File 2: Opinion of Member Cabaniss

[ v55 p888 ]

Member Cabaniss, dissenting in part:

      I write separately to state why I do not join the majority in its conclusion that the award is not contrary to law and regulation. More particularly, I write to express concern with the majority's decision to disregard the Arbitrator's four references in his award to his finding that the grievant was "detailed" to the position in question rather than being "permanently reassigned." Award at 7 and Majority Opinion at 2 (citing Agency's Exceptions at 3). While I believe we are bound by the arbitral finding that the grievant was "detailed" to the hazardous waste handler, WG-5 position, I believe that an equally plausible reading of the record is that the Arbitrator's findings are sufficiently ambiguous to require remand for clarification. However, there is not an adequately clear record to support the majority's holding.

      While it is certainly true that the Agency uses the phrase "permanently reassigned" in its exceptions, in those exceptions the Agency also asserts that the grievant's only remedy is provided by section 1705c of the parties' collective bargaining agreement, a provision pertaining to temporary assignments (which is inconsistent with the employee being permanently reassigned, but consistent with being detailed), and when temporary promotions for such assignments can be granted. Exceptions at 1. It is the Arbitrator's determination of the facts that are to be relied on. In this regard, the "Authority accords deference to an arbitrator's factual findings because the parties have bargained for the facts to be found by an arbitrator chosen by them." American Federation of Government Employees, Local 2459 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Texarkana, Texas, 51 FLRA 1602, 1607-08 (1996); cf. United Paperworkers v. Misco, Inc., 484 U.S. 29, 37-38 (1987) ("'[b]ecause the parties have contracted to have disputes settled by an arbitrator chosen by them rather than by a judge, it is the arbitrator's view of the facts . . . that they have agreed to accept.'").

      I would not, therefore, rely on an assertion to the contrary made by one of the parties, especially when that assertion, is, at best, inconsistent, with the party's position on the issue in dispute. Although I agree with the majority's conclusion that the Agency has not established that the "award fails to draw its essence from the parties' collective bargaining agreement," and, therefore, the Agency's essence exception provides no basis for overturning the award, I do not agree with the majority's view that the Arbitrator did not make a factual determination of what kind of personnel action occurred on July 7. [ v55 p889 ]

      In this regard, the Arbitrator found that in 1994, the grievant, a WG-5, step 4, electroplate helper, was temporarily assigned to WG-5, step 4 hazardous waste handler position, and in 1995, he was temporarily promoted to the position as a WG-8, step 4. The Arbitrator further found that "[f]ollowing . . . [a] short break in his duties as a Hazardous Waste Handler [the grievant] was again detailed back to Hazardous Waste as a WG-5 on July 7, 1996." Award at 7 (emphasis added). The grievant "filed a grievance alleging his detail should have been as a Hazardous Waste Handler WG-8 and further that he was entitled to a permanent promotion to Hazardous Waste Handler WG-8." Id. (emphasis added). The Arbitrator determined that "[w]hen [the grievant] again grieved being detailed to work in Hazardous Waste at WG-5 . . . circumstances had changed significantly. There was now an unencumbered position to which [the] grievant could be slotted due to injury and retirement." Id. at 8 (emphasis added).

      The Arbitrator found that the grievant's superior reviewed the grievance and concluded that a slot was available and that the grievant should be promoted to Hazardous Waste Handler, WG-8. A Standard Form 52 (SF-52--Request for Personnel Action) calling for the grievant's permanent promotion to hazardous waste handler, WG-8, step 4 was prepared and signed by the grievant's superior and department head. The SF-52 "called for the promotion to be effective July 7, 1996, [and] to compensate [the grievant] for the work already performed at WG-8 while on this latest temporary detail." Id. at 9 (emphasis added). Subsequently, the SF-52 was presented to and accepted by the grievant as resolution of the grievance. The SF-52 was sent to the personnel office where it was rejected.

      According to the Arbitrator, in May 1997, the grievant was RIFed. The grievance over the permanent promotion had not been resolved when the RIF occurred, and was submitted to arbitration on the question of whether the grievant was entitled, under the parties' contract, to a permanent promotion to the position of hazardous waste handler, WG-8.

      The Arbitrator concluded that the grievant was entitled to a permanent promotion to WG-8 as provided in the SF-52. Based on record testimony, the Arbitrator found that the grievant's circumstance was "just the sort of factual situation contemplated by the 'accretion of duties' language contained in [section d. of the MOU]." [n1]  Id. at 11. The Arbitrator found that the grievant was qualified and that, in the interests of the Agency and its mission, he was assigned duties and responsibilities that resulted in his being "accreted into the permanent positon of WG-8 Hazardous Waste Handler." Id. at 13. According to the Arbitrator, the resolution of the grievance by the "promotion is in accordance with generally understood principles of the accretion of duties." Id.

      The Arbitrator found that at the time of the grievance there was an "unencumbered position against which the [g]rievant could be slotted" and that the 1996 grievance resolution by the grievant's superiors should have been upheld. Id. Accordingly, the Arbitrator sustained the grievance and ordered the Agency to promote the grievant to the permanent position of Hazardous Waste Handler, WG-8.

      The Authority reviews questions of law raised in a party's exceptions and an arbitrator's award de novo. See 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). When applying a de novo standard of review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. Id. at 1710. In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

      Also, except with respect to a collective bargaining agreement that was in effect before the date a regulation was prescribed, a Government-wide regulation governs a matter in dispute to which it applies even if the same matter is covered by a collective bargaining agreement. 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, 193 (1990). [n2] 

      Relying on Warner Robins Air Logistics Center, Robins Logistics Center, Robins Air Force Base, Georgia and American Federation of Government Employees, Local 987, 10 FLRA 410 (1982) (Warner Robins), the Agency asserts that the Arbitrator's finding that the grievant is entitled to an accretion of duties promotion is not consistent with the Authority's findings in that case. Because the Agency relies on Warner Robins, I construe the Agency's contention that the Arbitrator's finding that the promotion is in "accordance with generally understood principles of the accretion of duties" as a [ v55 p890 ] claim that the award is contrary to a Government-wide regulation, namely 5 C.F.R. § 335.103. Award at 13. The majority construes the Agency's Warner Robins argument to be focused solely on matters occurring before the July 7, 1996 personnel action at issue here: what the Agency alleges is that no accretion of duties could have taken place prior to July 7, 1996, (because the grievant was performing other duties), thereby precluding the immediate accretion of duties promotion entitlement as of July 7, 1996--the date the grievant was detailed to the position in question.

      The holding in Warner Robins involved the reversal of an arbitration award granting a permanent promotion to a grievant. A key basis for overturning the award was that the grievant had been detailed to the position in question rather than being permanently assigned to it - hence my concern over the majority's disregard of the Arbitrator's finding that the grievant here was detailed to the position in question. Accordingly, I have little problem finding that a reference to Warner Robins brings into issue the question of the status of the personnel action that took place on July 7, 1996, given that it, too, involved a "detail."

      In Warner Robins, a grievant claimed entitlement to a permanent, noncompetitive promotion to a position to which he had been detailed on the basis that the position had been upgraded without significant change in the duties and responsibilities due to the correction of a classification error. The Authority found that the arbitrator's award, which ordered the agency to permanently promote the grievant to the position, was contrary to the Federal Personnel Manual (FPM) chapter 335 because the grievant was not the incumbent of the position during the period that he was detailed to it. [n3] 

      Under FPM Chapter 335, an accretion of duties promotion was described as "[a] promotion resulting from an employee's position being classified at a higher grade because of additional duties and responsibilities." In Re Exceptions From Competitive Merit Plans (335 FPM § 1-5(c)(1)(b)), 9 M.S.P.R. 116, 117 (1981) (quoting 335 FPM § 1-5(c)(1)(b)). The exact wording is incorporated into 5 C.F.R. § 335.103(c)(3)(ii), which permits agencies to except from competitive procedures, "[a] promotion resulting from an employee's position being classified at a higher grade because of additional duties and responsibilities[.]" [n4]  Thus, "[a]n accretion of duties promotion occurs when additional responsibilities have been assigned to the employee and the position is upgraded accordingly." Jones v. Dalton, Secretary, Department of the Navy, No. Civ. A. 95-0289 (July 24, 1996) (memorandum). See also, Matter of: Sanford M. Altschul-Backpay for Detail, Comp. Gen. No. B-192433 (Dec. 4, 1978) (unpublished) (Comptroller General stated that when a position undergoes an accretion of duties, i.e., some higher-level duties are assigned, not constituting a detail to a higher-graded position, the employee's proper remedy is to seek to have the classification of his position upgraded). As 5 C.F.R. § 335.103(c)(3)(ii) permits accretion of duties promotions, I treat the Agency's contention as a claim that the award is inconsistent with this section.

      I think it is clear that the Arbitrator's finding and the Agency's comments regarding the status of the personnel action in question conflict, but I would find that we are bound by the Arbitrator's factual finding that the grievant was "detailed" to the WG-5 position. Award at 7 and 8. Consequently, the grievant could not receive a promotion based on an accretion of duties because he was not assigned to the WG-5 position. Alternatively, because of the conflict in the Arbitrator's finding and the Agency's comments, I would remand to the Arbitrator to clarify the nature of this personnel action.

      Moreover, the Arbitrator's finding that there "was an unencumbered position" to which the grievant could be slotted further demonstrates that the promotion did not result from additional duties and responsibilities being added to the WG-5 position. Id. at 8 and 13. I [ v55 p891 ] also note that there has been no finding by the Arbitrator, express or implied, that the grievant's former position was canceled, a contractually required predicate to receiving an accretion of duties promotion. The Arbitrator's findings show only that the grievant's promotion was based on there being available an unencumbered WG-8 position and was not based on any changes to the WG-5 position. While the grievant may indeed have been performing WG-8 work, that could not entitle him to a permanent promotion absent a reclassification action and at best, would entitle him only to a temporary promotion, a point made by the Agency in its exceptions. See, e.g., Matter of David R. Barth and Charles H. Byrd, Comp. Gen, No. B-240239 (October 29, 1990).

      In these circumstances, the Arbitrator's factual findings do not establish that an accretion of duties promotion occurred within the meaning of 5 C.F.R. § 335.103(c)(3)(ii). Accordingly, I would find that the award is inconsistent with 5 C.F.R. § 335.103(c)(3)(ii). [n5] 

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

Footnote # 1 for 55 FLRA No. 149 - Opinion of Member Cabaniss

   Section d. of the MOU provides as follows:

d.     Non-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.

Footnote # 2 for 55 FLRA No. 149 - Opinion of Member Cabaniss

   The Government-wide regulation involved in this case predated the collective bargaining agreement involved here.

Footnote # 3 for 55 FLRA No. 149 - Opinion of Member Cabaniss

   Effective January 1, 1995, OPM adopted in 5 C.F.R. § 335.103 the requirements previously set forth in FPM chapter 335, which was abolished on December 31, 1994. See 59 Fed. Reg. 67,121-22 (1994). OPM also made "editorial clarifications, such as recognizing the longstanding practice of allowing . . . noncompetitive appointments of conversions." Id. at 67,121. Thus, 5 C.F.R. § 335 "insures that agency [merit promotion] program[] continue to operate under the same set of Governmentwide requirements." Id. See also National Air Traffic Controllers Association, MEBA/NMU and U.S. Department of Transportation, Federal Aviation Administration, 51 FLRA 192, 194 n.2 (1995).

Footnote # 4 for 55 FLRA No. 149 - Opinion of Member Cabaniss

   5 C.F.R. § 335.103 provides, i