U.S. Department of the Army, Dugway Proving Ground, Dugway, Utah (Agency) and National Association of Government Employees, Local R14-9 (Union)

[ v57 p224 ]

57 FLRA No. 48

U.S. DEPARTMENT OF THE ARMY
DUGWAY PROVING GROUND
DUGWAY, UTAH
(Agency)

and

NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R14-9
(Union)

0-AR-3245

_____

DECISION

June 1, 2001

_____

Before the Authority: Dale Cabaniss, Chairman; Donald S. Wasserman and Carol Waller Pope, Members. [n1] 

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator John Phillip Linn filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union did not file an opposition to the Agency's exceptions.

      The grievant filed a grievance disputing her failure to be promoted and her performance appraisal. The Arbitrator ordered the grievant promoted and her appraisal raised. We modify the effective date of the promotion. Otherwise, we deny the Agency's exceptions.

II.     Background and Arbitrator's Award

      The grievant was a GS-5 secretary at the installation's health clinic. When the administrative responsibilities of the clinic were increased in 1994, the grievant claimed that her duties increased and that she began performing duties of a GS-6 secretary. The grievant's supervisor agreed with the grievant that the duties assigned to her were at the GS-6 level and raised the matter with the headquarters office. The headquarters office refused to consider any reclassification or promotion for the grievant because of an impending reorganization. The grievant's supervisor urged the grievant to be patient and told her that he would continue to attempt to get her promoted to GS-6. Award at 19. When this supervisor was replaced by a new supervisor in 1996, the grievant's new supervisor promised the grievant to get her position upgraded to GS-6. At the end of 1996, the grievant filed an equal employment opportunity (EEO) complaint, which partly involved the conduct of her new supervisor. In 1997, after being told that her position did not warrant upgrading and that she would not be promoted to GS-6, she filed a grievance. The grievance disputed her failure to be promoted to GS-6 and her 1997 performance appraisal.

      The grievant's 1997 overall performance rating was 2," which the Arbitrator described as the middle rating of `Successful' performance. Id. at 11. For her four job elements, she was rated Excellence (Exceeds Standards) for one element and Success (Meets Standards) for the other three elements. In her previous appraisal, she had been rated Excellence (Exceeds Standards) for all her elements and 1" overall.

      On the issue of position upgrade and promotion, the Union argued to the Arbitrator that the grievant was performing the duties of a GS-6 secretary. The Union maintained that although management was aware of the grievant's performance of GS-6 duties, management never secured the position level for the job duties that Grievant was assigned and performed. Id. at 16. The Union claimed that it would be unfair to allow the Agency to avoid promoting the grievant because management failed to conduct a proper desk audit to confirm the grade of the duties performed by the grievant. As a remedy, the Union requested a retroactive permanent position with back pay. Id. at 19.

      On the appraisal issue, the Union argued that the grievant's rating was improper as an act of retaliation by her supervisor because the grievant had filed an EEO complaint against him.

      The Arbitrator found that the grievant's new supervisor had arbitrarily withheld from the headquarters office a request to upgrade the grievant's position and promote her to GS-6 and deceived the grievant as to his actions. The Arbitrator ruled that these actions constituted an unjustified and unwarranted personnel action in violation of merit system principles and the parties' collective bargaining agreement. Specifically, the Arbitrator concluded that the supervisor's actions violated Article 38 of the agreement, which provided that the Agency would treat all employees fairly and equitably in all respects[,] and the merit system principles set forth in 5 U.S.C. § 2301(b)(2) and (8). [n2]  Id. at 22 n.1 (quoting agreement). He additionally found that the grievant had [ v57 p225 ] performed the duties of a GS-6 secretary position beginning in May 1994 and that if the authorized official had been presented with a request to upgrade the grievant's position and promote her to GS-6, accompanied by the facts of the grievant's duties, he would have approved the grievant's promotion on or about June 15, 1996. As his remedy, the Arbitrator ordered the grievant permanently promoted to the GS-6 level with backpay from May 15, 1994, and seniority in the GS-6 position from June 15, 1996.

      On the performance appraisal issue, the Arbitrator found that the supervisor's appraisal of the grievant was in retaliation for her EEO complaint. The Arbitrator again concluded that the supervisor's actions violated Article 38 of the agreement and the merit system principles set forth in § 2301(b)(2) and (8). On this basis, the Arbitrator canceled the grievant's 1997 appraisal. Reviewing the record evidence, the Arbitrator determined that there was sufficient evidence for him to determine what the grievant would have been rated if her supervisor had not acted improperly. Based on the record, the Arbitrator reconstruct[ed] her appraisal and determined that if management had properly rated the grievant, she would have been rated Excellence (Exceeds Standards) for all her job elements and would have been rated " overall. Id. at 23. As his remedy, the Arbitrator ordered that the grievant's 1997 appraisal be changed accordingly and that the grievant be granted any benefits she would have received had she been originally rated a 1" overall.

III.     The Performance Appraisal Portion of the Award

A.     Agency's Exception

      The Agency contends that the award is contrary to management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute, as part of its right to appraise employees. The Agency maintains that in canceling the grievant's 1997 appraisal, the award fails to satisfy the Authority's two-prong test set forth in United States Dep't of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 53 FLRA 146 (1997) (BEP).

      The Agency asserts that although the Arbitrator cited Article 38 of the agreement and merit system principles set forth in § 2301(b)(2) and (8), these provisions do not satisfy the requirements of prong I of BEP. The Agency claims that § 2301(b)(2) and (8) cannot provide a basis for canceling the ratings because these provisions are not relevant to the disputed appraisal. The Agency further claims that these provisions cannot authorize the cancellation because the Authority has expressly held that merit system principles are not self-executing and cannot independently serve as the basis for an arbitration remedy. The Agency also claims that Article 38 cannot provide a basis for canceling the ratings because Article 38 does not constitute an agreement provision negotiated under § 7106(b) of the Statute.

      As to prong II of BEP, the Agency argues that the Arbitrator's scanty rationale for raising the grievant's performance rating amounts to an independent rating by the arbitrator. Exceptions at 19. The Agency asserts that the Arbitrator did not discuss the grievant's performance during the rating period and failed to relate the grievant's performance to the established standards.

B.     Analysis and Conclusions

      When a party's exception challenges an arbitration award as contrary to law, we review the questions of law raised in the exception and arbitrator's award de novo. See NTEU Chapter 24, 50 FLRA 330, 332 (1995). When applying a de novo standard of review, we assess whether an arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. See NFFE Local 1437, 53 FLRA 1703, 1710 (1998). As noted by the Agency, the Authority's framework for resolving exceptions alleging that an arbitrator's award is contrary to management rights under § 7106(a) is set forth in BEP. For awards that affect the exercise of a management right under § 7106(a), BEP establishes a two-prong test to determine whether the award is deficient.

      In BEP, the Authority specifically held that an arbitrator's cancellation of a grievant's rating under an established performance appraisal system affects the exercise of management's rights to direct employees and assign work under § 7106(a)(2)(A) and (B). Consequently, it is necessary in this case to examine whether the award satisfies BEP.

      Under prong I, an arbitrator may cancel a performance rating only if management applied the established [ v57 p226 ] performance standards for the disputed job elements in violation of either an applicable law, within the meaning of § 7106(a)(2) of the Statute, or a contract provision negotiated under § 7106(b) of the Statute. In addition, the arbitrator may cancel a rating only if the violation affected the rating.

      The Agency claims that the award fails to satisfy prong I because Article 38 does not constitute an agreement provision negotiated under § 7106(b). We disagree. We conclude that Article 38 constitutes a contract provision negotiated under § 7106(b)(3).

      The Authority applies the analysis set forth in Dep't of the Treasury, United States Customs Serv., 37 FLRA 309 (1990) (Customs Service) to determine whether an arbitrator has enforced a contract provision consistent with § 7106(b)(3). Under this framework, the Authority determines whether the provision enforced by the arbitrator constitutes an arrangement and, if so, whether the arbitrator's enforcement abrogated the exercise of a management right. See Federal Aviation Admin., Washington, D.C., 55 FLRA 1233, 1236 (2000).

      As interpreted and applied by the Arbitrator, Article 38 required the grievant's supervisor to appraise her free of retaliation for having filed an EEO complaint against him. A collective bargaining agreement provision constitutes an arrangement under § 7106(b)(3) if it is intended to provide relief to ameliorate the adverse effects flowing from the exercise of a management right. See id. at 1236-37. The Authority has determined that prophylactic measures designed to prevent employees from being harmed by unfair or inaccurate ratings and appraisals come within the purview of § 7106(b)(3). See id. (provisions for union participation on selection panels to prevent employees from being harmed by inaccurate or unfair ratings constitute arrangements); see also AFGE, AFL-CIO, Local 32, 3 FLRA 784, 792-94 (1980) (proposal to require management to apply the performance standards it had established in a fair and equitable manner is within the scope of § 7106(b)(3)). In addition, the Authority "has addressed requirements that an agency take various actions in a `fair and equitable' or similar manner and . . . has concluded that such [a] requirement constitutes an appropriate arrangement under § 7106(b)(3)." United States Dep't of Veterans Affairs Medical Center, Coatesville, Pa., 56 FLRA 966, 970 (2000) (quoting United States Dep't of Veterans Affairs, Veterans Integrated Serv. Network 13, 56 FLRA 647, 650 (2000)). Therefore, Article 38 constitutes an arrangement within the meaning of § 7106(b)(3).

      As interpreted and applied by the Arbitrator, Article 38 only precludes management from appraising employees in an unfair or inequitable manner and preserves management's right to fairly and equitably appraise employees. Therefore, its enforcement does not abrogate management's rights to direct employees and assign work, and it is enforceable consistent with § 7106(b)(3) of the Statute. Accordingly, we conclude that the award satisfies prong I of BEP[n3]  We also conclude that the award satisfies prong II. We find that the award reflects reconstruction. See United States Dep't of the Navy, Naval Undersea Warfare Ctr., Newport, R.I., 55 FLRA 687, 691-92 (1999) (raised performance rating ordered by arbitrator satisfied prong II of BEP).

      Accordingly, we deny this exception.

IV.     Promotion Portion of the Award

A.     Agency's Exceptions

      The Agency contends that the award of a promotion is contrary to law. Specifically, the Agency contends that the award is contrary to § 7121(c)(5) of the Statute, management's rights to direct employees and assign work under § 7106(a)(2)(A) and (B) of the Statute, 5 U.S.C. § 5106(a), the Back Pay Act, and civil service law or regulation. Exceptions at 15.

      The Agency argues that the award of a promotion is contrary to § 7121(c)(5) because it concerns classification matters. The Agency argues that the award of a promotion is contrary to § 5106(a) [n4]  because the award is not based on a comparison of the grievant's duties with the duties set forth in the position description of the GS-6 secretary position. The Agency asserts that because of the requirements of § 5106, the Authority should not defer to the Arbitrator's evaluation of the evidence. The Agency further asserts that because of the requirements of § 5106, the Arbitrator should have specifically discussed the basis for the award. In addition, the Agency [ v57 p227 ] claims that the Arbitrator's observation that for a temporary period of time, the grievant was left performing essentially none of her secretarial duties except answering the telephone confirms that the ordered upgrade of the grievant's position is deficient.

      The Agency argues that the award of a promotion is contrary to the Back Pay Act because the Arbitrator fails to identify any basis for finding that the grievant was entitled to be promoted for performing the work of a higher-graded position. The Agency again contends that the violation of merit system principles cannot serve as the basis for any arbitration remedy. The Agency also contends that the violation of Article 38 of the collective bargaining agreement cannot serve as the basis of an award of backpay because it is not relevant to the issue of the grievant's entitlement to backpay. The Agency argues that Article 38 merely confirms the right to file grievances about allegations of unfair treatment.

      The Agency argues that to the extent this case involves a permanent promotion, the award is contrary to management's rights to direct employees and assign work under § 7106(a)(2)(A) and (B) because it would require the Agency to permanently assign the duties of the GS-6 position to the grievant for an undeterminable amount of time. The Agency further argues that the award conflicts with management rights because the grievant could not have been promoted without competition and there is no assurance that she would have been selected. The Agency maintains that the award affects management's exercise of its rights to direct employees and assign work and fails to satisfy prong I of BEP. The Agency again argues that merit system principles cannot support the remedy of promotion. The Agency further argues that Article 38 cannot provide the basis for a violation because it was not negotiated under § 7106(b) of the Statute.

      Finally, the Agency claims that the award of backpay to May 15, 1994, with an award of seniority to June 15, 1996, is contrary to unspecified civil service law and regulation.

B.     Analysis and Conclusions

1.      Section 7121(c)(5) exception is barred.

      Under section 2429.5 of the Authority's Regulations, the Authority will not consider issues that could have been, but were not, raised before the arbitrator. See, e.g., United States Dep't of the Interior, Nat'l Park Serv., Golden Gate Nat'l Recreational Area, San Francisco, Cal., 55 FLRA 193, 195 (1999). There is no indication in the record that the Agency argued to the Arbitrator, as it has in its exception, that this matter concerns the classification of the grievant's position within the meaning of § 7121(c)(5) of the Statute. Instead, the Agency argued to the Arbitrator that the grievant was performing the duties of her GS-5 position, and not the duties of the GS-6 secretary position. As the issue of § 7121(c)(5) relates to the arbitrability of the grievance, it clearly could, and should, have been presented to the Arbitrator. Accordingly, we are barred from considering this exception under § 2429.5.

2.     The award is not contrary to 5 U.S.C. § 5106(a).

      The Agency relies solely on the general language of 5 U.S.C. § 5106(a) as the basis for its claim that § 5106(a) precludes an arbitrator from ordering a grievant's position upgraded unless the arbitrator articulates a specific comparison of the duties performed by the grievant with the duties of the position description of a higher-graded position. We find no support in the language of § 5106(a) for the evidentiary and articulation requirements asserted by the Agency. Section 5106(a) merely prescribes that [e]ach position shall be placed in its appropriate class. Although the award clearly affected the grade of the grievant's position, there is no indication that the award affected in any manner the class of the grievant's position, within the meaning of § 5106(a). Moreover, even if § 5106(a) were interpreted to require a particular level of support for a classification upgrade, neither the Agency nor our dissenting colleague establishes that the extensive evidence and testimony on which the Arbitrator relied is not sufficient support.

      In addition, we are not persuaded by the Agency's argument that the Arbitrator's observation that for a temporary period of time, the grievant essentially only answered the telephone confirms the deficiency of his award. As a general matter, the Agency fails to establish that the classification of a position is affected by a temporary period in which incumbents do not perform the full range of duties of their positions. More specifically, the Arbitrator observed that assignment of the grievant essentially to nothing more than answering the phone was the result of her supervisor's intentional infliction on her of mental suffering. The Agency fails to establish that the assignment of duties as a result of such unwarranted action must be considered in determining the classification of the grievant's position.

      Accordingly, we deny this exception. [ v57 p228 ]

3.     We modify the date of backpay.

      An award of backpay is authorized under the Back Pay Act, 5 U.S.C. § 5596, only when an unjustified or unwarranted personnel action has resulted in the reduction of an employee's pay, allowances or differentials. See, e.g., United States Dep't of Justice, Fed. Correctional Inst., Sheridan, Or., 55 FLRA 28, 29 (1999). In this case, the Arbitrator's findings satisfy the requirements of the Act.

      The Arbitrator specifically found that the Agency violated Article 38 of the parties' collective bargaining agreement. A violation of a collective bargaining agreement constitutes an unjustified or unwarranted personnel action under the Act. See id. Consequently, contrary to the contention of the Agency, the Arbitrator's finding of a violation of Article 38 constitutes the necessary finding of an unjustified and unwarranted personnel action. As to the second requirement that the action result in a loss of pay, allowances, and differentials, the Arbitrator found that had the Agency treated the grievant fairly and equitably, as required by Article 38, the Agency would have upgraded the grievant's position and promoted her effective June 15, 1996. Accordingly, the Arbitrator essentially found that the personnel action directly resulted in the grievant's loss of pay, and the award satisfies these requirements of the Back Pay Act. See, e.g., United States Dep't of Labor, Washington, D.C., 55 FLRA 1019, 1023 (1999).

      Although the Arbitrator found that had the Agency acted properly, the grievant's position would have been upgraded effective June 15, 1996, the Arbitrator ordered the grievant promoted with backpay retroactive to May 15, 1994. The Arbitrator does not explain why the promotion is retroactive to May 1994 when he found that the grievant's position would not have been upgraded and she would not have been promoted until June 1996. Accordingly, we modify the award to order the grievant promoted with backpay retroactive to June 15, 1996, the date that the Arbitrator found that the grievant's position would have been upgraded and the grievant promoted.

4.     The award is not contrary to § 7106(a).

      The Agency contends that the award impermissibly affects its rights to direct employees and assign work because it would require the agency to assign the duties of the GS-6 secretary position to the grievant for an undeterminable period of time. Exceptions at 13. In our view, the award is solely retrospective in relation to management's rights to direct employees and assign work. The Arbitrator has determined what grade level classification was warranted for the grievant's position on the basis of the duties that management assigned to the grievant during the period in dispute. The award does not address, much less order, what level of duties must be assigned to the grievant in the future. To be sure, as a result of the award, the grievant, and the position that she encumbers, have been upgraded to GS-6. However, the classification of the grievant's position does not mandate a specified assignment of duties for an undeterminable period of time. Id.

      The Authority has repeatedly held that position descriptions are not themselves the assignment of work; they merely reflect the duties and responsibilities which an agency has decided to assign to a position. See, e.g., NAGE, SEIU, AFL-CIO, 27 FLRA 801, 807 (1987). Similarly, the classification of a position reflects the analysis and identification of the position and its placement in a class under the position-classification plan established by the Office of Personnel Management under 5 U.S.C. chapter 51. As a consequence, position classification is not itself an assignment of work. The Agency asserts an effect on assignment of work by arguing that the grievant's grade level compels the Agency to assign her GS-6 duties for an undeterminable period of time. Exceptions at 13. However, nothing in the award precludes the Agency from prospectively determining the duties and responsibilities which the Agency has decided to assign to the grievant and her position and from taking whatever classification actions the Agency decides are necessary as a result of its determination on what duties are to be assigned. Cf. AFGE, AFL-CIO, Local 1999, 2 FLRA 152, 160-61 (1979), enforced as to other matters, 659 F.2d 1140 (D.C. Cir. 1981) (the provision to insure the accuracy of position descriptions did not affect management's right to assign work because the provision did not shield employees from being assigned any additional duties by management). Accordingly, we deny this exception.

V.     Decision

      The award is modified to order the grievant promoted with backpay retroactive to June 15, 1996. Otherwise, the Agency's exceptions are denied.


File 1: Authority's Decision in 57 FLRA No. 48
File 2: Opinion of Chairman Cabaniss


Footnote # 1 for 57 FLRA No. 48 - Authority's Decision

   Chairman Cabaniss' dissenting opinion is set forth at the end of this decision.


Footnote # 2 for 57 FLRA No. 48 - Authority's Decision

   Section 2301(b)(2) provides that [a]ll employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, or handicapping condition, and with proper regard for their privacy and constitutional rights. Section 2301(b)(8) provides that [e]mployees should be--(A) protected against arbitrary action, personal favoritism, or coercion for partisan political purposes, and (B) prohibited from using their official authority or influence for the purpose of interfering with or affecting the result of an election or a nomination for election.


Footnote # 3 for 57 FLRA No. 48 - Authority's Decision

   In view of this decision, we do not address whether the merit system principles set forth in § 2301(b)(2) and (8)