49:562(50)AR - - Army Armament Research Development and Engineering Center and AFGE, Local 225 - - 1994 FLRAdec AR - - v49 p562
[ v49 p562 ]
The decision of the Authority follows:
49 FLRA No. 50
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE ARMY
ARMY ARMAMENT RESEARCH
DEVELOPMENT AND ENGINEERING CENTER
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
March 18, 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 Susan T. Mackenzie 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 determined that the grievant was not entitled to a temporary promotion under the parties' collective bargaining agreement. We conclude that the Union fails to establish that the award is deficient. Accordingly, we will deny the Union's exceptions.
II. Background and Arbitrator's Award
The grievant is a GS-7 financial program assistant. She claimed that for an extended period of time, she had performed the duties of a GS-9 budget analyst, and that, consequently, she was entitled to a temporary promotion. The grievance was not resolved and was submitted to arbitration.
Before the Arbitrator, the Union argued that the grievant had performed the duties of the higher-graded position since May 1990, and that this was evidenced by her work product, which included obligation plan work, monitoring and projection of funds work, and work as the point of contact and liaison with other offices and customers. The Union asserted that under Federal Personnel Manual (FPM) chapter 300, the Agency was obligated to have temporarily promoted the grievant and that, therefore, a remedy of backpay was warranted.(*) The Agency first argued that the grievance was not arbitrable. On the merits, the Agency argued that, except for a few instances in which the grievant may have performed the duties of a higher-graded position, the duties performed by the grievant were those of her GS-7 financial program assistant position.
The Arbitrator ruled that the grievance was arbitrable. On the merits, the Arbitrator denied the grievance. The Arbitrator found that the work performed by the grievant was the work of her position and that, in any event, the Arbitrator was not authorized to award a temporary promotion for the performance of the duties of a higher-graded position.
Specifically, the Arbitrator found that, other than on a limited and infrequent basis, the record did not establish that the duties routinely performed by the grievant since May 1990 were not the duties of her official job description, including the obligation plan work and projection of funds work. In support of this conclusion, the Arbitrator quoted some of the major duties set forth in the "Financial Program Assistant job description" and the "Financial Program Management position description" and stated that these duties are fully consistent with the duties performed by the grievant. Award at 10-11.
In any event, the Arbitrator held that there was no basis on which she was authorized to award a retroactive temporary promotion with backpay. She rejected the FPM as a basis for awarding a temporary promotion. She found that for an employee to be entitled to a promotion for performing the duties of a higher-graded position for an extended period of time, the promotion must be mandated either by an agency regulation or by a provision of a collective bargaining agreement. The Arbitrator noted that, in this case, there was "no such collective bargaining agreement provision or regulation . . . ." Id. at 13.
For these reasons, the Arbitrator found that the grievant was not entitled to have been promoted, and she denied the grievance.
III. Positions of the Parties
A. Union's Exceptions
The Union contends that the award is contrary to the FPM and is based on a nonfact.
The Union asserts that the Arbitrator's determination that there must be a provision in the parties' collective bargaining agreement or a regulation of the Agency mandating a promotion for the performance of the duties of a higher-graded position in order for the grievant to have been entitled to be promoted is contrary to FPM chapter 300, subchapter 8. The Union claims that the detail provisions of chapter 300 authorize an award of backpay to the grievant.
The Union also claims that the Arbitrator's finding that the duties performed by the grievant were those of her position of GS-7 financial program assistant is based on a nonfact. The Union asserts that the position description from which the Arbitrator quoted in finding that the grievant performed only the work of her position was the position description of a GS-9 financial program specialist. The Union argues that, therefore, the Arbitrator should have found that the grievant was performing the higher-graded duties of the GS-9 specialist position and that her failure to do so was based on the erroneous conclusion that the work of the GS-9 specialist position was the work of grievant's GS-7 assistant position.
B. Agency's Opposition
The Agency contends that the Union's exceptions provide no basis for finding that the award is deficient. The Agency argues that although the Arbitrator was not careful in distinguishing between the grievant's position and the GS-9 financial program specialist position, the Arbitrator's quotations do not negate her basic finding that the grievant performed the work of her own position. However, the Agency asserts that even if that finding is erroneous, the award is not deficient because the result would not have been different. In this regard, the Agency argues that the Arbitrator correctly found that because there was no provision mandating a promotion in Agency regulations or the agreement, there was no basis on which she could award the grievant a promotion.
IV. Analysis and Conclusions
We conclude that the Union fails to establish that the award is deficient.
Contrary to the contention of the Union, the Arbitrator correctly ruled that an award of compensation for the temporary performance of the duties of a higher-graded position must be based on a nondiscretionary provision of the Agency's regulations or the parties' collective bargaining agreement. U.S. Department of the Navy, Naval Supply Center, Norfolk, Virginia and International Association of Machinists and Aerospace Workers, Lodge 97, 38 FLRA 448, 452 (1990) (citing Wilson v. U.S., 229 Ct. Cl. 510 (1981) (Wilson) and the Comptroller General's decision in McPeak, 69 Comp. Gen. 140 (1989)). Furthermore, the court in Wilson and the Authority, based on the court's decision, have specifically held that the detail provisions in FPM chapter 300 do not entitle an employee to a retroactive temporary promotion with backpay in circumstances where the employee has performed the duties of a higher-graded position for more than 120 days. 229 Ct. Cl. at 512-13; Veterans Administration Medical Center, Nashville, Tennessee and American Federation of Government Employees, Local No. 2400, 19 FLRA 325, 326 (1985). Thus, without regard to the fact that the cited provision of FPM chapter 300 has been abolished as a result of the sunset of the FPM, which precludes the Union's reliance on that provision in its exception to the award, U.S. Department of the Army, U.S. Army Reserve Personnel Center, St. Louis, Missouri and American Federation of Government Employees, Local 900, 49 FLRA No. 14 (1994), the Union provides no basis for finding that the Arbitrator's award is contrary to the FPM. Accordingly, we will deny the Union's exception.
We will find that an award is deficient because it is based on a nonfact when the appealing party establishes that the central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. For example, American Federation of Government Employees, Local 3947 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Medical Center, Rochester, Minnesota, 47 FLRA 1364, 1372 (1993) (Federal Medical Center). The Union argues that the Arbitrator essentially found that the grievant was performing the duties of a GS-9 financial program specialist and that it is clearly erroneous for the Arbitrator to have refused