43:0306(31)AR - - Air Force, OK City Air Logistics Center, Tinker AFB, OK and AFGE Local 916 - - 1991 FLRAdec AR - - v43 p306
[ v43 p306 ]
The decision of the Authority follows:
43 FLRA No. 31
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE AIR FORCE
OKLAHOMA CITY AIR LOGISTICS CENTER
TINKER AIR FORCE BASE, OKLAHOMA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
November 26, 1991
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 Wallace B. Nelson 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 noncompetitively from wage grade (WG) 8 to WG-9 in 1985. The Arbitrator sustained the grievance and, as a remedy, ordered that the Agency provide the grievant backpay for a period from July 30, 1985, to October 18, 1989, the date on which he had been competitively promoted to WG-9.
For the following reasons, we 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 Agency's failure to promote various wage grade employees who participated in Vocational Technical (Vo-Tech) training. See U.S. Department of the Air Force, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 42 FLRA 1342 (1991) (Tinker Air Force Base III); United States Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 42 FLRA 886 (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).
In January 1984, the grievant was hired. From August 6, 1984, to September 17, 1984, the grievant completed training conducted by the Vo-Tech School. On December 16, 1984, the grievant was noncompetitively promoted to the WG-8 level. On January 30, 1985, the grievant was certified to perform duties at level 2 and authorized to use the "N" stamp, actions signifying that the grievant was certified to perform certain work that only a qualified WG-9 employee could perform.
The grievant was not promoted noncompetitively from WG-8 to WG-9 upon completion of Vo-Tech training and certification to perform duties at the WG-9 level. Other employees who had completed Vo-Tech training were promoted to WG-9, however. Sometime in 1989 but prior to October 18, the grievant filed a grievance in which he claimed entitlement to a retroactive noncompetitive promotion to the WG-9 level. On October 18, 1989, the grievant was promoted under competitive procedures to WG-9. The grievance was not resolved and was submitted to arbitration.
The Arbitrator framed the issue as follows:
Did the Agency violate the Master Labor Agreement and/or cited, argued and briefed applicable Regulations by failing to promote and/or pay the Grievant . . . at the 5439 WG 9 level? If so, what is the proper remedy?
Award at 2.
As found by the Arbitrator, the dispute involves a claim by the grievant that he was entitled to a noncompetitive promotion from WG-8 to WG-9 and that such promotion should have occurred in either June or July of 1985.(*) The Arbitrator also found that the Agency had raised procedural issues as to whether the grievance was arbitrable either because it was not timely filed or because it involved a "classification issue." Id. at 6. Additionally, the Arbitrator found that the Union had raised the threshold issue of whether the Agency violated the procedural requirements of the parties' master labor agreement by not responding to the grievance either at the second or third step.
The Arbitrator addressed the Agency's procedural arguments and found no merit to them. The Arbitrator rejected the Agency's argument that the grievance was not arbitrable because it was not timely filed. The Arbitrator noted that under the parties' master labor agreement, the grievant was required to invoke Step 1 of the grievance procedure within 21 days of becoming aware of the alleged improper management action. The Arbitrator credited the Union's argument that the grievant delayed filing the grievance because the Agency repeatedly had assured the grievant that he would be promoted. In this connection, the Arbitrator stated that "[i]t can scarcely be argued that employees should not believe what they are told by their supervisors." Id. at 14. Additionally, the Arbitrator found that the Agency did not dispute the Union's argument that the grievance was filed within 21 days of the day the grievant was advised by the Union that he had a legitimate complaint. Consequently, the Arbitrator held that the grievance had been timely filed.
The Arbitrator also rejected the Agency's argument that the grievance was not arbitrable because it concerned a classification issue. The Agency argued before the Arbitrator that the duties the grievant claims to have performed have not been classified and that a determination of the grade level of such duties is a matter for classification review. The Arbitrator found that the grievant was seeking a promotion for performing duties that his supervisor conceded are at the WG-9 level, and that, therefore, he had no reason to seek reclassification of his position. Consequently, the Arbitrator ruled that the grievance did not concern a classification issue.
With regard to the Union's threshold argument, the Arbitrator found that the Union was "technically correct" that the Agency had violated the procedural requirements of the parties' master labor agreement by not responding to the grievance either at the second or third step, but concluded that the remedy for those violations was to process the grievance through arbitration. Id. at 14.
As to the merits of the grievance, the Union argued before the Arbitrator that the requirements the grievant had to fulfill to be entitled to a noncompetitive promotion to WG-9 consisted of certification at level 2 and issuance of an "N" stamp and that the grievant had fulfilled these requirements well before the time when he was promoted competitively to WG-9. Accordingly, the Union requested that the grievant be promoted to the WG-9 level retroactive to the date of his certification at level 2 on the ground that such a remedy would put the grievant "where he should be were it not for management's action of unfairly denying him promotion to the WG 9 level." Id. at 11.
The Agency contended before the Arbitrator that the grievant was not entitled to a promotion to WG-9 under noncompetitive procedures at an earlier date. The Agency argued that the grievant was hired for a position that had a target grade level of WG-8 and that the grievant was entitled to be promoted to WG-9 only under competitive procedures. The Agency stated that proficiency at the WG-9 level would not entitle the grievant to be promoted noncompetitively to that level and that, in any event, the grievant did not regularly perform duties at the WG-9 level without supervision. The Agency maintained that the Federal Personnel Manual (FPM) does not provide for promotion to a higher grade based on an employee's belief that he or she is performing higher-graded work. Additionally, the Agency maintained that the grievant was not assigned to a higher-graded position and, therefore, on that basis, was not entitled to a temporary promotion under the parties' collective bargaining agreement.
The Arbitrator cited record testimony supporting the grievant's claim that he had regularly performed duties at the WG-9 level without supervision since he was certified and received his "N" stamp on January 30, 1985. On that basis, the Arbitrator ruled that the grievant should have been promoted to WG-9 on July 30, 1985, six months after he was certified at level 2 and issued his "N" stamp. The Arbitrator noted that the grievant in fact had been competitively promoted to WG-9 on October 18, 1989. Therefore, the Arbitrator ordered backpay "in the amount of the difference between what he was in fact paid and what he would have been paid--straight time only--from July 30, 1985 to October 18, 1989." Id. at 17-18.
Accordingly, the Arbitrator issued the following award:
1) There were no procedural violations which prevent the Arbitrator from reaching the merits;
2) The Agency did violate the Master Labor Agreement by its failure to promote and pay the Grievant . . . at the '9' level;
3) The Agency will pay the Grievant the difference between what he was in fact paid as an '8' and what he should have been paid as a '9' from July 30, 1985 to October 18, 1989. This difference will be computed as straight time only.
Id. at 19.
III. Agency's First Exception
A. Position of the Agency
The Agency asserts that the Arbitrator's finding that the grievance was arbitrable because it was timely filed does not draw its essence from the parties' collective bargaining agreement. The Agency notes that section 6.07a. of the parties' collective bargaining agreement provides that an employee desiring to file a grievance "must first discuss the matter informally with his first level supervisor within twenty-one (21) calendar days of the date of the management action or occurrence giving rise to the grievance or reasonable awareness of such action or occurrence." Exceptions at 4. The Agency maintains that the grievant alleged, and the Arbitrator found, that the grievant became eligible for promotion in December 1985 and did not file his grievance until 1989. The Agency contends that the Arbitrator did not "adequately and correctly" consider the requirements of the parties' agreement and that his finding that the grievance was timely filed is not a plausible interpretation of the agreement. Id. at 4-5. In this regard, the Agency contends that the Arbitrator improperly relied on the grievant's claims that his supervisor had assured him that he would be promoted noncompetitively. According to the Agency, any assurances were "clearly prospective" and did not involve a noncompetitive promotion. Id. at 5.
B. Analysis and Conclusions
We conclude that the Agency has failed to show that the award is deficient for failure to draw its essence from the parties' collective bargaining agreement. 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 Tinker Air Force Base I, 42 FLRA at 683-84; U.S. Department of Transportation, Federal Aviation Administration, Springfield, Illinois and National Air Traffic Controllers Association, 39 FLRA 1036, 1043 (1991).
The Arbitrator's finding that the grievance was timely filed is not deficient under any of the above criteria. Contrary to the Agency's assertion, the Arbitrator did not ignore the parties' agreement. He responded to the arguments made concerning timeliness and credited the Union's argument that the grievant reasonably delayed filing the grievance because the Agency had repeatedly assured him that he would be promoted. Furthermore, he noted that the Agency did not dispute the Union's argument that the grievance was filed within 21 days of the day the Union advised the grievant he had a legitimate complaint. Accordingly, the Arbitrator concluded that the grievance was filed in accordance with section 6.07a of the parties' agreement, which requires that a grievance be filed within 21 days after a grievant becomes aware of the action giving rise to the grievance. In contending that the Arbitrator should not have relied on the Union's arguments, the Agency is merely disagreeing with the Arbitrator's procedural ruling that the grievance was timely, which does not provide a basis for finding the award deficient. See National Treasury Employees Union and U.S. Department of Health and Human Services, Family Support Administration, 35 FLRA 501, 511-12 (1990) (an arbitrator's determination that a grievance was timely filed concerns a matter of procedural arbitrability, and disagreement with that determination provides no basis for finding an award deficient).
IV. Agency's Remaining Exceptions
A. Position of the Agency
The Agency contends that to the extent the award ordered a retroactive noncompetitive temporary promotion with backpay in excess of 120 days, the award is contrary to FPM chapter 335, subchapter 1-5.a.(1), which is a Government-wide regulation.
The Agency also contends that if the Authority agrees that competitive in-service procedures are required and construes that the Arbitrator found that in-service procedures were used for the temporary promotion in excess of 120 days, the award interferes with management's right to select under section 7106(a)(2)(C) of the Statute and is contrary to the Back Pay Act, 5 U.S.C. § 5596 and 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, to the extent the Arbitrator ordered a retroactive temporary promotion with backpay in excess of two years, the award is contrary to 5 C.F.R. § 335.102(f)(1) and FPM chapter 335, subchapter 1-5.a.1(a).
B. Analysis and Conclusions
We conclude that the Agency's remaining exceptions provide no basis for finding the award deficient. In these exceptions, the Agency presents arguments based on its view that the award ordered a retroactive temporary promotion. The award did not order a retroactive temporary promotion, however. Rather, we construe the award as providing for a retroactive noncompetitive permanent promotion. Although the award does not explicitly include the term "permanent promotion," it is clear from the nature of the dispute that was presented to the Arbitrator, and the Arbitrator's findings, that the award concerns the wrongful denial of a permanent promotion. The Arbitrator's finding that the grievant should have been noncompetitively promoted at an earlier date than the date on which he was permanently promoted supports this result. Additionally, the Arbitrator's failure to use the term "temporary promotion," or to rely on any contractual or regulatory authority concerning temporary promotions in his award establishes that the award is concerned with the wrongful denial of a permanent promotion. Compare Tinker Air Force Base II (the arbitrator found no wrongful denial of a permanent competitive promotion, but concluded that the agency violated the parties' collective bargaining agreement by failing to temporarily promote the grievant); Tinker Air Force Base I (the arbitrator ordered a retroactive temporary promotion based on the temporary promotion provision of the parties' collective bargaining agreement).
Consequently, these exceptions are based on a misinterpretation of the Arbitrator's award, and they do not provide a basis for finding the award deficient.
Finally, insofar as the Agency contends that the award is contrary to the Back Pay Act, we conclude that it is not deficient on that basis for the reasons set forth in Tinker Air Force Base III, 42 FLRA at 1347-49 (the arbitrator's order of a retroactive noncompetitive permanent promotion with backpay was consistent with the Back Pay Act because he implicitly found that, but for the unfair treatment of the grievant in violation of the parties' collective bargaining agreement, the grievant would have been promoted; and the violation of the collective bargaining agreement had resulted in the denial of a financial entitlement the employee would have received during the period had the unjustified personnel action not occurred).
The Agency's exceptions are denied.
(If blank, the decision does not have footnotes.)
*/ Although the Arbitrator placed the earlier date in 1984, this was obviously an inadvertent error as the grievant did not receive the necessary certifications until January 30, 1985.