51:1700(143)AR - - SSA and AFGE, Local 3342 - - 1996 FLRAdec AR - - v51 p1700



[ v51 p1700 ]
51:1700(143)AR
The decision of the Authority follows:


51 FLRA No. 143

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

SOCIAL SECURITY ADMINISTRATION(1)

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3342

(Union)

0-AR-2702

_____

DECISION

July 31, 1996

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator James B. Atleson 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 awarded the grievant a retroactive career ladder promotion from GS-4 to GS-5 with backpay for a period of 8 weeks.

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 Agency's exceptions.

II. Background and Arbitrator's Award

In September 1991, the grievant was hired as a GS-3 Claims Clerk, a position which has a career ladder of GS-3, GS-4, GS-5. During her interview for the position, the grievant completed an SF-171 statement of qualifications form, which briefly set forth her prior work experience. At the request of the DHHS Regional Personnel Office (RPO), the grievant submitted a second SF-171, emphasizing her payroll clerk work, which was received by the RPO before December 15, 1991.(2) The grievant was promoted to a GS-4 Claims Clerk on December 15, 1991.

On January 28, 1992, after another request from the RPO, the grievant submitted a third SF-171, which provided the RPO more detailed information about her work as a claims processor at an insurance company. The grievant was promoted to a GS-5 Claims Clerk effective February 9, 1992.

The grievant filed a grievance contending that she should have been promoted to a GS-5 Claims Clerk effective December 15, 1991. The grievance was not resolved, and the parties submitted the following issue to the Arbitrator:

Did the Agency fail to promote the [g]rievant effective December 15, 1991, pursuant to the terms of the collective agreement? If so, what should the remedy be?

Award at 1.

The parties stipulated that the grievant had the necessary experience for promotion to GS-5 Claims Clerk prior to December 15, 1991, and that the period covered by the grievance is December 15, 1991, through February 9, 1992.

Before the Arbitrator, the Union argued that under Article 26, § 14(D) of the parties' agreement, the Agency was required to certify the grievant for promotion.(3) The Union also relied on an October 1986, Memorandum of Understanding (MOU), which parallels Article 26 and states that "at the time the employee meets time [in] grade and any other legal promotion requirements, the employer will make a decision to promote or not to promote." Award at 16. The MOU also states that "if the employee is meeting the promotion criteria in the career ladder plan, the employer will certify promotion." Id.

The Agency contended that the grievant's initial and revised SF-171s were not sufficient to demonstrate to the RPO that she possessed the level of experience to qualify her for the GS-5 Claims Clerk position effective December 15, 1991.

The Arbitrator found that the grievant was entitled to a promotion under the parties' agreement and MOU. Specifically, he found that the requirements for career ladder promotion "were indeed met after either the first and especially after the revised SF-171 was submitted or, if not, a contract breach occurred when [g]rievant's submissions were deemed inadequate with no feedback or assistance despite indications that she had claims processing experience." Id. at 31. The Arbitrator based this latter conclusion on Article 3 of the parties' agreement, which provides that the Agency is obliged to treat employees fairly and equitably. The Arbitrator found that both the Agency's denial of a career ladder promotion to the grievant and its failure to assist her constituted a violation of the parties' agreement. The Arbitrator concluded that both also constituted unjustified and unwarranted personnel actions but for which the grievant would have been promoted to a GS-5 Claims Clerk position on December 15, 1991. The Arbitrator ordered the Agency to give the grievant a retroactive promotion with backpay.

III. Exceptions

A. Agency's Contentions

The Agency claims that the grievant was not subject to an unjustified or unwarranted personnel action and, therefore, the award of backpay violates the Back Pay Act and its implementing regulations at 5 C.F.R. § 550.801. The Agency relies on Comptroller General decisions holding that a mistake in evaluating the qualifying experience of an employee for the purpose of a discretionary promotion is not the type of error justifying a retroactive promotion.

The Agency also asserts that the award "violates management's right to determine the qualifications of positions under [sections 7106(a)(2)(A) and 7106(a)(2)(C) of the Statute]." Exceptions at 6. The Agency contends that the award violates this right "by converting the discretionary process of evaluating qualifications into a ministerial one." Id. at 8.

B. Union's Opposition

As a preliminary matter, the Union asserts that the Agency's exceptions were untimely filed and that the DHHS Regional Labor Relations Officer who filed the Agency's exceptions had no standing to file the exceptions.

The Union states that a violation of a collective bargaining agreement constitutes an unjustified or unwarranted personnel action for which a backpay remedy is authorized. It asserts that "the Arbitrator found that the Agency violated the [parties' agreement] by imposing unfair and inequitable procedures in the administration of [the g]rievant's promotion" and that the Agency had an obligation to certify the promotion in accordance with Article 26, Section 14(D), a provision he found nondiscretionary. Opposition at 10.

The Union disputes the Agency's claim that the Arbitrator evaluated the grievant's qualifications and thereby violated the Agency's right to make determinations regarding her qualifications. Referencing the stipulation given to the Arbitrator,(4) the Union states that the Agency and the Union agreed that the grievant had the requisite qualifications on December 15, 1991, for the promotion she sought.

IV. Analysis and Conclusions

A. The Agency's Exceptions Were Timely Filed

The time limit for filing exceptions to an arbitration award is 30 days beginning on the date the award is served on the filing party. 5 C.F.R. § 2425.1(b). The date of service is the date the award is deposited in the U.S. mail or is delivered in person. 5 C.F.R. § 2429.27(d). If the award is served by mail, 5 days are added to the period for filing exceptions to the award. 5 C.F.R. § 2429.22.

The award was served by mail and deposited in the U.S. mail on December 14, 1994. Accordingly, the date of service of the Arbitrator's award is December 14, 1994, and the 30-day period for filing exceptions to the award expired January 12, 1995. As the award was served by mail, 5 days are added to the due date for filing exceptions. That date was January 17, 1995.

The Agency's exceptions were postmarked on January 13, 1995.(5) Accordingly, the exceptions are considered filed on January 13, 1995, the date on which they were deposited in the U.S. mail. Consequently, the exceptions were timely filed. See U.S. Department of the Air Force, 42 Air Base Wing, Gunter Annex, Maxwell Air Force Base, Alabama and American Federation of Government Employees, Local 997, 51 FLRA 754, 756-57 (1996).

B. The Exceptions Were Filed by an Authorized Person

The Authority has long held that national headquarters personnel may file exceptions on behalf of their organizational elements. For example, Puget Sound Naval Shipyard and Bremerton Metal Trades Council, 33 FLRA 56, 58 (1988). Nothing in the Authority's Regulations requires exceptions to be filed solely by a party's representative at an arbitration hearing. Accordingly, a party is free to designate different representatives for different purposes. For example, U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia and National Association of Government Employees, Local R4-19, 36 FLRA 304, 308-09 (1990).

The exceptions in this case were filed in January 1995, while SSA was a component of DHHS.(6) Moreover, nothing in the record indicates that the exceptions were not authorized by the Agency. See U.S. Department of Defense, Delaware National Guard, Wilmington, Delaware and Association of Civilian Technicians, 39 FLRA 1225, 1232 (1991). Accordingly, there is no basis to find that the DHHS Regional Labor Relations Officer lacked authority to file the exceptions.

C. The Award Does Not Violate Law, Rule, or Regulation

Because the Agency's exceptions challenge the award's consistency with law, we must review the questions of law raised by the award and the parties' positions de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995), citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994). The Agency excepts to the award on the basis that the award is inconsistent with: (1) the Back Pay Act, 5 U.S.C. § 5596; and (2) section 7106(a)(2)(A) and (a)(2)(C) of the Statute.

1. The Award Is Consistent With the Back Pay Act

The Authority has long held that under the Back Pay Act, an award of backpay is authorized only when an arbitrator finds that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; (2) the personnel action directly resulted in the withdrawal or reduction of the grievant's pay, allowances or differentials; and (3) but for such action, the grievant otherwise would not have suffered the withdrawal or reduction. E.g., U.S. Department of Justice, Federal Bureau of Prisons, Atlanta, Georgia and American Federation of Government Employees, Council of Prisons Local 1145, 51 FLRA 1422, 1425 (1996). Under Authority precedent, a violation of collective bargaining agreement provisions setting career ladder requirements can constitute an unjustified or unwarranted personnel action for purposes of the Back Pay Act. U.S. Department of Health and Human Services, Social Security Administration, San Francisco Region and American Federation of Government Employees, Council 147, 48 FLRA 293, 304-05 (1993) (SSA San Francisco).

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). See 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. and National Treasury Employees Union, Chapter 229, 51 FLRA 747, 750 (1996), reconsideration denied, 51 FLRA 982 (1996).

The effect of the parties' agreement and MOU is to require the Agency to certify an employee for promotion upon the employee's fulfillment of the qualifications for promotion.(7) Having found that the parties stipulated that the grievant had the necessary experience for promotion to GS-5 Claims Clerk prior to December 15, 1991, the Arbitrator determined that the grievant was entitled to a nondiscretionary, career ladder promotion to GS-5 under the parties' agreement and MOU. The Arbitrator's finding that the Agency violated the parties' agreement and MOU in failing to timely promote the grievant satisfies the requirement under the Back Pay Act for an unjustified or unwarranted personnel action but for which the grievant would have been promoted to GS-5 as of December 15, 1991. See SSA San Francisco, 48 FLRA at 304-05.

The Comptroller General decisions relied on by the Agency are inapposite because, unlike this case, they dealt with discretionary promotions, rather than nondiscretionary, career ladder promotions, and they involved situations in which there was a dispute between the parties as to an employee's qualifications and an agency's evaluation of those qualifications. See Comp. Gen. No. B-217831 (Oct. 23, 1985) (unpublished); Comp. Gen. No. B-192295 (Nov. 1, 1978) (unpublished); and Comp. Gen. No. B-189678 (Dec. 21, 1977) (unpublished). See also U.S. Department of the Treasury, Internal Revenue Service, Brooklyn District, Brooklyn, New York and National Treasury Employees Union, 51 FLRA 1487 (1996) (case involved claim of administrative error in evaluating employee's qualifications to meet time-in-grade requirements for promotion).

The Arbitrator also determined that the Agency violated Article 3 of the parties' agreement when it did not treat the grievant fairly and equitably in assisting her to supply information about her previous work experience to the RPO to substantiate her qualifications for a higher-graded position. The Arbitrator found that this act of omission on the Agency's part violated the parties' agreement and constituted an unjustified or unwarranted personnel action. This act, as well as the violation of the agreement on career ladder promotions, supports the Arbitrator's conclusion that the Agency violated the parties' agreement. Both of these violations constituted an unjustified or unwarranted personnel action for which a remedy of backpay is available to the grievant under the Back Pay Act.

2. The Award Is Consistent With Section 7106(a)(2)(A) and (a)(2)(C) of the Statute

The Arbitrator did not determine the grievant's qualifications; rather, the Agency and the Union stipulated to the Arbitrator that the grievant had the necessary experience for promotion to GS-5 Claims Clerk prior to December 15, 1991. As the Agency determined the grievant's qualifications, nothing in the award affects management's right to make that determination. Accordingly, the award is not inconsistent with section 7106(a)(2)(A) and (a)(2)(C) of the Statute.

V. Decision

The Agency's exceptions are denied.(8)

APPENDIX

Article 26. Merit Promotion

Section 14--Career Ladder Positions

D. At the time an employee meets time-in-grade and any other legal promotion requirements, the Administration will make a decision to promote or not promote.

1. If an employee is meeting the promotion criteria in the career ladder plan, the Administration will certify the promotion which will be effective at the beginning of the first pay period after the pay period in which the requirements are met.

2. If the employee is not meeting the promotion criteria in the career ladder plan, he/she will be given written notices which will reflect the tasks which must be successfully performed and skills which must be demonstrated before promotion can be effected.

Exceptions, Joint Exhibit 2.




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

1. During the pendency of this case, the Social Security Administration (SSA), previously an agency within the U.S. Department of Health and Human Services (DHHS), was established as an independent agency.

2. During the time that SSA was part of DHHS, SSA's requests for personnel actions were submitted to DHHS for processing