U.S. Nuclear Regulatory Commission and National Treasury Employees Union, Chapter 208

[ v55 p1157 ]

55 FLRA No. 186

U.S. NUCLEAR REGULATORY
COMMISSION
(Agency)

and

NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 208
(Union)

0-AR-3171

_____

DECISION

_____

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 Daniel M. Winograd 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 exceptions.

      The Arbitrator determined the period of time for which back pay was due the grievant for performing higher-graded duties. For the following reasons, we conclude that the Agency's exceptions do not establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the Agency's exceptions.

II.     Background and Arbitrator's Award

      The award in this case is related to the award reviewed by the Authority in U.S. Nuclear Regulatory Commission and National Treasury Employees Union, Chapter 208, 54 FLRA 1416 (1998) (NRC) (Member Wasserman dissenting), request for reconsideration denied, 55 FLRA 666 (1999). NRC concerned the same grievant involved in the award now before us, a Grade 13 reactor inspector who, beginning on February 2, 1992, was assigned duties that were previously classified at the Grade 14 level. A grievance was filed claiming that the grievant was entitled to a temporary promotion to the Grade 14 position and, when the grievance was not resolved, it was submitted to arbitration. In response to the grievance, an audit of the grievant's position was undertaken by the Agency. The audit, which was completed in February 1996, concluded that the grievant was performing Grade 13 duties.

      Subsequently, the Arbitrator issued the original award in this case, holding that the grievant had been performing Grade 14 duties, and that the Agency violated the parties' agreement by failing to temporarily promote him. As a remedy, the Arbitrator awarded the grievant "the difference between the pay and benefits he received from February 2, 1992, to the date he ceases performing" the Grade 14 duties. Award at 4 (quoting original Award at 40). On April 28, 1997, nearly 3 months after the issuance of the Arbitrator's original award, the Agency forwarded to the grievant a Standard Form (SF) 50, containing a "revised position description" stating that the grievant's position was classified at the Grade 13 level.

      In NRC, the Authority held, as relevant here, that the Arbitrator's determination that the grievant was entitled to a temporary promotion to the Grade 14 position was not contrary to law. NRC, 54 FLRA at 1422. The Authority noted, in this regard, that the record did not disclose whether the audit of the grievant's position resulted in a classification of the position. The Authority stated that, "[i]f the Agency did classify his job subsequent to the audit, then [the grievant] would not be entitled to backpay after the date of the classification." Id. at 1423. Citing regulations providing that "a classification action is effective on `the date an official with properly delegated authority approves . . . the proposed classification[,]'" the Authority held that, if the parties could not resolve the issue whether the audit resulted in a classification, then they should submit the matter to arbitration. Id. n.8 (quoting 5 C.F.R. § 511.701(a)(i)).

      The parties were unable to resolve the issue, which, in the award now before the Authority, the Arbitrator framed as: "whether [the] grievant's entitlement to back pay terminates on April 28, 1997, as asserted by the Union, or on February [18], 1996, as asserted by the Agency." Award at 2. According to the Arbitrator, the resolution of this issue turned on whether the audit performed by the Agency "in response to the grievance constituted an official classification action under the applicable regulations[.]" Id. at 7.

      The Arbitrator found that the Agency had "created a specific form, [SF] 50, upon which classification actions are memorialized[.]" Id. at 9. The Arbitrator stated that the SF-50 "is specifically addressed to the job holder, is issued by a classification specialist[,] and is approved and countersigned by the specialist's supervisor." Id. According to the Arbitrator, the SF-50 was [ v55 p1158 ] designed to comply with applicable regulations and the parties' collective bargaining agreement, which requires that "an official personnel action . . . be prepared by the Personnel Office and given to the employee as soon as practicable." Id. (quoting Article 24.5). [n1] 

      The Arbitrator rejected the Agency's contention that the audit in 1996 was the "functional equivalent" of an SF-50 because, according to the Arbitrator, the audit "was not prepared for purposes of reclassifying grievant's job, but rather, for purposes of defending the Agency's position that the job had already been classified properly." Id. at 10. The Arbitrator found that "[n]o reclassification was proposed prior to March, 1997, and none was adopted . . . until March 25, 1997." Id. Further, the Arbitrator found that the grievant was not "officially notified" of the classification until April 28, 1997. Id.

      The Arbitrator concluded that the grievant's position was not classified until April 28, 1997, the date on which the grievant received the SF-50. The Arbitrator concluded that the grievant was entitled to back pay from February 2, 1992, to April 28, 1997.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency asserts that the Arbitrator's award is based on the nonfact that an SF-50 must be issued to an employee before a classification can occur. The Agency states that there is no basis in law, regulation or agency policy for this conclusion. The Agency notes that the Arbitrator cited Article 24 of the parties' agreement as a basis of the award but argues that the Arbitrator erred in determining that Article 24 applies to classification actions.

      The Agency also asserts that the award is contrary to law and regulation, as interpreted by the Authority in NRC. According to the Agency, it was not required to issue an SF-50 to effectuate the classification of the grievant's position. Agency's Exceptions at 4 (citing Processing Personnel Actions, Office of Personnel Management Update 15 at 35-9 (March 31, 1995) (hereinafter "the OPM Update")). The Agency contends that a classification is effective "on the date that an official with properly delegated authority approves" the classification. Id. at 3 (citing NRC and 5 C.F.R. § 511.701). [n2]  According to the Agency, this required approval occurred on February 18, 1996. The Agency also contends that the Arbitrator's determination that the classification audit was a "litigation tool" as opposed to an official position classification, is contrary to law because an agency may exercise its classification authority while litigation is pending if it does so in good faith. Id. at 5.

B.     Union's Opposition

      The Union contends that the Agency's exceptions do not demonstrate that the award is deficient. The Union asserts that the award properly interprets governing regulations.

IV.     Analysis and Conclusions

A.     The Award Is Not Based on a Nonfact

      To establish that an award is based on a nonfact, the appealing party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993). The Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties disputed at arbitration. Id. at 594 (citing Mailhandlers v. U.S. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)).

      The Agency asserts that the Arbitrator's award is based on the nonfact that an SF-50 must be issued before an Agency classification can occur. However, the Arbitrator did not make a finding of fact that an SF-50 must be issued to effectuate a classification. The [ v55 p1159 ] Arbitrator determined instead that applicable regulations and the parties' agreement required the Agency to prepare an "official personnel action" and provide it to the grievant and that, here, this did not occur until the SF-50 was issued.

      The Arbitrator's determination resulted from the application of his interpretation of the parties' agreement and applicable law and regulation to the evidence presented and, as such, cannot be challenged as a nonfact. See American Federation of Government Employees, Local 1941 and U.S. Department of the Army, U.S. Army Chemical and Military Police Centers and Fort McClellan, Fort McClellan, Alabama, 51 FLRA 998, 1000 (1996). Even if it could, it is clear that the parties disputed below the requirements for effectuating the classification of the grievant's position. See Award at 8 ("The Union's argument is . . . that classification actions are official when an [SF] 50 is issued . . . ."). Consequently, we find that the Agency has not demonstrated that the award is based on a nonfact.

B.     The Award Draws its Essence from the Parties' Agreement

      We construe the Agency's argument that Article 24 of the parties' agreement does not apply to classification actions as an exception that the award fails to draw its essence from the parties' agreement. In order for an award to be found deficient on this ground, a party must show that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-76 (1990).

      Article 24 of the agreement concerns details and temporary promotions. Specifically, Article 24.5 requires that "if a detail extends beyond [ ] 30 calendar days, an official personnel action will be prepared by the Personnel Office and given to the employee as soon as practicable." See supra at note 3. There is no dispute that Article 24 applies where an arbitrator determines, as did the Arbitrator here, that a temporary promotion was required. In these circumstances, the Agency has failed to show that the Arbitrator's conclusion that the Agency's use of an SF-50 to notify the grievant of the classification of his position was designed to comply with Article 24.5 is irrational, implausible, or manifests a disregard for the parties' agreement. Accordingly, we find that the Agency's exception provides no basis for finding the award deficient.

C.     The Award Is Not Contrary to Law or Regulation

      The Authority reviews the questions of law raised by the award and the agency'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) (citing 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 the arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. 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). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. Id.

      The Arbitrator found in this case that the Agency's issuance of the SF-50 complied with "the applicable regulations" and with Article 24 of the parties' agreement. Award at 9. The Arbitrator did not cite "the applicable regulations" to which he referred. However, consistent with the Union's argument to the Arbitrator (Award at 5), and the Authority's citation in NRC, 54 FLRA at 1423 n.8, we conclude that the Arbitrator referred to 5 C.F.R. § 511.701.

      Nothing in 5 C.F.R. § 511.701, or the OPM Update, expressly requires the issuance of an SF-50 to effectuate a classification. However, nothing in the regulation or the Update prohibits an Agency from effectuating a classification by issuing an SF-50. Moreover, the Arbitrator found that the SF-50 was designed to comply not only with "the applicable regulations," but also with Article 24.5 of the parties' agreement. Award at 9. We have concluded that the award does not fail to draw its essence from Article 24.5, and no contention is made that, as interpreted by the Arbitrator, Article 24.5 is not enforceable. Thus, whether or not applicable regulations required the issuance of the SF-50 to effectuate a classification so as to terminate the grievant's temporary promotion in this case, the parties' agreement required an action that, as construed by the Arbitrator, was satisfied by the issuance of the SF-50.

      We also conclude that the Agency's argument that it can exercise its authority to classify positions during the course of litigation is misplaced. The Arbitrator made no finding to the contrary. The Arbitrator determined only that the audit, standing alone, did not constitute a classification because "it was not prepared for purposes or reclassifying grievant's job, but rather for purposes of defending the Agency's position . . . ." Id. at 10.

V.     Decision

      The Agency's exceptions are denied.



Footnote # 1 for 55 FLRA No. 186

   Article 24.5 of the parties' collective bargaining agreement provides, in relevant part:

If a unit employee is detailed . . . he/she must be provided notice of the detail . . . . In addition, if the detail extends beyond 30 calendar days, an official personnel action will be prepared by the Personnel Office and given to the employee as soon as practicable.

Footnote # 2 for 55 FLRA No. 186

   5 C.F.R. § 511.701(a), entitled "Agency classification actions," provides, in relevant part:

(1)     A classification action is a determination to establish or change the title, series, grade or pay system of a position based on application of published position classification standards or guides. This is a position action.
(i)     The effective date of a position action . . . shall be the date an official with properly delegated authority approves (certifies) the proposed classification. This is accomplished when the authorized official(s) signs the allocation of the position.