U.S. Department of the Interior, Bureau of Indian Affairs, Wapato Irrigation Project, Wapato, Washington (Agency) and Indian Educators Federation, AFT, AFL-CIO (Union)

[ v57 p548 ]

57 FLRA No. 96

U.S. DEPARTMENT OF THE INTERIOR
BUREAU OF INDIAN AFFAIRS
WAPATO IRRIGATION PROJECT
WAPATO, WASHINGTON
(Agency)

and

INDIAN EDUCATORS FEDERATION
AFT, AFL-CIO
(Union)

0-AR-3379
(55 FLRA 1230 (2000))

_____

DECISION

September 28, 2001

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

Decision by Member Armendariz for the Authority

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Philip Kienast 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 Arbitrator issued an initial award in which he ruled that the Agency violated the parties' collective bargaining agreement when it failed to pay the grievant at a higher rate of pay while he was assigned the duties of irrigation system manager. In reaching his decision, the Arbitrator found insufficient guidance in the record to determine the appropriate remedy. As a result, he ordered the parties to negotiate an appropriate remedy, but retained jurisdiction for the purpose of determining a remedy if the parties were unable to agree. The Agency filed exceptions to the award, which the Authority dismissed as interlocutory. 55 FLRA 1230 (2000).

      Following submissions by the parties on an appropriate remedy, the Arbitrator issued a final award providing compensation to the grievant for the Agency's violation of the collective bargaining agreement. The [ v57 p549 ] Agency excepts to this final award. No opposition to the exceptions was filed.

      For the following reasons, we find that the award is deficient and set it aside.

II.     Background and Arbitrator's Initial Award

      In the Spring of 1994, the grievant was an irrigation system operator, GS-7. On May 3, 1994, his supervisor, the irrigation system manager, GS-9, retired. The Agency temporarily promoted the grievant to irrigation system manager, GS-8, three times for 120-day periods between May 1994 and September 1997. On November 23, 1997, the grievant was competitively promoted permanently to irrigation system manager. On December 3, 1997, he filed a grievance claiming that except for the temporary promotion periods, at all other times after May 3, 1994, until he was permanently promoted, he performed the duties of the manager position and should have been paid at a higher rate of pay.

      The parties stipulated the issue before the Arbitrator as follows:

Did the [Agency] violate the Agreement when it failed to pay [the grievant] at a higher rate of pay while he was detailed/assigned as the irrigation system manager?
If [so], what is the appropriate remedy?

Initial Award at 1.

      The Arbitrator found that "[t]he record discloses clear and convincing evidence [that] the [Agency] acted as if it permanently assigned the grievant to perform the [irrigation] system manager's job in the spring of 1994." Initial Award at 4. In so finding, the Arbitrator noted that the Agency had listed the grievant on its roster of employees as "supervisor" and that the Agency had permanently filled the grievant's operator position. The Arbitrator also found that the grievant was not detailed to the manager position, because the grievant did not continue to perform the duties of his old position and because his assignment was not for a limited time. The Arbitrator went on to state:

In conclusion, the [Agency] violated the Agreement by permanently assigning the grievant to perform the duties of the [irrigation] system manager while also filling his old position. Such action was inconsistent with `the spirit and intent of the Merit Promotion Plan' as required in Section 10.1 of the Agreement.[ [n1] ]

Id. at 6. As his award, the Arbitrator stated that the Agency "did violate the Agreement when it failed to pay [the grievant] at a higher rate of pay while he was assigned as the irrigation system manager." Id. at 7. However, the Arbitrator found insufficient guidance in the record to determine the appropriate remedy. As a result, he ordered the parties to negotiate an appropriate remedy, but retained jurisdiction for the purpose of determining a remedy if the parties were unable to agree.

III.     Authority's Decision in 55 FLRA 1230

      The Agency excepted to the award on several grounds. The Authority dismissed the exceptions, finding that, as conceded by the Agency, they were interlocutory and that the Agency had failed to establish extraordinary circumstances warranting review of such interlocutory exceptions.

IV.     Arbitrator's Award in 0-AR-3379

      Following the Authority's dismissal of the exceptions, the Agency and the then-certified Union (National Federation of Federal Employees, Local 341 (NFFE)) discussed but were unable to agree on an appropriate remedy. Thereafter, the Indian Educator's Federation (IEF) was certified as the exclusive representative and replaced NFFE. The Agency advised the IEF that no monetary compensation could be provided to the grievant based on the Arbitrator's award. The IEF then requested that the Arbitrator rule for the grievant, and the parties provided submissions to the Arbitrator on the matter of the appropriate remedy.

      On November 19, 2000, the Arbitrator issued his final award. He noted that in his initial award, he had directed the parties to attempt to negotiate an appropriate remedy for the Agency's violation of the collective bargaining agreement when it failed to pay the grievant at a higher rate of pay while he was assigned as the irrigation system manager. Following consideration of the parties' submissions, the Arbitrator stated, without further elaboration: [ v57 p550 ]

I now determine the appropriate remedy to be that [the grievant] be paid the difference between his regular position and that of irrigation system manager for the time periods in question pursuant to Title 5, Section 5596 of the U.S. Code and that payment be made by December 31, 2000.

Final Award at 1.

V.     Agency's Exceptions

      The Agency argues that the award violates § 7121(c)(5) of the Statute because the Arbitrator made a classification determination. According to the Agency, the basis of the award is the grade level of the duties assigned to the grievant. The Agency contends that the Arbitrator's determination that the grievant was not performing in his official position but instead was performing at the higher level is a ruling on the grade level of duties assigned to, and performed by a grievant, which concerns the classification of a position within the meaning of § 7121(c)(5).

      The Agency also claims that the award does not meet the requirements of the Back Pay Act because the Arbitrator failed to find that the Agency violated a nondiscretionary policy which provides the basis for backpay. According to the Agency, neither Agency regulations, nor the Merit Promotion Plan, which the Arbitrator found the Agency violated, provides a non-discretionary policy required as a prerequisite for backpay. The Agency acknowledges that Section 10.4.I, which states that employees on detail to a higher-graded position which exceeds 60 days shall be temporarily promoted, does provide a non-discretionary policy, but asserts that this provision does not apply because the Arbitrator ruled that the grievant was not detailed.

VI.     Analysis and Conclusions

A.     Standard of Review

      The Agency's exceptions raise claims that the award is contrary to law. As to such exceptions, the Authority must review the questions of law raised by the Arbitrator's award and the parties' exceptions de novo. NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994). In applying a standard of de novo review, the Authority determines 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 determination, the Authority defers to the arbitrator's underlying factual findings. See id.

B.     The Award Is Contrary To Law

      As a general rule, an employee is entitled only to the salary of the position to which the employee is appointed. United States Dep't of the Army, Fort Polk, La., 44 FLRA 1548, 1563 (1992) (Fort Polk) (citing Cassandra G. McPeak and Wayne E. Dabney, 69 Comp. Gen. 140 (1989) (McPeak)). An exception to this general rule exists, permitting compensation for the temporary performance of the duties of a higher graded position, based on an agency regulation, or when the parties to a collective bargaining agreement agree to make temporary promotions mandatory for details to higher graded positions, thereby establishing a nondiscretionary agency policy which would provide a basis for backpay. United States Dep't of the Army, Army Armament Research, Dev. and Eng'g. Ctr., 49 FLRA 562, 565 (1994) (citing Wilson v. U.S., 229 Ct. Cl. 510 (1981) and McPeak, 69 Comp. Gen. at 141); Fort Polk, 44 FLRA at 1563.

      As noted above, the Arbitrator found that the Agency violated the agreement by permanently assigning the grievant to perform the duties of the irrigation system manager while also filling his old position, and that such action was inconsistent with the spirit and intent of the Merit Promotion Plan as required in Section 10.1 of the parties' agreement. However, Section 10.1 does not address whether employees may receive temporary promotions when they are assigned to perform the duties of higher-graded positions of the agreement. Accordingly, Section 10.1 does not contain a nondiscretionary agency policy which would provide a basis for backpay.

      In addition, we note that, as acknowledged by the Agency, Section 10.4.I, entitled "Details," states in relevant part that "[e]mployees on detail to a higher graded position, which exceeds 60 days[,] shall be temporarily promoted, if qualified." Initial Award at 2. Although this provision contains a nondiscretionary agency policy which could provide a basis for backpay, it does not provide a basis for a temporary promotion in this case because there is nothing in either the Arbitrator's initial award or final award that reflects that the Arbitrator relied in any way on this provision in making his determination. In addition, we note that the Arbitrator specifically found that the grievant was not detailed to the higher-graded position.

      In these circumstances, where the Arbitrator did not identify, or base his award on, any nondiscretionary policy providing a basis for the retroactive temporary promotion with backpay, we find that the Arbitrator's award is deficient as it is contrary to law and must be set [ v57 p551 ] aside. See United States Dep't of the Army, Headquarters, III Corps and Fort Hood, Fort Hood, Tex., 56 FLRA 1121, 1122 (2001); United States Dep't of the Air Force, 88th Air Base Wing, Aeronautical Sys. Div., Wright-Patterson Air Force Base, Ohio, 52 FLRA 285, 288-89 (1996); United States Dep't of the Navy, Naval Supply Ctr., Norfolk, Va., 38 FLRA 448, 452-53 (1990). [n2] 

VII.