46:0853(75)AR - - VA, West Los Angeles Medical Center, Los Angeles, CA and AFGE Local 1061 - - 1992 FLRAdec AR - - v46 p853



[ v46 p853 ]
46:0853(75)AR
The decision of the Authority follows:


46 FLRA No. 75

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF VETERANS AFFAIRS

WEST LOS ANGELES MEDICAL CENTER

LOS ANGELES, CALIFORNIA

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1061

(Union)

0-AR-2288

_____

DECISION

December 3, 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 Donald T. Weckstein filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exceptions.

The grievant filed a grievance claiming that the Agency failed to compensate him properly for work performed while he was detailed to a higher-graded supervisory position. The Arbitrator sustained the grievance and ruled that the Agency should give the grievant a retroactive temporary promotion with backpay. The Agency contends that the award is contrary to the Back Pay Act, 5 U.S.C. § 5596, and to regulations of the Office of Personnel Management (OPM). For the following reasons, we conclude that the Agency's exceptions fail to demonstrate that the award is deficient and we will deny the exceptions.

II. Background and Arbitrator's Award

The grievant was appointed to the position of Medical Clerk, GS-4 in the Medical Administration Service effective October 16, 1989. On November 27, 1989, he began serving as the acting supervisor of the Correspondence and Insurance Unit (C&I Unit). On December 5, 1989, he was officially appointed to the acting supervisor position by a memorandum from the Chief of the Medical Administration Service. The position was classified as Supervisory Program Clerk, GS-8 from August 23, 1989, until October 16, 1990, when it was reclassified at the GS-7 grade level. The grievant served as acting supervisor performing the duties of the Supervisory Program Clerk position until April 12, 1991. On February 25, 1990, the grievant was promoted to GS-5 and was at that grade level when the detail as acting supervisor ended on April 12, 1991.

The grievant filed a grievance alleging that he was not compensated for performing higher-grade duties and claiming entitlement to a retroactive temporary promotion with backpay. The grievance was not resolved and was submitted to arbitration. The parties stipulated that the following issues were before the Arbitrator:

1. Did the Agency compensate [the grievant] to the fullest extent under the law?

2. Can the Agency be ordered to compensate [the grievant] for a period of time that he was not entitled to receive compensation?

Award at 2.

The Arbitrator found that the grievant's supervisor had attempted to settle the grievance "by agreeing to pay the [g]rievant retroactively, at the GS-7 level, from October 10, 1990 to March 9, 1991." Id. at 7. The Arbitrator noted, however, that an Agency personnel official "testified that that promotion would have been illegal because the Agency was precluded by Government regulations from promoting a GS-5 to a GS-7 unless there was no GS-6 position in the unit, and there was a GS-6, Program Clerk position in the C&I Unit." Id. The grievant's supervisor also offered him a promotion to the GS-7 level from March 10 to April 14, 1991, but the Agency refused to effect the promotion on the ground that it would be illegal to promote the grievant to the GS-7 level when there was a GS-6 position in the C&I Unit.

The Arbitrator found that there was no dispute over the fact that the grievant had been assigned to perform and had satisfactorily performed the duties of the GS-7 supervisory position. The Arbitrator stated that "the key issue in this arbitration is whether there is any legal basis for any additional compensation to be paid the [g]rievant . . . ." Id. at 9. In discussing the role of the grievant's supervisor in causing the grievant to perform the higher-graded duties while being paid at the GS-4 and GS-5 grade levels, the Arbitrator stated that "basic equity would estop the Agency from denying responsibility for the acts of its supervisors who, knowingly or unknowingly, set a trap to lure unwary employees to perform work for which they will not be justly compensated." Id.

The Arbitrator cited a number of Authority decisions denying exceptions to awards that enforced collective bargaining provisions requiring the temporary promotion of employees detailed to perform duties of higher-graded positions. He noted that the parties' collective bargaining agreement contains such a requirement in Article 16, Section 2.A., which provides:

Employees detailed to a higher[-]grade position for a period of more than 10 consecutive work days must be temporarily promoted. The temporary promotion should be initiated at the earliest date it is known by management that the detail is expected to exceed 10 consecutive work days.

Id. at 3. The Arbitrator found that "[t]he [g]rievant was detailed to a higher[-]grade position for more than 10 consecutive work days, and, absent other considerations, should have been temporarily promoted." Id. at 10. He stated that, under the Back Pay Act, the Agency's failure to promote the grievant "may have constituted an unjustified or unwarranted personnel action which resulted in the withdrawal or reduction of the [g]rievant's pay and allowances, and but for such action, the [g]rievant would not have suffered such withdrawal or reduction." Id.

However, the Arbitrator noted that in order to be promoted to a higher-graded position, the grievant must meet the minimum qualifications for the position. The Arbitrator found that the grievant lacked the minimum qualification requirements for promotion to GS-7 during the time of his detail because he was only at the GS-4 level until February 25, 1990, at which time he was promoted to the GS-5 level. The Arbitrator found that the grievant became eligible for promotion to GS-6 on February 24, 1991. The Arbitrator concluded that, because there was a GS-6 position in the C&I Unit, the grievant could not have been promoted to GS-7 until he had served 1 year at the GS-6 level.

The Arbitrator noted that under 5 C.F.R. § 300.603(d) (1990), the head of the Agency, his designee, or OPM could waive the time-in-grade requirements in order to avoid undue hardship to the Agency or inequity to an employee.(*) The Arbitrator stated that although there was no express waiver of the time-in-grade requirements by either the Agency head or OPM in this case, the supervisor's attempts to settle the grievance by offering the grievant temporary promotions with backpay "could be construed as a waiver of the time-in-grade requirements if approved by a person delegated authority by the Agency head to grant such waivers, or, if not, as a basis for initiating a waiver request to the appropriate authority." Id. at 11. The Arbitrator further stated that "[t]o so construe the Agency's actions in this matter finds support in" U.S. Department of Veterans Affairs, Medical Center, Allen Park, Michigan and American Federation of Government Employees, Local 933, 38 FLRA 688 (1990) (VA Allen Park), requests for reconsideration denied, 41 FLRA 1429 (1991). Id.

In answering the issues before him, the Arbitrator concluded that "it is apparent that (1) the Agency [cannot] be ordered to compensate the [g]rievant for a period of time that he was not legally entitled to receive compensation, but that (2) the Agency did not compensate the [g]rievant to the fullest extent under the law." Id. at 12. The Arbitrator found that the Agency could have paid the grievant at the GS-6 level from February 24, 1991, until April 12, 1991, and, by requesting or granting a waiver of the time-in-grade requirements, could have paid him at the GS-7 level from October 10, 1990, to April 14, 1991. The Arbitrator stated that because "the issues stipulated to by the [p]arties did not specifically authorize the Arbitrator to frame an appropriate remedy, [he could] only recommend that the Agency grant all or some segment of the compensation which they could have lawfully paid to the [g]rievant . . . ." Id.

The Arbitrator made the following award:

1. The Agency did not compensate the [g]rievant . . . to the fullest extent under the law.

2. The Agency can not be ordered to compensate the [g]rievant . . . for a period of time that he was not legally entitled to receive compensation.

3. The Agency should authorize a retroactive promotion, and appropriate pay and allowances for such a position, of the [g]rievant . . . to either (1) a GS-6, Program Clerk position, from February 24, 1991 to April 12, 1991, or (2) a GS-7, Supervisory Program Clerk position, for all or part of the period from October 10, 1990 to April 14, 1991, by waiving or initiating a waiver request of the time-in-grade requirements for such position due to the otherwise inequity to the [g]rievant.

4. Pursuant to the [F]ederal Back Pay Act, 5 U.S.[C. §] 5596(b)(1)(A)(2), the [g]rievant shall be paid interest at the applicable legal rate on all back pay due him.

Id. at 1.

III. Positions of the Parties

A. The Agency

The Agency contends that the award is contrary to the Back Pay Act and asserts that there was no unwarranted or unjustified personnel action taken against the grievant which caused him to lose pay or allowances to which he was entitled. The Agency maintains that the grievant received the only pay to which he was legally entitled in the GS-4 and GS-5 medical clerk positions.

The Agency acknowledges that Article 16, Section 2 of the parties' agreement requires the temporary promotion of employees detailed to higher-graded positions for more than 10 days. However, the Agency maintains that Article 16, Section 2 does not apply in this case because the Agency is precluded by OPM regulations from promoting the grievant, and, consequently, the Agency's failure to promote the grievant does not constitute an unjustified or unwarranted personnel action under the Back Pay Act.

The Agency contends that there was no waiver of the time-in-grade requirements by either OPM or by the Agency head or his designee. The Agency asserts that "the authority to waive the time-in-grade requirements is discretionary, not mandatory, under [5 C.F.R. § 300.603(b)(7) and (8)], which states that a waiver 'may' be made." Exceptions at 14. The Agency maintains that in the absence of a waiver or a nondiscretionary requirement, the promotion of the grievant would be "unlawful under the Comptroller[] [General's] decisions." Id. The Agency denies that it has ever negotiated away its authority to enforce the time-in-grade requirements and denies that it has ever made an explicit or implicit waiver of its discretion in that regard. The Agency also asserts that it has no obligation to promote the grievant to a GS-6 position rather than the GS-7 position to which he was detailed.

In denying that the Agency head or his designee had waived the time-in-grade requirements in the grievant's case, the Agency states that the grievant was detailed to the higher-graded position by the Chief of the Medical Administration Service who, "acting without authority and in violation of [Agency] policy[,] unlawfully consented several months after the temporary detail to promote retroactively the [g]rievant for a four[-]month period." Id. at 17-18 (emphasis deleted). The Agency contends that the Chief of the Medical Administration Service had no authority to waive the time-in-grade requirements on behalf of the Agency.

B. The Union

The Union contends that the Agency's exception should be dismissed because it fails to state a ground on which the award is deficient under section 7122(a) of the Statute. The Union claims that the Agency's exception "is deficient because it is a statement of law, rather than even a facial claim that the Arbitrator erred in applying the law in a way that produced conflict between the award and applicable law, rule, or regulation, or in a way that would be similar to the grounds on which private sector arbitration awards may be set aside." Opposition at 6.

The Union denies that the award is contrary to the Back Pay Act and asserts that the Agency committed an unjustified and unwarranted personnel action that caused the grievant to lose pay to which he was entitled. The Union maintains that the Agency's violation of Article 16, Section 2 constitutes the necessary finding to support an award of a retroactive temporary promotion for the grievant under the Back Pay Act. The Union contends that the grievant was qualified for promotion to the GS-6 level from February 24, 1991, through April 12, 1991, because at that time he had already served 1 year at the GS-5 level.

The Union also contends that the Agency effectively waived the time-in-grade requirements for promotion to the GS-7 level. The Union maintains that because a waiver of the time-in-grade requirements was necessary to comply with Article 16, Section 2.A. of the parties' agreement, the Agency cannot assert that it lacked discretion to waive those requirements. The Union contends that all the requirements for a temporary promotion of the grievant were met when the grievant had worked in the higher-graded position for more than 10 days. The Union asks that the Authority modify the award to require the grievant's retroactive temporary promotion to the GS-7 level with backpay for the period during which he was detailed to the GS-7 position.

IV. Analysis and Conclusions

A. Preliminary Matters

We find no basis for granting the Union's request that the Agency's exceptions should be dismissed because they fail to state a ground upon which an award may be found deficient under section 7122(a) of the Statute. The Agency's contentions that the arbitration award is deficient because it is contrary to the Back Pay Act provide sufficient grounds to consider the exceptions under section 7122(a) of the Statute.

In its opposition, the Union requests that the Arbitrator's award be modified to require the Agency to give the grievant a retroactive temporary promotion with backpay to GS-7 for the period during which he was detailed to the GS-7 position. We construe the Union's request as an exception to the Arbitrator's award. The time limit for filing an exception to an arbitration award is 30 days beginning on the date the award is served on the filing party. 5 C.F.R. § 2425.1. The Arbitrator's award was dated and served on the parties on April 17, 1992. The Union's exception contained in the opposition to the Agency's exceptions was received at the Authority on July 20, 1992, more than 30 days after the Arbitrator's award was served on the parties. Consequently, insofar as the Union's submission constitutes an exception to the Arbitrator's award, the Union's exception is dismissed as untimely. See U.S. Department of the Army, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 1102, 1104 (1990).

B. The Award Is Not Deficient

We conclude that the Agency has failed to establish that the Arbitrator's 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. For example, U.S. Department of the Army, Fort Polk, Louisiana and National Association of Government Employees, Local R5-168, 44 FLRA 1548, 1553-54 (1992). 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 1554. In our view, the Arbitrator's award satisfies these requirements of the Back Pay Act.

The Arbitrator found that the grievant was entitled to a temporary promotion under Article 16, Section 2 of the parties' collective bargaining agreement when he stated that "[t]he [g]rievant was detailed to a higher[-]grade position for more than 10 consecutive work days, and, absent other considerations, should have been temporarily promoted." Award at 10. The Authority has consistently held that agreement provisions which permit employees to receive temporary promotions when they are assigned to perform the duties of higher-graded positions are enforceable in arbitration. See VA Allen Park, 38 FLRA at 697-98 (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 the instant case, 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. In addition, the Agency's failure to temporarily promote the grievant clearly resulted in a loss of pay to the grievant. Therefore, we find in the Arbitrator's opinion and award 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 id.

We find that the Agency's contentions relating to the time-in-grade requirements fail to establish that the Arbitrator's award is deficient. The Agency asserts that the award is deficient because the Agency head did not waive the time-in-grade requirements for promotion to GS-7 and, therefore, the grievant could not be promoted. However, the Arbitrator's award gave the Agency two options in this respect. The first option was to promote the grievant to a GS-6 position for the period February 24, 1991, to April 12, 1991, because, as the Arbitrator found, the grievant had already served for 1 year at the GS-5 level and had met the time-in-grade requirements for promotion to the GS-6 level. Consequently, the Agency has not demonstrated that this option is contrary to the time-in-grade requirements. Alternatively, the Arbitrator gave the Agency the option of promoting the grievant to the GS-7 level for the period October 10, 1990, to April 14, 1991, by waiving the time-in-grade requirements. Such a waiver of the time-in-grade requirements by the Agency is permissible under 5 C.F.R. § 300.603(b)(7) and Authority precedent. See VA Allen Park, 38 FLRA at 697-98. The Agency has not demonstrated that applicable law, rule or regulation would prevent the Agency from waiving the time-in-grade requirements and complying with this option. Accordingly, we conclude that the Agency has not demonstrated that this portion of the award is deficient and we will deny the Agency's exceptions.

V. Decision

The Agency's exceptions are denied.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

*/ 5 C.F.R. § 300.603 (1990) was revised effective June 19, 1991. As revised, section 300.603(b)(7) contains the exclusion from the time-in-grade requirements that permits an agency head to redelegate authority to waive the requirements based on hardship or inequity and provides as follows:

(7) Advancement to avoid hardship to an agency or inequity to an employee in a