44:1548(121)AR - - Army, Fort Polk, LA and NAGE Local R5-168 - - 1992 FLRAdec AR - - v44 p1548



[ v44 p1548 ]
44:1548(121)AR
The decision of the Authority follows:


44 FLRA No. 121

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE ARMY

FORT POLK, LOUISIANA

(Agency)

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R5-168

(Union)

0-AR-2145

DECISION

May 29, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on exceptions to an award of Arbitrator Harold R. Ainsworth filed by both the Union and 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, and the Agency filed an opposition to the Union's exception.

The grievant filed a grievance claiming that under the parties' collective bargaining agreement, she was entitled to have been temporarily promoted for having performed the duties of a higher-graded position for an extended period of time. The Arbitrator sustained the grievance and awarded the grievant a retroactive temporary promotion with backpay. However, the Arbitrator denied the Union's motion for an award of attorney fees.

With respect to the Union's exception, we conclude that the Arbitrator's denial of attorney fees is deficient, and we will strike that portion of the award. With respect to the Agency's exceptions, we conclude that the Agency provides no basis for finding the award deficient, and we will deny the Agency's exceptions. However, we conclude that to the extent that the award does not provide interest on the backpay, the award is deficient and we will modify it accordingly.

II. Background and Arbitrator's Award

The grievant is employed by the Agency as a budget assistant, GS-7. She filed a grievance, claiming that from October 11, 1988, through November 14, 1989, she performed the duties of the position of budget analyst, GS-9 and that under the parties' collective bargaining agreement she was entitled to have been temporarily promoted. The grievance was not resolved and was submitted to arbitration.

As a threshold matter, the Arbitrator rejected the Agency's argument that the grievance was not arbitrable under the parties' agreement because it concerned the classification of the grievant's position. He found that the grievance did not concern classification, but rather concerned whether the grievant performed the work of the GS-9 budget analyst position. Accordingly, the Arbitrator ruled that the grievance was arbitrable.

On the merits, the Arbitrator sustained the grievance. He noted that under the parties' agreement, when all requirements for promotion are met and an employee is assigned to a higher-graded position for more than 60 consecutive calendar days, the employee is entitled to be temporarily promoted.(1) Based on the evidence and testimony presented, the Arbitrator determined that the grievant had performed the duties of the budget analyst position, as claimed.

Specifically, the Arbitrator found that the grievant had documented the work that she performed during this period and that the work was that of the GS-9 budget analyst position. He explained that the work had consistently been considered GS-9 budget analyst work and that such a determination could not be changed in face of the grievance. The Arbitrator also noted that the grievant's supervisor had certified during this period that the grievant was performing the duties of the GS-9 budget analyst position. Although the grievant's supervisor subsequently retracted that certification, the Arbitrator concluded that the grievant's supervisor was "being candid" when she certified that the grievant was performing higher-grade duties. Award at 5.

In addition, the Arbitrator concluded that vacancies in the grievant's office supported her claim. The Arbitrator noted that in October 1988, the grievant's supervisor, at the time a GS-9 budget analyst in the office, was promoted to supervisor and assumed those duties. The Arbitrator further noted that with the supervisor assuming that position, the office had two vacant GS-9 budget analyst positions. In the Arbitrator's view, although the grievant's supervisor probably continued to perform some of the work that she had previously performed, the supervisor could not have performed the duties of two GS-9 budget analysts; and that "[s]ome of these duties had to be assumed by [the grievant]." Id. The Arbitrator was also convinced that the grievant's large amount of overtime during the period supported her claim. In the Arbitrator's view, the overtime demonstrated that the grievant was performing the duties of the GS-9 budget analyst position because while performing those duties, she still had to perform the work of her budget assistant position, which required her to work overtime.

Accordingly, the Arbitrator awarded the grievant a retroactive temporary promotion to GS-9 for the period of October 11, 1988, through November 14, 1989. However, the Arbitrator denied the Union's motion for attorney fees, finding that an award of fees was not warranted in the interest of justice because the Agency's position was "decided by litigating the issue[]" and was not in "bad faith." Id. at 7. In the Arbitrator's view, "[t]he fact that the Grievance was sustained does not justify in itself the award of attorney's fees and costs." Id.

III. Agency's First Exception

A. Positions of the Parties

1. The Agency

The Agency maintains that the grievance concerns the classification of a position. Consequently, the Agency contends that the award is deficient because it is contrary to section 7121(c)(5) of the Statute and fails to draw its essence from the parties' collective bargaining agreement.

The Agency asserts that the grievance and the Arbitrator's framing of the issue clearly indicate that the essential nature of the grievance concerned the duties assigned to and performed by the grievant and the grade level of those duties. The Agency also argues that the grievant's requested relief went beyond enforcement of the temporary promotion provision of the parties' agreement and included reclassification of the grievant's position. Accordingly, the Agency claims that the award is deficient because the grievance was precluded by section 7121(c)(5) of the Statute. The Agency further claims that the grievance concerns the classification of a position within the meaning of Article XXXVI, Section 5g of the parties' agreement, which excludes such matters from coverage by the parties' negotiated grievance procedure. The Agency argues that by failing to find that the grievance was not arbitrable, the award evidences a manifest disregard of the agreement.

2. The Union

The Union disputes that the grievance concerned the classification of a position. The Union contends that the grievant did not contest the classification of any position. The Union maintains that the grievant was claiming only that for a temporary period of time, she was performing the duties of the higher-graded budget analyst position.

B. Analysis and Conclusions

We conclude that the Agency fails to establish that the award is contrary to section 7121(c)(5) of the Statute or fails to draw its essence from the collective bargaining agreement.

Section 7121(c)(5) precludes any grievance concerning "the classification of any position which does not result in the reduction in grade or pay of an employee." The Authority has uniformly and repeatedly held that grievances over whether a grievant was entitled under a collective bargaining agreement to have been temporarily promoted by reason of having temporarily performed the duties of a higher-graded position do not concern the classification of any position within the meaning of section 7121(c)(5) of the Statute. U.S. Department of the Navy, Naval Aviation Depot, Marine Corps Air Station, Cherry Point, North Carolina and International Association of Machinists and Aerospace Workers, Local 2297, 42 FLRA 795 (1991) (Marine Corps Air Station); American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 38 FLRA 89 (1990) (and cases cited in the decision) (SSA, Baltimore); American Federation of Government Employees, Local 987 and U.S. Department of the Air Force, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 37 FLRA 386 (1990) (and cases cited in the decision) (Robins AFB).

The Authority has viewed the meaning of "classification" under section 7121(c)(5) in the context of 5 C.F.R. § 511.101(c), which defines the term 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." As emphasized by the Union, the grievant did not claim before the Arbitrator that her position should be reclassified because she had performed the duties of a higher-graded position. Before the Arbitrator, the grievant merely claimed that she was entitled to have been temporarily promoted for the time during which she performed the duties of the higher-graded budget analyst position. The Arbitrator did not reclassify the grievant's position at the higher grade. Instead, in resolving the grievance the Arbitrator merely examined the duties of the GS-7 budget assistant position and the GS-9 budget analyst position as previously established and classified by management. The question resolved by the Arbitrator was whether the grievant was entitled to a temporary promotion for performing the duties of the GS-9 budget analyst position for an extended period of time.

We refuse to find that such a grievance concerns the classification of any position within the meaning of section 7121(c)(5) of the Statute. See Marine Corps Air Station; SSA, Baltimore (and cases cited in the decision); Robins AFB (and cases cited in the decision). Moreover, we are not persuaded otherwise by the grievant's request at the time she filed her grievance to be "non-competitively promot[ed] to the GS-9 Budget Analyst position." Employee Grievance Form, Agency's Exceptions, Enclosure 3. Regardless of what the grievant may have intended by that request, the sole issue submitted to and resolved by the Arbitrator was whether the grievant was entitled to have been temporarily promoted. See SSA, Baltimore, 38 FLRA at 95 (grievants' request that their lower-graded positions be upgraded did not bar under section 7121(c)(5) the grievances over the performance of higher-graded duties because the request was not "urged by the Union" and was not addressed by the arbitrator).

Because we find that the grievance does not concern the classification of a position within the meaning of section 7121(c)(5) of the Statute, we likewise find that the Agency has not established that the award fails to draw its essence from the collective bargaining agreement by manifestly disregarding the exclusion from the negotiated grievance procedure for grievances concerning the classification of any position. See U.S. Department of Labor and Local 12, American Federation of Government Employees, 24 FLRA 435, 436-37 (1986) (Authority found that grievance did not concern the classification of any position and denied the Agency's exception contending that the award was contrary to section 7121(c)(5) and the corresponding exclusion in the parties' collective bargaining agreement).

Accordingly, we will deny the Agency's exception.

IV. Agency's Second Exception

A. Positions of the Parties

The Agency contends that the award is contrary to the Back Pay Act. The Agency notes that in order for a retroactive temporary promotion with backpay to be authorized, the Arbitrator was required to find that: (1) an Agency personnel action with respect to the grievant was unjustified or unwarranted; (2) the action directly resulted in the reduction of the grievant's pay; and (3) but for the action, the grievant otherwise would not have suffered the pay reduction. The Agency asserts that the award is deficient because the Arbitrator failed to find that but for the action, the grievant otherwise would have been temporarily promoted. The Agency further asserts that the Arbitrator could not have found that the grievant would have been temporarily promoted because the Agency would have selected an employee other than the grievant for a temporary promotion due to the grievant's performance deficiencies.

The Union contends that no basis is provided for finding the award contrary to the Back Pay Act.

B. Analysis and Conclusions

We conclude that the Agency fails to establish that by awarding backpay, the award is contrary to the Back Pay Act, 5 U.S.C. § 5596. However, we conclude that to the extent that the award does not provide interest on the backpay, the award is deficient and must be modified.

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. For example, U.S. Department of Housing and Urban Development, Regional Office, Atlanta, Georgia and American Federation of Government Employees, Local 1568, 41 FLRA 520, 524 (1991) (HUD). As recognized by the Agency, 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. Id. at 524-25. In our view, the Arbitrator's award satisfies these requirements of the Back Pay Act.

The Arbitrator's finding that the Agency failed to temporarily promote the grievant as required by the parties' collective bargaining agreement constitutes the required finding that the grievant had been affected by an unjustified or unwarranted personnel action. See U.S. Department of Veterans Affairs Medical Center, Allen Park, Michigan and American Federation of Government Employees, Local 933, 38 FLRA 688, 697-98 (1990) (VA Medical Center) (the agency's failure to temporarily promote and pay the grievant for performing higher-graded duties as required by the collective bargaining agreement constituted an unwarranted personnel action). In addition, the Agency's failure to temporarily promote the grievant clearly resulted in a loss of pay to the grievant. See HUD, 41 FLRA at 525; VA Medical Center, 38 FLRA at 698. Therefore, we find that implicit in the Arbitrator's findings and award is the necessary connection between the Agency's failure to temporarily promote the grievant as required by the parties' agreement and the grievant's loss of pay. See HUD, 41 FLRA at 525; VA Medical Center, 38 FLRA at 698.

The Authority has uniformly found that an arbitrator has made a properly supported award of backpay under the Back Pay Act whenever an arbitrator has determined that an agency has denied an employee a temporary promotion to which the employee was entitled for having performed the duties of a higher-graded position for an extended period of time. For example, American Federation of Government Employees, Local 1592 and U.S. Department of the Air Force, Hill Air Force Base, Utah, 44 FLRA 147, 152 (1992) ("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 the 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."); VA Medical Center, 38 FLRA at 697; Department of the Army, New Cumberland Army Depot and American Federation of Government Employees, Local 2004, 21 FLRA 968, 971 (1986) (New Cumberland Army Depot). As the Authority ruled in New Cumberland Army Depot, when an arbitrator finds that an employee should have been temporarily promoted as the result of the performance of the duties of a higher-graded position for an extended period of time, "the award of backpay is clearly consistent with the grievant's statutory entitlement under the Back Pay Act to receive the pay that he would have earned if the unwarranted action had not occurred . . . ." 21 FLRA at 971 (citing 5 U.S.C.§ 5596(b)(1)(A)(i)).

In finding the award properly supported, we reject the Agency's claim that the Arbitrator could not have found that the grievant would have been selected by the Agency for a temporary promotion to GS-9. In the circumstances of this case, an employee becomes entitled to a temporary promotion by performing the duties of a higher-graded position for 60 consecutive calendar days, rather than by being selected for promotion by the Agency. Because the grievant performed the duties of the GS-9 budget analyst position for more than 60 consecutive calendar days, the grievant was entitled to have been promoted, and it is irrelevant whether she would have been selected by the Agency in a selection action for a temporary promotion.

Under 5 U.S.C. § 5596(b)(2)(A), as amended, an employee who is found to have been subjected to an unjustified or unwarranted personnel action that has resulted in a reduction in the employee's pay, allowances, or differentials is entitled to interest on any backpay award. For example, U.S. Department of the Army, New Cumberland Army Depot, New Cumberland, Pennsylvania and American Federation of Government Employees, Local 2004, 40 FLRA 186, 193-94 (1991); U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Hyattsville, Maryland and National Association of Agriculture Employees, 38 FLRA 1291, 1299 (1991); U.S. Department of Defense, Marine Corps Logistics Base, Barstow, California and American Federation of Government Employees, Local 1492, 37 FLRA 796, 797 (1990) (Marine Corps Logistics Base). As we held in Marine Corps Logistics Base, "interest must be paid" on backpay awards such as the one in this case. 37 FLRA at 797. Accordingly, the Arbitrator's failure to award interest on his award of backpay is inconsistent with the Back Pay Act, and we will modify the award to include interest.

V. Agency's Third Exception

A. Positions of the Parties

1. The Agency

The Agency contends that the award is deficient because it is based on a nonfact.

The Agency asserts that the basis for the award was the Arbitrator's belief that in view of the vacancies for budget analysts in the grievant's office, the grievant must have been performing the duties of the GS-9 budget analyst position because the grievant's supervisor could not have been performing the work of two budget analysts. In support of this contention, the Agency cites to the Arbitrator's award and submits a memorandum from the Agency's representative at the arbitration. The memorandum states that, after receiving the award, the representative called the Arbitrator for a clarification and that during the phone conversation, the Arbitrator stated that the grievant must have been performing the duties of the GS-9 budget analyst position because her supervisor could not have been doing the work of the supervisory position and two budget analysts.

The Agency maintains that, contrary to the belief of the Arbitrator, there were not two GS-9 budget analyst vacancies. The Agency alleges that one of the positions was filled on October 1, 1988, and that the grievant's supervisor continued to perform her GS-9 budget analyst duties while performing the duties of the supervisory budget analyst position. Therefore, the Agency contends that no single person was performing the work of three positions and that the Arbitrator's finding is clearly erroneous, but for which a different result would have been reached.

2. The Union

The Union contends that the Agency's exception simply disagrees with the Arbitrator's findings of fact and provides no basis for finding that the award is based on a nonfact. The Union also asserts that the memorandum of the Agency's representative should be stricken from the record because the representative's discussion with the Arbitrator constituted an impermissible ex parte communication.

B. Analysis and Conclusions

We conclude that the Agency fails to establish that the award is deficient because it is based on a nonfact.

We will find an award deficient because it is based on a nonfact when the appealing party establishes that the central fact underlying the award is clearly erroneous and that but for the arbitrator's reliance on that fact, the arbitrator would have reached a different result. For example, Federal Deposit Insurance Corporation and National Treasury Employees Union, 35 FLRA 241, 247 (1990) (FDIC). We find that the Agency fails to establish that the central fact underlying the award was the Arbitrator's finding that the grievant's supervisor was performing the duties of three positions and that but for the Arbitrator's reliance on this finding, the Arbitrator would have denied the grievance.

In our view, the Arbitrator's conclusion that the grievant performed the duties of the GS-9 budget analyst position was based on findings more extensive than the Arbitrator's assumption that the supervisor could not have been performing the duties of two budget analysts and that, therefore, some of the duties had to have been assumed by the grievant. In addition, the Arbitrator based his award on the grievant's documentation that she performed the work of the GS-9 budget analyst position; the grievant's supervisor's certification during the period in dispute that the grievant was performing the duties of the GS-9 budget analyst position; and the grievant's large amount of overtime during the period. Consequently, even if the Arbitrator's reliance on the vacancies in the grievant's office was clearly erroneous, we are not persuaded that this disputed finding was central to the award such that the result would have been different, but for the Arbitrator's reliance on it. The Agency is merely disagreeing with the Arbitrator's overall finding that the grievant had performed the duties of the budget analyst position, and such disagreement provides no basis for finding the award deficient. See FDIC, 35 FLRA at 247-48.

Accordingly, we will deny the Agency's exception.(2)

VI. Agency's Fourth Exception

A. Positions of the Parties

The Agency contends that the award fails to draw its essence from the parties' collective bargaining agreement.

The Agency argues that the Arbitrator's award of a retroactive temporary promotion has no rational basis in the agreement because Article XLIV, Section 7 does not provide for a temporary promotion unless the employee is assigned to a vacant position at the higher grade. The Agency asserts that the Arbitrator found only that the grievant assumed the duties of the budget analyst position and did not find that she was assigned to the position. The Agency further asserts that at all relevant times, all budget analyst positions in the office were encumbered and there was no vacant position to which the grievant could have been assigned. The Agency also argues that the remedy is deficient by commencing the promotion on the first day of the grievant's assignment. The Agency maintains that under the terms of the agreement, the promotion is to be effected when the employee is assigned for more than 60 consecutive calendar days.

The Union contends that the award is consistent with the collective bargaining agreement.

B. Analysis and Conclusions

We conclude that the Agency has not established that the award fails to draw its essence from the collective bargaining agreement.

In order for the Authority to find that an award is deficient because it fails to draw its essence from the collective bargaining agreement, it must be established that the award: (1) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (2) does not represent a plausible interpretation of the agreement; (3) cannot in any rational way be derived from the agreement; or (4) evidences a manifest disregard of the agreement. For example, United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990) (OSHA). These tests and the private sector cases from which they are derived make it clear that an arbitrator's award will not be found to fail to draw its essence from the agreement merely because a party believes that the arbitrator misinterpreted the agreement. OSHA, 34 FLRA at 573. The question of the interpretation of the collective bargaining agreement is a question solely for the arbitrator because it is the arbitrator's construction of the agreement for which the parties have bargained. Id. at 576.

In this case, the Arbitrator's conclusion that the grievant was entitled to have been temporarily promoted beginning on October 11, 1988, under the terms of Article XLIV, Section 7 constituted his interpretation and application of the agreement. In our view, the Agency fails to establish that the Arbitrator's interpretation and application disregards the agreement or is unfounded, implausible, or irrational. Contrary to the Agency's contentions, Article XLIV, Section 7 does not expressly require that an employee must be assigned to a vacant position to receive a temporary promotion and does not expressly provide that in all cases the temporary promotion is to begin on the 61st consecutive day of the assignment. It merely states that a temporary promotion will be effected when an employee is assigned to a higher-graded position for more than 60 consecutive calendar days and all requirements for promotion have been met.

Consequently, the Agency fails to establish that the Arbitrator's interpretation and application of Article XLIV, Section 7 conflicts with express provisions of the agreement. Compare American Federation of Government Employees, Local 547 and Tampa Veterans Administration Hospital, 19 FLRA 725 (1985); Overseas Education Association and Office of Dependents Schools, Department of Defense, 4 FLRA 98 (1980). Instead, the Agency's contentions constitute nothing more than disagreement with the Arbitrator's interpretation and application of the agreement and an attempt to have its interpretation substituted for that of the Arbitrator. Disagreement with an arbitrator's interpretation and application of a collective bargaining agreement provides no basis for finding an award deficient under the Statute. For example, OSHA, 34 FLRA at 576. Accordingly, we will deny the Agency's exception.

VII. Agency's Fifth Exception

A. Positions of the Parties

1. The Agency

The Agency contends that the Arbitrator was biased against the Agency and that the award was tainted by improper contacts between the Union and the Arbitrator.

The Agency asserts that on August 28, 1990, the Arbitrator and the Union engaged in an ex parte communication prohibited by the collective bargaining agreement. The Agency further asserts that on May 22, 1991, an agent of the Union drove the Arbitrator to the arbitration hearing and after the hearing drove the Arbitrator and the Union's attorney to the airport approximately 70 miles away. The Agency maintains that these incidents are inconsistent with the practice of the parties, which has been to require arbitrators to provide their own transportation. The Agency claims that previous arbitrators have never had contact of any consequence with representatives of either party while handling a case without the other party's presence or consent.(3)

The Agency also asserts that the Arbitrator's bias was evident during the hearing. The Agency notes that in response to testimony concerning the reprimand of the grievant's supervisor for falsification of government records, the Arbitrator commented as follows:

In all due respect to the Army and the government of the United States, people that falsify -- you call it falsify, I don't really call it falsify. They say things on government pieces of paper that are not correct. . . . People don't get reprimanded on account of that. . . .

Exceptions at 7 (quoting the Arbitrator). The Agency claims that these statements clearly indicate the bias and partiality of the Arbitrator because they demonstrate his preconceived notion that falsification of government documents is acceptable even if an employee's qualifications are illegally enhanced.

The Agency further claims that the timing of the Union's request for attorney fees also evidences the Arbitrator's bias. The Agency notes that rather than submitting a request for attorney fees after receipt of a favorable award, the Union's attorney submitted the request before an award was issued.

2. The Union

The Union disputes that there were improper contacts between the Union and the Arbitrator and that the Arbitrator was biased.

The Union maintains that the August 28 telephone call concerned scheduling and administrative matters as in every arbitration case. The Union asserts that no substantive matters were discussed and notes that the Arbitrator and Agency representatives must also have talked about scheduling because Agency representatives showed up for the hearing. The Union also maintains that at the time of the arbitration hearing, there had been flooding in Louisiana and rental cars were virtually impossible to obtain. The Union claims that as a result of these transportation problems, the Union provided the Arbitrator with a ride to the hearing and provided the Arbitrator and the Union's attorney with a ride to the airport after the hearing. The Union asserts that the ride to the airport was offered only after the parties' representatives had discussed the matter and management voiced no objection. Finally, the Union maintains that the filing of a request for attorney fees before issuance of the award is fully consistent with and advisable under Authority practice. The Union claims that it is therefore "outrage[ous]" and "ridiculous" for the Agency to insinuate bias from the timing of the request. Opposition at 8.

B. Analysis and Conclusions

We conclude that the Agency fails to establish that the Arbitrator was biased.

The Authority will find an award deficient when the award was procured by fraud, corruption, or undue means; when there was partiality or corruption on the part of the Arbitrator; or when the arbitrator was guilty of misconduct by which the rights of any party were prejudiced. For example, Department of the Army, Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 7 FLRA 18, 19 (1981) (Ft. Campbell). In National Gallery of Art and American Federation of Government Employees, Local 1831, 39 FLRA 226, 233-34 (1991) (National Gallery of Art), we reviewed the standards applied by the Federal courts when a party seeks to have an arbitration award vacated on this ground. We noted that the courts review the record to ascertain whether the arbitrator's conduct destroyed the fundamental fairness of the process and that the courts require the party challenging the award to prove specific facts indicating impropriety. We further noted that the courts have found awards deficient on this basis when: (1) a reasonable person would conclude that the arbitrator was partial; (2) the circumstances are powerfully suggestive of bias; or (3) the evidence of impropriety is direct, definite, and capable of demonstration. National Gallery of Art, 39 FLRA at 234.

We conclude that no basis is provided for finding the award deficient. We have carefully reviewed the circumstances cited by the Agency and the explanations provided by the Union. We are not persuaded that the Agency has directly and definitely demonstrated that the award was procured by fraud, corruption, or undue means; or that there was partiality or corruption on the part of the Arbitrator; or that the Arbitrator was guilty of misconduct by which the rights of any party were prejudiced under any of the tests commonly applied by Federal courts in private sector labor relations cases. See Ft. Campbell, 7 FLRA at 19 (exception totally devoid of any substantiation that the award was deficient because of alleged improper contacts between the agency and the arbitrator). In our view, the Agency has failed to establish any impropriety that destroyed the fairness of the arbitration proceedings. See National Gallery of Art, 39 FLRA at 234.

Accordingly, we will deny the Agency's exception.

VIII. Agency's Sixth Exception

A. Positions of the Parties

The Agency contends that the award conflicts with the decision of the Comptroller General in Cassandra G. McPeak and Wayne E. Dabney, 69 Comp. Gen. 93 (1989) (McPeak). The Agency argues that McPeak requires that an employee be assigned to the higher-graded position in order to be entitled to a temporary promotion and that, in this case, the grievant only assumed the duties of the budget analyst position without ever being assigned to it.

The Union does not address this exception.

B. Analysis and Conclusions

We conclude that the Agency provides no basis for finding that the award is contrary to the Comptroller General's decision in McPeak.

In U.S. Department of the Navy, Long Beach Naval Shipyard, Long Beach, California and International Federation of Professional and Technical Engineers, Local 174, 37 FLRA 1111 (1990) (Long Beach Naval Shipyard), we noted that, as confirmed in McPeak, an exception to the general rule that an employee is entitled only to the salary of the position to which the employee is actually appointed exists when "the parties to a collective bargaining agreement agree to make temporary promotions mandatory for details to higher grade positions, thereby establishing a nondiscretionary agency policy which would provide a basis for backpay." 37 FLRA at 1119 (quoting McPeak, 69 Comp. Gen. at 94). In McPeak, the Comptroller General concluded that the affected employees were not entitled to retroactive temporary promotions because "there [was] no evidence of a detail of the employees to the higher-graded position. Instead, it appear[ed] that over a period of several years they either assumed or were assigned some duties which were associated with the higher-graded position." 69 Comp. Gen. at 94.

In this case, in contrast, the record reflects that beginning on October 11, 1988, the grievant was assigned and directed to perform certain additional duties. The primary issue submitted to arbitration concerned whether those duties were the duties of a GS-7 budget assistant, as claimed by the Agency, or a GS-9 budget analyst, as claimed by the grievant. The Arbitrator sustained the grievance, concluding that the grievant had performed the work of the GS-9 budget analyst position. Based on his interpretation and application of Article XLIV, Section 7 of the parties' collective bargaining agreement, the Arbitrator ruled that the grievant was entitled to have been temporarily promoted. Consequently, unlike the situation in McPeak, it is clear in this case that, as found by the Arbitrator, the grievant was assigned and performed the duties of the GS-9 position and was entitled under the parties' agreement to a temporary promotion. We find nothing in McPeak that precluded the Arbitrator from ordering a temporary promotion with backpay in these circumstances. See Long Beach Naval Shipyard, 37 FLRA at 1119.

Unlike the Agency, we have not viewed McPeak as requiring a formal detail or assignment. For example, in Marine Corps Air Station, 42 FLRA 795, the arbitrator rejected the agency's claim that compensation of the higher-graded position was precluded by McPeak because the grievant was never detailed to the higher-graded position. The arbitrator ruled that the Federal Personnel Manual does not require any particular formality in the assignment of a different set of job duties in order to constitute a detail. Finding that the grievant was assigned the duties of a higher-graded position for a legitimate management purpose, the arbitrator concluded that the grievant had been detailed. Similarly, the arbitrator in Long Beach Naval Shipyard found that the assignment of higher-graded duties to the grievant by his supervisor for a legitimate management purpose constituted a detail. In both cases, we found that awards of backpay by the arbitrators were consistent with McPeak. Marine Corps Air Station, 42 FLRA at 802; Long Beach Naval Shipyard, 37 FLRA at 1119; see also 57 Comp. Gen. 536, 545 (1978) ("where there is a mandatory provision requiring temporary promotion for assignments to higher level positions and where the fact-finder has determined that the assignment of higher level work is of such magnitude as to be equivalent to a 'detail' to the established higher level position, an award of a retroactive temporary promotion with backpay may be proper . . . .").

Consequently, we have consistently held that agreement provisions entitling employees to temporary promotions are enforceable either when they are detailed to the higher-graded position or when they are assigned or directed to perform the duties of the higher-graded position. For example, American Federation of Government Employees, Local 1592 and U.S. Department of the Air Force, Hill Air Force Base, Utah, 44 FLRA 147, 152-53 (1992); U.S. Department of Veterans Affairs Medical Center, Allen Park, Michigan and American Federation of Government Employees, Local 933, 38 FLRA 688, 697 (1990); U.S. Department of the Air Force, Warner Robins Air Force Logistics Center, Robins Air Force Base, Georgia and American Federation of Government Employees, Local 987, 37 FLRA 155, 158 (1990). Accordingly, we will deny the Agency's exception.

IX. Agency's Seventh Exception

A. Positions of the Parties

1. The Agency

The Agency maintains that on October 11, 1988, the grievant did not meet the minimum qualification requirements set by the Office of Personnel Management for promotion to the GS-9 budget analyst position. Thus, the Agency contends that the award is contrary to civil service regulations. The Agency likewise contends that the award fails to draw its essence from the collective bargaining agreement because the award disregards the provision of Article XLIV, Section 7 that all requirements for promotion must be met before an employee can be temporarily promoted for having been assigned to a higher-graded position.

The Agency asserts that the grievant failed to meet the minimum qualification requirements for promotion because she lacked the required experience of 1 year as a GS-7 budget analyst. In support of this exception, the Agency has submitted the statement of an Agency personnel staffing specialist. The statement notes that on November 16, 1988, new qualification standards were issued for the budget analyst position series and states that under these standards the grievant was qualified for promotion to the GS-9 budget analyst position. However, the statement concludes that under the standards applicable on October 11, 1988, the grievant was not minimally qualified for promotion to the GS-9 budget analyst position because she had not served at least 1 year as a budget analyst at the GS-7 level.

2. The Union

The Union objects to the statement of the personnel staffing specialist because it was never submitted to the Arbitrator. The Union also challenges the specialist's "qualifications, background, and basis for his conclusion." Opposition at 4. The Union further asserts that on May 4, 1989, the grievant was rated qualified for promotion to a GS-9 budget analyst position and that, therefore, the Agency is precluded from claiming that the grievant was not qualified for promotion.

B. Analysis and Conclusions

1. We will strike the Agency's Exhibit

Section 2429.5 of our Rules provides as follows:

The Authority will not consider evidence offered by a party, or any issue, which was not presented in the proceedings before the Regional Director, Hearing Officer, Administrative Law Judge, or arbitrator. The Authority may, however, take official notice of such matters as would be proper.

We reject the Agency's attempt to present evidence to the Authority that was not presented to the Arbitrator concerning the qualifications of the grievant for promotion. See U.S. Small Business Administration, Washington, D.C. and American Federation of Government Employees, Council 228, Local 2532, 38 FLRA 386, 405-06 (1990) (SBA); National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, 38 FLRA 369, 383 (1990). Because the opinion of the personnel staffing specialist was not presented to the Arbitrator, we view our consideration of this evidence to be precluded by section 2429.5. See SBA, 38 FLRA at 405. Furthermore, the qualifications of the grievant are not a proper matter for official notice. Compare id. (official notice of decisions of the Merit Systems Protection Board and the U.S. Court of Appeals for the Federal Circuit). We, therefore, grant the Union's motion to strike, and we have not considered the opinion of the Agency's personnel staffing specialist. However, we will consider the Agency's arguments that the grievant was not qualified for promotion under the applicable civil service qualification standards. In our view, these arguments present the issue of whether the award is deficient on any grounds set forth in section 7122(a) of the Statute. Such an issue is not precluded under section 2429.5 because it is an issue that arose only after the Arbitrator issued his award and could not have been presented to the Arbitrator. See id. at 406. In resolving this issue, we will take official notice that on November 16, 1988, new qualification standards were issued by the Office of Personnel Management for the budget analyst position series. See id. at 405.

2. The Award Is Not Deficient

The Agency has argued that the grievant was not qualified under the qualification standards applicable on October 11, 1988, because she had not served for at least a year as a budget analyst at GS-7. However, clearly no basis is provided for finding that the award is deficient to the extent that the Arbitrator has awarded the grievant a retroactive temporary promotion from November 16, 1988, through November 14, 1989. Independent of the statement of the Agency's staffing specialist, the record reflects that the Agency had found the grievant qualified for promotion to GS-9 budget analyst under the qualification standards that applied after November 15, 1988. Therefore, in our view, the only issue presented by the Agency's exception is the propriety of the award of a retroactive temporary promotion from October 11, 1988, through November 15, 1988. On this issue, we find that the Agency has failed to establish that the grievant was not qualified for promotion.

Although the Agency failed to provide a copy of the qualification standards for the GS-9 budget analyst position applicable on October 11, 1988, we have reviewed those standards, and we find no requirement that in order to have been qualified for the GS-9 budget analyst position, an employee must have served for at least a year as a GS-7 budget analyst. Contrary to the claim of the Agency, the applicable standards permitted qualifying experience to be gained in a wide range of positions. Although the standards provided that qualifying experience "[t]ypically . . . is demonstrated by accomplishment of assignments of the difficulty and responsibility described in the position classification standard used to evaluate positions at the next lower grade level in the normal line of promotion to the position being filled[,]" the standards also provided that "[s]uch experience may have been gained as a specialist in budget work, as an operating official, or as a staff specialist in accounting, financial management, financial analysis, management analysis, program analysis, or other responsible analytical administrative or professional work that also provided a knowledge of the programs, organizational structure, and work processes of the employing organization." Handbook X-118, Budget Analyst Qualification Standards at 2, Transmittal Sheet No. 189, June 1981.

We are further persuaded that the Agency has failed to establish that the grievant was not qualified when we compare the qualification standards under which the grievant was found to be qualified. Under the qualification standards applicable after November 15, 1988, qualifying experience must have been at least equivalent to the next lower grade level in the normal line of progression for the particular occupation. Handbook X-118, Minimum Qualification Requirements for Two-Grade Interval Administrative, Management, and Specialist Positions, Transmittal Sheet No. 227, December 1988. We fail to perceive any differences in the two standards that would permit the grievant to be found qualified under one, but not under the other.

Because we conclude that no basis is provided for finding that the grievant was not qualified for promotion, we likewise find that the Agency has not established that the award fails to draw its essence from the collective bargaining agreement by disregarding the requirement of Article XLIV, Section 7 that an employee must be qualified in order to be temporarily promoted. Accordingly, we will deny the Agency's exception.

X. Union's Exception

A. Positions of the Parties

1. The Union

The Union contends that the award is deficient because the Arbitrator erred in denying the Union's motion for an award of attorney fees.

The Union maintains that in its motion for an award of attorney fees, it contended that an award of fees was warranted in the interest of justice under the following criteria: (1) the Agency had engaged in a prohibited personnel practice; (2) the Agency's action was clearly without merit and wholly unfounded; (3) the Agency's action was in bad faith; and (4) the Agency knew or should have known that it would not prevail on the merits. The Union contends that the award is deficient because the Arbitrator failed to address all the grounds on which the Union claimed that an award of fees would be warranted in the interest of justice and because the Arbitrator erred in not finding that the Agency's action was in bad faith. The Union asserts that it established that an award of fees was warranted in the interest of justice on all the asserted grounds and that, consequently, the Arbitrator's denial of its motion for an award of fees is deficient. The Union, therefore, requests that the Authority grant the Union's motion for an award of fees.

2. The Agency

The Agency contends that the Union's exception provides no basis for finding the award deficient. The Agency asserts that the Arbitrator specifically noted that an award of attorney fees must be warranted in the interest of justice. The Agency claims that although the award does not use the specific words recognized by the courts and the Authority, the Arbitrator provided a fully articulated decision in denying the Union's motion. The Agency requests that the Authority honor the Arbitrator's findings and deny the Union's exception.

B. Analysis and Conclusions

In American Federation of Government Employees, Local 1770 and U.S. Department of the Army, Headquarters, XVIII Airborne Corps, Fort Bragg, North Carolina, 44 FLRA No. 108 (1992), we reexamined our approach to arbitration awards denying requests for attorney fees without providing a fully articulated, reasoned decision setting forth specific findings on each pertinent statutory requirement. We held that as with awards granting attorney fees without the proper support, we would find these awards deficient, and we would strike the portion of the award denying the fees. We held that in such cases we would no longer remand the issue of attorney fees to the parties for further proceedings.

In this case, the Arbitrator denied the motion for attorney fees without the necessary support. The Arbitrator completely failed to address the Union's assertions that an award of fees was warranted in the interest of justice because: (1) the Agency had engaged in a prohibited personnel practice; (2) the Agency's action was clearly without merit and wholly unfounded; and (3) the Agency knew or should have known that it would not prevail on the merits. In addition, in our view, the Arbitrator failed to provide a fully articulated, reasoned decision setting forth specific findings supporting his determination that the Agency's actions were not in bad faith. Accordingly, we find that the Arbitrator's denial of attorney fees is unsupported by a fully articulated, reasoned decision as required under the Back Pay Act, 5 U.S.C. § 5596, and we will modify the award to strike the denial of fees.

XI. Decision

The Agency's exceptions are denied. The award is modified to include the payment of interest on the award of backpay and to strike the denial of attorney fees.




FOOTNOTES:
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1. Article XLIV, Section 7, entitled "Temporary Promotions," provides: "When all requirements for promotion are met and an employee is assigned to a higher graded position for more than 60 consecutive calendar days, a temporary promotion will be effected."

2. In denying the exception, we have considered the memorandum of the Agency's representative before the Arbi