54:1182(103)AR - - Naval Air Warfare Center, Aircraft Divsion, Patuxent River, MD & AFGE Local 1744 - - 1998 FLRAdec AR - - v54 p1182



[ v54 p1182 ]
54:1182(103)AR
The decision of the Authority follows:


54 FLRA No. 103

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF THE NAVY

NAVAL AIR WARFARE CENTER

AIRCRAFT DIVISION

PATUXENT RIVER, MARYLAND

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1744

(Union)

0-AR-2893

_____

DECISION

September 28, 1998

_____

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

Decision by Member Cabaniss for the Authority

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Anne L. Draznin 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 did not file an opposition to the Agency's exceptions.

The Arbitrator sustained a grievance over the Agency's refusal to promote or temporarily promote the grievant, in violation of the parties' collective bargaining agreement (the agreement). The Arbitrator directed the Agency to register the grievant on the Agency's Priority Placement Program at the GS-9 level and to give the grievant backpay for a 2-year period.

For the reasons that follow, we conclude that the portion of the award requiring the Agency to register the grievant at the GS-9 level on its Priority Placement Program is inconsistent with an Agency regulation, and we modify the award accordingly. We are unable to determine from the record whether the grievant performed GS-9 level duties and thus was entitled to backpay for the entire 2-year period. Therefore, we will remand the question of backpay for the grievant to the parties to resubmit to the Arbitrator, absent settlement, for clarification.

II. Background and Arbitrator's Award

The grievant, a GS-06, volunteered and was assigned to the Computer Help Desk in July 1993. On November 10, 1993, the grievant received a promotion to GS-7. During a random desk audit conducted in December 1994, the grievant's position at the Computer Help Desk was audited. The audit report, issued January 10, 1995, found that the position description was inaccurate because it failed to accurately describe all of the duties performed and to reflect the correct, higher grade level of the duties. When attempts to correct the inequity were not successful, the grievant filed a grievance on June 15, 1995. In an attempt to settle the grievance, the Agency gave the grievant a temporary promotion to GS-9 for performing higher-graded duties at the Computer Help Desk for the period November 1994, through August 21, 1995. The grievant was returned to a GS-7 position "thereafter." Award at 10.

When the grievance was not settled, the matter was submitted to arbitration. The Arbitrator framed the issue as follows:

[Was] the [grievant] misassigned, promoted or temporarily promoted in violation of the Collective Bargaining Agreement and applicable laws, rules and regulations? If so, what is the appropriate remedy?

Id. at 2.

The Arbitrator found that the Agency had detailed the grievant to a position with higher-graded duties and had failed to pay the grievant for performing those higher-graded duties. The Arbitrator concluded that this action by the Agency violated Article 12 of the agreement.(1)

As to a remedy, the Arbitrator stated that "although [the grievant] may have a solid equitable claim" on a permanent promotion to a GS-9 or higher position, the Arbitrator was not able to grant such a remedy under the agreement. Award at 22. The Arbitrator ordered that the grievant receive a temporary promotion to GS-9 for a 24-month period beginning in November 1993, the date the grievant was promoted to GS-7, and ending "circa November 13, 1995."(2) Id. at 25. The Arbitrator ordered that all backpay be paid with interest. Additionally, the Arbitrator ordered the Agency to register the grievant as eligible for a GS-9 position on its Priority Placement Program.(3)

III. Agency's Exceptions

The Agency contends that the portion of the award requiring the Agency to register the grievant on its Priority Placement Program at the GS-9 level is contrary to an Agency regulation, Department of Defense (DoD) Directive 1400.20-1-M, DoD Program for Stability of Civilian Employment.(4) According to the Agency, the regulation prohibits registering employees at a grade level based on a temporary promotion and requires that employees be registered at a level that does not exceed their current permanent grade level. The Agency argues that because the grievant's permanent grade level is GS-7, the portion of the award requiring the grievant's registration on the Priority Placement Program at the GS-9 level is contrary to the regulation.

The Agency contends that the portion of the award directing that the Agency promote the grievant to a GS-9 for a 24-month period ending "circa November 13, 1995," is contrary to law and to a Government-wide regulation. Award at 25. The Agency asserts that the grievant was removed from the GS-9 duties effective August 21, 1995, and that the grievant had received a temporary promotion from GS-7 to GS-9 for the period November 13, 1994 to August 21, 1995. The Agency maintains that no additional temporary promotion is due the grievant, because a grievant cannot recover more than he or she would have been entitled to had the unwarranted personnel action never occurred. The Agency relies on 5 C.F.R. º 550.805(b), which implements 5 U.S.C. º 5596(b)(1).(5)

The Agency also states that the Authority has held that "'consistent with law and applicable precedent, to be eligible for temporary promotion, a grievant must perform higher-graded duties.'" Exceptions at 3, citing American Federation of Government Employees, Local 2025 and U.S. Department of the Air Force, Ninth Reconnaissance Wing, Beale Air Force Base, California, 50 FLRA 39, 42 (1994). The Agency argues that because the award is devoid of any finding that the grievant performed higher-level duties following her reassignment to the GS-7 position, the portion of the award directing a temporary promotion after August 21, 1995, is inconsistent with law and should be set aside.

IV. Analysis and Conclusions

In reviewing arbitration awards for consistency with law, rule, or regulation, the Authority reviews the questions of law raised by an arbitrator's award or a party's exceptions 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)). In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

A. The Requirement to Register the Grievant on the Agency Priority Placement Program at the GS-9 Level Is Contrary to Agency Regulation

An arbitration award that conflicts with a governing rule or regulation is deficient under section 7122(a)(1) of the Statute. The Authority has defined rule or regulation to include both Government-wide rules and regulations and agency rules and regulations. See, e.g., U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine and National Association of Agriculture Employees, 51 FLRA 1210, 1216 (1996) (citing U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186, 195 (1990) (Fort Campbell)).

Upon de novo review, for the reasons explained below, we conclude that the award is inconsistent with the Agency regulation. An arbitration award that conflicts with an agency regulation is deficient if the agency regulation governs the matter in dispute. An agency regulation governs the matter in dispute when no provisions of a collective bargaining agreement address the matter. See U.S. Department of Defense Dependents Schools and Federal Education Association, 53 FLRA 249, 253 (1997) (citing Fort Campbell, 37 FLRA at 194).

With regard to whether DoD Directive 1400.20-1-m governs this matter, we note that the Union did not submit an opposition. There is nothing in the award, the record, or the exceptions alleging that any provision of the agreement is relevant. In the absence of any information to the contrary, we find that DoD Directive 1400.20-1-m governs this matter and that the award is contrary to regulation.

Under DoD Directive 1400.20-1-m, when employees are registered on the Priority Placement Program, the employees are to be listed at their current grade level. The regulation also specifically states that employees may not be registered at grade levels to which they are temporarily promoted. The grievant was a GS-7, who had been temporarily promoted to GS-9. Therefore, GS-7 was the highest grade level at which the grievant could be registered on the Priority Placement Program. Because the Arbitrator ordered that the grievant be listed on the Priority Placement Program as a GS-9, the grievant's temporary promotion grade level, the award is contrary to DoD Directive 1400.20-1-m. Accordingly, we modify this portion of the award to require the Agency to register the grievant at the GS-7 level, unless she subsequently has attained a higher grade level.

B. The Applicable Period for Backpay

The Agency's exception involves the consistency of the arbitration award with law and regulation. As stated above, the Authority reviews the question of law raised in the Union's exception and the Arbitrator's award de novo.

The general rule is that an employee is entitled only to the salary of the position to which the individual is appointed. See U.S. Department of the Air Force, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia and American Federation of Government Employees, Local 987, 52 FLRA 938, 942 (1997); U.S. Department of the Army, Fort Polk, Louisiana and National Association of Government Employees, Local R5-168, 44 FLRA 1548, 1563 (1992) (Ft. Polk) (citing Cassandra G. McPeak and Wayne E. Dabney, 69 Comp. Gen. 140 (1989) (McPeak)). An exception to this rule exists, which permits compensation for the temporary performance of the duties of a higher-graded position based on an agency regulation or collective bargaining provision making temporary promotions mandatory in these circumstances. U.S. Department of the Army, Army Armament Research Development and Engineering Center and American Federation of Government Employees, Local 225, 49 FLRA 562, 565 (1994) (citing Wilson v. U.S., 229 Ct. Cl. 510 (1981) and McPeak, 69 Comp. Gen. at 141)). Under this exception, such a collective bargaining agreement provision establishes a nondiscretionary agency policy which provides a basis for backpay. National Treasury Employees Union, Chapter 231 and U.S. Department of the Treasury, U.S. Customs Service, North Central Region, Chicago, Illinois, 51 FLRA 594, 597 (1995) (citing Ft. Polk, 44 FLRA at 1563). When an employee ceases to perform the higher-level duties, the authorization for receipt of the additional compensation also ceases.

Reviewing the questions of law de novo, we find, based on the Arbitrator's findings of fact, to which we defer, that under Article 12 of the parties' agreement, the grievant was entitled to a temporary promotion for performing the higher-graded duties during her detail, and that the grievant received a temporary promotion from the GS-7 to the GS-9 level from the Agency for the period November 13, 1994 through August 21, 1995. However, the Arbitrator's finding of fact regarding whether the grievant continued to perform GS-9 level duties during the period August 21, 1995 through "circa" November 13, 1995 is not clear.

In this regard, the Agency maintains in its exceptions that the grievant was returned to GS-7 level duties on August 21, 1995. However, the Arbitrator found that the paperwork regarding the temporary promotion was not signed until November/December 1995 (Award at 13). The Arbitrator ordered backpay for the grievant for a 2-year period ending "circa" November 13, 1995. The award does not contain the necessary findings of fact to determine whether the grievant performed GS-9 level duties during the period August 21 through "circa" November 13, 1995.

Because we are unable to determine from the record whether the grievant performed GS-9 level duties during this period, we cannot determine whether the grievant was entitled to receive backpay for performing GS-9 level duties during this period. Therefore, we will remand the question of backpay for the grievant for this period to the parties to resubmit to the Arbitrator, absent settlement, for clarification.

V. Decision

We modify the portion of the award to delete the requirement that the Agency register the grievant on its Priority Placement Program at the GS-9 level because that portion of the award is inconsistent with Agency regulation and modify the award to require the Agency to register the grievant at the GS-7 level, unless she subsequently has attained a higher grade level. We are unable to determine from the record whether the grievant performed GS-9 level duties during the period August 21 through "circa" November 13, 1995. Therefore, we remand the question of backpay for the grievant for this period to the parties to resubmit to the Arbitrator, absent settlement, for clarification.




FOOTNOTES:
 

1. The parties' agreement addresses details in Article 12, which provides:

Section A. A detail is the temporary assignment of an employee to a different position for a specified period, with the employee returning to his/her regular duties at the end of the detail.

Section B. When an employee is to be assigned to perform higher level duties exceeding 30 days, the employee will receive a detail or temporary promotion provided the employee meets applicable qualification standards for the assigned position. The Union shall be expeditiously informed of any employee selected for a temporary promotion whose name did not appear on a selection list issued for the same position within 2 years prior to the effective date of the promotion.

Award at 2-3.

2. The Arbitrator limited the temporary promotion to a 24-month period under the belief that there was a 2-year limit on the duration of such temporary promotions, without the approval of the Office of Personnel Management (OPM). We note that OPM revised its regulations and now provides that temporary promotions may be made for a period of up to 5 years, without OPM approval. See 5 C.F.R. º 335.102(f); 58 Fed. Reg. 59347 (Nov. 9, 1993). No exception was taken to this portion of the Arbitrator's award.

3. The Priority Placement Program is an Agency program that helps employees find positions as a result of the anticipated base closure.

4. DoD Directive 1400.20-1-M, Chapter 3, states in pertinent part:

¶11. Employees may be registered for up to five skills, but normally not more than three occupational series for which they fully meet the appropriate qualification standards and for the highest grade level which does not exceed their current permanent grade, or their retained grade, if appropriate.

¶15. Employees may not be registered at grade levels to which temporarily promoted.

Exceptions at 1-2; Attachment.

5.