U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia and Tidewater Virginia Federal Employees Metal Trades Council, Local 734

[ v55 p1014 ]

55 FLRA No. 165

U.S. DEPARTMENT OF THE NAVY
NORFOLK NAVAL SHIPYARD
PORTSMOUTH, VIRGINIA
(Agency)

and

TIDEWATER VIRGINIA FEDERAL EMPLOYEES
METAL TRADES COUNCIL
LOCAL 734
(Union)

0-AR-3154

_____

DECISION

September 30, 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 Robert J. Ables 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 found that the Agency violated the parties' collective bargaining agreement by failing to pay the grievants for performing higher-graded work. For the reasons stated below, we find that the Agency's exceptions that the award fails to draw its essence from the parties' agreement, and is contrary to the Back Pay Act and Government-wide regulations, do not establish that the award is deficient.

II.     Background and Arbitrator's Award

      The Agency temporarily promoted four grievants for 120 days. After the temporary promotions expired, the grievants continued to perform the duties of the higher-graded positions, while receiving pay for their permanent lower-graded positions. The Union filed a grievance seeking back pay for each grievant for the amount of time after expiration of the 120-day temporary promotions that they continued to perform the higher-graded duties. The Agency conceded that the grievants performed work above the grade level for which they were paid, but refused to provide the grievants with back pay.

      At arbitration, the Arbitrator framed the issue as "whether the employer . . . violated [the parties'] contract by denying [the] grievants pay for work at higher grades than assigned." Award at 1-2.

      The Agency argued before the Arbitrator that both Article 9, Section 4.a. of the parties' agreement [n2]  and 5 C.F.R. Part 335, barred it from paying the grievants for work at the higher-graded positions for more than 120 days. The Arbitrator concluded that Article 9, Section 4.a. did "not block paying the grievants as though they were temporarily promoted to the higher graded positions." Id. at 8. In this respect, the Arbitrator found that the Union "constructively waived the [provision's] restriction on the 120-day assignment," which it was permitted to do because the purpose of Article 9, Section 4.a. is to prevent the Agency from detailing or temporarily promoting employees "to the disadvantage of regular employees who seek to fill a vacancy[] permanently." Id. at 9

      The Arbitrator noted that, in Tidewater Virginia Federal Employees, Metal Trades Council and U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia, 52 FLRA 316 (1996) (Norfolk Naval Shipyard), an arbitration case involving the same parties, the same contract provision, and a similar issue, the Authority sustained an arbitrator's determination to award back pay, as well as the arbitrator's conclusion that he lacked authority to order the grievant promoted. Relying on Norfolk Naval Shipyard, the Arbitrator rejected the Agency's claim that paying the grievants for work performed at the higher grade would violate 5 C.F.R. Part 335. The Arbitrator stated that 5 C.F.R. § 335.102(f)(1), [n3]  grants the Agency "wide . . . discre- [ v55 p1015 ] tion" to temporarily promote employees. Award at 7. The Arbitrator also noted that 5 C.F.R. § 335.103(c)(3) provides the Agency with discretion to exempt certain personnel actions from competitive procedures. [n4]  See id. at 8. On this basis, the Arbitrator determined that the Agency exercised its discretion to except the grievants from the regulatory requirement of promotion through competitive procedures by declining to establish a promotion register while benefitting from the grievants' work at the higher grades without paying for it. See id..

      The Arbitrator sustained, in part, the grievance as to the work performed at higher grades, and ordered that the Agency compensate the grievants accordingly. Relying on Norfolk Naval Shipyard, the Arbitrator denied the grievance "insofar as it asks that the grievants be temporarily promoted[.]" Id. at 10.

III.     Agency's Exceptions  [n5] 

      The Agency claims that the award fails to draw its essence from the parties' collective bargaining agreement. In this connection, the Agency maintains that its actions are consistent with sections 4.a. and 4.c. of Article 9 of the parties' agreement because: "[t]he agreement clearly prohibits the noncompetitive temporary promotion of employees for periods in excess of 120 days, but it does recognize that temporary promotions are appropriate for details over 31 days." Exceptions at 5.

      The Agency also argues that the award conflicts with 5 C.F.R. § 335.103(c)(3), which, according to the Agency, precludes "temporary promotions or details for more than 120 days without competition." Id. at 4. The Agency claims that, consistent with 5 C.F.R. § 335.103(c), it is not permitted to promote the grievants noncompetitively.

      The Agency contends that, because it complied with the agreement, the Arbitrator had no basis on which to award back pay. Accordingly, the Agency claims that the award violates the Back pay Act.

IV.     Analysis and Conclusions

A.     The Award Draws Its Essence From the Collective Bargaining Agreement

      The Authority will find an arbitration award deficient as failing to draw its essence from a collective bargaining agreement when the appealing party establishes that the award: is so unfounded in reason and fact and so unconnected with the wording and purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; does not represent a plausible interpretation of the agreement; or cannot in any rational way be derived from the agreement or evidences a manifest disregard of the agreement. United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990).

      The Arbitrator determined that the parties' agreement did not "block paying the grievants as though they were temporarily promoted to the higher graded positions." Award at 8. The Arbitrator stated that the 120-day limitation on temporary promotions in the parties' agreement was intended to benefit the Union, and that, here, the Union "constructively waived the restriction on the 120-day assignment." Id. at 8-9.

      The Agency argues that the Arbitrator misinterpreted the provision. However, the Agency has not demonstrated that the Arbitrator's interpretation that the provision's restriction can be constructively waived by the Union is implausible or irrational or otherwise fails to draw its essence from the agreement under the standard set forth above. See U.S. Department of Housing and Urban Development, Louisiana State Office, New Orleans, Louisiana and American Federation of Government Employees, Local 3475, 53 FLRA 1611 (1998); 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, 1120 (1990). We note that the Authority's long-established standard in reviewing an arbitrator's interpretation of contract provisions is deferential because it was the arbitrator's interpretation for which the parties bargained. See Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, AFL-CIO, 32 FLRA 79, 88 (1988). See also United Paperworkers International v. Misco, Inc., 484 U.S. 29, 37-38 (1987) (Supreme Court advised that when parties [ v55 p1016 ] have agreed to have their dispute settled by an arbitrator, it is the arbitrator's view of the meaning of the agreement they have agreed to accept). Accordingly, we find that the Agency has not demonstrated that the award fails to draw its essence from the contract.

B.     The Award Is Consistent with 5 C.F.R. Part 335

      Where a party's exceptions involve an award's consistency with law, the Authority reviews the questions of law raised by the Arbitrator's award and the party's exceptions de novo. See National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995).

      The Agency asserts that the award is inconsistent with 5 C.F.R. § 335.102(c) because the regulation does not permit the Agency to non-competitively promote the grievants for more than 120 days. However, as noted above, the Arbitrator expressly declined to retroactively promote the grievants, and there are no exceptions to this aspect of the Arbitrator's award. As such, there is no basis for finding that the award is inconsistent with 5 C.F.R. § 335.103(c), and we deny the Agency's exception. [n6] 

C.     The Award Does Not Violates the Back Pay Act

      Under the Back Pay Act, an award of back pay is authorized only where an arbitrator finds that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; and (2) the personnel action resulted in the withdrawal or reduction of the grievant's pay, allowances or differentials. See Social Security Administration, Office of Hearings and Appeals, Falls Church, Virginia, 55 FLRA 349, 353 (1999). A violation of a collective bargaining agreement provision constitutes an unjustified or unwarranted personnel action under the Back Pay Act. See id.

      Consistent with our finding, above, that there is no deficiency in the Arbitrator's determination that the Agency violated Article 9, Section 4.a. of the parties' agreement by failing to promote the grievants, we find that the Agency engaged in an unjustified or unwarranted personnel action under the first prong of the Back Pay Act. The Arbitrator found, and the Agency does not dispute, that its action resulted in a withdrawal or reduction in pay under the second prong. Accordingly, we find that the award is not inconsistent with the Back Pay Act.

D.     Summary

      For the reasons stated above, we conclude that the award draws its essence from the parties' agreement and is not inconsistent with Government-wide regulation or the Back Pay Act. Accordingly, we deny the Agency's exceptions. In so doing, we note our fundamental disagreement with the dissent with respect to the basis for the Arbitrator's award. Our dissenting colleague finds no nondiscretionary policy mandating the temporary promotion of the grievants. We disagree. The nondiscretionary agency policy is satisfied by the Arbitrator's determination that the Agency was obligated to promote the grievants under Article 9, Section 4.a. of the parties' collective bargaining agreement. The Agency has failed to establish that this determination does not draw its essence from the parties' agreement. As a consequence, the dissent's reliance on the cited Comptroller General decisions is misplaced. In none of the cases relied on by the dissent was the Comptroller General presented with the circumstances of this case: an award of backpay by an arbitrator to remedy the violation of a nondiscretionary policy established in a collective bargaining agreement. When presented with such circumstances, the Comptroller General has found that collective bargaining agreement provisions requiring temporary promotions constitute the requisite nondiscretionary agency policy. See, e.g., 61 Comp. Gen. 404, 406-07 (1982). Accordingly, we are left with the result dictated by the Authority precedent that is directly on point. See note 6, supra.

V.     Decision

      The Agency's exceptions are denied. [ v55 p1017 ]


Opinion of Member Cabaniss, dissenting:

      I respectfully dissent from the majority and would find that the award of back pay conflicts with 5 C.F.R. 335 and the Back Pay Act. My disagreement as to the essence exception will be addressed at the end of this opinion.

      I acknowledge that prior Authority precedent would permit back pay in instances such as this. I note, however, that our precedent does not address Comptroller General (CG) decisions relating to this same issue. Those CG decisions have expressly found that back pay is not appropriate under the Back Pay Act where the agency failed to comply with Civil Service Commission/Office of Personnel Management (OPM) requirements to use competitive procedures for temporary assignment to higher-graded positions. After reviewing that CG precedent I am convinced that Authority precedent to the contrary should no longer be followed.

      The relevant Authority case law is American Federation of Government Employees, Local 1592 and U.S. Department of the Air Force, Hill Air Force Base, Utah, 44 FLRA 147, 152-53 (1992) (Hill AFB), citing to U.S. Department of the Interior, Bureau of Reclamation, Lower Colorado Dams Project Office, Boulder City, Nevada and American Federation of Government Employees, Local No. 1978, 40 FLRA 1169, 1174 (1991) (Bureau of Reclamation), and United States Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base Oklahoma and American Federation of Government Employees, Local 916, 42 FLRA 886 (1991) (Tinker AFB). In Bureau of Reclamation the Authority correctly pointed to its rule that where a collective bargaining agreement provides for a right of temporary promotion when assigned to perform the work of a higher-graded position, an arbitrator may order that temporary promotion to take place. In Hill AFB the Authority overturned an arbitration award which limited the length of a temporary promotion to just 120 days because of Federal Personnel Manual (FPM) requirements limiting such promotions to 120 days unless OPM approves for a longer limit. The Authority, relying on Tinker AFB, held that the arbitrator in Hill AFB was not so constrained.

      In Tinker AFB the agency alleged that requiring a temporary promotion for longer than 120 days conflicted with FPM requirements to use competitive procedures and the limit on the length of temporary promotions. In its decision, however, the Authority rejected the relevant FPM provisions requiring the use of competitive procedures, citing to Bureau of Reclamation. In holding that the length of a temporary promotion need not be limited to just 120 days but, rather, just require OPM approval. Therefore, an award of a temporary promotion in excess of 120 days was not in conflict with applicable regulations.

      The problems with Tinker AFB are twofold. The CG, relying on Wilson v. U.S., 229 Ct. Cl. 510 (1981), overruled its line of Turner-Caldwell cases and held that nothing in the Back Pay Act or OPM's regulations authorized a temporary promotion and retroactive back pay for a failure to comply with OPM's regulations requiring OPM approval for temporary promotions in excess of 120 days. As the CG noted regarding OPM's comments to it, there was no statute or nondiscretionary administrative regulation by OPM requiring a constructive promotion for an employee detailed in violation of OPM's requirement for approval of the long length of that promotion. See Matter of: Turner-Caldwell, 61 Comp. Gen. 408 (1982). In light of the lack of a nondiscretionary policy mandating the temporary promotion and back pay, such remedies can not be awarded in cases such as this.

      As for the holding that retroactive temporary promotion and back pay may be awarded, even where the agency fails to comply with the OPM requirement to use competitive procedures, the CG has stated that it has never found such matters to be remediable under the Back Pay Act, even when it permitted a Back Pay Act remedy for overlong details. See Matter of: Garrick Gedarro, Comp. Gen. No. B-198402 (1980). In rejecting the claimant's request for a temporary promotion and back pay under the Back Pay Act, the CG again pointed to the requirement (which the Authority has endorsed) that there must be in place a nondiscretionary policy mandating the temporary promotion. As the OPM requirements do not mandate a temporary promotion for failure to follow competitive procedures, relief in the form of a temporary promotion and back pay would not be available under the Back Pay Act.

      In the present matter, both the collective bargaining agreement and OPM regulations require the use of competitive procedures but do not set forth a nondiscretionary policy mandating a temporary promotion when those procedures are not followed. In that regard, we are not bound by the Arbitrator's interpretation of the 5 C.F.R. provisions, nor should we be because his interpretation misses the mark.

      Notwithstanding the Arbitrator's general remarks as to the discretion afforded agencies by 5 C.F.R. 335.102(f) and 335.103(c)(3), it is hard to overcome the C.F.R.'s express language (at 335.103(c)(3)(iii)) that only temporary promotions/details to higher level posi- [ v55 p1018 ] tions of less than 120 days can be filled without competition. This conclusion is made all the stronger by the introductory language of section 335.103(c), which notes that (with the exceptions noted in subsections (c)(2) and (3)) "competitive procedures in agency promotion plans apply to all promotion under § 335.102 of this part and to the following actions," and then proceeds to specifically list time-limited promotions under § 335.102(f) for more than 120 days to a higher graded position (section 335.103(c)(1)(i), which effectively rebuts the Arbitrator's assertion that section 335.102(f)(1) permits "wide agency discretion"), and details for more than 120 days to higher level positions (section 335.103(c)(1)(ii)). I note that these two types of actions just discussed are covered by Article 9, Section 4.a. of the parties' collective bargaining agreement. In light of the above, I have a hard time not concluding that the award conflicts with 5 C.F.R. 335.103.

      Additionally, in light of this, I would also find that the award fails to draw its essence from the parties' agreement. As already noted, back pay can not be awarded without a finding that the employees were entitled to a temporary promotion, and Article 9, Section 4.a. requires the use of a promotion certificate for temporary promotions/ details beyond 120 days -- and such promotion certificates were not used to promote these individuals. In light of those requirements, to reach the conclusion asserted by the majority would require a unilateral waiver by the Arbitrator, over the express objection of the Agency, of the contractually mandated use of promotion certificates. While the Arbitrator finds that the Union waived the requirement to use such certificates, I do not see how that precludes the Agency from requiring adherence to that contract language, given that the Agency is a party to that agreement and has the same right as a union to require adherence to the provisions of its agreement. While an arbitrator's interpretation of an agreement is entitled to deference, that deference does not permit an arbitrator to interpret contract language so as to effectively read it out of existence.

      Accordingly, I would sustain the Agency's exceptions and overturn the award. In making that determination I have also considered 61 Comp. Gen. 404. In that matter, the requisite nondiscretionary agency policy found in the parties' collective bargaining agreement made temporary promotions for details to higher graded positions mandatory after 60 days. I note that that provision did not conflict with any OPM requirement pertaining to temporary promotions, especially the need to use competitive procedures in certain circumstances. Therefore, it does not cause me to alter my analysis or my outcome






Footnote # 1 for 55 FLRA No. 165

   Member Cabaniss' dissenting opinion appears at the end of this decision.


Footnote # 2 for 55 FLRA No. 165

   Article 9, 4.a. of the parties' agreement provides, in pertinent part, that:

[n]o employee may be temporarily promoted or detailed to higher level positions in excess of 120 calendar days . . . unless he was selected from a properly issued completed promotion certificate.

Footnote # 3 for 55 FLRA No. 165

   5 C.F.R. § 335.102 provides, in pertinent part, that an agency may:

(f)     Make time-limited promotions to fill temporary positions . . . or meet other temporary needs for a specified period of not more than 5 years . . . .
(1)     The agency must give the employee advance written notice of the conditions of the time-limited promotion, including . . . the requirement for competition for promotion beyond 120 days, where applicable . . . .

Footnote # 4 for 55 FLRA No. 165

   5 C.F.R. § 335.103(c)(3)(iii) provides, in pertinent part, that:

(c)     Covered personnel actions--(1)Competitive actions. Except as provided in paragraphs (c)(2) and (3) of this section, competitive procedures in agency promotion plans apply to all part . . . .
. . . .
(3)     Discretionary actions. Agencies may at their discretion except the following actions from competitive procedures of this section:
. . . .
(iii)     A temporary promotion, or detail to a higher grade position or a position with known promotion potential, of 120 days or less[.]

Footnote # 5 for 55 FLRA No. 165

   The Union did not file an opposition to the Agency's exceptions.


Footnote # 6 for 55 FLRA No. 165

   Even if the Arbitrator ordered temporary promotions, or if effecting a retroactive temporary promotion were necessary to comply with the award of backpay, Authority precedent would support a conclusion that the award is not inconsistent with the regulation. In this regard, the Authority has uniformly refused to allow the competitive promotion requirements of 5 C.F.R. § 335.103(c)(3)(iii) to excuse an agency's failure to temporarily promote a grievant as required by a collective bargaining agreement. See American Federation of Government Employees, Local 1592 and U.S. Department of the Air Force, Hill Air Force Base, Utah, 44 FLRA 147, 152 (1992) (Hill AFB); U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 43 FLRA 958, 961 (1992) (Tinker AFB II); United States Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 42 FLRA 886 (1991) (Tinker AFB I). The Authority held that it would not permit an agency to excuse a violation of a collective bargaining agreement by alleging that it also violated a regulation. See id. The Agency does not acknowledge this precedent, much less contest its application here. Accordingly, this cas