U.S. Department of the Navy, Naval Undersea Warfare Center Division, Keyport, Washington and Bremerton Metal Trades Council

[ v55 p884 ]

55 FLRA No. 149

U.S. DEPARTMENT OF THE NAVY
NAVAL UNDERSEA WARFARE CENTER
DIVI SION, KEYPORT, WASHINGTON
(Agency)

and

BREMERTON METAL TRADES COUNCIL
(Union)

0-AR-2982

_____

DECISION

September 29, 1999

_____

Before the Authority:                         Phyllis N. Segal, Chair; Donald S.
Wasserman and Dale Cabaniss, Members.  [n1] 

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Gordon M. Byrholdt 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 ordered the Agency to permanently promote, retroactively, the grievant to a WG-8 hazardous waste handler position. We conclude that the Agency fails to establish that award is deficient. Accordingly, we deny the Agency's exceptions.

II.     Background and Arbitrator's Award

      In 1994, the grievant, a WG-5 electroplate helper was temporarily assigned to the position of hazardous waste handler, WG-5. During the period of 1994-1996, he worked mostly as a hazardous waste handler. In 1995, he filed a grievance claiming he was entitled to be permanently promoted to the position of hazardous waste handler, WG-8. The grievance was settled by granting the grievant a temporary promotion during that period. On July 7, 1996, the Agency "permanently reassigned" the grievant from another position to the position of hazardous waste handler, WG-5. Agency's Exceptions at 3. The grievant filed a second grievance disputing his status as a WG-5 and claiming an entitlement to a permanent promotion to WG-8.

      The grievant's department and division heads offered to resolve the grievance by permanently promoting the grievant to hazardous waste handler, WG-8, effective July 7, 1996, and the grievant accepted the offer in resolution of his grievance. The department and division heads executed a Standard Form 52 (SF-52--Request for Personnel Action) requesting the grievant's promotion in implementation of the grievance resolution. The Agency's personnel office rejected the grievant's promotion, and the Agency's commander rejected the grievance resolution on the basis of the personnel office's rejection of the promotion. The parties submitted to arbitration the stipulated issue of whether the grievant was entitled under the parties' collective bargaining agreement to a permanent promotion to the position of hazardous waste handler, WG-8.

      The Arbitrator sustained the grievance. He ruled that the grievant was entitled to a permanent promotion to WG-8, retroactive to July 7, 1996, as provided in the SF-52 executed in settlement of the grievance. The Arbitrator found that the grievance resolution was not an unauthorized act, but a resolution that should have been affirmed under the parties' collective bargaining agreement.

      In ruling that the grievance resolution was required to have been upheld and that the grievant was entitled to have been permanently promoted, the Arbitrator relied on section d of a Memorandum of Understanding (MOU), which amended the parties' agreement. Section d of the MOU provides that "[n]on-competitive `accretion of duties' promotions may be used, when appropriate, if the major duties of an employee's old position are absorbed into the new position and the former position is canceled." Award at 3. The Arbitrator credited testimony of a Union negotiator that the situation of the grievant "was just the sort of factual situation contemplated by the `accretion of duties' language contained in the [MOU]." Id. at 11. Finding that the grievant's position had accreted into the permanent position of hazardous waste handler, WG-8, the Arbitrator concluded that resolution of the grievance by permanently promoting the grievant to WG-8 was in accordance with generally understood principles of accretion of duties and section d of the MOU. Accordingly, the Arbitrator ordered the Agency to promote the grievant to the position of hazardous waste handler, WG-8, retroactive to July 7, 1996, as though this action had been accomplished pursuant to the grievance settlement. [ v55 p885 ]

      In ordering the grievant permanently promoted, the Arbitrator rejected the Agency's claim that the grievant was only entitled to a temporary promotion because the grievant had cited section 1705c of the parties' collective bargaining agreement in his grievance and section 1705c deals only with temporary promotions. The Arbitrator ruled that technical rules of pleading have no place in arbitration and that because the Agency was on notice of the remedy sought by the grievant, the citation to section 1705c did not limit the relief available to the grievant.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency contends that the Arbitrator exceeded his authority and that the award fails to draw its essence from the parties' collective bargaining agreement and is contrary to section 7106(a)(2)(C) of the Statute and 5 C.F.R. § 335.103(b)(4).

      The Agency argues that the award fails to draw its essence from the agreement because the Arbitrator disregarded the clear language of section 1705c. The Agency notes that section 2018 of the agreement prohibits an arbitrator from altering any agreement provisions. The Agency maintains that the Arbitrator disregarded section 1705c and altered the agreement by granting the grievant a permanent promotion when section 1705c plainly limits any entitlement to promotion to a temporary promotion. The Agency asserts that the MOU on which the Arbitrator relied does not support the award because the MOU only addresses methods of promotion, and not entitlements to promotion. The Agency also claims that the Arbitrator improperly relied on the SF-52, in disregard of the testimony by the grievant's division manager that he did not have the authority to grant a permanent promotion.

      The Agency argues that the Arbitrator exceeded his authority by altering the agreement in violation of section 2018 of the agreement. The Agency asserts that the Arbitrator altered the agreement by ordering a permanent promotion under the MOU without evidence that the contractual conditions had been met.

      The Agency argues that the award is contrary to management's right to select under section 7106(a)(2)(C) of the Statute and 5 C.F.R. § 335.103(b)(4). The Agency maintains that in order to be consistent with management's right, an arbitrator's order to promote a grievant must be based on a reconstruction of what management would have done if management had acted properly. The Agency claims that the Arbitrator's award is not based on a reconstruction and that the award is not supported by the MOU because the Arbitrator did not find that the contractual conditions had been met. The Agency further asserts that the award is not supported by general principles of accretion of duties because the grievant in this case was like the grievant in Warner Robins Air Logistics Center, Robins Air Force Base, Georgia and American Federation of Government Employees, Local 987, 10 FLRA 410 (1982) (Warner Robins), who was not entitled to a promotion to a reclassified position to which he had been detailed.

B.     Union's Opposition

      The Union contends that the Agency's exceptions provide no basis for finding the award deficient. The Union argues that the Agency fails to establish that the award does not draw its essence from the agreement or violates section 2018. The Union maintains that while section 1705c provides a specific remedy, it does not preclude the Arbitrator's remedy. The Union also asserts that the Arbitrator's crediting of testimony that the grievant's situation was just the sort of situation contemplated by the MOU sufficiently supports the Arbitrator's reliance on the MOU. As to management's right to select under section 7106(a)(2)(C) and 5 C.F.R. § 335.103(b)(4), the Union argues that the Arbitrator's remedy reflects reconstruction and is not deficient.

IV.     Analysis and Conclusions

A.     The Award Draws Its Essence from the Parties' Agreement

      In order for an arbitrator's award to be found deficient as failing to draw its essence from the collective bargaining agreement, it must be established that the award: (1) is so unfounded in reason and fact and so unconnected with the wording and purpose 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 (4) evidences a manifest disregard of the agreement. See U.S. Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990).

      The Agency contends that the award is deficient because the Arbitrator altered the agreement and disregarded section 1705c by granting the grievant a permanent promotion when section 1705c limits any promotion entitlement to a temporary promotion. However, as noted by the Union, although section 1705c entitles an employee to a temporary promotion in the specified circumstances, it does not prohibit a perma- [ v55 p886 ] nent promotion in other circumstances. Moreover, the Arbitrator specifically held that the available relief was not limited by the grievant's citation to section 1705c in his grievance, and the Agency does not challenge this procedural ruling of the Arbitrator. Consequently, it was not irrational, implausible, unfounded, or in disregard of section 1705c for the Arbitrator to find that the grievance settlement should have been upheld because a permanent promotion for an accretion of duties was in accordance with the terms of the MOU.

      The Agency's arguments that the MOU only addresses methods of promotions and that the division manager testified that he did not believe that he had authority to grant a permanent promotion do not establish otherwise. The Agency's citation to Warner Robins also provides no basis for finding the award deficient. Unlike the grievant in Warner Robins, the grievant in this case was permanently assigned to the position that had the accreted duties. [n2]  Accordingly, the Agency does not establish that the award fails to draw its essence from the parties' collective bargaining agreement, and we deny the Agency's exception.

B.     The Arbitrator Did Not Exceed His Authority

      Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority, or award relief to those not encompassed within the grievance. See American Federation of Government Employees, Local 1617 and U.S. Department of the Air Force, San Antonio Air Logistics Center, Kelly Air Force Base, Texas, 51 FLRA 1645, 1647 (1996).

      The Agency has not established that the Arbitrator disregarded specific limitations on his authority. The stipulated issue concerned whether the grievant was entitled to a permanent promotion to a WG-8 position under the parties' agreement. The Arbitrator resolved this issue by interpreting and applying section d of the parties' MOU, which permits "non-competitive 'accretion of duties promotions.'" The Agency's exception is a reiteration of its disagreement with the Arbitrator's interpretation of the MOU and provides no basis for finding that the Arbitrator exceeded his authority. See American Federation of Government Employees, Local 1546 and U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Region West, 52 FLRA 94, 98 (1996) (exception attempting to recast the arbitrator's contract interpretation as an improper contract alteration provided no basis for finding that the arbitrator exceeded his authority). Accordingly, we deny the Agency's exception.

C.     The Award is Not Contrary to Law or Regulation

      When a party's exception challenges an arbitration award's consistency with law, we review the questions of law raised in the exception and the arbitrator's award de novo. See 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 (D.C. Cir. 1994)). In applying a standard of de novo review, we assess whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See [ v55 p887 ] 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, we defer to the arbitrator's underlying factual findings. See id.

1.     The Award is Not Contrary to Section 7106(a)(2)(C) of the Statute

      The Agency alleges that the remedy portion of the award violates its management rights under section 7106(a)(2)(C) of the Statute. The Authority's framework for resolving exceptions alleging that an award violates management rights under section 7106 of the Statute is set forth in U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and National Treasury Employees Union, Chapter 201, 53 FLRA 146, 151-54 (1997) (BEP). Under BEP, when we find that an award affects the exercise of a management right under section 7106(a), we apply a two-prong test to determine whether the award is deficient.

      Under prong I of this framework, we examine whether the award provides a remedy for a violation of a contract provision that was negotiated pursuant to section 7106(b) of the Statute or, for rights under section 7106(a)(2) of the Statute, an applicable law, within the meaning of section 7106(a)(2). See 53 FLRA at 153. If the award does not provide such a remedy, we will find that the award is deficient. If it does, the award satisfies prong I of the framework, and we will address prong II.

      Under prong II of BEP, we consider whether the arbitrator's remedy reflects a reconstruction of what management would have done if management had not violated the law or contractual provision at issue. See id. at 154. If the arbitrator's remedy does not reflect such a reconstruction, we will find that the award is deficient. If it does, the award satisfies prong II, and we will deny the exception.

      The Authority has held that an award that orders an agency to promote a grievant retroactively into a specified position affects management's right to select under section 7106(a)(2)(C) of the Statute. See, e.g., U.S. Department of Defense, Departments of the Army and the Air Force, Alabama National Guard, Northport, Alabama and Alabama Association of Civilian Technicians, 55 FLRA 37, 41 (1999). Consequently, the Arbitrator's award affects management's right to select, and we must evaluate the award under the BEP framework.

      With regard to prong I, there is no contention that the MOU provisions enforced by the Arbitrator were unenforceable. In this regard, the Agency focuses its arguments exclusively on reconstruction and only excepts to the Arbitrator's remedy. Accordingly, we find that the award satisfies prong I, and we address prong II. See id. (an award satisfied prong I when there was no contention that the contract provision enforced by the arbitrator was unenforceable, and the agency effectively conceded that the contract provision was negotiated pursuant to section 7106(b) by focusing its arguments on reconstruction and only excepting to the remedy portion of the award).

      Under prong II, the question is whether the Arbitrator's remedy, which directs the Agency to promote the grievant retroactively, is a proper reconstruction of what the Agency would have done had the Agency not violated the parties' agreement. The Arbitrator ruled that the grievant was entitled to a permanent promotion as provided in the settlement of the grievance. He found that the grievance settlement was not an unauthorized act, but a resolution that the Agency was obligated to have affirmed under the parties' agreement. He determined that the resolution should have been implemented because it was in accordance with generally understood principles of accretion of duties and section d of the MOU. Consequently, the award satisfies prong II of the BEP analysis, and no basis is provided for finding the award contrary to section 7106(a)(2)(C) of the Statute. Accordingly, we deny the Agency's exception.

2.     The Award is Not Contrary to 5 C.F.R. § 335.103(b)(4)

      5 C.F.R. § 335.103(b)(4) provides, in pertinent part, that "[s]election procedures will provide for management's right to select or not select from among a group of best qualified candidates. They will also provide for management's right to select from other appropriate sources . . . ." The Office of Personnel Management (OPM) added this right to select to part 335, effective January 1, 1995. It previously had been set forth in Federal Personnel Manual (FPM) chapter 335 and had been provisionally retained when the FPM was abolished. See 59 Fed. Reg. 67,121 (1994).

      In a number of advisory opinions concerning the proper interpretation of the right to select under the FPM, OPM advised the Authority that an arbitrator may properly order an employee to be selected for promotion when the arbitrator finds that the employee was affected by an improper agency action that directly resulted in the failure of the employee to be promoted. See, e.g., U.S. Department of Commerce, National Bureau of Standards, Washington, D.C. and AFGELocal 2186, Boulder, Colorado, 3 FLRA 615, 616 (1980). The Authority adhered to this interpretation in the resolution of exceptions claiming that an award was deficient [ v55 p888 ] under FPM chapter 335. See, e.g., American Federation of Government Employees, Local 1923, AFL-CIO and Health Care Financing Administration, Department of Health and Human Services, 33 FLRA 88, 94 (1988). As management's right to select was incorporated into part 335 without substantive change, in resolving exceptions under section 335.103(b)(4), we will continue to apply OPM's advice on the proper interpretation of this right.

      Applying this interpretation, and consistent with our foregoing finding that the award reflected reconstruction of what management would have done if it had acted properly, we conclude that the award reflects a finding by the Arbitrator that the grievant was affected by an improper action of the Agency that directly resulted in his failure to be promoted. Accordingly, we find that the Agency fails to establish that the award is contrary to section 335.103(b)(4), and we deny the Agency's exception. [n3] 

V.     Decision

      The Agency's exceptions are denied.


File 1: Authority's Decision in 55 FLRA No. 149
File 2: Opinion of Member Cabaniss


Footnote # 1 for 55 FLRA No. 149 - Authority's Decision

   Member Cabaniss's dissenting opinion is set forth at the end of this decision.


Footnote # 2 for 55 FLRA No. 149 - Authority's Decision

   In denying this exception, we find it clear, contrary to our dissenting colleague's view, that the grievant permanently encumbered the WG-5 hazardous waste handler position at all relevant times. In this connection, we note, first, the Arbitrator's statement that the grievant was identified for separation by a reduction-in-force from the position of WG-5 hazardous waste handler, a fact acknowledged by the dissent. See Award at 5; Dissent at 2. Under 5 C.F.R. part 351, employees can be separated by reduction-in- force only from their permanent position. Second, the Agency not only fails to dispute the Arbitrator's statement, but also expressly confirms it by asserting that the WG-5 hazardous waste handler position "remained encumbered by [the grievant] until his retirement . . . ." Exceptions at 2. Third, the Agency concedes three times that the grievant was permanently reassigned to the WG-5 hazardous waste handler position. See id. at 3 (Agency states that July 7, 1996 was the "date [the grievant] was permanently reassigned"; Agency states that the Arbitrator found that the grievant began performing at the WG-8 level "immediately upon being permanently assigned to the duties on July 7"; Agency asserts that the grievant was not entitled to a promotion "upon his reassignment to a WG-5 hazardous waste handler position"). Fourth, although the Agency refers to the grievant's "detail" to the WG-5 hazardous waste handler position, those references are specifically and expressly to time periods prior to the grievant's permanent reassignment to the position. See id. (Agency states that the grievant was detailed to the position "between March 1996 and July 7, 1996"; Agency states that the grievant was on detail to the position "prior to July 7, 1996"; Agency states that the grievant could not be promoted upon his reassignment to the position based on "knowledge and skills while on a detail to that position").

      Our dissenting colleague argues that besides stating that the grievant encumbered the WG-5 hazardous waste handler position for reduction-in-force purposes, the Arbitrator stated that the grievant was "detailed" to the position rather than being permanently reassigned to the position. Although the Agency does not make this argument, she suggests that the Arbitrator made a specific factual finding of a detail, and not a reassignment, and that we are bound by that finding, despite the rest of the record to the contrary. In our view, the Arbitrator was merely using a term to describe the grievant's movement from one position to another and did not make a factual determination of what kind of personnel action occurred on July 7. We refuse to give such meaning to the description when nothing else in the record or the award supports that the Arbitrator used the term in a technical sense and as a resolution of a factual dispute between the parties. Moreover, the Arbitrator's use of the term "detail" cannot support granting the Agency's exception when the record otherwise confirms that the grievant permanently encumbered the WG-5 hazardous waste handler position, thereby specifically precluding the deficiency that our dissenting colleague would find.


Footnote # 3 for 55 FLRA No. 149 - Authority's Decision

   In contrast to the dissent, we do not address whether the award is contrary to section 335.103(c)(3). Our dissenting colleague addresses the issue by construing the Agency's citation to Warner Robins as a contention that the award is contrary to section 335.103(c)(3). To us, this reads too much into the citation, particularly when the Agency has specifically claimed that the award is contrary to section 335.103(b)(4), but not (c)(3). The construction also ignores that the Agency's argument under Warner Robins is premised on "times prior to July 7, 1996[.]" Exceptions at 3. As the Arbitrator based his award on what occurred on July 7, not before, our dissenting colleague's construction is based on an argument that the Agency does not make.The dissent is further based on another argument that the Agency does not make.

      The dissent would also find the award deficient because the Arbitrator found that there was an unencumbered WG-8 position to which the grievant could be "slotted." Dissent at 7. However, the Agency never addresses in its exceptions the Arbitrator's comment on the availability of an unencumbered WG-8 position. Although review is de <