG-9 upon completion of any Vo-Tech course. The Agency argued before the Arbitrator that the grievant's situation should be contrasted with other employees who had entered into a contractual arrangement to be promoted upon completion of the Vo-Tech class. The Agency also stated that the grievant was considered for competitive promotion on several occasions, but either lacked the requisite minimum experience or did not rank high enough on the lists of qualified candidates for vacant WG-9 positions.
The Arbitrator rejected the Agency's contention that the grievant did not meet the minimum qualifications for promotion to the WG-9 level. The Arbitrator noted that "[i]t is clear from the evidence . . ." that the grievant performed duties at the WG-9 level from August 1984. Award at 18. In this connection, the Arbitrator found no evidence criticizing the grievant's job performance. The Arbitrator concluded that the "grievant was treated unfairly by performing at the WG-09 level yet being denied the promotion which is commensurate with that level." Id. at 21.
The Arbitrator also rejected the Agency's contention that the grievant was not promoted to WG-9 because there were no vacant WG-9 positions. The Arbitrator observed that the Agency failed to explain why employees who were hired after the grievant or who were lower in grade than the grievant were promoted over the grievant. The Arbitrator found that although the grievant had attended Vo-Tech training and performed duties at the WG-9 level, "[n]o acceptable explanation" had been offered by the Agency for the denial of the promotion. Id. Upon weighing the evidence, the Arbitrator ruled that the grievant had not been promoted because the Agency had "not treated [him] in a fair and equitable manner." Id.
Therefore, the Arbitrator sustained the grievance and, in his award, stated the following:
The Agency violated the Labor Contract by failing and refusing to promote [the grievant] to the Testing Equipment Operator at the WG-09 level. The Agency shall immediately promote [the grievant] to the WG-09 level. The Agency shall grant [the grievant] seniority at the WG-09 from September 1, 1985. The Agency shall pay [the grievant] retroactive back pay at the WG-09 level from September 1, 1985 to the date of his promotion to WG-09.
Id. at 22.
III. Agency's Exceptions
The Agency contends that, to the extent the award ordered either a retroactive noncompetitive permanent promotion with backpay or a prospective noncompetitive permanent promotion, it is contrary to the Back Pay Act, 5 U.S.C. § 5596.
The Agency also asserts that if the Authority construes the award as ordering a retroactive noncompetitive temporary promotion, with backpay, in excess of 120 days, the award is contrary to Federal Personnel Manual (FPM), chapter 335, subchapter 1-5.a.(1), which is a Government-wide regulation.
The Agency further states that if the Authority construes the award as ordering a retroactive temporary promotion with backpay from September 1, 1985, to the date of the grievant's permanent promotion, on the basis that competitive procedures were used, the award interferes with management's right to select under section 7106(a)(2)(C) of the Statute and is contrary to FPM chapter 335, subchapter 1-4, requirement 4.
Finally, the Agency contends that if the Authority determines that competitive in-service procedures are not required and construes the award as ordering a retroactive noncompetitive temporary promotion with backpay from September 1, 1985, to the date of the grievant's noncompetitive permanent promotion to WG-9, the award is contrary to 5 C.F.R. § 335.102(f)(1) and FPM chapter 335, subchapter 1-5.a.(1)(a).
IV. Analysis and Conclusions
In its exceptions, the Agency has offered several alternative interpretations of the award based, in part, on whether the award is viewed as ordering a permanent promotion of the grievant, or a temporary promotion, and, if permanent, whether it is retroactive or prospective. We construe the award as providing for a retroactive noncompetitive permanent promotion with backpay. Although the award does not explicitly include the term "retroactive noncompetitive permanent promotion," it is clear from the nature of the dispute that was presented to the Arbitrator, and the Arbitrator's findings, that he intended such a result. The fact that the Arbitrator ordered the Agency to promote the grievant immediately to the WG-9 level and to provide the grievant with "retroactive back pay . . . from September 1, 1985" and "seniority . . . from September 1, 1985[,]" supports such a result. Award at 22. Additionally, the Arbitrator's failure to limit the promotion to a temporary promotion, or to rely on any contractual or regulatory authority concerning temporary promotions, establishes that the Arbitrator intended the promotion to be a permanent promotion. Compare Tinker Air Force Base II (in which the arbitrator found no wrongful denial of a permanent competitive promotion, but concluded that there was a failure to temporarily promote the grievant); Tinker Air Force Base I (in which the arbitrator ordered a retroactive temporary promotion based on a temporary promotion provision of the parties' collective bargaining agreement).
Consequently, to the extent the Agency has raised exceptions concerning alternative interpretations of the award, those exceptions need not be considered further. Instead, we will address only the Agency's exceptions pertaining to the award of a retroactive noncompetitive permanent promotion with backpay.
The Agency contends that the award is contrary to the Back Pay Act because the Arbitrator failed to make the findings necessary to support an award of backpay. The Agency maintains that in order for backpay to be authorized in cases involving a failure to promote, an arbitrator must find that the grievant was affected by an unjustified or unwarranted personnel action and that such unjustified or unwarranted personnel action directly resulted in the denial of a promotion to the grievant, which the grievant otherwise would have received. The Agency acknowledges that, in this case, the Arbitrator's finding that the Agency violated the parties' agreement arguably constitutes a finding that the grievant was affected by an unjustified or unwarranted personnel action. The Agency argues, however, that the Arbitrator failed to expressly find that this unjustified or unwarranted personnel action directly resulted in the failure of the grievant to be promoted and that he otherwise would have been promoted.
The Agency adds that the Arbitrator failed to specify the provision of the collective bargaining agreement that was violated by the Agency's failure to promote the grievant and how or why the agreement provision was violated, and that but for such a violation of the agreement, the grievant definitely would have been promoted. It is the Agency's contention that the Arbitrator failed to make such findings because no such provision exists.
A. The Award Is Not Contrary to the Back Pay Act
We conclude that the Agency fails to establish that the award is contrary to the Back Pay Act. Under the Back Pay Act, an award of backpay is authorized only when the grievant has been affected by an unjustified or unwarranted agency personnel action that has resulted in the withdrawal or reduction of all or part of the grievant's pay, allowances, or differentials. 5 U.S.C. § 5596. The Authority has advised that, in order to award backpay, an arbitrator must find that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; (2) the personnel action directly resulted in the withdrawal or reduction of the grievant's pay, allowances, or differentials; and (3) but for such action, the grievant otherwise would not have suffered the withdrawal or reduction. See, for example, American Federation of Government Employees, Local 31 and U.S. Department of Veterans Affairs, Medical Center, Cleveland, Ohio, 41 FLRA 514, 517 (1991) (VA Cleveland). The Arbitrator's award in this case satisfies the requirements of the Back Pay Act.
The Arbitrator found that the grievant had been affected by an unjustified or unwarranted personnel action when the Arbitrator specifically stated that the Agency "violated the Labor Contract" by failing to promote the grievant. Award at 22. The Authority has held that a violation of a collective bargaining agreement constitutes an unjustified or unwarranted personnel action. See, for example, American Federation of Government Employees, Local 1698 and Department of the Navy, Aviation Supply Office, 34 FLRA 939, 943 (1990). Consequently, the Arbitrator's award satisfies the first part of the test for determining whether backpay is authorized under the Back Pay Act.
As to the second and third parts of the test, it is not disputed that the Agency's failure to promote the grievant resulted in