44:0147(14)AR - - AFGE Local 1592 and Air Force, Hill AFB, UT - - 1992 FLRAdec AR - - v44 p147
[ v44 p147 ]
The decision of the Authority follows:
44 FLRA No. 14
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE AIR FORCE
HILL AIR FORCE BASE, UTAH
February 28, 1992
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 Morris E. Davis filed by the Union 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 Agency filed an opposition to the Union's exceptions.
An employee filed a grievance alleging that he was entitled to additional experience credit and to a retroactive temporary promotion longer than the 120-day temporary promotion granted to him by the Agency. The Arbitrator sustained the grievance in part and, as a remedy, directed the Agency to provide the grievant with additional experience credit in his personnel file.
The Union excepts to the Arbitrator's failure to grant the grievant a retroactive temporary promotion longer than the 120-day temporary promotion granted to him by the Agency. For the following reasons, we conclude that the award must be remanded to the parties for resubmission to the Arbitrator for his reconsideration of the award in view of Authority precedent as discussed in this decision.
II. Background and Arbitrator's Award
The grievant is a GS-11 Logistics Management Specialist. The grievant contended that he had performed GS-12 duties as early as 1985 and that he should have received a permanent promotion retroactive to 1985. In September 1987, the Agency conducted a desk audit of the grievant's position which, according to the grievant, indicated that he was performing GS-12 duties. The grievant did not file a classification request or a grievance.
The Agency conducted another desk audit of the grievant's position in April 1990. Based on the results of that desk audit, the Agency determined that the grievant had been performing GS-12 duties. The desk audit also resulted in recommendations that the grievant be temporarily promoted rather than being credited with GS-12 experience in his personnel file. Subsequent to the desk audit, the grievant was given a 120-day temporary promotion retroactive to September 1989, and his personnel file was credited with GS-12 experience from September 1989.
The grievant filed a grievance which was not resolved and was submitted to arbitration. The Arbitrator stated the issue as follows:
Is [the] [g]rievant entitled to additional credit in his 201 [personnel] file for GS-12 experience, and entitled to a temporary promotion [for] up to two (2) years, to include the 120-day temporary promotion already received?
Id. at 2.
Before the Arbitrator, the grievant testified that a former supervisor had requested a desk audit of his position in 1987, and "the results indicated that he was performing GS-12 duties." Id. at 7. The grievant also recalled that a former supervisor "made assurances that his position would be upgraded[,]" but "nothing happened." Id. The grievant stated that his "position should have been upgraded to GS-12, retroactive to 1985[,]" the time at which he had first started to perform GS-12 duties. Id. at 8. The grievant also stated that he had not filed a prior grievance "because he thought the issue would eventually be resolved." Id.
The grievant's current supervisor testified that he had not provided supervision to the grievant "[b]etween the period of February 1989 to July 1989." Id. at 9. He also stated that the "[g]rievant functioned as a logistics officer and FMS [Foreign Military Sales] country manager[,]" and noted that the "FMS country manager position is classified at the GS-12 level." Id. The grievant's supervisor, however, "could not confirm the claim that [the] [g]rievant had performed GS-12 responsibilities since 1985." Id.
The Arbitrator found that Article 13.03 of the parties' collective bargaining agreement, 5 C.F.R. § 335.102, Federal Personnel Manual (FPM) chapter 335, subchapter 1-5, and AFR 40-335 "require [the] utilization of inservice competitive procedures for temporary promotions which exceed 120 days." Id. at 14. The Arbitrator also found that although temporary promotions granted in accordance with 5 C.F.R. § 335.102 may be extended for a period of time up to 2 years with prior Office of Personnel Management (OPM) approval, the "[g]rievant's claim does not involve a temporary promotion governed by competitive procedures." Id. (*) Therefore, the Arbitrator found that the grievant was "not entitled to a retroactive 2-year temporary promotion." Id.
With respect to the grievant's claim that he should have been granted a temporary promotion retroactive to 1985, the Arbitrator found that: (1) the grievant had not documented the 1987 desk audit results; (2) assertions by the grievant that he had received prior supervisory assurances that his position would be upgraded constituted hearsay evidence; (3) assertions that GS-12 duties had been performed did not constitute a preponderance of the evidence; and (4) even assuming that the grievant had performed GS-12 duties since 1985, the grievant's claim would be untimely under Article 6, section 6.07 of the parties' collective bargaining agreement.
However, based on the evidence before him, the Arbitrator found that the grievant had been "performing GS-12 duties as early as February 1989." Id. at 15. The Arbitrator also found that the parties' collective bargaining agreement and applicable regulations limited the grievant's temporary promotion to 120 days. Noting that the Agency had not explained why the grievant should not have received the appropriate amount of service credit, the
Arbitrator stated that "the Agency acted arbitrarily in determining that [the] [g]rievant's experience credit began on September 3, 1989." Id. Therefore, the Arbitrator sustained the grievance in part and directed the Agency to correct the grievant's personnel file to reflect GS-12 experience from February 1989 to June 15, 1990. The Arbitrator made the following award:
1. The Agency is hereby directed to correct [the] [g]rievant's 201 file to reflect the performance of GS-0346-12 duties from the period of February 1989 through June 15, 1990.
2. The Arbitrator retains jurisdiction for the sole and limited purpose of resolving disputes, if any, over the remedy.
III. Positions of the Parties
A. The Union's Exceptions
The Union contends that the Arbitrator's failure to award the grievant a retroactive temporary promotion is inconsistent with Article 13.01 of the parties' collective bargaining agreement, which, according to the Union, "establishes a nondiscretionary Agency policy requiring temporary promotions after an employee performs higher[-]graded wor[k] for a certain period of time." Exceptions at 3. Relying on Department of the Army, New Cumberland Army Depot and American Federation of Government Employees, Local 2004, 21 FLRA 968 (1986) (New Cumberland Army Depot), the Union argues that "[t]he Authority has ruled that such provisions empower an arbitrator to grant retroactive temporary promotions with backpay[,]" for a period of time up to two years. Id. According to the Union, because the Agency violated a nondiscretionary policy permitting temporary promotions, the "Agency cannot simultaneously violate a rule and then hide behind it." Id.
The Union also contends that the Arbitrator did not "carefully read the governing regulations." Id. at 4. The Union states that "there is nothing in the regulations limiting the number of noncompetitive temporary promotions an employee may receive." Id.
The Union does not dispute the portion of the Arbitrator's award granting service credit to the grievant. However, the Union requests that the Authority modify the award to grant the grievant a retroactive temporary promotion for longer than 120 days or that the Authority remand the case to the Arbitrator for further proceedings.
B. The Agency's Opposition
The Agency contends that the Union's exceptions constitute nothing more than disagreement with the Arbitrator's interpretation of the parties' collective bargaining agreement. According to the Agency, the Arbitrator "concluded that the grievant was not entitled to a retroactive temporary promotion for any period of time based not only on specific regulatory provisions, but upon language of the parties' [c]ollective [b]argaining [a]greement, as he interpreted it." Opposition at 3.
The Agency also contends that the Union's reliance on the decision in New Cumberland Army Depot is misplaced. The Agency argues that in New Cumberland Army Depot, the arbitrator specifically found that: (1) the grievant was regularly and consistently assigned to the higher-graded duties; (2) the agency had violated the parties' collective bargaining agreement; and (3) the language of the contract required that an award of backpay be made. Further, the Agency argues that the Authority, in New Cumberland Army Depot: (1) reduced the arbitrator's finding of an entitlement to a temporary promotion for 4 years to a 2-year retroactive temporary promotion; and (2) modified the award "because of insufficient evidence to show that the grievant was at all times otherwise qualified for the higher[-]graded position." Id. at 4. The Agency argues that "there is a vast difference between having gained creditable experience for a specific period and having been 'regularly and consistently assigned to higher[-]graded duties' so as to qualify for any conceivable temporary promotion." Id. The Agency requests that the Authority deny the Union's exceptions and sustain the Arbitrator's award.
IV. Analysis and Conclusions
For the reasons discussed below, we will remand the award to the parties for resubmission to the Arbitrator for the purpose of obtaining a clarification of the award consistent with this decision.
We note at the outset that the period following September 3, 1989, for which the grievant has received a temporary promotion of 120 days and service credit for the performance of GS-12 duties, is not in dispute in this case. The issue here concerns whether the grievant is entitled to a retroactive noncompetitive temporary promotion for the period from February 1989 to September 3, 1989. With respect to this issue, the Arbitrator stated as follows:
[B]ased upon the totality of the evidence, including the 1990 desk audit findings and [the grievant's supervisor's] undisputed testimony, it has been sufficiently shown that [the] [g]rievant was performing GS-12 duties as early as February 1989. While the aforementioned contractual provision and applicable regulations limit [g]rievant's temporary promotion to 120 days, the Agency has failed to demonstrate why he should not have received the appropriate amount of experience credit.
Award at 15.
It is well established that, if an agency's violation of a collective bargaining agreement results in the denial of a temporary promotion to which a grievant would otherwise be entitled under that agreement, an arbitrator may, consistent with applicable law and regulations, award a noncompetitive temporary promotion with backpay to that grievant for a period of up to 2 years. See, for example, 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 AFB).
In Tinker AFB, we addressed the agency's contention that the arbitrator's award ordering that the grievant be given a retroactive noncompetitive temporary promotion was contrary to FPM chapter 335, subchapter 1-5a(1), which requires the use of competitive procedures for temporary promotions in excess of 120 days. We found that, although the agency did not use competitive procedures, it was clear that the agency assigned the grievant the grade-controlling duties of a higher-graded position and violated the parties' collective bargaining agreement by failing to temporarily promote the grievant. Id. at 888. We rejected the agency's argument that its failure to act in accordance with the FPM excused its violation of the parties' agreement. We held that "where parties to a collective bargaining agreement provide for the temporary promotion of employees assigned to perform the work of higher-graded positions, an arbitrator may order temporary promotions, with backpay, in accordance with that agreement." Id. (citing U.S. Department of the Interior, Bureau of Reclamation, Lower Colorado Dams Project Office, Boulder City, Nevada and American Federation of Government Employees, Local No. 1978, 40 FLRA 1169, 1174 (1991)).
Here, the Arbitrator specifically found, as noted above, that the grievant had been performing GS-12 duties since February 1989. However, the Arbitrator concluded that he could not award the grievant a noncompetitive retroactive temporary promotion for that period because the parties' collective bargaining agreement and applicable regulations limited such promotions to 120 days. The Arbitrator did not specify the regulation or regulations to which he referred. The Arbitrator discussed only three regulations, however: (1) 5 C.F.R. § 335.102; (2) FPM chapter 335, subchapter 1-5a(1); and (3) AFR 40-335.
In view of our decision in Tinker AFB, we find that FPM chapter 335, subchapter 1-5a(1) would not bar the grievant's retroactive noncompetitive temporary promotion. Moreover, insofar as the Arbitrator relied on 5 C.F.R. § 335.102 for his conclusion that he was precluded from ordering a retroactive temporary promotion in excess of 120 days, that reliance was misplaced. That provision places a limit of 2 years on the duration of a temporary promotion, unless the Office of Personnel Management authorizes an extension of the temporary promotion beyond the 2 year limit. See Tinker AFB, 42 FLRA at 889.
With respect to AFR 40-335, the Authority has determined that collective bargaining agreements, rather than agency regulations, govern the disposition of matters to which they both apply. See U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186, 194 (1990) (Fort Campbell). Accordingly, if the Arbitrator were to conclude that the provisions of the agreement required a noncompetitive temporary promotion in a manner that would conflict with AFR 40-335, enforcement of the provisions of the parties' agreement by the Arbitrator would not be precluded by that regulation. See U.S. Department of Defense Dependents Schools, Pacific Region and Overseas Education Association, Pacific Region, 43 FLRA 404, 408-09 (1991).
We are unable to determine whether the Arbitrator concluded that the collective bargaining agreement would preclude a retroactive temporary promotion of more than 120 days. It is unclear, in this regard, whether the Arbitrator found that the collective bargaining agreement merely incorporated FPM chapter 335, subchapter 1-5a(1), 5 C.F.R. § 335.102, and AFR 40-335. Moreover, the Arbitrator did not determine whether: (1) the collective bargaining agreement requires a temporary promotion; (2) the grievant was entitled to a temporary promotion under the collective bargaining agreement; and (3) the Agency violated the collective bargaining agreement by denying the grievant a temporary promotion.
In sum, the Arbitrator determined that the parties' collective bargaining agreement and applicable regulations prevented the award of a temporary promotion of more than 120 days. Neither FPM chapter 335, subchapter 1-5a(1) nor 5 C.F.R. § 335.102 precludes such a promotion. Moreover, AFR 40-335 would bar an award of a retroactive temporary promotion of more than 120 days only if, under Fort Campbell, that regulation governed the disposition of the matter resolved by the arbitration award. Finally, the Arbitrator did not set forth his interpretation of the collective bargaining agreement. Consequently, we will remand the award to the parties for the purpose of obtaining a clarification of the award from the Arbitrator consistent with this decision.
In determining whether the grievant is entitled to a retroactive temporary promotion under the collective bargaining agreement, the Arbitrator should clarify whether he concluded that the collective bargaining agreement merely incorporated applicable regulations or whether he concluded that the collective bargaining agreement precluded him from awarding such a promotion. The Arbitrator should also determine whether both AFR 40-335 and the collective bargaining agreement apply to the grievance in this case. If the Arbitrator determines that both AFR 40-335 and the collective bargaining agreement apply and that the provisions of the agreement require a noncompetitive temporary promotion in a manner that would conflict with AFR 40-335, then, under Fort Campbell, the collective bargaining agreement would govern the disposition of the grievance.
Moreover, we note that if the Arbitrator determines, in clarifying the award, that the grievant is entitled under the collective bargaining agreement to a retroactive noncompetitive temporary promotion that exceeds 2 years in duration, he may, consistent with 5 C.F.R. § 335.102, award the grievant a temporary promotion for 2 years and require the Agency to request OPM to formally authorize the Agency to grant a retroactive temporary promotion, with backpay, for the period in excess of 2 years. See Tinker AFB, 42 FLRA at 889.
The award is remanded to the parties for further proceedings consistent with this decision.
FPM chapter 335, subchapter 1-5a(1) provides, in pertinent part:
Competitive inservice procedures must be used for temporary promotions over 120 days in higher graded positions (prior service under all details to higher graded positions or temporary promotions is included whether competitive or noncompetitive during the preceding 12 months).
Article 12 of the parties' collective bargaining agreement provides, in pertinent part:
Section 12.05: NON