United States Department of Defense, Defense Commissary Agency, Seymour Johnson Air Force Base, North Carolina (Agency) and National Association of Government Employees, Local R5-188 (Union)

[ v56 p1000 ]

56 FLRA No. 173

UNITED STATES DEPARTMENT OF DEFENSE
DEFENSE COMMISSARY AGENCY
SEYMOUR JOHNSON AIR FORCE BASE
NORTH CAROLINA
(Agency)

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R5-188
(Union)

0-AR-3338

_____

DECISION

December 22, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman; Dale Cabaniss and Carol Waller Pope, Members.

Decision by Chairman Wasserman for the Authority.

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator William J. McGinnis, Jr. 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 and associated benefits. For the following reasons, we deny the Agency's exceptions.

II.     Background and Arbitrator's Award

      The Union filed a grievance alleging that the Agency violated the terms of the collective bargaining agreement by failing to give a temporary promotion to a bargaining unit employee who was detailed to a higher-graded supervisory position. The grievance was not resolved and was submitted to arbitration. The parties [ v56 p1001 ] stipulated the issue at arbitration as whether the provisions of Article 31 apply to details to non-bargaining unit supervisory positions. [n1] 

      At the outset of his analysis, the Arbitrator noted that the "key articles in this matter are Article 1, Recognition [and] Unit Definition and more significantly Article 31, Details [and] Temporary Promotions." [n2]  Award at 6. The Arbitrator concluded that Article 31 does apply to employees detailed to higher-graded supervisory positions. In reaching this conclusion, the Arbitrator found that

Article [31] as written is defined to protect and preserve the rights of a bargaining unit employee, while he/she is detailed or temporarily promoted and it demands that the employee be returned to his/her permanent position, upon completion of the detail. There is nothing in this article to remotely indicate that if an employee is detailed to a supervisory or managerial position[,] their rights as a member of the bargaining unit cease to exist. Nor is there any language that indicates there are specific higher titles of a supervisory or managerial nature that appointment to will remove a member of this bargaining unit from the coverage of this contract.
. . . .
The clear language in Article 31 . . . demonstrates that the contract covers both assignment to and return from such details or temporary assignments; it does not contemplate loss of contract rights by the assignee for the duration of the assignment. The clear meaning of such language is to show a continuing uninterrupted relationship between the unit member and his/her contractual rights during the period of the detail or assignment.

Id. at 6, 7. The Arbitrator reasoned that had the parties "intended that certain positions be excluded from the coverage of . . . Article [31], that language should have been incorporated in the article." Id. at 6.

      Moreover, the Arbitrator rejected as "erroneous" the Agency's argument that Article 1 excludes persons occupying supervisory positions from representation in the bargaining unit. In this regard, the Arbitrator noted that Article 31 does not serve to "waive" the rights of unit employees when detailed or temporarily assigned to non-unit positions. Id. at 7. In this connection, the Arbitrator noted that the Authority "shows no intent . . . to separate a detailed or temporarily assigned employee from his/her contract rights." Id. citing United States Dep't of Justice, Bureau of Prisons, Federal Correctional Institution, Loretta, Pennsylvania, 55 FLRA 339 (1999).

      In addition, the Arbitrator found that the Agency's contentions that the inclusion of non-unit supervisory positions in Article 31 is a permissive subject of bargaining were "moot." Id. In this respect, the Arbitrator found that

the parties have in good faith negotiated an agreement and in that agreement they have included clear language that guarantees employees covered by the agreement their contractual rights, without interruption, during periods of detail and assignment. If the Agency intended otherwise, it should have sought and obtained written language to that effect within the four corners of the agreement. It did not and must now live by the language agreed to in the contract.

Id. In the same vein, the Arbitrator rejected the Agency's contention that the grievance was not arbitrable since non- unit positions were excluded from coverage of Article 31. The Arbitrator found that despite the Agency's claims that "it never sought to negotiate this issue [of coverage of non-unit employees], the contract language it agreed to covers the matter of the dispute and makes it a proper grievance and a grievable matter under the terms of the agreement." Id. Lastly, the Arbitrator noted that sustaining the Agency's position would result in violating Article 45, Section 7 of the parties' agreement, which forbids an Arbitrator to change, delete or add to the agreement.

      As his award, the Arbitrator sustained the grievance and ordered the Agency to "compensate the grievant for all back pay and benefits for the promotion." Id. at 8. [ v56 p1002 ]

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency maintains that the Arbitrator's award is deficient on two grounds, as contrary to law and based on nonfacts. With respect to the first ground, the Agency argues that the award violates its bargaining rights under section 7106 of the Statute. In this respect, the Agency maintains that it is well established under Authority case law that "inclusion of management or supervisory personnel actions within CBA coverage is a permissive subject for bargaining and thereby only negotiable at the election of the Agency." Exceptions at 2. The Agency contends that the Arbitrator's conclusion -- that had the parties intended to exclude non-unit supervisory positions from coverage under Article 31, the agreement would have included language reflecting this exclusion -- in effect, requires the Agency to negotiate over a permissive subject and therefore "eliminates the Agency's discretionary authority on this issue in violation of its bargaining rights and the case law." Id. at 3.

      In addition, the Agency maintains that the award violates the Back Pay Act. The Agency maintains that under Authority case law, "entitlement [to a temporary promotion] must be based on a provision of a CBA or an agency regulation which provides for a mandatory temporary promotion for details to, or the performance of the duties of, a higher graded position after a specified period of time." Id. The Agency claims that there is no applicable CBA provision or Agency regulation that requires a mandatory temporary promotion to a management position.

      With respect to the second ground, the Agency contends that the Arbitrator "relied on the nonfact that the grievant remains a bargaining unit member when assigned to, or accomplishing the duties of a management position." Id. The Agency also contends that the Arbitrator's finding that the grievant was still covered by the CBA while detailed to a supervisory position 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 NFFE, Local 1482, 45 FLRA 1132 (1992); NFFE, Local 1442, 44 FLRA 723 (1992)).

B.     Union's Opposition

      The Union contends that the Agency's contrary to law and nonfact exceptions should be denied. The Union maintains that the Agency's arguments, although not stated in these terms, challenge the Arbitrator's interpretation of the parties' agreement that Article 31 covered details to supervisory positions and that the Agency agreed to such coverage. In this regard, the Union contends that the Authority, in line with its precedent, should use a "very deferential standard" in reviewing the Arbitrator's interpretation of the agreement. Opposition at 5.

IV.     Analysis and Conclusions

A.     The Award is not Contrary to the Statute or Authority Case Law

      We find that the Agency's focus on alleged violations of its discretion to bargain over permissive subjects as a basis for finding the Arbitrator's interpretation of the agreement deficient is misplaced. In United States Dep't of Defense, Defense Commissary Agency, Fort Lee, Virginia, 56 FLRA 855 (2000) (USDOD), this Agency challenged, for essentially the same reasons as it does here, another arbitrator's interpretation and enforcement of the identical provision. As relevant here, in USDOD, the Authority rejected the Agency's attempt to challenge the Arbitrator's "enforce[ment of] the parties' agreement so as to encompass a supervisory position or an employee detailed to a supervisory position." Id. at 858. In so doing, the Authority reaffirmed its precedent that an arbitrator's interpretation and enforcement of an agreement provision may directly determine the working conditions of a manager/supervisor. Id. citing AFGE, Local 3302, 52 FLRA 677, 682-83 (1996) (SSA). The Authority explained 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. citing SSA at 682.

      Here, we find that the Arbitrator's interpretation and enforcement of Article 31 to cover the grievant's detail to a supervisory position is consistent with the holdings of USDOD and SSA and not contrary to law as the Agency alleges. The Agency claims that the Arbitrator's statements -- that had the Agency intended to exclude supervisory positions from coverage of Article [ v56 p1003 ] 31, then language reflecting this exclusion should have been included in the agreement -- in effect, require that the Agency negotiate over a permissive subject in violation of its right to elect to bargain over such matters. We view the import of the Arbitrator's statements in a different light. The Arbitrator's statements reflect nothing more than his reasoning/rationale for interpreting Article 31 as covering unit employees detailed to supervisory positions. In other words, these statements indicate what the Arbitrator would have considered persuasive, as a matter of contract interpretation, in deciding to exclude details to supervisory positions. Hence, in our view, these statements do not inappropriately tread or encroach on the Agency's right to elect to bargain over permissive subjects.

      Similarly, we find that the cases cited by the Agency for the proposition that the grievant was not a member of the unit while detailed to a supervisory position are not applicable. As we noted in USDOD with respect to the same cases,

[they] 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. . . . [Whereas], 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.

Id. at 859. The Agency has otherwise failed to demonstrate that the Arbitrator's enforcement of Article 31 is inconsistent with the Statute. [n3] 

      Accordingly, the Agency's exceptions are denied.

B.     The Award is Not Contrary to the Back Pay Act.

      The Agency contends that the Arbitrator's award violates the Back Pay Act. In this regard, the Agency claims solely that there is no applicable contract provision or Agency regulation that requires temporary promotions to supervisory positions.

      The Authority reviews the legal questions raised by an exception claiming that an award is contrary to law de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995). In doing so, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

      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 United States Dep't of Health and Human Services, 54 FLRA 1210, 1218-19 (1998).

      The general rule is that an employee is entitled only to the salary of the position to which the individual is appointed. United States Dep't of the Army, Fort Polk, Louisiana, 44 FLRA 1548, 1563 (1992) (citing Cassandra G. McPeak and Wayne E. Dabney, 69 Comp. Gen. 140 (1989)). An exception to this rule exists, which permits compensation for the temporary performance of the duties of a higher-graded position based on an agency regulation or collective bargaining provision making temporary promotions mandatory in these circumstances. United States Dep't of the Air Force, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 52 FLRA 938, 942 (1997). Under this exception, such a collective bargaining agreement provision establishes a nondiscretionary agency policy which provides a basis for backpay. Id.

      Here, the record reveals that the grievant was detailed to a higher-graded supervisory position. Moreover, as noted above, the Arbitrator found that Article 31, including the "rights set out in [s]ections 2 through 6" applies to details to supervisory positions. Award at 6. In this regard, section 6 of Article 31 provides in pertinent part that "[e]mployees detailed to higher graded positions will be temporarily promoted (if otherwise eligible [ v56 p1004 ] and qualified) on the 31st day, if the detail exceeds 30 days, and the detail was not taken at the employee's written request." Parties' Agreement at 38, Attachment 3 to Agency's Exceptions. As such, we find that the Arbitrator clearly identified a nondiscretionary Agency policy set forth in a collective bargaining agreement provision that entitles the grievant to backpay. Accordingly, we deny this exception.

C.     The Award Is Not Based on a Nonfact

      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 United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colorado, 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)). We find that the Agency has not established that the award is deficient as based on a nonfact since the issue of whether the grievant remained a member of the unit was disputed by the parties below. Accordingly, we deny this exception.

V.     Decision

      The Agency's exceptions are denied.



Footnote # 1 for 56 FLRA No. 173

   The Arbitrator set forth Article 31, Section 1 as follows:

     A detail is a temporary assignment of an employee to a position or duties other than the employee's permanent position. A detail may be at an equal, higher or lower grade level than the employee's permanent position. Upon completion of the detail, the employee returns to his/her permanent position.

Award at 6.


Footnote # 2 for 56 FLRA No. 173

   The Arbitrator noted that the "Recognition article clearly excludes all `management officials, supervisors, . . .' thus clearly defining that the position to which the grievant was detailed to . . . was a `supervisory' position and therefore not a part of this bargaining unit." Award at 6.


Footnote # 3 for 56 FLRA No. 173

   We note that if we construed the Agency's exceptions challenging the Arbitrator's interpretation of Article 31 as a claim that the award fails to draw its essence from the parties' agreement, we would deny these exceptions on that ground, as well. The Agency's claims fail to demonstrate that the Arbitrator's interpretation is implausible, irrational, or unfounded. See United