51:0747(65)AR - - HHS, Office of the Assistant Secretary for Management and Budget, Office of Grant and Contract Financial Management, Division of Audit Resolution, Washington, DC and NTEU, Chapter 229 - - 1996 FLRAdec AR - - v51 p747



[ v51 p747 ]
51:0747(65)AR
The decision of the Authority follows:


51 FLRA No. 65

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

OFFICE OF THE ASSISTANT SECRETARY FOR MANAGEMENT AND BUDGET

OFFICE OF GRANT AND CONTRACT FINANCIAL MANAGEMENT

DIVISION OF AUDIT RESOLUTION

WASHINGTON, D.C.

(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 229

(Union)

0-AR-2612

_____

DECISION

January 17, 1996

_____

Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Jonathan E. Kaufmann 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 Regulations. The Union filed an opposition to the Agency's exceptions.

The Arbitrator sustained a grievance challenging the Agency's failure to promote three grievants and awarded them retroactive promotions with backpay.

For the following reasons, we conclude that the Agency has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.

II. Arbitrator's Award

The Agency selected several individuals in 1988 as GS-13 accountants under a vacancy announcement for "Accountant GS-510-12/13/14" positions. Award at 8. The announcement stated that "GS-12/13 may have promotion potential to GS-14." Id. After serving at least 1 year at the GS-13 level, one of the selectees was non-competitively promoted to the GS-14 level. In 1992, the Union filed a grievance on behalf of three other selectees, each of whom had also served at least 1 year at the GS-13 level, alleging that the Agency had improperly failed to grant them career ladder promotions to the GS-14 level. The grievance was submitted to arbitration on the following issue:

Did the Agency violate any contractual provisions or applicable regulations when it decided not to promote [the grievants] from their positions as Accountants GS-510-13, to Accountants GS-510-14[?]

Id. at 1.

The Arbitrator found that the grievants were in career ladder positions to the GS-14 level, and that the parties' agreement provided that an employee in such a position will be promoted in the first pay period after: (1) the employee meets the minimum time-in-grade and qualifications requirements; (2) the employee is capable of performing at the next higher level; (3) the employee's most recent performance rating of record, as well as his or her rating on all critical elements that are also critical elements at the next higher grade level, is fully successful or better; and (4) the additional salary cost is within budgetary limitations.(1) The Arbitrator found that each of the four criteria were met. He also found that, although the grievants had performed more complex, higher-level assignments usually performed by GS-14 employees, the sufficiency of available higher-level work was not a factor under the parties' agreement to be considered when granting career ladder promotions. The Arbitrator concluded that the grievants were entitled to promotions under the parties' agreement retroactive to 1 year from their dates of employment in their GS-13 positions.

III. Exceptions

A. Agency's Contentions

The Agency contends that the award conflicts with the Classification Act, 5 U.S.C. § 5101 et seq., because the Arbitrator determined that a career ladder to the GS-14 level exists and directed that the grievants be given career ladder promotions to the GS-14 level even though sufficient work does not exist at the GS-14 level.

The Agency also asserts that the award conflicts with its right to determine its organization under section 7106(a)(1) and its right to assign work under section 7106(a)(2) of the Statute.

Finally, the Agency contends that the award fails to draw its essence from the parties' agreement because the Arbitrator made the promotions retroactive to a date that precedes the date of the grievance.

B. Union's Opposition

The Union asserts that the Agency's exceptions fail to demonstrate that the award is contrary to law, rule, or regulation or that it is deficient on any grounds applied in the private sector.

IV. Analysis and Conclusions

A. The Award Does Not Conflict with the Classification Act

The Classification Act governs the classification and grading of general schedule positions. See 5 U.S.C. § 5101 et seq. "Classification" of a position is defined in 5 C.F.R. § 511.101(c) as "the analysis and identification of a position and placing it in a class under the position-classification plan established by OPM [Office of Personnel Management] under chapter 51 of title 5, United States Code." See U.S. Department of Housing and Urban Development and American Federation of Government Employees, Local 476, 47 FLRA 1053, 1060-61 (1993).

The award does not analyze or identify a position or place it in a class under OPM's position-classification plan. It finds only that the Agency had previously established a career ladder for the position at issue. As such, we reject the Agency's argument that, by finding that a career ladder exists which includes the GS-14 level, the award conflicts with the Classification Act.

The Agency's argument that the award violates the Classification Act because sufficient work does not exist at the GS-14 level also does not demonstrate that the award is deficient. The Agency has not shown, and it is not apparent, how the Classification Act precludes the Arbitrator from determining that the grievants should receive career ladder promotions to GS-14, based on his finding that the grievants were performing complex, GS-14 level work.(2)

Accordingly, we deny the Agency's exception.

B. The Award Does Not Violate Section 7106(a)(1) and (2)

A career ladder promotion "is the direct result of an agency's decision to select an employee and place the employee in a career ladder position in the agency." National Association of Government Employees, Local R2-98 and Department of the Army, Watervliet Arsenal, Watervliet, New York, 29 FLRA 1303, 1310 (1987). "The agency's selection of an employee and the placement of that employee in a career ladder position also constitutes the agency's decision to promote that employee noncompetitively at appropriate stages in the employee's career up to the full performance level of the position, once the requisite conditions have been met." Id. (citation omitted).

The Arbitrator determined that the Agency had already created a career ladder and found that all four criteria for career ladder promotions prescribed by the parties' agreement were met. As such, his award of career ladder promotions simply "implement[ed] [the] [A]gency's earlier decision to place employees in a career ladder position with the intention of preparing the employee for successful noncompetitive promotions when the conditions prescribed by agreement or regulation are met." National Treasury Employees Union and U.S. Customs Service, Pacific Region, 32 FLRA 1141, 1148 (1988) (Customs Service).

As the Agency argues, its right to determine its organization under section 7106(a)(1) of the Statute "includes the right to determine 'how an agency's organizational grade level structure will be designed[.]'" American Federation of Government Employees, National Council of SSA Field Assessment Locals and U.S. Department of Health and Human Services, Social Security Administration, Regional Office of Program and Integrity Reviews, Atlanta, Georgia, 49 FLRA 582, 583 (citation omitted) (SSA). As such, a "requirement to establish a career ladder . . . interferes with this right." Id. (citation omitted). In this case, however, the award does not require the Agency to establish a career ladder. The award merely implements the career ladder that, according to the Arbitrator, previously was established by the Agency. Accordingly, the Agency's reliance on SSA is misplaced and, in the absence of any other argument that the award conflicts with its right to determine its organization, the exception provides no basis for finding the award deficient.

Similarly, the award of career ladder promotions does not violate the Agency's right to assign work under section 7106(a)(2) of the Statute because the promotions merely implement a decision to assign work made when the Agency initially selected the employees for the career ladder positions. When an agency decides to establish a career ladder, it determines, at that time, to create a series of jobs, each progressing in grade and commensurate difficulty of assignments. Once an employee is selected into a career ladder position, the intention of the career ladder is, as stated above, to "prepar[e] the employee for successful noncompetitive promotions when the conditions prescribed by agreement or regulation are met." Customs Service, 32 FLRA at 1148. As such, the award does not affect the Agency's exercise of its right to assign work.

Accordingly, we deny this exception.

C. The Award Does Not Fail to Draw Its Essence from the Parties' Agreement

We construe the Agency's argument that the award is not based on the parties' agreement as a contention that the award fails to draw its essence from the parties' agreement. To demonstrate that an award fails to draw its essence from a collective bargaining agreement, a party must show that the award: (1) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; or (2) does not represent a plausible interpretation of the agreement; or (3) cannot in any rational way be derived from the agreement, or evidences a manifest disregard of the agreement. United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-76 (1990).

The Agency has not demonstrated that the Arbitrator's interpretation of the contractual provisions relating to career ladder promotions is deficient under any of these standards. Accordingly, we deny this exception.

V. Decision

We deny the Agency's exceptions.

APPENDIX

Article 31, Section 20 of the parties' 1992 collective bargaining agreement states:

Career advancement is the intent and expectation in the career ladder system. Employees in career ladder positions will be promoted in the first pay period after:

A. they meet the minimum time-in-grade and qualifications requirements;

B. they are capable of performing at the next higher level;

C. their most recent performance rating of record is fully successful or better, including fully successful or better on all critical elements that are also critical elements at the next higher grade level; and

D. when the additional cost is within budgetary limitations.

Article 31, Section 20 of the parties' 1985 collective bargaining agreement states:

Career advancement is the intent and expectation in the career ladder system. While promotions within career ladders are neither automatic nor mandatory, they will be made when the employee's performance demonstrates ability to assume and perform in an acceptable manner the duties at the next higher level and as other requirements of law and regulations are met, e.g. time-in-grade restrictions or Congressional budget restrictions limiting salary expenditures. The effective date of the promotion will be the first full pay period after certification by appropriate authority.




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

1. Agreement provisions cited by the Arbitrator are set forth in the Appendix to this decision.

2. The Union "does not argue that availability of work at the higher grade level is not required by the Classification Act." Opposition at 19. Rather, it "asserts that when the Agency determined that the . . . positions were career ladder positions it necessarily determined that there was sufficient work at the grade 14 level; to discontinue the [g]rievants' career ladder the Agency must follow its own procedures[.]" Id. This case concerns whether the grievants were in career ladder positions, not whether the Agency followed established procedures to discontinue a career ladder. Because this latter issue i