U.S. Department of Veterans Affairs, Ralph H. Johnson Medical Center, Charleston, South Carolina, (Agency) and National Association of Government, Employees, Local R5-136, (Union)

[ v56 p381 ]

56 FLRA No. 52

U.S. DEPARTMENT OF VETERANS AFFAIRS
RALPH H. JOHNSON MEDICAL CENTER
CHARLESTON, SOUTH CAROLINA
(Agency)

and

NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R5-136
(Union)

0-AR-3204

_____

DECISION

May 5, 2000

_____

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

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Robert G. Williams 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.

      For the following reasons, we deny the Agency's exceptions alleging that: the Arbitrator's finding that the grievance was timely filed is deficient; the award fails to draw its essence from the parties' agreement and is based on nonfacts; the Arbitrator exceeded his authority and was biased; and the award is contrary to law because it concerns a classification matter, is contrary to 5 C.F.R. Chapter 430, affects management's right to assign work, and is inconsistent with time-in-grade requirements.

      However, we find that the record is insufficient for us to determine whether the award is consistent with specialized experience requirements prescribed by the Office of Personnel Management (OPM). Accordingly, we remand that issue to the parties for resubmission to the Arbitrator, absent settlement. [ v56 p382 ]

II.     Background and Arbitrator's Award

      The grievant, who was hired as a WG-8 computer mechanic, requested that the Agency create a GS-11 or GS-12 Windows NT Administrator position. When the Agency refused to create such a position, the grievant filed a grievance claiming that he had been temporarily promoted to the position of Windows NT Administrator, GS-11. In the absence of stipulations from the parties, the Arbitrator framed the issues as follows:

1.     Is the grievance arbitrable and, if so?
2.     Did the Agency violate the Agreement when it refused to detail the Grievant to a higher rated position and, if so, what shall be the remedy?

Award at 2.

      The Arbitrator found that, because the grievance concerned an allegation of a continuing violation, it was timely filed. The Arbitrator also found that the grievance was substantively arbitrable because it sought a temporary promotion, not a reclassification. In this regard, the Arbitrator determined that the grievant claimed that he had performed higher-graded duties under an existing classification. See id. at 48.

      The Arbitrator concluded that the Agency violated the parties' agreement by failing to temporarily promote the grievant to the position of GS-12 Computer Specialist-Systems Manager. In reaching this conclusion, the Arbitrator found, based on the record before him, that the grievant "was performing GS-12 work from August 1996 until July 1998." Id. at 43. The Arbitrator noted, in this regard, that the "one person who should have rebutted the [g]rievant's" testimony regarding the duties he performed was the GS-12 Systems Manager. Id. at 44-45. The Arbitrator stated:

If [the GS-12 Systems Manager] was competent and credible in Window NT matters, she could identify the tasks she performed and those the [g]rievant did not . . . . However, she did not testify. The [g]rievant, in fact, testified she was not competent in Windows NT matters. As a presumably credible person, she would be unwilling to testify to anything other than the truth as she understood it. The fact that she did not testify supports her credibility and the [g]rievant's version of her Windows NT competency under burden of proof principles.

Id. at 45.

      The Arbitrator concluded that because the grievant performed higher-graded duties for more than 120 days, the Agency should have used competitive procedures to select an employee to perform the duties. However, the Arbitrator further found that the 120-day rule was "intended to protect other qualified employees," and that management's violation of the rights of those employees "is not grounds for violating the [g]rievant's rights to a temporary promotion." Id. at 49.

      The Arbitrator noted testimony by the Agency's personnel specialist that promotion to a GS-11 position requires that the employee have 1 year of experience as a GS-9, and that promotion to a GS-12 position requires that the employee have 1 year of experience as a GS-11. The Arbitrator stated that: "[n]o doubt the [g]rievant did not meet these evidentiary time periods." Id. at 50. The Arbitrator found, however, that the grievant's "evidence" was "even better" because he "actually performed" the higher-graded duties for 2 years. Id. Therefore, according to the Arbitrator, the grievant "had all of the equivalent experience." Id.

      As his award, the Arbitrator directed the Agency to provide the grievant a temporary promotion to the position of Computer Specialist-Systems Manager, GS-12, from his date of hire into the Agency, August 4, 1996 until July 21, 1998. The Arbitrator awarded the grievant back pay for that period.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency asserts that the grievance is not arbitrable because it was not timely filed, and because it concerns a classification matter. Specifically, the Agency asserts that the grievant was aware of the alleged violation at least a year before he filed the grievance, and that the Arbitrator's conclusion that the grievance was timely fails to draw its essence from the parties' agreement.

      Additionally, the Agency contends that the award fails to draw its essence from Article 47, Section 6, Step 1 of the parties' agreement. According to the Agency, that section provides that "the grievance should contain . . . the remedy desired[.]" Exceptions at 11 (ellipses in original). The Agency argues that, because the Arbitrator awarded the grievant a GS-12 temporary promotion, rather than the GS-11 temporary promotion that was requested in the grievance, the award fails to draw its essence from Article 47, Section 6, Step 1.

      The Agency asserts that, in two respects, the award is based on nonfacts. First, the Agency argues that the [ v56 p383 ] Arbitrator erred in concluding that the grievant performed GS-12 duties. Second, the Agency contends that the Arbitrator erred by awarding the grievant a temporary promotion for periods of time in which the grievant did not perform higher-graded work.

      The Agency also asserts, in two respects, that the Arbitrator exceeded his authority. First, the Agency claims that the Arbitrator improperly awarded the grievant a temporary promotion to a GS-12 position when the grievant alleged only that he had performed GS-11 duties. Second, the Agency claims that the Arbitrator erred by considering the competence of the grievant's supervisor to perform her duties.

      In addition, the Agency asserts that the award demonstrates that the Arbitrator was biased against the Agency because all of the Arbitrator's rulings went against the Agency.

      The Agency also argues that the award is contrary to law in four respects. First, the Agency contends that the award is not arbitrable, because it concerns a classification matter, within the meaning of section 7121(c)(5) of the Statute. In this connection, the Agency claims that the grievant was seeking through arbitration to have a new position created and classified, and to be placed in that position non-competitively. Second, the Agency claims that the Arbitrator's consideration of the grievant's supervisor's competence violates 5 U.S.C. Chapter 43 and 5 C.F.R. Part 430 -- which, according to the Agency, provide that the Agency shall "assess employee performance" -- and also violates management's rights under section 7106(a)(2)(A) and (B) of the Statute. Exceptions at 5. Third, the Agency asserts that the award violates management's right to assign work under section 7106 because the award "constructively reassigned the Operational Systems Manager, GS-334-12[] position to the grievant." Id. at 12. Fourth, the Agency argues that the award of a temporary promotion does not satisfy the requirements of the Back Pay Act and violates the time-in-grade and specialized experience requirements stated in 5 C.F.R. §§ 300.601, 300.603, and 302.202. In this respect, the Agency asserts that "the grievant was not minimally qualified for the GS-334-12, Computer Specialist position." Id. at 2, 9-10.

B.     Union's Opposition

      At the outset, the Union argues that six exhibits attached to the Agency's exceptions were not submitted to the Arbitrator and should not be considered by the Authority.

      The Union contends that the Arbitrator correctly determined that the grievance was timely filed. In this connection, the Union argues that the Agency's exception on this point is based in part on arguments raised for the first time in the exceptions and that, under the parties' agreement, the Agency may not raise timeliness issues later than the third step of the grievance procedure.

      In response to the Agency's nonfact assertions, the Union maintains that the Agency is merely disputing the Arbitrator's credibility determinations, and that the parties disputed before the Arbitrator both the grade level of work performed by the grievant, and the grievant's qualifications. The Union also asserts that the Arbitrator did not exceed his authority. In this connection, the Union asserts that arbitrators have broad discretion to fashion remedies and are not bound by the remedies requested by the parties. The Union also asserts that the supervisor's competence was a collateral issue, which supported the Arbitrator's conclusion that the grievant had performed GS-12 duties.

      The Union claims that the award is not contrary to law. The Union argues that the grievance does not concern classification, within the meaning of section 7121(c)(5) of the Statute, because the grievance does not concern whether the grievant's position was improperly classified. In response to the Agency's assertion that the award affects management's right to assign work, the Union argues that the award "did not in any way abrogate management's rights." Union Response at 15-16. The Union also argues that time-in-grade requirements "only apply after an employee has encumbered a position." Id. at 13. The Union contends that even if time-in-grade requirements do apply, the Agency waived them because it "acted in bad faith . . . by 'follow[ing] a scheme to get the work done at the [g]rievant's expense.'" Id. (quoting Award at 51). In addition, according to the Union, the Arbitrator correctly found that the grievant met the regulatory requirements for specialized experience.

      The Union also argues that the grievant's performance of higher-graded duties, which benefitted the Agency and for which the Agency did not adequately compensate the grievant, constitutes an unwarranted personnel action under the Back Pay Act. Id. at 8. Finally, the Union asserts that the Agency has not established that the Arbitrator was biased. [ v56 p384 ]

V.     Analysis and Conclusions

A.     Preliminary Matter

      The Union asserts that an exhibit attached to the Agency's exceptions -- specifically, a copy of the OPM classification standard for the Computer Specialist Series, GS-334 -- was not submitted to the Arbitrator and should not be considered by the Authority. [n1]  However, OPM Classification Standards are public documents that can be relied on by a party, whether formally submitted into the record or not. Cf. U.S. Department of the Army, Fort Polk, Louisiana and National Association of Government Employees, Local R5-168, 44 FLRA 1548, 1566 (1992) (Fort Polk) (Authority took official notice of new qualification standards issued by OPM). Accordingly, we deny the Union's objection and consider that exhibit in resolving the Agency's exceptions.

B.     The Arbitrator's Finding That the Grievance Was Timely Filed Is Not Deficient.

      Awards resolving questions of procedural arbitrability are subject to challenge only on grounds other than those that directly challenge an arbitrator's determination of procedural arbitrability itself. See U.S. Department of the Treasury, United States Mint, Philadelphia, Pennsylvania and Fraternal Order of Police, Lodge F1-PA, 51 FLRA 1683, 1685 (1996). Such grounds include bias on the part of the Arbitrator or a showing that the Arbitrator exceeded his authority. Id. To the extent that the Agency's assertion that the Arbitrator was biased challenges the Arbitrator's procedural arbitrability determination, we address whether the Arbitrator was biased in reaching that determination. [n2] 

      To demonstrate that an award is deficient because of bias on the part of an arbitrator, it must be shown that the award was procured by improper means, that there was partiality or corruption on the part of the arbitrator, or that the arbitrator engaged in misconduct that prejudiced the rights of the party. See, e.g., U.S. Department of Veterans Affairs, Medical Center, North Chicago, Illinois and American Federation of Government Employees, Local 2107, 52 FLRA 387, 398 (1996) (VAMC, North Chicago).

      The Agency does not argue that the Arbitrator's timeliness determination was procured by improper means, that the Arbitrator was partial or corrupt, or that the Arbitrator engaged in misconduct that prejudiced the Agency's rights. As a result, the Agency has not demonstrated that the Arbitrator's timeliness determination is deficient under the standard set forth above.

      Accordingly, we deny the exception.

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

      The Agency asserts that the award fails to draw its essence from Article 47, Section 6, Step 1 of the parties' agreement because the Arbitrator awarded the grievant a temporary promotion to a GS-12, rather than the requested remedy of a temporary promotion to GS-11. According to the Agency, that section provides that "the grievance should contain . . . the remedy desired[.]" Exceptions at 11 (ellipses in original).

      To demonstrate that an award fails to draw its essence from the collective bargaining agreement, the appealing party must show that the award: (1) is so unfounded in reason and fact, and so unconnected with the wording and purposes of the 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 United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-77 (1990).

      Article 47 concerns the filing of a grievance at Step 1 of the grievance procedure, not arbitral authority. The Agency has provided no basis for finding the Arbitrator's interpretation of the contract implausible, irrational, or unconnected to the wording of the agreement. Accordingly, we conclude that the award does not fail to draw its essence from the parties' agreement, and we deny the exception.

D.     The Award Is Not Based on Nonfacts.

      To establish that an award is based on a nonfact, the appealing party must demonstrate that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. See U.S. Department of the Air Force, Lowry Air [ v56 p385 ] 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. See id. at 594 (citing Mailhandlers v. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)).

      The Agency contends that the award is based on nonfacts because the Arbitrator erred in determining the grade level of the work performed by the grievant, and because the Arbitrator awarded the grievant a temporary promotion for times during which the grievant was not performing these duties. The record indicates that the parties disputed below whether the grievant performed GS-12 work. See Award at 7, 17, 18, 20, 21. The parties also disputed the time during which the grievant performed the duties at issue. See id. at 18, 21. Because these are factual matters that the parties disputed at arbitration, they do not provide a basis for finding that the award is based on nonfacts.

      Accordingly, we deny the exception.

E.     The Arbitrator Did Not Exceed His Authority.

      An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. See U.S. Department of Defense, Army and Air Force Exchange Service and American Federation of Government Employees, (Worldwide Consolidated Bargaining Unit), 51 FLRA 1371, 1378 (1996) (Department of Defense). In the absence of a stipulation by the parties of the issue to be resolved, an arbitrator's formulation of the issues is given substantial deference. See American Federation of Government Employees, Local 987 and U.S. Department of the Air Force, Air Force Logistics Command, Robins Air Force Base, Warner Robins, Georgia, 50 FLRA 160, 162 (1995).

      As the parties in the instant case did not stipulate the issue, the Arbitrator was free to formulate the issue. See Department of Defense, 51 FLRA at 1378. The Arbitrator described, in pertinent part, the issue presented to him as whether "the Agency violate[d] the [parties'] Agreement when it refused to detail the [g]rievant to a higher rated position." Award at 2. The Arbitrator's determination that the grievant performed work at the GS-12 level responds to the issue properly defined by the Arbitrator.

      The Agency also asserts that the Arbitrator exceeded his authority by considering the supervisor's competence. However, the Arbitrator's comments on this point are directly responsive to the issue of whether the grievant performed higher-graded duties.

      Accordingly, the Agency has not demonstrated that the Arbitrator exceeded his authority, and we deny the exception.

F.     The Arbitrator Was Not Biased.

      As discussed supra, to demonstrate that an award is deficient because of bias on the part of an arbitrator, it must be shown that the award was procured by improper means, that there was partiality or corruption on the part of the arbitrator, or that the arbitrator engaged in misconduct that prejudiced the rights of the party. See VAMC, North Chicago, 52 FLRA at 398.

      The Agency's assertion that the Arbitrator was biased against the Agency because all of his findings went against the Agency, without more, does not satisfy this standard. See American Federation of Government Employees, Local 4042 and U.S. Department of Defense, Army Air Force Exchange Service, Waco Distribution Center, Waco, Texas, 51 FLRA 1709, 1714 (1996) (the forcefulness of the arbitrator's findings and the language in his opinion sharply critical of the union, alone, failed to establish that the arbitrator was biased).

      Accordingly, we deny the exception.

G.     The Record Is Insufficient to Determine Whether the Award Is Contrary to Law.

      Section 7122(a)(1) of the Statute provides that an arbitration award will be found deficient if it is contrary to any law, rule, or regulation. In reviewing arbitration awards for consistency with law, rule, or regulation, the Authority reviews the questions of law raised in a party's exceptions 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, 686-87 (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. 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. See id. [ v56 p386 ]

1.     The Award Does Not Concern a Classification Matter.

      Under section 7121(c)(5) of the Statute, a grievance concerning "the classification of any position which does not result in the reduction of grade or pay of an employee" are removed from the scope of the negotiated grievance procedures. The Authority has construed the term "classification" in section 7121(c)(5) as involving "the analysis and identification of a position and placing it in a class under the position-classification plan established by OPM under chapter 51 of title 5, United States Code." 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) (citing Fort Polk, 44 FLRA at 1552).

      The Authority has distinguished between two situations in assessing whether a grievance concerns the classification of a position within the meaning of section 7121(c)(5) of the Statute. Where a grievance concerns the grade level of the duties assigned to, and performed by the grievant, the grievance concerns the classification of a position. See Social Security Administration and American Federation of Government Employees, Local 1923, AFL-CIO, 31 FLRA 933, 936 (1988). However, where a grievance concerns whether the grievant is entitled to a temporary promotion by reason of having performed the established duties of a higher-graded position, the grievance does not concern the classification of a position. See U.S. Department of the Navy, Naval Aviation Depot, Marine Corps Air Station, Cherry Point, North Carolina and International Association of Machinists and Aerospace Workers, Local 2297, 42 FLRA 795, 801-02 (1991).

      The Arbitrator determined that the grievance concerned a claim that the grievant had performed the duties of a higher-graded position, and that the Agency violated the parties' agreement by failing to temporarily promote the grievant to a higher-graded position. The grievant did not claim that his position was improperly classified. As the grievance concerned whether the grievant was entitled to a temporary promotion under the parties' agreement, we conclude that the award does not concern the classification of a position and therefore, is not deficient as contrary to section 7121(c)(5) of the Statute. See Social Security Administration, Office of Hearings and Appeals, Mobile, Alabama and American Federation of Government Employees, Local 3627, 55 FLRA 778, 779-80 (1999).

      Accordingly, we deny the exception.

2.     The Award Is Not Contrary to 5 C.F.R. Chapter 430.

      The Agency asserts that the award is contrary to 5 C.F.R. Chapter 430, based on the Arbitrator's assessment of the supervisor's performance of her duties. Exceptions at 5. 5 C.F.R. Chapter 430 concerns agency performance appraisals of employees.

      The Agency's argument misconstrues the award because the Arbitrator did not evaluate the supervisor's performance under the applicable performance plan, did not order the Agency to appraise the supervisor, and did not preclude the Agency from appraising the supervisor. Accordingly, the Agency has not demonstrated that the award is contrary to 5 C.F.R. Chapter 430, and we deny the exception. [n3] 

3.     The Award Does Not Affect Management's Right to Assign Work.

      The Agency asserts that the award affects management's right to assign work because it "constructively reassigned the Operational Systems Manager, GS-334-12, position to the [g]rievant." Exceptions at 12.

      The Authority has found that awards enforcing contractual provisions requiring temporary promotions do not affect management's right to assign employees. See, e.g., American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 38 FLRA 89, 96-97 (1990) (AFGE, Local 1923). In so doing, the Authority reasoned that the agency had exercised that right when it assigned higher-graded duties to the grievant, and that the arbitrator "merely determined that the [a]gency's 'constructive assignment' of higher-graded duties to the grievant entitled her to compensation for the performance of those duties" under the parties' agreement. Id. at 96.

      We find that the same analytical framework set forth in AFGE, Local 1923 is applicable to the assignment of work exception presented here. In this connection, an agency exercises its right to assign work at the time the work is assigned. When an arbitrator subsequently determines that the work assigned to an employee involved the performance of higher-graded duties, warranting compensation pursuant to the terms of a collective bargaining agreement, that determination [ v56 p387 ] does not affect management's right to assign work, because that right has already been exercised.

      The Arbitrator determined that under Article 28 of the parties' agreement, the Agency's assignment of higher-graded duties entitled the grievant to compensation for the performance of those duties. Nothing in the Agency's arguments indicates that the Arbitrator erred in interpreting Article 28. As the Arbitrator's award merely interprets and enforces that provision, it does not affect management's right to assign work.

      Accordingly, we deny the exception.

4.     The Record Is Insufficient for Us to Determine Whether The Award Is Consistent with the Back Pay Act.

      Under the Back Pay Act, an award of back pay is authorized 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).

      The Agency asserts that the Union did not establish that an unwarranted personnel action occurred, because the grievant did not meet the qualification standards established for the position. In this connection, the Authority has consistently held that an "employee must meet the minimum qualification requirements prescribed by the Office of Personnel Management" for a higher-graded position in order to receive a temporary or permanent promotion to that position. U.S. Department of Health and Human Services, Public Health Service, Navajo Area Indian Health Service and Laborers' International Union of North America, Navajo Nation Health Care Employees, Local 1376, 50 FLRA 383, 386 (1995). Specifically, an employee must meet time-in-grade requirements and specialized experience requirements. See U.S. Department of Justice, Bureau of Prisons, Federal Correctional Institution, Loretta, Pennsylvania and American Federation of Government Employees, Local 3951, 55 FLRA 339, 342-43 (1999) (FCI, Loretta) (Member Wasserman, concurring in part and dissenting in part) (time-in-grade requirements); U.S. Department of the Army, Headquarters, Fort Dix, Fort Dix New Jersey and American Federation of Government Employees, Local 1930, 49 FLRA 730, 736 (1994) (specialized experience requirements).

a.     Time-in-Grade Requirements Do Not Apply.

      Time-in-grade requirements do not apply to employees advancing from non-General Schedule positions to General Schedule positions. See 5 C.F.R. § 300.603(b)(4). [n4]  The grievant was employed as a wage grade employee, not a General Schedule employee, at the time of the claimed temporary promotion to the GS-12 position. Accordingly, the award is not inconsistent with time-in-grade requirements.

b.     The Record Is Insufficient for Us to Determine Whether the Grievant Satisfied Specialized Experience Requirements.

      In order to be eligible for promotion or placement, candidates must meet the minimum qualification standards prescribed by OPM. See 5 C.F.R. § 335.103(b)(3). [n5]  OPM imposes a specialized experience requirement of "1 year equivalent to at least [the] next lower grade level" for employees seeking promotions to GS-12 Specialist Systems-Manager positions. OPM's Operating Manual: Qualifications Standards for General Schedule Positions at IV-A-15. Accord Award at 29. [n6]  The Authority has held that an employee must meet the minimum qualification requirements for a promotion at the time when the promotion begins. See AFGE, Local 1923, 38 FLRA at 98 (award modified to provide temporary promotion only for time period when grievant met qualification requirements). See also FCI, Loretta, 55 FLRA at 343 (refusing to infer a waiver of [ v56 p388 ] time-in-grade requirements from fact that grievant was allowed to perform duties).

      The Arbitrator found that, "[n]o doubt the [g]rievant did not meet these evidentiary time periods[,]" but that the grievant had "evidence of equivalent experience" because he "actually performed the Windows NT work for two years." Award at 50. The Arbitrator did not specify whether the grievant possessed that equivalent experience as of his date of hire (the beginning date of the awarded temporary promotion), or whether that experience was gained solely after that date. In this connection, we note that the record indicates that, prior to his date of hire, the grievant had worked for the Agency as an unpaid work study student and had completed a degree in computer technology. See id. at 4.

      Because the record is insufficient for us to determine whether the grievant met the specialized experience requirements at the beginning of the temporary promotion, or whether he met those requirements at some later point, [n7]  we remand this matter to the parties for resubmission to the Arbitrator, absent settlement.

VI.     Decision

      The award is remanded to the parties for resubmission to the Arbitrator, absent settlement, for further findings consistent with this decision. The Agency's other exceptions are denied.



Footnote # 1 for 56 FLRA No. 52

   The Union also asserts that five other exhibits (Exhibits 1, 2, 4, 5, and 6), relied on by the Agency in connection with its nonfact exception were not submitted to the Arbitrator and should not be considered by the Authority. As discussed infra, we reject the Agency's nonfact exception on the ground that the Arbitrator's allegedly deficient findings resolved a matter that was disputed at arbitration. Accordingly, it is unnecessary to consider the challenged exhibits, or to resolve the Union's objection to the Agency's submission of those exhibits.


Footnote # 2 for 56 FLRA No. 52

   In addition to resolving the allegation of bias in the specific context of the Arbitrator's procedural arbitrability determination, we resolve, infra, the general question of whether the Arbitrator was biased because all of his rulings went against the Agency.


Footnote # 3 for 56 FLRA No. 52

   For the same reason, we deny the Agency's assertion that, by considering the competence of the grievant's supervisor, the award violates unspecified management rights under section 7106(a)(2)(A) and (B).


Footnote # 4 for 56 FLRA No. 52

   5 C.F.R. § 300.603(b)(4) provides that, among other actions, the following may be taken without regard to time-