53:1611(142)AR - - HUD, Louisiana State Office, New Orleans, LA and AFGE Local 3475 - - 1998 FLRAdec AR - - v53 p1611



[ v53 p1611 ]
53:1611(142)AR
The decision of the Authority follows:


53 FLRA No. 142

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

LOUISIANA STATE OFFICE

NEW ORLEANS, LOUISIANA

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3475

(Union)

0-AR-2884

_____

DECISION

March 24, 1998

_____

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

Decision by Chair Segal for the Authority

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Ed W. Bankston 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 alleging that the grievant was entitled to a temporary promotion under the parties' agreement because she had performed higher-graded duties without additional compensation. For the following reasons, we remand the award to the parties for further action consistent with this decision.

II. Background and Arbitrator's Award

The Agency's Automation Technology Administrator (ATA) asked the grievant, a GS-5 legal clerk, to be the ATA's official back-up when the ATA was unavailable or absent. The grievant accepted and served for 3 years as both a law clerk and an ATA back-up. In the latter capacity, the grievant performed without additional compensation many of the computer functions in the ATA's job description. The Agency did not document the fact that the grievant performed back-up ATA duties.

The grievant requested that the back-up ATA duties be included in her position description. The Agency did not respond, and the Union grieved the "continuing failure and refusal to provide . . . an accurate and current classified position description, critical elements, and performance standards reflecting the higher[-]graded duties of back-up ATA." Award at 16. The grievance stated that the grievant was entitled to: (1) compensation for the higher-graded duties she performed as back-up ATA for 3 years; (2) training to ensure her performance as an ATA; (3) a retroactive promotion; and (4) attorney fees. After the grievance was filed, the grievant was relieved of her duties as back-up ATA. The Agency did not respond to the grievance, claiming that it was invalid because the Union designated it as a "Parties['] Grievance" and not as an individual grievance. Id. at 22. The grievance was unresolved and submitted to arbitration, where the Arbitrator framed the issues as:

1. Is the grievance arbitrable?

2. If arbitrable, whether the Agency has violated the collective bargaining agreement or violated the rights of the grievant by its actions, and if so, what is the appropriate remedy?

Id. at 4.

As a threshold matter, the Arbitrator rejected the Agency's contention that the grievance was not arbitrable. The Arbitrator found that the grievance was not barred by either 5 U.S.C. § 7121(c)(5) or Article 22, Section 22.05(5) of the parties' agreement because the grievance did not concern the classification of any position or allege any reduction in grade or pay as a result of a classification.(1) The Arbitrator determined that the grievance was arbitrable because it concerned the "improper denial of 'advancement opportunity' and [sought a] 'retroactive promotion' and back pay as redress 'based on the accretion of the higher[-]graded duties.'" Id. at 28. Additionally, the Arbitrator found that the grievance was arbitrable based on Article 9, Section 9.05 of the parties' agreement because it concerned "the 'accuracy' of the grievant's Official Position Description[.]"(2)

Id. at 29.

On the merits, the Arbitrator concluded that the Agency violated the parties' agreement and "committed an unjustified and unwarranted personnel action" because it failed to temporarily promote the grievant while she was designated to perform the higher-graded back-up ATA duties. Id. at 40. In reaching his conclusion, the Arbitrator examined Article 14 of the agreement, entitled "Details and Temporary Promotions," and found that the grievant had been detailed to the back-up ATA position, within the meaning of this provision.(3) Without discussing whether the grievant met the regulatory and qualification requirements for a temporary promotion, the Arbitrator found that the grievant was entitled to a temporary promotion because the detail exceeded 30 days. The Arbitrator then determined that: (1) the grievant's back-up ATA duties were assigned to her by the Agency and were not voluntary; (2) the grievant had performed the higher-graded duties as the designated back-up ATA for 50 percent of her entire work time over a 3-year period; and (3) the duties performed by the grievant were within the ATA's job description and were commensurate with the ATA's GS-12 level. Id. at 31-32.

Based on his findings, the Arbitrator awarded the grievant GS-12 level pay for 50 percent of her work time over a 3-year period, and attorney fees.

III. Positions of the Parties

A. Agency's Exceptions

The Agency argues that the award is deficient on five grounds. First, the Agency contends that the award is contrary to 5 U.S.C. § 7121(c)(5) because the substance of the grievance is a classification matter not grievable under the Statute. Second, the Agency contends that the award fails to draw its essence from the parties' agreement because Article 22, Section 22.05(5) of the agreement excludes the classification of a position from grievance procedures.

The Agency's third contention is that the "award manifestly disregards the [a]greement." Exceptions at 21. Specifically, according to the Agency, by awarding the grievant a temporary promotion for 3 years, the Arbitrator "bypassed the [a]greement's provision," which states that a detail exceeding 120 days must be accomplished through merit promotion. Id.

The Agency's fourth contention is that the award is based on a nonfact. According to the Agency, the Arbitrator based the award on his erroneous finding that the ATA was acting on behalf of the Agency when he asked the grievant to be his back-up ATA. The Agency claims that the grievant's performance of the back-up ATA duties was voluntary and that she was not promised either compensation or a promotion based on her performance of such duties.

The Agency's final contention is that the award is contrary to the Back Pay Act, 5 U.S.C. § 5596. According to the Agency, the grievant was not qualified for a temporary promotion to a GS-12 position and did not satisfy time-in-grade requirements for the promotion. Therefore, the Agency claims that a failure to temporarily promote the grievant or to pay her at the GS-12 level could not constitute an unjustified or unwarranted personnel action entitling the grievant to backpay or attorney fees under the Back Pay Act.

B. Union's Opposition

The Union contends that the award is not contrary to 5 U.S.C. § 7121(c)(5) or Article 22, Section 22.05(5) of the parties' agreement because the Arbitrator was enforcing the grievant's right to a temporary promotion under the agreement. The Union also argues that the award is not deficient because the Arbitrator awarded the grievant a temporary promotion in excess of 120 days. The Union relies on the Authority's decision in American Federation of Government Employees, Local 916 and U.S. Department of the Air Force, Air Logistics Center, Tinker Air Force Base, Oklahoma, 43 FLRA 915 (1992) (Tinker AFB). Additionally, the Union argues that the Agency's claims that the ATA was not acting with apparent authority and that the grievant volunteered for the back-up ATA position are "nothing more than disagreement with the Arbitrator's findings of fact[.]" Opposition at 2.

Finally, the Union contends that the grievant is qualified for a temporary promotion to a GS-12 position because she performed back-up ATA duties for 3 years. The Union argues that the issue of whether the grievant was qualified for a temporary promotion was not raised before the Arbitrator and, thus, cannot be addressed by the Authority without remand to the Arbitrator for the presentation of evidence on the issue. The Union also argues that the Authority "needs to take a hard look at its rule about employees meeting [the Office of Personnel Management] requirements" because FPM provisions previously relied by the Authority for the rule have been abolished. Id. at 5.

IV. Analysis and Conclusions

A. The Award Is Consistent With 5 U.S.C. § 7121(c)(5)

Under the Statute, grievances concerning "the classification of any position which does not result in the reduction in grade or pay of an employee" are removed from the scope of negotiated grievance procedures. 5 U.S.C. § 7121(c)(5). Thus, an arbitrator is barred from resolving any grievance concerning the classification of a position that does not result in reduction in grade or pay of an employee.

The Authority has construed the term "classification" in section 7121(c)(5) in the context of 5 C.F.R. § 511.101(c), which defines the term as "the analysis and identification of a position and placing it in a class under the position-classification plan established by OPM under chapter 51 of title 5, United States Code." See American Federation of Government Employees, Local 987 and U.S. Department of the Air Force, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 37 FLRA 386, 389 (1990); Department of the Army, New Cumberland Army Depot and American Federation of Government Employees, Local 2004, 21 FLRA 968, 969-70 (1986). Where the substance of a grievance concerns the grade level of the duties assigned to, and performed by the grievant, the grievance concerns the classification of a position within the meaning of section 7121(c)(5) of the Statute. Social Security Administration and American Federation of Government Employees, Local 1923, AFL-CIO, 31 FLRA 933, 936 (1988). On the other hand, where the substance of a grievance concerns whether the grievant is entitled to a temporary promotion under a collective bargaining agreement by reason of having performed the duties of a higher-graded position, the grievance does not concern the classification of a position within the meaning of section 7121(c)(5) of the Statute. U.S. Department of the Navy, Naval Aviation Depot, Marine Corps Air Station, Cherry Point, North Carolina and International Association of Machinists and Aerospace Workers, Local 2297, 42 FLRA 795, 801-02 (1991).

In this case, the Arbitrator determined that the grievance concerned a claim that the grievant had been assigned the duties of a higher-graded position and that the assignment constituted a "detail" to a higher-graded position, thereby entitling her to a temporary promotion pursuant to the parties' agreement. The grievant did not claim that her permanent GS-5 position was improperly classified or that her permanent position should be classified at a higher grade. Therefore, the Arbitrator was not asked to classify a position within the meaning of section 7121(c) of the Statute. Rather, the Arbitrator was required to decide whether the grievant was assigned the duties of a higher-graded position and entitled to compensation for the performance of those duties under the terms of the parties' agreement.

As the substance of the grievance before the Arbitrator concerned whether the grievant was entitled to a temporary promotion under the parties' agreement, we conclude that the award is not deficient as contrary to 5 U.S.C. § 7121(c)(5). See U.S. Department of the Air Force, Warner Robins Air Force Logistics Center, Robins Air Force Base, Georgia and American Federation of Government Employees, Local 987, 37 FLRA 155, 159 (1990).

B. The Award Draws Its Essence From the Parties' Collective Bargaining Agreement

We construe the Agency's allegations that the award violates Article 22, Section 22.05(5), and that it "bypassed the [a]greement's provision, which states that [a] detail shall be done via merit promotion when the detail exceeds [120] days[,]" as claims that the award fails to draw its essence from the parties' agreement. Exceptions at 21.

With respect to the former claim, Article 22, Section 22.05(5) of the parties' agreement, which contains the same wording as section 7121(c)(5) of the Statute, excludes the classification of a position from grievance procedures. The Arbitrator determined that the agreement does not exclude from the grievance procedure claims, such as the grievance in this case, that an employee is entitled to a temporary promotion based on the assignment of higher-graded duties. As set forth in Section A. supra, the substance of the grievance in this case concerned whether the grievant was entitled to a temporary promotion under the parties' agreement and, therefore, does not concern the classification of a position within the meaning of section 7121(c)(5) of the Statute. Accordingly, the Agency has not demonstrated that the Arbitrator's interpretation and application of the parties' agreement, applying the same meaning to Article 22, Section 22.02(5) as section 7121(c)(5) of the Statute, is unfounded, implausible, or irrational.

With respect to the Agency's allegation that the award is inconsistent with Article 14, Section 14.05 of the parties' agreement, which states that a detail exceeding 120 days must be granted through a merit promotion, the Arbitrator determined that another clause in this same provision entitled the grievant to a temporary promotion. Specifically, Article 14, Section 14.05 provides that details of higher-graded duties in excess of 30 days must be accomplished through a temporary promotion. The Arbitrator found that the assignment of the back-up ATA duties constituted a detail, and that the assignment exceeded 30 days. The Agency has not demonstrated that the award of a temporary promotion, which is specifically provided for in the parties' agreement, is unfounded, implausible, or irrational. United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-76 (1990). Where parties to a collective bargaining agreement provide for the temporary promotion of employees assigned to perform the work of higher-graded positions, an arbitrator may, as done in this case, order temporary promotions, with backpay, in accordance with that agreement. Tinker AFB, 43 FLRA at 918. Moreover, we note that the Authority has consistently determined that an agency cannot refuse to temporarily promote a grievant and then escape its obligation by claiming that the remedy violates the agreement. See id. See also U.S. Department of the Navy, Long Beach Naval Shipyard, Long Beach, California and International Federation of Professional and Technical Engineers, Local 174, 37 FLRA 1111, 1114 (1990) (upholding an arbitrator's award of a temporary promotion and backpay for a period in excess of 120 days despite the fact that the parties' agreement provided that details to higher-graded positions over 121 days must be made under competitive procedures).

For these reasons, the award does not fail to draw its essence from either Article 22, Section 22.05(5) or Article 14, Section 14.05 of the parties' agreement. Accordingly, the award is not deficient on this ground.

C. The Award Is Not Based On a Nonfact

To establish that an award is based on a nonfact, the party making the allegation must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached. U.S. Department of Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993). However, we will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties disputed at arbitration. U.S. Department of the Interior, Bureau of Mines, Pittsburgh Research Center and American Federation of Government Employees, Local 1916, 53 FLRA 34, 40 (1997).

The Agency's arguments challenge a factual matter--whether the grievant was selected for the back-up position by the ATA who was acting on behalf of the Agency--that the parties disputed at arbitration. Therefore, this challenge does not provide a basis for finding the award deficient.

D. The Record Is Insufficient To Determine The Grievant's Qualifications To Be Promoted To The GS-12 Position

Under the Back Pay Act, an award of backpay is authorized only where 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. U.S. Department of Justice, Immigration and Naturalization Service, San Diego, California and American Federation of Government Employees, National Immigration and Naturalization Service Council, 51 FLRA 1094, 1097 (1996) (citing American Federation of Government Employees, Local 31 and U.S. Department of Veterans Affairs, Medical Center, Cleveland, Ohio, 41 FLRA 514, 517 (1991)).

Denying an employee a temporary promotion to which the employee is entitled under a collective bargaining agreement constitutes an unjustified or unwarranted personnel action entitling the employee to a backpay award. U.S. Department of Health and Human Services, Public Health Service, Navajo Area Indian Health Service and Laborers' International Union of North America, Navajo Nation Health Care Employees, Local 1376, 50 FLRA 383, 385 (1995). However, in deciding exceptions to remedies directed by arbitrators, the Authority has consistently held that an "employee must meet the minimum qualification requirements prescribed by the Office of Personnel Management (OPM)" for the higher-graded position in order to receive a temporary or permanent promotion to that position. Id. at 386. See also U.S. Department of the Army, Headquarters Fort Dix, Fort Dix, New Jersey and American Federation of Government Employees, Local 1930, 49 FLRA 730, 736 (1994) (Fort Dix); Federal Correctional Institution, Petersburg, Virginia and American Federation of Government Employees, Appomattox Local 2052, 16 FLRA 600 (1984). It is undisputed that the applicable Government-wide regulation requires finding that an applicant meets the minimum qualifications for a position in order to be eligible for promotion and placement.(4) See 5 C.F.R. § 335.103(b)(3) ("[t]o be eligible for promotion or placement, candidates must meet the minimum qualification standards prescribed by" OPM).

Here, the Arbitrator did not address, and the record does not contain sufficient information permitting us to determine, whether the grievant possessed the minimum qualification requirements for the back-up ATA position at a GS-12 or any other appropriate level. Without such a determination, we are unable to determine whether the award is deficient.(5) See U.S. Department of Veterans Affairs, Medical Center, Buffalo, New York and Service Employees International Union, Local 200-C, 37 FLRA 379, 384-85 (1990). In such circumstances--where the question of whether a grievant meets the minimum qualifications for temporary promotion to a higher-graded position is disputed by the parties and the record is not sufficient to resolve that dispute--the Authority will remand the award to the arbitrator to make a finding as to the grievant's qualifications. See id. Cf. American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Social Security Administration, Baltimore Maryland, 38 FLRA 89, 97-98 (1990) (where the arbitrator did not make a determination as to the grievant's qualifications but it was clear from the record that the grievant met the minimum qualification requirements at some point, the award was modified to provide that the grievant was awarded a retroactive temporary promotion and backpay for all times that the grievant met the requirements).

Accordingly, because the record does not contain sufficient information to determine the grievant's qualifications, we remand this case to the parties for submission to the Arbitrator, absent settlement, to make a determination as to whether the grievant was qualified for a temporary promotion at the GS-12 level, and if not, to consider whether another remedy is available to the grievant.(6)

V. Decision

The award is remanded to the parties for further action consistent with this decision.(7)




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

1. Section 7121(c)(5) of 5 U.S.C. provides that "the classification of any position which does not result in the reduction in grade or pay of an employee" is exempted from the scope of negotiated grievance procedures. Article 22, Section 22.05(5) similarly provides that "[t]he classification of any position which does not result in the reduction in grade or pay of an employee" is exempted from the scope of the grievance procedures provided in the parties' agreement.

2. Article 9, Section 9.05 of the parties agreement provides that:

The following issues may be appealed through the Grievance Procedure, Article 22:

(1) Accuracy of the official Position Description including the inclusion or exclusion of a major duty.

(2) An assignment or detail out of the scope of normally performed duties as outlined in the Official Position Description.

Award at 28.

3. Article 14, Section 14.05 of the agreement provides that:

When qualified employees are detailed to a bargaining unit position of higher grade for a period in excess of thirty (30) consecutive days, the assignment must be made via temporary promotion. Employees who are temporarily promoted must meet all regulatory and qualification requirements for promotion. If the detail exceeds one hundred and twenty (120) days, it shall be done via merit promotion.

Award at 38.

4. As such, it is irrelevant that, as the Union claims, the FPM provisions were abolished. We also note that Article 14, Section 14.05 of the parties' agreement provides that "[e]mployees who are temporarily