49:0730(70)AR - - Army, HQ Fort Dix, Fort Dix, NJ and AFGE, Local 1930 - - 1994 FLRAdec AR - - v49 p730



[ v49 p730 ]
49:0730(70)AR
The decision of the Authority follows:


49 FLRA No. 70

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF THE ARMY

HEADQUARTERS FORT DIX

FORT DIX, NEW JERSEY

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1930

(Union)

0-AR-2502

_____

DECISION

April 15, 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 Daniel F. Brent 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 did not file an opposition to the Agency's exceptions.

An employee filed a grievance alleging that she was improperly paid while she was detailed to a higher-graded position as an acting supervisor. The Arbitrator sustained the grievance and awarded the grievant backpay.

For the following reasons, we conclude that the Agency has established that the Arbitrator's award is deficient. Accordingly, we will set aside the Arbitrator's award.

II. Background and Arbitrator's Award

At all times pertinent to this case, the grievant was a Warehouse Worker Leader, WL-6907-05, in the Agency's Logistical Supply Activity. In November 1991, the Chief Supply Officer, GS-2001-11, who was the grievant's supervisor, disclosed that he would be unable to work regularly because he was suffering from a terminal illness. The supervisor asked that the grievant perform the supervisor's duties and the grievant began performing those duties on a regular and continuous basis. On February 5, 1992, the Agency detailed the grievant to the position of Acting Chief of Supply at the same hourly wage rate that she had received as a Warehouse Worker Leader.

A request for personnel action dated June 16, 1992, was submitted asking that the grievant be given a temporary promotion to Supply Officer, GS-2001-11, effective June 29, 1992.(1) The Agency denied the request on July 1, 1992, after the Agency's Civilian Personnel Office found that "the grievant was not qualified for the higher rated GS-2001-11 position regardless of whether she had successfully performed the duties of Chief of Supply[.]" Award at 4.

On July 8, 1992, the grievant filed a grievance contending that she was improperly paid while she was performing the duties of Acting Chief of Supply. On August 7, 1992, the grievant's detail ended and another supervisor assumed the duties of the Chief of Supply.

The parties were unable to resolve the grievance and the matter was submitted to arbitration. The Arbitrator stated the issues submitted to him as follows:

1. Is the instant matter arbitrable?

2. If so, did the Agency improperly pay the grievant . . . for work she performed between November, 1991 and August 7, 1992? If so, what shall be the remedy pursuant to the Back Pay Act?

Id. at 2.

The Arbitrator found that the matter was arbitrable. As to the merits, the Arbitrator found that it was reasonably foreseeable that the grievant's detail to the Acting Chief of Supply position would last at least 45 days. The Arbitrator determined that Article VII, Section 9 of the parties' collective bargaining agreement, which provides that an employee assigned to a higher-graded position will receive a temporary promotion if the period will eventually exceed 45 days, did not apply to this grievance because it pertained only to positions in the bargaining unit and the Chief of Supply position was a supervisory position outside of the unit. However, the Arbitrator found that the Agency "benefited substantially and materially from the grievant's efforts within the GS-2001-11 classification" and that "[t]o deprive the grievant of proper payment for work performed" on her detail violates the agreement's "standards of payment for work within the grievant's permanent classification by paying her regular rate for performing all or substantially [all] the duties" of the GS-11 classification. Id. at 11.

The Arbitrator then stated that "[t]he crux of the instant case is whether the technical requirements imposed by [G]overnment-wide Office of Personnel Management (OPM) regulations supersede the collective bargaining agreement and thereby preclude the Agency from temporarily promoting the grievant to Chief of Supply or from paying the grievant at the higher wage rate." Id. The Arbitrator noted that under the qualification standards for the Chief Supply Officer position prescribed by OPM in the X-118 handbook, an individual must have at least 1 year of specialized experience at the GS-9 level in order to be temporarily promoted to the GS-11 position. The Arbitrator found that despite the grievant's demonstrated ability to perform the duties of the Chief Supply Officer at the GS-11 level, "her ability cannot legally be construed as a substitute for 'specialized experience.'" Id. at 16. Additionally, the Arbitrator found that the grievant never served at the GS-9 level and that her duties prior to November 1991 could not be construed as the equivalent of such work. Accordingly, the Arbitrator concluded that the grievant could not be given a temporary promotion to the GS-11 position.

The Arbitrator stated that although the grievant could not be given a temporary promotion, OPM regulations

clearly permit an arbitrator to redress an inequity where an employee has been formally detailed or otherwise assigned to perform duties of a higher-rated classification for a period in excess of forty-five days without proper compensation. An employee who is detailed for more than forty-five days is entitled to be paid at the wage rate of the duties performed regardless of whether such an assignment is deemed a temporary promotion.

Id. at 19. The Arbitrator found that, pursuant to Federal Personnel Manual (FPM) Supplement 335-1-5.c.4, the Agency could have waived the specialized experience requirement and paid the grievant for up to 120 days as a GS-11.(2) The Arbitrator also found that the Agency has the authority to waive minimum experience qualifications in order to avoid undue hardship in accomplishing its mission, and that the Agency could have detailed the grievant at the higher rate for at least 120 days, regardless of the grievant's eligibility for a temporary promotion, if the Agency deemed the grievant essential to fulfilling the Agency's mission.

The Arbitrator stated that arbitrators are "clearly permit[ted]" to fashion a remedy for an employee who has been detailed to a higher paying classification, but are precluded from awarding "an actual retroactive temporary promotion where an employee is not 'qualified' by 'creditable' experience for the higher classification." Id. at 23. The Arbitrator concluded that despite the grievant's ineligibility for temporary promotion, "the unjust enrichment of the Agency by failing to pay the grievant for higher grade work performed at the Agency's direction for more than 45 days cannot stand, especially in view of the legitimate mechanisms available to the Agency to pay the grievant properly." Id. The Arbitrator found that the Agency demonstrated that it could not give the grievant a temporary retroactive promotion, but did not demonstrate that a wage differential could not be awarded.

The Arbitrator determined that the Agency violated the collective bargaining agreement and that the grievant was entitled to backpay. The Arbitrator awarded the grievant the differential between her salary and a GS-11 salary for the period from February 5, 1992, through August 7, 1992, reduced by $1,350, which represents one-half of a $2,700 merit award the grievant had received.(3) The Arbitrator further found that the criteria set forth in the Back Pay Act regarding backpay and interest on backpay "have been affirmatively demonstrated in the instant case, namely that the Agency's failure to pay the grievant for her detail to GS-2001-11 was an unwarranted personnel action and, but for this action, the grievant would have been paid as a GS-11 between February 5 and August 7, 1991." Id. at 24-25. The Arbitrator awarded interest at the rate of 7 percent on the amount of backpay due, from the date of the grievance until payment is made in full.

III. Agency's Exceptions

The Agency contends that the award is deficient because it violates applicable law, rule, and regulation and is inconsistent with the Back Pay Act.

The Agency argues that under FPM Chapter 335, subchapter 1-4, Requirement 3, a Government-wide regulation, candidates must meet the minimum qualification standards prescribed by OPM in the X-118 Handbook before a temporary or permanent promotion may be effected. According to the Agency, the Arbitrator acknowledged that the grievant lacked the required level and amount of specialized experience necessary for a temporary promotion to the GS-11 position to which she was detailed. The Agency claims that the Arbitrator awarded the grievant a temporary promotion "under a guise termed wage differential" and that the Arbitrator attempted to "circumvent these requirements" by awarding a differential. Exceptions at 2, 3. The Agency contends, however, that there is no provision in law or regulation for such a differential. Rather, according to the Agency, the award is tantamount to a retroactive temporary promotion, which the Arbitrator recognized was inconsistent with OPM requirements. Accordingly, the Agency contends that the award is inconsistent with Government-wide regulation.

Additionally, the Agency maintains that the provisions of the Back Pay Act entitle a grievant to backpay only on correction of the personnel action for the period during which the action was in effect. The Agency asserts that because the grievant was not qualified for a temporary promotion as she did not meet the X-118 experience requirements for the position, there is no personnel action which can be corrected and there can be no award of backpay or differentials.

Finally, the Agency argues that the award of 7 percent interest on the amount of backpay is inconsistent with the Back Pay Act. According to the Agency, the computation of interest payable under the Back Pay Act is based at the rate in effect under section 6621(a)(1) of the Internal Revenue Code of 1986. The Agency contends that because that rate is calculated quarterly by the Internal Revenue Service, an award of a predetermined amount of interest is inconsistent with the Back Pay Act and should be dismissed.

IV. Analysis and Conclusions

For the following reasons, we determine that the Arbitrator's award is deficient and must be set aside.

The Arbitrator ordered backpay for the grievant, while denying her a temporary promotion to the Chief Supply Officer position to which the grievant had been detailed. 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 Veterans Affairs, West Los Angeles Medical Center, Los Angeles, California and American Federation of Government Employees, Local 1061, 46 FLRA 853, 860 (1992) (VA West Los Angeles). Without a temporary promotion, and absent some contractual provision or similar agency regulation requiring it, backpay cannot be awarded merely because an employee is detailed to a higher-graded position. Health Care Financing Administration and American Federation of Government Employees, Local 1923, AFL-CIO, 17 FLRA 592 (1985) (arbitrator's award, including backpay, for extended detail to higher-graded duties set aside because neither parties' agreement nor agency's regulation mandated payment); Federal Correctional Institution, Petersburg, Virginia and American Federation of Government Employees, Appomattox Local 2052, 16 FLRA 600 (1984) (arbitrator's award providing retroactive temporary promotion and backpay for detail to higher-graded duties set aside because grievant was not qualified for promotion).

In this case, the grievant was not qualified for promotion to the GS-11 position because she did not possess the specialized experience required for promotion. For an employee to be properly promoted, whether temporarily or permanently, the employee must meet the minimum qualification requirements for the position to which the employee is to be promoted. See U.S. Department of Veterans Affairs Medical Center, Buffalo, New York and Service Employees International Union, Local 200-C, 37 FLRA 379, 384 (1990).(4) Therefore, the grievant was not qualified for promotion, including temporary promotion, to the GS-11 Chief Supply Officer position.(5) Because the grievant could not have been promoted to the position, the Agency did not violate law or regulation when it refused to promote the grievant temporarily to the GS-11 Chief Supply Officer position.

Although a collective bargaining agreement may entitle an employee to be temporarily promoted to a higher-graded position, the employee must nonetheless meet the minimum qualification requirements for the higher-graded position in order to receive the temporary promotion. See American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 38 FLRA 89, 97 (1990). However, as noted above, the Arbitrator found that Article VII, Section 9 of the parties' agreement, regarding temporary promotions, did not apply in this case because it pertains only to bargaining unit positions and the Chief Supply Officer position is a supervisory position outside the bargaining unit. The Agency, therefore, did not violate the parties' agreement when it refused to promote the grievant temporarily to the GS-11 Chief Supply Officer position.

We note that the Arbitrator cited FPM Supplement 335-1-5.c.4 as an authority suspending the requirement that an employee to be promoted possess the requisite specialized experience. However, that regulation exempts agencies from following merit promotion plan procedures for effecting temporary promotions of 120 days or less; it does not waive specialized experience requirements. See FPM Supplement 335-1-5; Award at 20. The Arbitrator also relies on FPM provisions permitting an agency to detail employees, essential to fulfilling the agency's mission, without competitive procedures. Again, a waiver of competitive procedure requirements does not waive the necessity that the employee possess the requisite specialized experience. Id. at 21. Accordingly, the Arbitrator's reliance on these FPM provisions is misplaced.

Accordingly, as the grievant was not entitled to the temporary promotion by law, regulation, or the parties' agreement, the Agency's refusal to promote the grievant did not constitute an unjustified or unwarranted personnel action and, consequently, no remedy under the Back Pay Act is available to the grievant. Therefore, the Arbitrator's award of backpay and interest to the grievant is deficient and will be set aside.(6)

V. Decision

The Arbitrator's award is set aside.




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

1. The record does not indicate who submitted the request.

2. We note that although the FPM was abolished effective December 31, 1993, certain provisions were retained, including, as relevant to this case, FPM Chapter 335, subchapter 1 and Supplement 335-1. See FPM Sunset Document, Chapter Summary Sheet at 49.

3. The Arbitrator stated that "[t]his $1,350 shall be deemed to compensate the grievant for the extra duties she performed during this interval[;] [t]he other half of the merit award shall be attributed to the grievant's superior performance throughout the entire evaluation period." Id. at 24.

4. There is no dispute in the record, and the Arbitrator found, that at least 1 year's experience at the next lower grade level is an established experience requirement in the X-118 Handbook for promotion to the GS-11 position of Chief of Supply. Similarly, there is no dispute, and the Arbitrator found, that the grievant did not possess the required experience.

5. We note that this case,