U.S. Department of Defense, Defense Commissary Agency, Fort Lee, Virginia (Agency) and National Association of Government Employees, Local R4-27 (Union)

[ v56 p855 ]

56 FLRA No. 142

U.S. DEPARTMENT OF DEFENSE
DEFENSE COMMISSARY AGENCY
FORT LEE, VIRGINIA
(Agency)

and

NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES
LOCAL R4-27
(Union)

0-AR-3290

_____

DECISION

September 29, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member. [n1] 

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Nancy Kauffman 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 sustained a grievance alleging that the grievant was entitled to a retroactive temporary promotion under the parties' collective bargaining agreement (CBA) and awarded the grievant back pay with interest and associated benefits. For the following reasons, we deny the Agency's exceptions alleging that the award is based on nonfacts. However, we find that the record is insufficient to determine whether the grievant is entitled to a temporary promotion as the Arbitrator ordered. Accordingly, we remand the portion of the award which concerns the grievant's qualifications to the parties for resubmission to the Arbitrator, absent settlement, for clarification and further findings on this issue.

II.     Background and Arbitrator's Award

      During the four-month period from late April through late August 1998, the grievant, a non-supervisory WL-7404-7 Meat Cutter Leader, was officially detailed to perform the duties of a supervisory GS-1144-8 Meat Department Manager position. The grievant and Union maintain that despite the personnel action terminating the detail in late August 1998, the grievant continued to perform the duties of Meat Manager until the position was filled by the current Meat Manager in July or August 1999. The grievant "became aware of Article 31, Section 6 of the [c]ollective [b]argaining [a]greement in mid-May, 1999, and filed a grievance on May 19, 1999, seeking additional pay for what he viewed as a temporary promotion according to the provisions of the [CBA]." [n2]  Award at 4. The Agency denied the grievance as "untimely filed," and the Union submitted the matter to arbitration. Id.

      The Arbitrator stated the issues as follows:

1.     Arbitrability, Substantive: Is this a proper subject for arbitration [in accordance with Article 1] since the Grievant was detailed to a management position?[ [n3] ] . . .
2.     Arbitrability, Procedural: Was the grievance filed in a timely manner according to the Article 43[,] Section 5?[ [n4] ]
3.     Was the [g]rievant temporarily promoted according to Article 31[,] Section 6? And did he continue constructively in this position after the formal termination of the detail? If so, what shall the remedy be?

Id. at 3.

      The Arbitrator concluded that the grievance was substantively arbitrable since "[t]he [g]rievant remained a member of the bargaining unit while he was detailed to [ v56 p856 ] the Meat Manager position" and after the detail ended. Id. at 6. In this connection, the Arbitrator further found that "this issue was not raised within or prior to management's final decision and, according to Article 43, Section 8, cannot be raised after that point, so management constructively waived this objection." [n5]  Id. Moreover, the Arbitrator concluded that the grievance was timely filed in accordance with Article 43, Section 5.

      The Arbitrator concluded that the grievant should have received a temporary promotion since the "[g]rievant clearly took on the central responsibilities of the Meat Manager after April 23, 1998 until he was replaced by" the current Meat Manager in July or August of 1999. Id. The Arbitrator found that "[a]lthough the detail formally ended (on paper) on August 28, 1998, . . . the [g]rievant continued [to perform] his same [Meat Manager] duties[.]" Id. In addition, the Arbitrator noted that although the Agency raised the issue of the grievant's qualifications for the temporary promotion for the first time at arbitration, "Article 31, Section 6, clearly states that temporary promotions will be given after the 31st day in the position only if the employee is otherwise qualified[.]" Id. (emphasis in original). In this regard, the Arbitrator reviewed the the position description (PD) for the Meat Department Manager and found that the PD "lists the duties and responsibilities of [the] job but no experience requirements[.]" Id. Moreover, the Arbitrator found that "no evidence was offered other than the testimony of one witness that someone in Human Resources had told him that the [g]rievant wasn't qualified for GS8." Id. The Arbitrator concluded that this evidence was "insufficient to justify noncompliance with the contract language of Article 31, Section 6 that requires the temporary promotion beginning with the 31st day of the detail[, i]n this case, . . . [since] May 24, 1998." Id.

      As her award, the Arbitrator directed the Agency to provide the grievant with a temporary promotion to the Meat Department Manager position, along with back pay, interest and associated benefits, retroactively from May 24, 1998 until the grievant was replaced by the current Meat Department Manager in July or August 1999. The Arbitrator also ordered that the grievant's personnel record should reflect the temporary promotion. Lastly, the Arbitrator retained jurisdiction regarding the issue of attorney fees.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency maintains that the Arbitrator's award, in three respects, is based on nonfacts. First, the Agency argues that the Arbitrator erred in finding that Article 31, Section 6 of the parties' agreement applies to management and supervisory positions. The Agency maintains that Article 31 regarding details and temporary promotions only applies to bargaining unit positions and refers to Article 1 that recognizes the Union as the exclusive representative of all bargaining unit employees to the exclusion of any management or supervisory staff. The Agency further claims that the "inclusion of management and/or supervisory positions under coverage of [Article 31] is an area of permissive bargaining, [and in this connection, the chief negotiator on the national CBA] stated unequivocally that management did not agree to extend coverage of Article 31 of the CBA to such positions." Exceptions at 2. The Agency argues that since the Meat Department Manager position is supervisory, it had the right "to assign anyone to the duties of that position without the application of the CBA provisions." Id. at 2-3.

      Second, the Agency contends that the Arbitrator erred in finding that the grievant was a member of the bargaining unit while in a management position. The Agency contends that the Arbitrator's reliance on this finding is contrary to Authority case law. In this regard, the Agency maintains that the Authority has ruled that an employee is not included in the bargaining unit during a permanent or temporary assignment to a supervisory position. See id. at 3 (citing National Federation of Federal Employees, Local 1482 and U.S. Department of [ v56 p857 ] Defense, Defense Mapping Agency, Louisville, Kentucky, 45 FLRA 1132 (1992); National Federation of Federal Employees, Local 1442 and U.S. Department of the Army, Letterkenny Army Depot, Chambersburg, Pennsylvania, 44 FLRA 723 (1992)).

      Third, the Agency maintains that the Arbitrator erred in finding that the grievant was qualified for a temporary promotion to the GS-8 Meat Department Manager position, despite uncontested testimony by the Commissary Store Officer that someone in the personnel office advised him that the [g]rievant was not qualified for the promotion. The Agency contends that the "[U]nion presented no evidence that the grievant was qualified for promotion even though the burden of proof rests with the grievant and the [U]nion to prove qualification [under Article 31 of the CBA]." Id. at 4.

      In addition, the Agency maintains that the award is contrary to law, rule and regulation, in two respects. The Agency argues that the award violates the Back Pay Act based upon the Arbitrator's finding that the grievant was qualified for the temporary promotion. Here, the Agency reiterates its claim that the Arbitrator rejected the testimony of the Commissary Store Officer, which established the grievant's lack of qualifications. The Agency argues that "even if Article 31 of the CBA did apply to this situation, that Article also requires qualification for the position before the temporary promotion provision can be effected." Id. at 5. Moreover, the Agency argues that the Arbitrator's award of a temporary promotion for a period in excess of one year violates 5 C.F.R. sections 335.103(c)(1)(i) and 335.103(c)(3)(iii), which require the use of competitive procedures for any temporary promotion beyond 120 days.

B.     Union's Opposition

      The Union contends that the Agency's exceptions should be denied. Regarding the Agency's first nonfact exception that Article 31, Section 6 does not cover supervisory positions, the Union emphasizes that the plain language of the agreement only states that a temporary promotion occurs whenever an employee is performing higher-grade duties for more than 30 days and "makes no distinction as to whether the duties are supervisory or not." Union's Opposition at 3. The Union also maintains that the Arbitrator rejected the Agency's claims in this regard as a grievability issue that was not raised prior to arbitration as required by Article 43, Section 8.

      In relation to the Agency's second nonfact contention that the grievant was outside the bargaining unit while performing duties of the Meat Manager, the Union maintains that this claim is "flawed" since "the [g]rievant cannot be outside the bargaining unit unless the agency temporarily promotes him -- at which point he is getting full relief on the grievance." Id. at 4. Further, the Union contends that the "[A]gency never raised this argument below and should not be allowed to raise [it] for the first time now." Id.

      Regarding the Agency's third nonfact claim that the grievant was not qualified for the temporary promotion, the Union contends that the Agency presented no evidence of the grievant's lack of qualifications and that certain attachments to the Agency's Exceptions on this issue should not be considered since they were not presented at arbitration. Moreover, the Union argues that the Commissary Officer's testimony should be rejected since it was not "raised in a manner sufficient" either for the Union to respond or for the Arbitrator to rule on it. Id. at 9. The Union contends that the grievant "plainly qualified for the position . . . as a practical matter" based on his years of experience as a work leader at the next lower level of supervision. Id.

      Finally, the Union maintains that the Agency's contrary to law exceptions involving the Back Pay Act and 5 C.F.R. § 335.103 should be denied. The Union asserts that the award is consistent with the requirements for constructive temporary promotion under the Authority's case law, namely, a contractual provision mandating the temporary promotion and a qualified employee for the promotion. Moreover, the Union maintains that "the [g]rievant did the work and is entitled to be paid and should not be denied his remedy because the [A]gency violated [OPM] regulations [requiring the use of competitive procedures] in the course of temporarily promoting him." Id. at 12. In addition, the Union contends that "the [A]gency did not raise the [5 C.F.R. § 335.103 issue] before the Arbitrator and should not be allowed to raise it for the first time now." Id.

IV.     Analysis and Conclusions

A.     Preliminary Matters

      The Union objects to the Authority's consideration of documents attached to the Agency's Exceptions that were not presented at the arbitration hearing. The documents at issue include a memorandum regarding "Qualifications of [grievant] for Meat Department Manager GS-114[4]-8" from the Chief of Staffing and Career Management that is date stamped March 9, 2000; and an attachment on the Agency's "Commissary Career Program, [ v56 p858 ] Promotion Evaluation Pattern Definitions [for] GS-8[.]" See Attachments to Exceptions.

      Under section 2429.5 of the Authority's Regulations, the Authority will not consider issues that could have been, but were not, presented to the arbitrator. [n6]  See Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, Council 220, 55 FLRA 498, 503 (1999). The memorandum purports to explain in some detail why the grievant does not satisfy the minimum qualifications for the GS-1144-8 Meat Department Manager position, in particular, a specialized experience requirement set by the Agency's Commissary Career Program of one year as a wage supervisor that may be fulfilled in combination with experience in the GS-1144 series. Because the memorandum and attachment relate to the issue of whether the grievant satisfied minimum qualification standards for the temporary promotion, the content of these documents essentially constitute Agency testimony that clearly could have, and should have been presented to the Arbitrator. Accordingly, we will not consider this memorandum and attachment.

      Similarly, we find nothing in the record to indicate that the issue of the award's consistency with 5 C.F.R. sections 335.103(c)(1)(i) and 335.103(c)(3)(iii), which require the use of competitive procedures for any temporary promotion beyond 120 days, was raised at arbitration or otherwise presented to the Arbitrator. Therefore, in accordance with section 2429.5 of the Authority's Regulations, we will not consider this exception.

B.     The Arbitrator's Award Is Not Based on Nonfacts and Is Not Contrary to Authority Case Law.

      To establish that an award is based on 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 Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993). However, the Authority will not find an award deficient on the basis of an arbitrator's determination of any factual matter that the parties disputed at arbitration. Id. at 594 (citing National Post Office Mailhandlers v. U.S. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)). Additionally, the fact that the appealing party disputes an arbitral finding does not provide a basis for finding that the award is based on a nonfact. See American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Finance Administration, Baltimore, Maryland, 51 FLRA 576, 579 (1995). These principles appropriately accord deference to an arbitrator's factual findings because the parties have bargained for the facts to be found by an arbitrator chosen by them. See 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).

      The Agency argues that the Arbitrator's award is based on nonfacts because the Arbitrator erred in finding that: (1) Article 31, Section 6 of the parties' CBA applied to the Meat Department Manager position; (2) the grievant remained a member of the bargaining unit during his detail to a management position; and (3) the grievant was qualified for a temporary promotion to the Meat Department Manager position. First, the record reveals that the parties disputed below the applicability of Article 31, Section 6 to the Meat Department Manager position, as reflected in the their closing briefs to the Arbitrator. See Agency's Closing Brief at 2; Union's Closing Brief at 11. Second, the record also indicates that the parties disputed whether the grievant was a member of the bargaining unit under Article 1 while on detail as the Meat Department Manager. See Award at 4, 5. Third, the issue of whether the grievant was qualified was also disputed by the parties below. See id. at 5; Union's Closing Brief at 8; Agency's Closing Brief at 3-4. Hence, we find that the Agency has not established that the award is deficient as based on nonfacts since all of these issues were disputed by the parties below.

      In light of the Agency's assertion that the Arbitrator's finding that the grievant remained a member of the bargaining unit while performing the duties of the management position is inconsistent with Authority case law, we also review this contention as a contrary to law claim. In this regard, the thrust of the Agency's claim, although not stated in these terms, is that the Arbitrator could not enforce the parties' agreement so as to encompass a supervisory position or an employee detailed to a supervisory position. However, in American Federation of Government Employees, Local 3302 and U.S. Department of Health and Human Services, Social Security Administration, 52 FLRA 677, 682-83 (1996) [ v56 p859 ] (SSA), the Authority affirmed an arbitrator's interpretation and enforcement of an agreement provision as directly determining the working conditions of a manager/supervisor. In doing so, the Authority held that although bargaining over proposals that directly implicate conditions of employment of supervisors is permissive, rather than prohibited, "[o]nce an agency and a union agree to such a proposal, it is enforceable provided that it is otherwise consistent with the Statute." Id. at 682.

      Here, the Arbitrator applied and enforced Article 31 to cover the grievant's performance of higher-graded duties of a supervisory position. As such, we find that the Arbitrator's application of the agreement is consistent with SSA and not contrary to law as the Agency alleges. In this respect, the cases cited by the Agency do not address an arbitrator's enforcement of contract provisions relating to the temporary performance of higher-graded duties. Rather, the language in the cases relied upon by the Agency address unit status, per se. We recognize that the Arbitrator's determination was that the "[g]rievant remained a member of the bargaining unit while he was detailed to the Meat Manager position." Award at 6. However, it is clear from the Award as a whole that the Arbitrator's conclusion related to her view that the grievant remained a beneficiary of the protections of Article 31. The Agency has not presented any other basis on which to find that the Arbitrator's enforcement of Article 31 is inconsistent with the Statute.

      Accordingly, the Agency's exceptions are denied.

C.     The Record is Insufficient to Determine Whether the Award is Contrary to the Back Pay Act.

      As the Agency's contentions involve the award's consistency with law, we review the questions of law raised by them 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 the 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. 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. The Authority also defers to an arbitrator on questions of contract interpretation. See id. at 1709 n.4.

      Under the Back Pay Act, an award of backpay 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 has resulted in the withdrawal or reduction of the employee's pay, allowances or differentials. 5 U.S.C. § 5596(b)(1). See also U.S. Department of Health and Human Services and National Treasury Employees Union, 54 FLRA 1210, 1218-19 (1998).

      The Agency contends that the Arbitrator's award violates the Back Pay Act since the grievant was not qualified for a temporary promotion to the Meat Department Manager position. In this respect, the Authority has consistently held that the "employee must meet the minimum qualification requirements prescribed by the Office of Personnel Management (OPM)" for the 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). See also 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, 1619 (1998). Additionally, the Authority has held that an employee must meet time-in-grade requirements and specialized experience requirements. See U.S. Department of Veterans Affairs, Ralph H. Johnson Medical Center, Charleston, South Carolina and National Association of Government Employees, Local R5-136, 56 FLRA 381, 387 (2000) (VAMC, Charleston). Also, the Authority has held that an employee must meet the minimum qualification requirements for a promotion at the time when the promotion begins. See id. (and cases cited therein).

      Based on a careful review of the record, it does not appear that the Arbitrator looked at or otherwise considered any qualification standards for the Meat Department Manager position. In particular, there is no mention of any minimum qualification standards set by OPM or any established by the Agency. As set forth above, well established Authority precedent requires that the grievant satisfy OPM's minimum qualification requirements for the Meat Department Manager position in order to receive the temporary promotion. We are unable to assess, based on the record, whether the grievant was entitled to a temporary promotion to the Meat Department Manager's position as the Arbitrator ordered. In such circumstances, and consistent with Authority precedent, we remand the award to the parties [ v56 p860 ] for resubmission to the Arbitrator, absent settlement, for clarification and further findings on the relevant minimum qualification standards that must be met and whether the grievant met such standards. See id. at 387-88 (where the record was insufficient for the Authority to determine whether the grievant met the specialized experience requirements at the beginning of the temporary promotion or at some later point, the Authority remanded this matter to the parties for submission to the arbitrator, absent settlement). Cf. American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 38 FLRA 89, 97-98 (1990) (where the Arbitrator did not make a determination as to the grievant's qualifications but it was clear from the record that the grievant met the minimum qualification requirements at some point, the award was modified to provide that the grievant was awarded a retroactive temporary promotion and backpay for all times that the grievant met the requirements).

V.     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.


Chairman Wasserman, concurring:

      I write separately from the majority opinion to make two points.

      First, although not specifically raised by the parties, I note that an agency can waive time-in-grade requirements pursuant to 5 C.F.R. § 300.603(b)(7). As I said in my dissent in U.S. Department of Justice, Bureau of Prisons, Federal Correctional Institution, Loretta, Pennsylvania and American Federation of Government Employees, Local 3951, 55 FLRA 339, 344 (1999), this waiver need not be express, but may be inferred from the Agency's actions. Moreover, in my opinion, additional specialized experience requirements established by an agency, as opposed to OPM, may be waived.

      Second, I am deeply troubled by the application of Authority precedent in this case and other similar cases that relies strictly on the OPM minimum qualification standards. In my view, the fact that an employee has successfully performed the duties of the higher-graded position for a significant period of time -- in this case well over one year -- attests to the employee's "qualified" status to perform the higher-graded duties.

      Although arising in a different legal context, the notion that "job performance ability" should take precedence over invalid job requirements is a long-recognized concept. In Griggs v. Duke Power Company, 401 U.S. 424, 431 (1971), the Supreme Court held that the Civil Rights Act prohibited an employer from requiring a high school education or passing of a standardized general intelligence test as a condition of employment, where neither standard was shown to "bear a demonstrable relationship to successful [job] performance" and both requirements operated to disqualify black applicants at a substantially higher rate than white applicants. Especially noteworthy in this regard are the following statements by the Court:

Nothing in the [Civil Rights] Act precludes the use of testing or measuring procedures; obviously they are useful. What Congress has forbidden is giving these devices and mechanisms controlling force unless they are demonstrably a reasonable measure of job performance. . . . What Congress has commanded is that any tests used must measure the person for the job and not the person in the abstract.

Id. at 436. Under the special/unique circumstances of cases like the one at hand, the OPM qualification standards are clearly not the best, or for that matter relevant, measure of whether an employee is able to perform the duties of the higher-graded position, vis-a-vis the record of the employee's actual performance of those duties. Furthermore, the continued application of OPM's qualification standards to such cases appears to be fundamentally at odds with the express "principle of equal pay for substantially equal work," in the Classification Act, 5 U.S.C. § 5101(1)(A).



Footnote # 1 for 56 FLRA No. 142

   Chairman Wasserman's concurring opinion is set forth at the end of this decision.


Footnote # 2 for 56 FLRA No. 142

   Article 31, Section 6 provides:

     Employees detailed to higher graded positions will be temporarily promoted (if otherwise eligible and qualified) on the 31st day, if the detail exceeds 30 days, and the detail was not taken at the employees written request. Competitive procedures will be followed when required by law or regulation, or when the EMPLOYER determines such procedures are warranted.

Footnote # 3 for 56 FLRA No. 142

   Article 1, Recognition and Unit Definition, provides:

     The UNION is the exclusive representative of all employees of the EMPLOYER, as specified in Appendix A, excluding all management officials, supervisors, professional employees and employees described in 5 U.S.C. 7112(b)(2), (3), (4), (6) and (7).

Footnote # 4 for 56 FLRA No. 142

   Article 43, Section 5 provides:

     In order for a grievance to be considered timely and eligible for processing under this Article, it must be filed within fourteen (14) days after the alleged violation or incident occurred, or of becoming aware of the alleged violation or incident. Thereafter, it must be filed at each step within the stated time limits, except as stated below. Failure on the part of an employee or the grieving PARTY to meet stated time limits shall constitute withdrawal of the grievance. Similar failure on the part of the PARTY receiving the grievance shall allow the employee or the grieving PARTY to move the grievance to the next step. Time limits stated above may be extended by written mutual agreement.

Footnote # 5 for 56 FLRA No. 142

   Article 43, section 8 provides:

     In the event either PARTY should declare a grievance to be non-grievable or non-arbitrable, the original grievance shall be considered to be amended to include that issue. Any allegation of non-grievability or non-arbitrability shall be raised not later than the final decision being issued. If mutually agreed to by the PARTIES, all such disputes shall be submitted in writing to the arbitrator prior to the presentation of the underlying grievance, and the arbitrator shall render a decision on that issue based on the written briefs of the PARTIES. Otherwise, the issue will be presented to the arbitrator to be decided as a threshold issue at the hearing, and