48:1362(142)AR - - AFGE, Locals 830 and 2130 & Army Corps of Engineers, Detroit District - - 1994 FLRAdec AR - - v48 p1362
[ v48 p1362 ]
The decision of the Authority follows:
48 FLRA No. 142
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCALS 830 AND 2130
U.S. DEPARTMENT OF THE ARMY
U.S. ARMY CORPS OF ENGINEERS
January 10, 1994
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 Alan Walt filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency filed an opposition to the Union's exceptions.
The Arbitrator denied two similar grievances seeking backpay for certain employees. For the following reasons, we conclude that the Union has failed to establish that the award is deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
Two grievances were filed on behalf of "floating plant" employees of the Agency's Detroit District located in Duluth, Minnesota and Sault Ste. Marie, Michigan (referred to as the Soo) whose wages were covered under a special rate schedule.(1) The grievances alleged that when the Agency implemented a pay schedule change for the floating plant employees the employees were entitled to backpay under the parties' agreements and the Back Pay Act. The grievances were not resolved and were submitted to arbitration.
Prior to May 26, 1992, floating plant employees in the Soo and Duluth areas, as well as in a number of other areas, were paid at a different rate, usually lower, than other employees in the same areas and districts because of special pay schedules that had been implemented for floating plant employees nearly 40 years earlier. These special pay schedules were exceptions to the regular wage schedules in effect in the particular geographic areas and districts.
In 1980 the floating plant employees in Duluth and the Soo continued to be compensated at wage rates set forth in the special pay schedules under which they had been paid previously even though both groups had been reassigned to the Detroit District headquarters, which had a different wage schedule. Following the reassignment of the Duluth and Soo floating plant employees to the Detroit District headquarters, there were several complaints regarding wage disparities, but a Union grievance filed over these matters was not pursued.
The question of disparate pay practices resulting in lower wage rates for floating plant employees in the Soo and Duluth areas was raised again in 1992. On May 26, 1992, the Office of Personnel Management (OPM) informed the Department of the Army (Army) that, based upon the recommendation of the Federal Prevailing Rate Advisory Committee (FPRAC), the Army should make "a prospective modification of the set-aside pay practice for [the Agency's] floating plant (other than hopper dredge) special schedules." Award at 7.(2) As a result, all exceptions to the Agency's general policy of paying, throughout an entire district, wage rates equal to the regular schedule for the district headquarters location, were terminated. Specifically, this change cancelled six special schedules, two of which affected the wages of employees who are the grievants in this case. The Agency implemented the change in pay policy for the Duluth and Soo floating plants effective on the first pay period after May 26, 1992. Because OPM had directed only prospective modification of the special rates, the Agency made no retroactive pay adjustments.
The Union contended before the Arbitrator that the floating plant employees at both Duluth and the Soo are entitled to retroactive backpay from June 29, 1980, when, according to the Union, the Duluth and Soo floating plant employees were transferred into the Detroit District. The Union asserted that these employees were wrongfully excluded from a higher rate of pay by Agency inaction. The Union claimed that after the transfer the floating plant employees in Duluth and the Soo were always entitled to be paid under the regular schedule applicable to the Detroit District headquarters, citing Federal Personnel Manual (FPM) Supplement 532-1, Appendix V, Section B1.(3) The Union contended that the Agency had failed in its responsibility to pursue through FPRAC and OPM a review and rectification of the lower wages received by the employees in question. The Union asserted that, by its failure to act, the Agency had violated and misapplied law, rule, and regulation affecting a condition of employment in violation of the parties' agreements.
The Agency contended before the Arbitrator that the issue was whether, prior to May 26, 1992, the Agency either violated or misapplied a law, rule, or regulation affecting a condition of employment by paying the floating employees according to the special schedules set forth in the FPM Supplement. However, the Agency also argued that the grievances were not substantively arbitrable because an arbitrator has no authority to change a special pay schedule authorized by OPM.
The Arbitrator found that: (1) it was undisputed that prior to May 26, 1992, floating plant employees at Duluth and the Soo were paid under special pay rates schedules that were properly promulgated and implemented; (2) those schedules were placed in effect by the Army-Air Force Wage Board and when the Federal Wage System was adopted, in or about 1973, they were continued unchanged; and (3) OPM possessed the authority to continue special pay schedules that provided different wage rates from those received by other employees in the same district.
The Arbitrator also found that although FPM Supplement 532-1, Appendix V, Section B1 could reasonably be interpreted to require payment to the Duluth and Soo floating employees under the Detroit wage schedule, as the Union argued, it was also reasonable to conclude that the language was adopted to explain the reasons for the special wage schedules previously listed in the appendix that were in effect at that time (including the special rate schedules of the employees in question). The Arbitrator further found that because "only OPM possesses statutory authority to establish and administer wage schedules and rates, the interpretation sought by the Union can only be granted by that agency." Award at 11. With regard to the Union's argument that the Agency failed to pursue review of the special pay schedules of the employees, the Arbitrator found that FPM Supplement 532-1, S2-2, which according to the Arbitrator was cited by the Union, does not impose an obligation on the Agency to urge action by either FPRAC or OPM, and that the Union had cited no contract language requiring the Agency to pursue that course of action.
The Arbitrator concluded that because OPM had expressly directed only the prospective cancellation of the special pay schedules under which floating plant employees in Duluth and Soo were being paid, OPM had intentionally denied retroactive effect to its order of May 26, 1992. The Arbitrator denied the grievances, finding that the Union "had not shown 'a violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment[,]'" as alleged in the Soo grievance, or "a violation of 'existing . . . laws and the regulations of appropriate authorities, including policies set forth in the Federal Personnel Manual; by published agency policies and regulations in existence at the time the Agreement was approved, and by subsequently published agency policies and regulations required by law or by regulations of appropriate authorities,'" as alleged in the Duluth grievance. Id. at 13 (quoting Article 8, § 2(c)(2) and Article 2, § 3 of the Soo and Duluth bargaining agreements, respectively).
III. Positions of the Parties
A. The Union
The Union contends that the Arbitrator's award is contrary to the parties' collective bargaining agreements and the FPM. Specifically, the Union maintains that the Agency violated FPM 532-1, subchapters 3 and 4 and thereby violated the sections of the parties' collective bargaining agreements that require the Agency to abide by existing laws and regulations. The Union also contends that the award is deficient because the Arbitrator cited a different section of the FPM than that referenced by the Union to establish the Agency's responsibility regarding wage schedules, and "abdicat[ed]. . . his responsibility to determine the issue of 'prospective', independently of . . . the decision made by [OPM]". Exceptions at 2.
The Union admits that the special pay schedules for the Duluth and Soo floating plant employees were properly promulgated in 1973. The Union further concedes that the Duluth and Soo floating plant employees were a part of the "obsolete set-aside schedule established 20 years earlier" and that this "allowed their pay to remain as a special schedule until review[ed] and changed." Id. at 7. The Union argues that this situation was expected to last for approximately 2 years, but lasted 20 years because of the inaction of the Agency. The Union maintains that the Agency was obligated, in accordance with FPM Supplement 532-1, subchapter 4 and Army Regulation (AR) 690-532-1,(4) to request the cancellation of the special schedules as soon as they knew that they were no longer valid. The Union claims that when the floating plant employees were reassigned to the Detroit District headquarters, they were entitled to the pay of that district headquarters pursuant to FPM Supplement 532-1, Appendix V. The Union further argues that the Agency had the responsibility at the local level to pay the proper wage rate. It cites as support for this proposition FPM Supplement 532-1, subchapter S3-3.(5) The Union maintains that the Agency at the local level also has the responsibility to initiate prompt action to resolve any disparity in pay.
The Union further contends that the Arbitrator erred by citing FPM Supplement 532-1, subchapter S2-2, entitled "Special Schedules," rather than FPM Supplement 532-1, subchapter S3-3, when discussing the Union's argument that the Agency had an obligation to initiate such an action. The Union maintains that had the correct regulation been addressed by the Arbitrator, he would have found that the Agency had a responsibility at the local level to pay wage grade employees properly, to discontinue special schedules promptly when no longer needed, and to bring such pay matters before the FPRAC.
Finally, the Union concedes that OPM has the ultimate responsibility to establish wage schedules and rates, but argues that the Arbitrator erred in concluding that he had to give conclusive effect to OPM's direction to the Agency that the modification of wage rates should be prospective only. The Union claims that the issue of wage rate disparity was brought to OPM in 1981 and that by not awarding backpay now, "OPM exonerates itself for failure to act to resolve the pay disparity eleven years prior . . . ." Id. at 10. The Union contends that the Arbitrator has failed in his responsibility to adjudicate this grievance by accepting the decision of OPM "as gospel." Id. at 11.
B. The Agency
The Agency contends that the Union's exceptions seek to relitigate the issues and arguments the Union raised before the Arbitrator and, therefore, reflect mere disagreement with the Arbitrator's findings and conclusions, which the Agency claims provides no basis for finding the award deficient.
Specifically, the Agency maintains that the Union has not offered any specific evidence to support its claim that the award is contrary to the parties' agreements or the FPM subchapters it identified. The Agency argues that it has neither the responsibility nor the right to cancel special pay schedules because that responsibility belongs to OPM. The Agency further argues that the Union has not established that the Arbitrator was wrong in concluding that the Agency violated neither agency regulations nor FPM Supplement 532-1, subchapter S3-3 by failing to initiate action promptly to resolve the pay disparity.
The Agency also contends that the Union has offered no proof that the Arbitrator erred when he gave conclusive effect to OPM's direction that the modification of the special schedules be prospective only. The Agency notes that the Union concedes that OPM has the ultimate responsibility to establish wage schedules and rates, and argues that it is, therefore, illogical for the Union to maintain that OPM lacks the authority to determine the effective date of those schedules. The Agency contends that the Union has not demonstrated that the Arbitrator's determination in this regard was contrary to law, rule, or regulation. Rather, the Agency maintains that the Union's argument amounts to mere disagreement with the Arbitrator's decision.
With regard to the Union's allegation that the Arbitrator relied on an erroneous citation concerning the responsibility of the Agency to pay its wage grade employees properly and to change promptly special schedules that are no longer valid, the Agency maintains that this allegation is an assertion that the Arbitrator's award is based on a nonfact. The Agency contends that the Union fails to demonstrate that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the Arbitrator. The Agency argues that the Arbitrator had before him and considered all the relevant FPM citations. The Agency contends that none of the cited FPM subchapters requires that an agency request changes in special schedules. Thus, the Agency maintains that the Union's argument represents a disagreement with the Arbitrator's conclusion that the Agency had no legal obligation to urge change to the special pay schedules.
Accordingly, the Agency contends that the Union's exceptions provide no basis for finding the award deficient and should be dismissed.
IV. Analysis and Conclusions
We conclude that the Union fails to establish that the award is deficient on any ground set forth in section 7122(a) of the Statute.
The Union contends that the Arbitrator's award is contrary to Government-wide and agency regulations and to provisions in the parties' agreements requiring adherence to such regulations because the Arbitrator: (1) refused to recognize under the FPM the responsibility of the Agency to request promptly the cancellation of the disparate special pay schedules; and (2) abdicated his responsibility to determine the backpay issue by erroneously accepting OPM's determination that the change in wage rates should be applied only prospectively. Although it is clear that the Union's interpretation differs from the Arbitrator's with regard to the Agency's responsibility in this matter, we find that the Union fails to establish that the Arbitrator's interpretation of the relevant FPM subchapters is erroneous.
In this regard, none of the regulations cited by the Union in support of its position requires the Agency to initiate action to change authorized wage rates when such rates cause a pay disparity. Thus, FPM Supplement 532-1, subchapter S3-3 addresses only an agency's responsibility to pay and administer "authorized" wage rates. Similarly, FPM Supplement 532-1, subchapter S4, S4-3 refers to special schedules authorized by OPM and specifically states that such authorization "includes instructions for its application and administration." Finally, although AR 690-532-1 states at S4-3 that commanders "will promptly request" the cancellation of special schedules that "are no longer needed," the Union has not established that such an obligation was triggered in this case. We note in this regard that as examples of circumstances requiring such requests, the regulation cites "situations where these jobs are no longer used or sufficient qualified individuals are available." AR 690-532-1, subchapter S4, S4-3. Neither of these situations occurred here. There is no indication that the Army regulation was meant to apply to a situation where special rate employees have been transferred to an area with different wage schedules, as was the case here. The Union admits that the special pay schedules for the Duluth and Soo floating plant employees were properly promulgated. Accordingly, we find that the Union has not established that the Arbitrator's finding that the Agency was not obligated to urge action by either FPRAC or OPM is erroneous.
We also reject the Union's argument that the award is deficient because the Arbitrator determined that OPM's action of prospectively modifying the floating plant employees pay schedules precluded him from deciding the backpay issue. The Union has not shown that the Arbitrator's conclusion or interpretation conflicts with the FPM or is otherwise impermissible. The Arbitrator examined the Agency's actions in light of the relevant FPM subchapters and concluded, as conceded by the Union, that only OPM possesses the statutory authority to establish and administer wage schedules and rates. The Union has cited no authority, and none is apparent to us upon review of the applicable regulations, establishing that the Arbitrator's interpretation of the regulations is impermissible or that his conclusion is in conflict with any law, rule, or regulation. In view of the fact that the Union has not established that the Arbitrator's interpretation of the regulations is deficient, no basis is provided for finding that the Agency violated the parties' agreements by not abiding by laws and regulations. We conclude that the Union's contentions to the contrary constitute nothing more than an attempt to relitigate the merits of the grievances and evidence mere disagreement with the Arbitrator's interpretation of the applicable regulations and the parties' agreements. Accordingly, the Union's contentions provide no basis for finding the award deficient. See National Association of Government Employees, Local R5-188 and U.S. Department of the Air Force, Seymour Johnson Air Force Base, North Carolina, 48 FLRA 110, 113-14 (1993).
The Union also contends that the award is deficient because the Arbitrator erroneously used an incorrect FPM citation when discussing the Union's argument that the Agency was obligated to initiate action to resolve the pay disparity and that, but for the incorrect cite, the Arbitrator would have reached a different result. We construe the Union's claim as a contention that the award is based on a nonfact. To establish that an award is deficient because it is based on a nonfact, the party making the allegation must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. See, for example, U.S. Department of the Army, Headquarters III Corps and Fort Hood, Fort Hood, Texas and American Federation of Government Employees, Local 1920, 48 FLRA 724, 728 (1993).
The Union's exception fails to establish that the award is deficient on this basis