47:0207(13)AR - - Treasury, IRS, Cincinnati District, Cincinnati, OH and NTEU, Cincinnati Joint Council - - 1993 FLRAdec AR - - v47 p207



[ v47 p207 ]
47:0207(13)AR
The decision of the Authority follows:


47 FLRA No. 13

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S DEPARTMENT OF THE TREASURY

INTERNAL REVENUE SERVICE

CINCINNATI DISTRICT

CINCINNATI, OHIO

(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION

CINCINNATI JOINT COUNCIL

(Union)

0-AR-2315

_____

DECISION

March 26, 1993

_____

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 Edward P. Archer 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 Arbitrator sustained a grievance, in part, finding that certain grievants were assigned the work of higher-graded positions and were entitled to compensation at the higher grade level. He remanded to the parties the matter of determining the amount of backpay due the grievants and retained jurisdiction if the parties were unable to agree on such amounts.

For the reasons that follow, we conclude that the Agency has not established that the Arbitrator's award is deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The Union filed a grievance on behalf of GS-5, 7, 9 and 11 Revenue Officers (ROs) claiming that they performed higher-graded work and, as a result, were entitled to temporary promotions under Article 16 of the parties' collective bargaining agreements (NORD II and NORD III).(*) The grievance was not resolved and was submitted to arbitration.

The parties stipulated the following issues to be resolved by the Arbitrator:

1. Whether the Agency violated Article 16 of NORD II and NORD III, and, if so, what should be the remedy,

2. Whether the Agency, in fact, waived time in grade restrictions for a particular grievant.

Award at 4.

The Agency presented four additional issues to which the Union did not stipulate. However, the Arbitrator stated that he would resolve the issues because they were relevant to a determination of the remedy for the employees found to be aggrieved by the Agency's actions. Those issues were:

3. Whether the grievances were timely filed on behalf of each grievant,

4. Whether the appropriate percentage of time devoted to higher graded duties for purposes of a temporary promotion is 51% prior to January 1, 1990 and 25% thereafter,

5. Whether the calculation of the percentage of time devoted to higher graded duties includes both direct and indirect time, and

6. Whether the total time calculation includes time spent on collateral duties.

Id.

The Arbitrator first addressed the issue as to the meaning of the terms "detail" and "if eligible" contained in Article 16, Sections 1A and 1B of NORD II and NORD III. The Arbitrator noted a prior award in Internal Revenue Service, Jacksonville District and National Treasury Employees Union, Florida Joint Council (Ross and Squire, Grievants), Arbitrator Smith, July 21, 1977 (Ross and Squire), in which an arbitrator found that the assignment of higher-graded work in a mixed-grade position for a minimum period of time qualified an employee for higher-grade pay, that no formal detail was necessary, and that no formal vacancy at the higher grade was needed before an employee could work at the higher grade. The Arbitrator rejected the Agency's contention that significant changes in the parties' agreement negotiated since the award in Ross and Squire limited the application of Article 16. The Arbitrator found, based on a number of arbitral awards issued subsequent to Ross and Squire, that the language of NORD II and NORD III did not alter the findings of Ross and Squire.

The Arbitrator further found that there was no change in the language of Article 16 from NORD II to NORD III that required the Agency to waive time-in-grade requirements in determining an employee's eligibility for a detail. In this regard, the Arbitrator found that an employee may be detailed to a higher grade under Article 16 by being assigned the higher-graded work for the requisite period of time, but only if the employee meets the minimum qualifications for temporary promotion to the higher grade, including fulfilling time-in-grade requirements. In connection with the time-in-grade requirements, the Arbitrator rejected the Union's contention that GS-5 and GS-7 ROs performing GS-11 and GS-12 work at an acceptable level are entitled to temporary promotions at the GS-11 and GS-12 grade levels. The Arbitrator determined, in this regard, that a GS-5 or GS-7 RO could not be promoted to a GS-11 position because the RO would not have met the requirement of having served one year at the GS-9 level.

The Arbitrator also addressed the circumstances under which a grievance seeking a temporary promotion would be considered timely filed. The Arbitrator stated that this issue was not one of "first impression[,]" Award at 25; citing the award in Internal Revenue Service, Indianapolis District and National Treasury Employees Union, Chapter 49 (Melinda Jackson, Grievant), Arbitrator McDonald, November 2, 1989 (Jackson). In that case, involving an interpretation of NORD II, the arbitrator determined that "a grievance in protest of the denial of a temporary promotion was of a continuing nature and was timely filed within 15 days from when the grievant ceased performing the required percentage of higher grade work." Id. The Arbitrator found that the time limits in NORD III were the same as those in NORD II and, consequently, there was no need to modify the holding of the Jackson award. The Arbitrator also determined that the ROs in this case would not have notice that work performed at a higher grade level had ceased until they received a Delinquent Investigation Account Listing (DIAL) reporting that their case loads no longer supported a continuing claim for temporary promotion. Therefore, the Arbitrator concluded that "[t]he 15 working days should run from receipt of the first DIAL which indicates inadequate higher grade case load to justify a claim for temporary promotion for the period covered by the DIAL." Id. at 26.

The Arbitrator also found that the parties agreed that after January 1, 1990, an RO must perform higher-graded work at least 25 percent of the time in order to qualify for a temporary promotion under Article 16. The Arbitrator rejected the Agency's contention that prior to that date, the requisite percentage of time spent on higher-graded work to qualify for a temporary promotion was 51 percent. The Arbitrator found that the Agency's reliance on Office of Personnel Management (OPM) Position Classification Standards to support the 51 percent standard was misplaced because the grievance did not concern a classification matter. Rather, the Arbitrator found that "clear arbitral precedent[]" supported the Union's view that the standard of 25 percent applied for work performed prior to January 1990. Id. at 29.

In determining how to apply the requisite percentage standard, the Arbitrator found that "indirect time, such as paid leave," should not be considered in computing the percentage of higher-graded work necessary to qualify for a temporary promotion. In reaching this result, the Arbitrator examined Internal Revenue Manual (IRM) 0511 and OPM classification principles in finding that "it would be unreasonable . . . to charge all indirect time at the employee's assigned grade level and apply the test percentage to the total of direct and indirect time." Id. at 31. In addition, the Arbitrator rejected the Agency's argument that collateral duties, such as union duties performed on official time, must be included in an employee's total time for purposes of determining eligibility for a temporary promotion under Article 16. The Arbitrator found that time spent on "collateral union duties" should be treated like any other indirect time and excluded from the computation of the requisite percentage of time required to justify a temporary promotion. Id. at 34.

Finally, the Arbitrator refused to address an argument regarding his authority to grant a retroactive promotion in excess of 2 years. As the issue was raised by the Agency for the first time in its post-hearing brief, the Arbitrator stated that he would resolve the issue only if the parties disagreed as to its resolution and only if it was pertinent to a grievant's backpay claim. Accordingly, as his award, the Arbitrator ordered the Agency to calculate backpay for each of the grievants consistent with the findings made in his award. The Arbitrator also retained jurisdiction of the case in the event the parties were unable to agree on the amount of backpay to be awarded.

III. Positions of the Parties

A. The Agency

The Agency contends that the Arbitrator's award is deficient because it is contrary to law and regulations, including 5 U.S.C. § 5107 and 5 C.F.R. Part 511. More specifically, the Agency claims that the Arbitrator misapplied OPM Position Classification Standards and improperly found that: (1) 25 percent of time spent on higher-graded work prior to January 1, 1990, was the standard to qualify for a temporary promotion under Article 16 of the parties' agreement; (2) indirect time, such as paid leave, should not be considered when computing the required percentage of time spent on higher-graded work to qualify for a temporary promotion; and (3) time spent on collateral union duties should be treated like any other indirect time and excluded from the computation of the percentage of higher-graded work needed to qualify for a temporary promotion.

Initially, the Agency argues that OPM Position Classification Standards are Government-wide regulations. The Agency explains that the Classification Act of 1949 requires OPM to define Federal occupations, establish official position titles, and describe the grades of various levels of work. The Agency claims that because OPM issues position classification standards that must be used by Federal agencies, the standards are Government-wide regulations. In addition, the Agency contends that the Arbitrator was required to defer to OPM's interpretation of its regulations because courts have ruled that an agency's interpretation of its own regulations is controlling unless plainly erroneous or inconsistent with the language of the regulation. According to the Agency, the central issue in this case involves the term "position." Exceptions at 8. The Agency argues that only OPM Position Classification Standards may properly resolve an employee's entitlement to compensation for temporarily performing the duties of a higher-graded position.

In this connection, the Agency maintains that OPM's standards must be considered in determining if an employee in a "mixed-grade" position is entitled to a temporary promotion for performing duties of a higher-graded position. Id. The Agency states that the RO position is a "mixed grade" position, which means that an RO's work falls partly in one grade and partly in another. The Agency explains that the proper grade of each RO position is determined by evaluating the regularly assigned work. The Agency claims that in most instances the highest level work assigned and performed by the employee for the majority of that employee's time is grade determining. The Agency adds that if the highest level of work is a smaller proportion of the job, it may be grade controlling if it is assigned to the position on a regular and recurring basis and is a significant and substantial portion of the overall position. In this case, the Agency contends that the mere assignment of various cases to an RO's inventory does not determine whether the RO actually performs higher-graded work. Rather, the level of an RO's position is determined by the amount of time an employee spends working at a specific grade level. In this regard, the Agency claims that this case is distinguishable from Authority precedent involving temporary promotions, in which higher-graded work from one classification series and grade was assigned to a lower-graded employee of a different series and grade. The Agency contends that in those cases it was the kind of work that determined the grade and not the time spent doing that work, as in this case. The Agency claims that the Arbitrator failed to properly apply OPM's standards for mixed-grade positions and, therefore, that the award conflicts with a Government-wide regulation.

The Agency further asserts that the Arbitrator erred in determining that the requisite percentage of time devoted to higher-graded duties for the purpose of qualifying for a temporary promotion prior to January 1, 1990, was 25 percent, rather than 51 percent. According to the Agency, OPM Position Classification Standards in effect from 1963 to January 1990 state that in order for a position to be classified at a higher grade when the higher-graded work constituted less than a majority of the employee's total time, the higher level duties had to require "materially higher qualifications." Exceptions at 12. The Agency contends that the qualifications required of an RO to perform higher-graded work did not rise to the level of materially higher qualifications under the OPM standards and the ROs were not entitled to promotion to higher grade positions.

The Agency also states that in January 1990, OPM revised the Position Classification Standards. Under the revisions, the Agency claims that a smaller portion of a mixed grade position could be grade controlling if the highest level of work performed is at least 25 percent of an employee's total paid time. Consequently, the Agency argues that an RO's position can now be classified at a higher grade if the RO performs higher-graded work for at least 25 percent of that employee's total paid time. The Agency further contends, however, that the Arbitrator misapplied the decision in Jackson in determining that the 25 percent standard was applicable both before and after January 1990. According to the Agency, there was no dispute that the grievant in Jackson spent more than 51 percent of her time performing higher-graded duties.

Finally, the Agency contends that the Arbitrator erred in determining that the computation of the requisite percentage of time devoted to higher-graded duties does not include indirect time. The Agency argues that the Arbitrator misapplied IRM 0511 and the OPM regulations on which it is based in failing to include all of an employee's time in the computation. In this regard, the Agency claims that OPM has interpreted the word "time" to mean "total time . . . ." Exceptions at 18. The Agency argues that the Arbitrator's reasoning violates OPM's standards and an Agency regulation by requiring a temporary promotion when a position has not legitimately been found to be at a higher grade level. The Agency also argues that the award is inconsistent with the Back Pay Act. Citing Matter of Roy F. Ross and Everett A. Squire, 57 Comp. Gen. 536 (1978), the Agency states that backpay in this circumstance is appropriate only when the conditions described by the Comptroller General are satisfied.

B. The Union

The Union contends that the Agency has failed to demonstrate that the Arbitrator's award is governed by OPM Position Classification Standards. The Union states that the Authority has held that grievances over whether bargaining unit employees are entitled under a collective bargaining agreement to compensation at a higher rate of pay because they temporarily performed the duties of a higher-graded position do not concern a classification matter under section 7121(c)(5) of the Statute. In this case, the Union argues that the grievance concerned the grievants' entitlement to temporary promotions under the parties' agreement. According to the Union, the Arbitrator made a factual determination that employees performed duties at the higher-graded position and at the requisite level established by the parties' agreement. The Union argues that the Arbitrator correctly applied the proper contractual standard established in Ross and Squire.

The Union further states that although the Agency admits that this case does not concern a classification appeal, the Agency erroneously claims that the Arbitrator's interpretation of the parties' agreement regarding temporary details must be governed by OPM classification standards. The Union argues that because this case does not concern a classification appeal, the statutory or regulatory provisions concerning classification matters do not apply. Therefore, the Union argues that the Authority need not reach the question of whether OPM Position Classification Standards are Government-wide regulations.

IV. Analysis and Conclusions

For the following reasons, we find that the Agency has failed to establish that the award is deficient. Accordingly, we will deny the exceptions.

First, the Agency claims that the award is inconsistent with 5 U.S.C. § 5107, 5 C.F.R. Part 511, and OPM Position Classification Standards. This contention must be rejected. The statutory and regulatory provisions cited by the Agency relate to the classification of positions. However, the Arbitrator found that the grievance in this case does not involve the classification of the grievants' positions. Rather, the grievance concerns whether certain ROs are entitled under the parties' agreement to compensation at a higher rate of pay for temporarily performing the duties of a higher-graded position. Because this case does not concern a classification matter, the cited authorities do not govern whether the contractual requirements for temporary detail to a higher-graded position have been met. Consequently, the exception provides no basis for finding the award deficient. See, for example, 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) (the Authority upheld an award ordering a temporary promotion with backpay under a provision of the parties' agreement governing details to higher-graded positions).

We also reject the Agency's argument that the Arbitrator incorrectly found that indirect time, including time spent on collateral duties, should not be included in the computation of the percentage of higher-graded work required to qualify for a temporary promotion under Article 16. We construe this contention as an assertion that the award fails to draw its essence from the parties' agreement.

For the Authority to find that an award is deficient because it fails to draw its essence from a collective bargaining agreement, the party making such an allegation must demonstrate that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact, and so unconnected with the wording and purpose of the agreement as to manifest an infidelity to the arbitrator's obligation; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See, for example, U.S. Department of the Navy, Naval Mine Warfare Engineering Activity, Yorktown, Virginia and National Association of Government Employees, Local R4-97, 39 FLRA 1207, 1211 (1991). The Agency has not demonstrated that the award fails to draw its essence from the agreement under any of these tests. Thus, the Agency has not established that the Arbitrator's interpretation of Article 16 was irrational, implausible, or unconnected with the wording of the agreement. Rather, the Agency's exception constitutes mere disagreement with the Arbitrator's interpretation of the parties' agreement and provides no basis for finding the award deficient. See, for example, American Federation of Government Employees, Local 916 and U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 46 FLRA 846, 851 (1992).

In addition, we reject the Agency's assertion that the award is inconsistent with IRM 0511. Section 7122(a) of the Statute provides that an arbitration award is deficient if it conflicts with a governing rule or regulation. In this case, the Agency has not established that its regulation governs the disposition of the grievance and, even assuming that were the case, the Agency has not established that the award is contrary to the regulation. In our view, the Agency's exception constitutes an attempt to relitigate this case before the Authority, as well as disagreement with the Arbitrator's reasoning and conclusions. The exception provides no basis for finding the award deficient. See U.S. Department of Defense Dependents Schools, Mediterranean Region and Overseas Federation of Teachers, AFT, AFL-CIO, 47 FLRA No. 1, slip op. at 7 (1993).

Finally, we find no merit to the Agency's exception that the award is inconsistent with the requirements of the Back Pay Act as explained by the Comptroller General in Matter of Roy F. Ross and Everett A. Squire. In that decision, the Comptroller General addressed the legality of the arbitrator's award ordering backpay in Ross and Squire. Among other things, the Comptroller General determined that that award did not violate law and regulation, citing prior decisions authorizing backpay for employees who, on the basis of negotiated agreements or agency regulations, had performed duties at a higher grade level. In our view, the Agency has not established that the award is inconsistent with the Back Pay Act. Rather, the Agency's exception constitutes mere disagreement with the Arbitrator's reasoning and conclusions. As we stated above, such an exception provides no basis for finding the award deficient. Accordingly, we will deny the exception.

V. Decision

The Agency's exceptions are denied.

APPENDIX

The relevant provisions of NORD II are as follows:

Article 16 Details

Section 1

A. For the purposes of this article, a detail is defined as the temporary assignment of an employee to a different position for a specified period, with the employee returning to regular duties at the end of the detail.

B. The Employer agrees that an employee who is detailed to a position of higher grade for thir