Social Security Administration (Agency) and American Federation of Government Employees, Local 220 (Union)

[ v57 p599 ]

57 FLRA No. 115

SOCIAL SECURITY ADMINISTRATION
(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 220
(Union)

0-AR-3426

_____

DECISION

November 30, 2001

_____

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

Decision by Member Pope for the Authority

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Laurence M. Evans 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 filed an opposition to the Agency's exceptions.

      The Arbitrator found that the Agency violated the parties' collective bargaining agreement by failing to temporarily promote certain employees. For the reasons that follow, we find that the Agency has failed to demonstrate that the award is deficient and deny the Agency's exceptions.

II.     Background and Arbitration Award

      The Union filed grievances alleging, among other things, that the Agency violated Article 26, section 6 of the parties' agreement by not temporarily promoting certain employees who performed mentoring duties. [n1]  When the grievances were unresolved, the parties submitted the matter to arbitration, where, as relevant here, [ v57 p600 ] the Arbitrator framed the issues as whether the Agency violated the parties' agreement and, if so, what is the appropriate remedy.

      At the hearing, the Arbitrator considered the testimony of two employees and found that one employee who performed mentoring duties had been temporarily promoted while the other employee who performed the same duties had not. The Arbitrator found that the Agency's failure to temporarily promote this employee, and others who performed mentoring duties, violated Article 26, section 6 of the parties' agreement. The Arbitrator concluded that the Agency's actions constituted an unjustified and unwarranted personnel action that directly resulted in a reduction of pay within the meaning of the Back Pay Act. Accordingly, the Arbitrator sustained the grievances and ordered the Agency to grant retroactive, temporary promotions to the employee who was not temporarily promoted as well as to all employees who are eligible for a temporary promotion under Article 26, section 6 of the parties' agreement.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency argues that the Arbitrator's award is contrary to the Back Pay Act for several reasons. First, according to the Agency, the Arbitrator did not identify a non-discretionary policy that would require the employees to be temporarily promoted. Second, the Agency argues that the Union failed to demonstrate that the employees met the requirements for temporary promotions, as set forth in Article 26, section 6 of the parties' agreement. In this regard, the Agency contends that: (1) the Technical Expert position, to which the Union claims the employees should have been temporarily promoted, did not exist at the time they performed mentoring duties; and (2) the employees did not perform the grade-controlling duties of a higher-graded position at least 25% of the time. Finally, in support of its contrary to law argument, the Agency argues that the Union did not demonstrate that when the Agency temporarily promoted employees in another region, it violated Article 3, section 2.A of the parties' agreement, which requires that employees be treated fairly in all aspects of personnel management.

      The Agency also argues that the award does not draw its essence from the parties' agreement because the Arbitrator applied another region's local agreement, in violation of Article 4 of the parties' agreement, which requires changes that affect all regions to be bargained at the national level.

B.     Union's Opposition

      According to the Union, the award does not violate the Back Pay Act because the Arbitrator correctly found that the employees were entitled to temporary promotions.

IV.     Analysis and Conclusions

A.     The Award is Not 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 NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States 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. NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

      An award of backpay is authorized under the Back Pay Act, 5 U.S.C. § 5596, when an unjustified or unwarranted personnel action results in the reduction of an employee's pay, allowances or differentials. See, e.g., United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Correctional Inst., Sheridan, Or., 55 FLRA 28, 29 (1998). Denying an employee a temporary promotion to which the employee is entitled under a collective bargaining agreement constitutes an unjustified or unwarranted personnel action. See United States Dep't of Health and Human Services, Pub. Health Serv., Navajo Area Indian Health Serv., 50 FLRA 383, 385 (1995). The Arbitrator specifically found that employees who performed mentoring duties were entitled to be temporarily promoted under Article 26, section 6 of the parties' agreement, and that the Agency's failure to promote those employees violated the parties' agreement. Consequently, the Arbitrator's award of backpay in these circumstances is authorized under the Back Pay Act.

      The Agency's additional arguments do not support a finding that the award is contrary to the Back Pay Act. In this regard, the Agency's arguments that the Technical Expert position did not exist at the time employees performed mentoring duties and that the employees did not perform the grade-controlling duties of a higher-graded position at least 25% of the time dispute the Arbitrator's factual findings and his interpretation and application of the parties' agreement. Accordingly, we construe them as claims that the award is based on a nonfact and fails to draw its essence from the parties' [ v57 p601 ] agreement. Similarly, the Agency's argument that the Union did not establish a violation of Article 3, section 2.A of the parties' agreement disputes the Arbitrator's interpretation of the parties' agreement and is construed as a claim that the award fails to draw its essence from the parties' agreement.

B.     The Award Is Not Based on a Nonfact

      To establish that an award is deficient as based on a nonfact, the appealing party must demonstrate that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See United States Dep't of the Air Force, Lowry Air Force Base, Denver, Co., 48 FLRA 589, 593 (1993). Moreover, 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 United States Dep't of Health and Human Serv., Denver, Co., 56 FLRA 133, 135 (2000). The Agency's arguments regarding the existence of the Technical Expert position and the percentage of time employees spent performing grade-controlling duties do not establish that the award is deficient. In this regard, there is no basis in the award to conclude that the Arbitrator considered the existence of the Technical Expert position a central fact underlying his award or that he considered the Technical Expert position at all. Indeed, the Union argued before the Arbitrator that the promoted employee was placed in a different position, the Management Support Specialist position.