50:0282(49)CA - - Defense Logistics Agency, Defense Distribution Region East, New Cumberland, PA and AFGE, Local 2004 - - 1995 FLRAdec CA - - v50 p282



[ v50 p282 ]
50:0282(49)CA
The decision of the Authority follows:


50 FLRA No. 49

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

DEFENSE LOGISTICS AGENCY

DEFENSE DISTRIBUTION REGION EAST

NEW CUMBERLAND, PENNSYLVANIA

(Respondent/Agency)

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 2004

(Charging Party/Union)

BP-CA-20681

_____

DECISION AND ORDER

MARCH 29, 1995

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.

I. Statement of the Case

The Administrative Law Judge issued the attached decision in the above-entitled proceeding, finding that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) when it repudiated a negotiated grievance settlement agreement requiring the Respondent to grant certain bargaining unit employees backpay for certain temporary promotions. The Respondent filed exceptions to the Judge's decision and the General Counsel filed an opposition to the exceptions.

Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order.(*)

II. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Defense Logistics Agency, Defense Distribution Region East, New Cumberland, Pennsylvania, shall:

1. Cease and desist from:

(a) Refusing to effectuate a settlement agreement reached with the American Federation of Government Employees, Local 2004, the exclusive representative of certain of its employees, requiring the payment of backpay to certain employees.

(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) In accordance with the Back Pay Act, 5 U.S.C. § 5596, effectuate the settlement agreement by providing backpay to each employee named in the settlement agreement for the period of underpayment indicated, up to 5 years, together with interest to the date of payment. In addition, request that the Office of Personnel Management formally authorize the Agency to grant a retroactive temporary promotion with backpay to each such employee for any period of underpayment in excess of 5 years.

(b) Post at its New Cumberland, Pennsylvania facilities where bargaining unit employees are located copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commander, Susquehanna Distribution Site, and shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Boston Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT refuse to effectuate a settlement agreement reached with the American Federation of Government Employees, Local 2004, the exclusive representative of certain of our employees, requiring the payment of backpay to certain employees.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL, in accordance with the Back Pay Act, 5 U.S.C. § 5596, effectuate the settlement agreement by providing backpay to each employee named in the settlement agreement for the period of underpayment indicated, up to 5 years, together with interest to the date of payment. In addition, we will request that the Office of Personnel Management formally authorize the Agency to grant a retroactive temporary promotion with backpay to each such employee for any period of underpayment in excess of 5 years.

_______________________________
(Activity)

Dated:____________ By:_____________________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, Boston Regional Office, Federal Labor Relations Authority, whose address is: 99 Summer Street, Suite 1500, Boston, MA 02110-1200, and whose telephone number is: (617) 424-5730.




UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

OFFICE OF ADMINISTRATIVE LAW JUDGES

WASHINGTON, D.C. 20424-0001

DEFENSE LOGISTICS AGENCY

DEFENSE DISTRIBUTION REGION EAST

NEW CUMBERLAND, PENNSYLVANIA

Respondent

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2004

Charging Party

Case No. BP-CA-20681

Gene H. Anderson, Esquire
For the Respondent

Barbara S. Liggett, Esquire
Richard D. Zaiger, Esquire
For the General Counsel

Before: JOHN H. FENTON
Chief Administrative Law Judge

DECISION

Statement of the Case

This case presents the question whether Respondent violated section 7116(a)(1) and (5) when it repudiated a negotiated grievance settlement agreement which called for backpay to employees who had been reclassified to higher-graded positions. Respondent acknowledges that it reneged, asserting it was required to do so by the Back Pay Act and its implementing regulations. In essence, Respondent, relying on a 1976 Supreme Court decision,(1) asserts that a wrongly classified employee has no right to recover money for pay lost as a consequence of such classification.

Findings of Fact

On December 11, 1990, WG-4 Supply Worker Dale Fishel withdrew an EEO age discrimination case in which he had complained of performing WG-5 duties since 1982, and sought backpay. The controversy was largely resolved when Respondent agreed to reclassify (i.e. to noncompetitively promote on the basis of accretion of duties) Fishel and 21 other apparently similarly situated employees to WG-5. However, the EEO Counselor informed Fishel that a grievance would be necessary to resolve the backpay claim, as none would be available as a consequence of the EEO complaint.

Fishel (or the Union in his behalf) filed a grievance which was, or at least came to be treated as, a group grievance. Various employees were added to it as it worked its way into the third step before Michael Yost, Chief, Directorate of Distribution, Susquehanna Site East. Yost and several of his staff members were clearly sympathetic to the claims for backpay for periods of improper classification. As a consequence of investigations focusing on the extent to which, and for how long various claimants were operating material handling equipment (MHE), determinations were made as to when the accretion of new MHE duties would have warranted reclassification. A compromise was then reached, which included simply lopping one year off the estimates arrived at, and 14 employees were offered backpay for periods running from seven months to seven years.(2) The parties signed off on the agreement on August 22, 1991, and it was expected that the employees would receive their backpay in December.

In October the Union came into possession of an internal management memorandum written by Chief Counsel James E. Toms. Toms recommended against payment of backpay on the ground such recovery is precluded by the Back Pay Act, the Federal Personnel Manual and the grievance clause of the collective bargaining agreement.

On January 24, 1992 the Commander of the Susquehanna Distribution Site, in a letter to the Acting Chief Steward, informed him of the decision that Yost's "proposed" settlement of the backpay claims was not authorized by law, and hence could not be "offered". Noting that all the promotions were made without competition based upon reclassification because of additional duties and responsibilities, the Commander said that the Back Pay Act, by its terms, did "not apply to any reclassification action". He further contended that the Act did not apply because limited by its terms to "unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of all or part of the pay, . . . of the employee". Here, no grievant suffered an absolute diminution of his or her WG-4 pay. Finally, the Commander argued that the grievance was timed-barred. On January 27, in response to the unfair labor practice charge, that refusal was reaffirmed.

Positions of the Parties

General Counsel, citing ample precedent for the proposition that repudiation of a negotiated agreement is violative of section 7116(a)(1) and (5), asserts the grievance settlement agreement herein is not inconsistent with the Back Pay Act. Thus, while that Act "does not apply to any reclassification action" (5 USC 5596(b)(3)) the grievance did not, as Respondent argues, concern a classification issue, but rather compensation for performing higher graded duties. This is so, asserts General Counsel, notwithstanding 12 of the 14 grievants due backpay were in fact reclassified, because the grievance did not seek reclassification, but rather dealt "only with the time the employees were, in effect, temporarily promoted to higher-graded positions and their entitlement to backpay for this period." In answer to Respondent's argument that the "real issue in the grievances was backpay for a period of wrongful classification rather than for a period in which (the grievants) were, in effect, temporarily promoted," General Counsel responds that the testimony established "that the promotions were processed as reclassification actions only to circumvent a management directive which prevented the Respondent from making promotions at that time. Furthermore, says General Counsel, whether Respondent properly processed the promotions is simply irrelevant to the question whether Yost, in considering the grievances "could have found that the grievants had been temporarily promoted to the WG-5 position for the periods claimed." In this respect it is noted that Yost had determined that the grievants in fact performed WG-5 MHE duties during the periods covered in the settlement agreement, and that as chief negotiator of the collective bargaining agreement he necessarily knew the difference between the provisions dealing with temporary promotions and those dealing with classification actions.

Respondent defends on a number of grounds:

(1) Section 7121(c)(5) of the Statute, concerning the scope of grievance procedures, and the grievance provision here (Article 38, Section 4a(5)) preclude grievances concerning "the classification of any position which does not result in the reduction in grade or pay of an employee".

(2) The Back Pay Act (5 U.S.C. 5596) provides, at subsection (b)(3), that it "does not apply to any reclassification action" and, further, in subsection (b)(1), is made applicable only where the "unjustified or unwarranted personnel action . . . has resulted in the withdrawal or reduction of all or part of the grievant's pay, allowances, or differentials." No reduction occurred here.

(3) Neither the Classification Act (5 U.S.C. § 5110 et seq.) nor the Back Pay Act creates a substantive right to backpay for the period of the claimed wrongful classification (U.S. v. Testan, 424 U.S. 392 (1976)). As that Court put it, "the federal employee is entitled to receive only the salary of the position to which he is appointed, even though he may have performed the duties of another position or claims that he should have been placed in a higher grade".

(4) The relevant regulation implementing the Back Pay Act (Federal Personnel Manual, Supplement 990-2, Subchapter 5-8), does not operate in the circumstances to create an exception to the above-described rule against backpay during a period of improper classification. While an "unjustified or unwarranted personnel action" may be found for backpay purposes, based on a violation of a mandatory personnel policy established by an agency or through a collective bargaining agreement, there was here no unilateral agency policy, and the collective bargaining agreement provision respecting temporary promotions was not "mandatory", as the regulation requires.

(5) No promotions could be made, because vacancies did not exist.

(6) The agreement violates the Back Pay Act and 5 CFR 335.102 prohibit temporary promotions in excess of two years without authorization from OPM.

Analysis and Conclusions

As noted in the discussion of the General Counsel's position, a violation has occurred in the repudiation of the negotiated grievance settlement agreement(3), unless that agreement is void because it violates "any other law, rule or regulation."(4)

The Authority has repeatedly held that a grievance claiming entitlement to a temporary promotion for the time during which a grievant performed the duties of a higher graded position does not concern the classification of any position within the meaning of section 7121(c)(5) of the Statute.(5) Here the grievants had already been reclassified before any grievance was filed.

Nor does the agreement necessarily conflict with the terms of the Back Pay Act. Backpay may be awarded upon a finding that a grievant was affected by an unjustified or unwarranted personnel action which directly resulted in the withdrawal or reduction of the grievant's pay, where such reduction would not have occurred but for such action. Here agency managers determined upon investigation that 14 employees had in fact performed WG-5 duties while receiving WG-4 pay for periods ranging from months to years. Implicit in the agreement to make them whole for such loss was a finding that the collective bargaining agreement was violated when the accretion of new and higher graded duties was ignored to their detriment.(6)

There is a long-recognized exception to the general rule that an employee is entitled only to the salary of the position to which the employee actually is appointed. It exists "where the parties to a collective bargaining agree-ment agree to make temporary promotions mandatory for details to higher grade positions, thereby establishing a nondiscre-tionary agency policy which would provide a basis for backpay."(7)

Article 16, Section 5 of the collective bargaining agreement provides:

Where possible, temporary promotions will be effected rather than a detail when known in advance that a temporary assignment to a higher grade will last thirty (30) calendar days or more. In such cases, an employee may be detailed until such time that a qualification determination can be made by the Employer to determine eligibility for the promotion. Normally, a qualification determination will be made within thirty (30) work days after an employee has been detailed to a higher-graded position. Temporary promotions will be made effective no later than the first day of the beginning of a pay period after an "eligible" qualification determination has been made.

In Long Beach, a comparable provision said a "temporary promotion will normally be effected" when certain criteria were met. Just as Respondent here argues that the words "(w)here possible" render the provision nonmandatory, the Navy in Long Beach contended the word "normally" left discretion in its hands, i.e. failed to establish the requisite nondiscre-tionary policy. There the Authority upheld the arbitrator's holding that the contract required a temporary promotion in the absence of a showing by the agency that unusual circum-stances justified its action. Similarly, it has not been shown here that temporary promotions were not possible. On the contrary, the middle managers said the employees had been misassigned, i.e. had been assigned for months/years to the duties of a higher graded position without being compensated therefor. The grievance settlement, by agreeing to make grievants whole for such underpayment, and in the absence of any other authority for providing backpay, can be read as implicitly acknowledging that unwarranted personnel actions occurred when, in violation of contract, grievants were not temporarily promoted while assigned to the higher-graded MHE work.

We are nevertheless presented with a problem respecting technical compliance with the Back Pay Act and the implement-ing regulations found at 5 CFR § 550.801 et seq. They require that an administrative determination by an "appropriate authority" that the grievants were affected by an unjustified or unwarranted personnel action (here the failure to promote temporarily in violation of contract) that resulted in the reduction of their pay, before payment of backpay is authorized.

5 CFR § 550.803(j) defines "the head of the employing agency or another official of the employing agency to whom such authority is delegated" as an appropriate authority. There is no contention and no evidence on this record that Yost was not empowered to settle the grievance by applying the Back Pay Act and its implementing regulations. Yost did not, as would have been required, say, of an Arbitrator or an Administrative Law Judge, explicitly find that the aggrieved employees were (1) affected by an unjustified or unwarranted personnel action; (2) that such action directly resulted in the reduction of their pay; and (3) at least implicitly that, but for such action, grievants otherwise would not have suffered the reductions. (See Tinker AFB, Oklahoma, 42 FLRA 1342, 1347-1349). Furthermore, 5 CFR § 550.804(c) states that "the requirement for an 'administrative determination' is met when an appropriate authority determines, in writing, that an employee has been affected by an unjustified or unwarranted personnel action." (Emphasis mine.) Yost did not, in writing, even declare that such a personnel action had occurred. He simply said, on the grievance form, that, as agreed in a meeting with the Union, "back pay is granted to the grievants listed in the enclosure". (G.C. Exh. 2)

I nevertheless conclude that Yost implicitly found in writing (i.e. the settlement) that an unjustified and unwarranted personnel action had affected the grievants, and that such action directly resulted in loss of pay. Thus, the grievance shows a claim for backpay based upon misassignment, and Yost determined that the various grievants had, in fact, for the months or years set opposite the names in the settlement enclosure, used MHE equipment on a sufficiently regular basis to warrant promotion to WG-5. The contract called for temporary promotions when it was known that a "temporary assignment to a higher grade will last thirty (30) calendar days or more." Presumably for that reason (as its application is disputed by the parties and no other existed), Yost determined that a settlement offer should be made, conceding, in effect, that the failure to compensate grievants at the WG-5 rate, while imposing WG-5 duties on them, was an unwarranted personnel practice requiring that they be made whole. Settlement of such claims, without admitting one has violated law or regulation, would appear to be impossible if it must include an explicit, written "administrative determination" that an unjustified or unwarranted personnel action occurred which gives rise to statutory entitlement to be made whole under the Back Pay Act.

Respondent's reliance on U.S. v. Testan, is misplaced. While the Court held that neither the Classification Act nor the Back Pay Act created a right to backpay for a period of wrongful classification, grievants here did not claim their positions were wrongly classified. Rather, they claimed they had improperly been denied promotions, premised upon their performance of the duties of a properly classified but higher graded position. U.S. Department of Agriculture, Forest Service, 35 FLRA 542, 551.

Respondent's claim that promotions could not have been made because the requisite vacancies did not exist is likewise misplaced. The record will not support such finding. Even if it did, in an earlier case which, interestingly, involves these same parties, the Authority rejected this very contention New Cumberland Army Depot, 21 FLRA 968, 971.(8)

Respondent is, however, correct as concerns the matter of the duration of the backpay agreed upon, which may only be justified on the theory that the grievants were entitled to temporary promotions based upon Article 16, Section 5 of the collective bargaining agreement. 5 CFR 335 § 102(f)(1) limits temporary promotions to two years absent specific authorization by OPM. Again, in New Cumberland Army Depot, 21 FLRA 968, 972, the Authority held that Agencies may temporarily promote an employee for more than two years only with the formal approval of OPM, pursuant to the above-noted regulation and FPM Chapter 335, subchapter 1-5. The Authority accordingly modified the Arbitrator's award, and directed the Activity to request that OPM formally authorize it to award the grievant a retroactive temporary promotion with backpay for that part of the Arbitrator's award which exceeded two years.

Finally, interest is required under the amended terms of the Back Pay Act. As this was a settlement, interest should be computed for the period beginning with the January 24, 1992 repudiation of the agreement and ending not more than 30 days before the date on which payment is made.

Accordingly, I conclude that Respondent by such repudiation of the grievance settlement agreement violated section 7116(a)(1) and (5) of the Statute, and I recommend that the Authority issue the following:

ORDER

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that Defense Logistics Agency, Defense Distribution Region East, New Cumberland, Pennsylvania, shall:

1. Cease and desist from:

(a) Refusing to honor and abide by a grievance settlement agreement reached with the American Federation of Government Employees, Local 2004, the exclusive representative of certain of its employees, requiring payment to the employees named therein of the backpay due them or for the failure to give them contractually mandated temporary promotions.

(b) In any like or related manner, interfering with, restraining or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) In accordance with the Back Pay Act, 5 U.S.C. § 5596, make whole each of the employees names in the grievance settlement agreement for the loss of pay and benefits each suffered during the first two years of the agreed-upon period of underpayment, and request that the Office of Personnel Management formally authorize it to award each such employee a retroactive temporary promotion with backpay for any remaining years recognized in the grievance settlement agreement.

(b) Post at its New Cumberland, Pennsylvania facilities where bargaining unit employees represented by the American Federation of Government Employees, Local 2004, are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commander, Susquehanna Distribution Site, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director of the Boston Region, 99 Summer Street, Suite 1500, Boston, MA

02110-1200, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

Issued, Washington, DC, May 25, 1994

_______________________________
JOHN H. FENTON
Chief Administrative Law Judge

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT refuse to honor and abide by a grievance settlement agreement reached with the American Federation of Government Employees, Local 2004, the exclusive representative of certain of our employees, requiring payment to the employees named therein of the backpay due them for the failure to give them contractually mandated temporary promotions.

WE WILL NOT in any like or related manner, interfere with, restrain or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL, in accordance with the Back Pay Act, 5 U.S.C. § 5596, make whole each such employee for the loss of pay and benefits suffered during the first two years of the agreed-upon period of underpayment, and we will request that the Office of Personnel Management formally authorize us to award such employees retroactive temporary promotions with backpay for any remaining years recognized in the grievance settlement agreement.

______________________________
(Activity)

Date:______________ By:___________________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material.

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Boston Region, 99 Summer Street, Suite 1500, Boston, MA 02110-1200, and whose telephone number is: (617) 424-5730.




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


Authority's Footnote Follows:

*/ We have modified the Judge's Order to reflect that 5 C.F.R. § 335.102(f) was amended on November 9, 1993, to give agencies the authority to temporarily promote an employee for a period of 5 years.


ALJ's Footnotes Follow: