United States, Department of Health, and Human Services, Food and Drug Administration, New England District Office (Agency) and National Treasury Employees Union (Union)

[ v58 p567 ]

58 FLRA No. 139

UNITED STATES
DEPARTMENT OF HEALTH
AND HUMAN SERVICES
FOOD AND DRUG ADMINISTRATION
NEW ENGLAND DISTRICT OFFICE
(Agency)

and

NATIONAL TREASURY
EMPLOYEES UNION
(Union)

0-AR-3596

_____

DECISION

May 29, 2003

_____

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

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Susan R. Brown 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, but the opposition was untimely and has not been considered.

      The Arbitrator found that the grievant should have been temporarily promoted and awarded her backpay. We find this portion of the award deficient and modify the award accordingly.

II.     Background and Arbitrator's Award

      The grievant, a female, was employed by the Agency as a consumer safety inspector, GS-10. In January 2000, the Agency posted a vacancy announcement for the position of consumer safety officer, GS-12. Under Office of Personnel Management (OPM) qualification standards, a minimum qualification requirement for the consumer safety officer position is 30 credit hours of science courses at the college level. The grievant applied for the consumer safety officer position.

      In her application, the grievant stated: "Although I do not have 30 credit hours of science, I ask that you give consideration to the fact that I am, and have been[,] conducting medical device inspections for the past six years." Award at 13 (quoting application). The Agency ruled that the grievant was not eligible for the position of consumer safety officer because she did not meet the minimum qualification requirement of 30 credit hours of science courses.

      She filed a grievance over the ruling and alleged that the requirement of 30 credit hours of science courses had been waived in the past for men and that the Agency's refusal to find her qualified constituted prohibited gender discrimination.

      Subsequently, she filed a second grievance. In this grievance, she claimed that for an extended period of time, she had been performing the duties of the position of consumer safety officer, GS-12, and that under the parties' collective bargaining agreement, she was entitled to have been temporarily promoted.

      The Arbitrator sustained the second grievance. She found that the grievant had been constructively detailed to the position of consumer safety officer, GS-12, because she had performed the duties of that position for an extended period of time.

      The Arbitrator rejected the Agency's claim that the duties performed by the grievant were the duties of her consumer safety inspector position and found that the disputed duties were the duties of the position of consumer safety officer, GS-12. The Arbitrator noted that after the grievant filed her temporary promotion grievance, the grievant was instructed not to perform certain types of highly complex inspections. To the Arbitrator, this was a "tacit concession that [the grievant] had been working out of classification." Award at 28. Accordingly, the Arbitrator determined that the grievant was entitled to have been temporarily promoted under Article 34 of the parties' collective bargaining agreement. [n1] 

      In sustaining the grievance, the Arbitrator rejected the Agency's claim that the grievant could not be promoted because she was not qualified. In rejecting the claim, the Arbitrator explained, as follows:

Provisions in public sector collective bargaining agreements that require employees to be qualified before they can be detailed or temporarily promoted are generally designed to preclude the sort of abuse where a supervisor [ v58 p568 ] "promotes" a favorite in order to increase the favorite's income, irrespective of whether the employee can or actually does perform the higher-rated job. These provisions are not intended, however, to permit an employer to order or even permit employees to work regularly at higher-rated duties over a significant period of time, and then escape the requirement that the employee be paid the correct rate for those higher duties by claiming the employee was unqualified.

Id. at 29. Accordingly, the Arbitrator ruled that "[o]nce the employee performs the work over a significant period of time, that employee has been constructively detailed to a higher grade, irrespective of official qualification requirements." Id. Moreover, she found that at least one Agency employee had been appointed to a consumer safety officer position without meeting the requirement of 30 credit hours of science courses.

      According to the Arbitrator, in 1992, another agency (National Marine Fisheries Service) converted fish inspectors to consumer safety officers. Subsequently, some National Marine Fisheries Service employees who had been converted to consumer safety officers transferred to the Agency. The Arbitrator found that at least one of these employees did not satisfy the science course credit requirement for the position of consumer safety officer. The Arbitrator explained that these employees were accepted for appointment by the Agency pursuant to "the so-called add-on rule." Id. at 10. According to the Arbitrator, under the add-on rule, "if an individual was previously placed in a particular series, it is not necessary to review the employee's [official personnel file] or application again to determine whether or not positive education requirements were previously met." Id. The Arbitrator noted that the add-on rule applies even when the employee "was previously qualified by error." Id.

      In rejecting the Agency's claim, the Arbitrator acknowledged the Agency's argument that the one employee appointed as a consumer safety officer was converted to the position by the National Marine Fisheries Service and that under the add-on rule, the Agency could not reject his qualifications. However, she viewed that this appointment demonstrated "that there are certain circumstances under which employees may be promoted and paid despite their lack of minimum education requirements." Id. at 30.

      The Arbitrator refused to require the Agency to grant the grievant credit for performing the duties of a consumer safety officer, however. She explained that although the grievant was entitled to have been compensated for performing the duties of the consumer safety officer position, the Agency was "not obligated to perpetuate its mistake, despite the fact that it had done so for at least one man in distinguishably different circumstances." [n2]  Id. at 40.

III.     Agency's Exceptions

      The Agency has filed exceptions to the award as it pertains to the temporary promotion grievance. The Agency contends that the award is contrary to law and regulation and that the Arbitrator failed to resolve an issue submitted to arbitration.

      The Agency argues that the award is contrary to § 7121(c)(5) of the Statute because the Arbitrator "impermissibly engage[d] in a `classification analysis[.]'" Exceptions at 6. The Agency claims that the duties which the Arbitrator found were duties of the consumer safety officer position were, instead, permanent duties of the grievant's consumer safety inspector position. Citing the concurring opinion of then-Member Cabaniss in LIUNA Local 28, 56 FLRA 324 (2000), the Agency asserts that the Arbitrator engaged in a prohibited classification analysis because she determined the grade level and class of duties permanently assigned to the grievant.

      The Agency also argues that the award is contrary to the Back Pay Act and OPM regulations because the grievant did not meet the minimum education requirements of the consumer safety officer position. In addition, the Agency maintains that the Arbitrator could not override the OPM education requirements on the basis of a consumer safety officer at the Agency who had been converted to the position by the National Marine Fisheries Service without the requisite science course credit hours.

      The Agency also argues that the award is contrary to the Back Pay Act because the Arbitrator failed to specifically find that the consumer safety officer duties performed by the grievant were at the GS-12 level. The Agency further argues that the award is deficient because the Arbitrator failed to resolve the issue of the [ v58 p569 ] grievant's qualification for a temporary promotion to the position of consumer safety officer, GS-12.

IV.     Analysis and Conclusions

A.     Standard of Review

      The Authority reviews questions of law raised by an exception to an arbitrator's award de novo. See NTEU Chapter 24, 50 FLRA 330, 332 (1995). 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 this determination, the Authority defers to the arbitrator's underlying factual findings. See id.

B.     The award is not contrary to § 7121(c)(5).

      Under § 7121(c)(5) of the Statute, a grievance concerning "the classification of any position which does not result in the reduction in grade or pay of an employee" is removed from the permissible scope of a negotiated grievance procedure. See, e.g., NTEU Chapter 73, 57 FLRA 412, 413 (2001). The Authority has construed the term "classification" in § 7121(c)(5) as involving "the analysis and identification of a position and placing it in a class under the position-classification plan established by OPM under chapter 51 of title 5, United States Code." See id. (quoting 5 C.F.R. § 511.101(c)).

      The Authority has distinguished between two situations in assessing whether a grievance concerns the classification of a position. Where the substance of a grievance concerns the grade level of the duties permanently assigned to, and performed by, the grievant, the Authority finds that the grievance concerns the classification of a position within the meaning of § 7121(c)(5). See id. at 414. In contrast, where the substance of the grievance concerns whether the grievant is entitled to be compensated at a higher rate of pay by reason of having temporarily performed the duties of an established higher-grade position, the Authority has long held that the grievance does not concern the classification of a position within the meaning of § 7121(c)(5). See id.

      In this case, the grievance concerns the grievant's claim that she had been temporarily assigned the duties of the consumer safety officer position, GS-12, for an extended period of time and that consequently, she was entitled to have been temporarily promoted pursuant to Article 34 of the agreement. In sustaining the grievance, the Arbitrator specifically found that the disputed duties were duties of the consumer safety officer position and not permanent duties of the grievant's consumer safety inspector position, as had been asserted by the Agency.

      In these circumstances, we defer to the Arbitrator's findings of fact that the disputed duties were the duties of the consumer safety position and not the permanent duties of the grievant's consumer safety inspector position. [n3]  Accordingly, we conclude that the Agency provides no basis for finding that the Arbitrator's award sustaining the temporary promotion grievance is contrary to § 7121(c)(5), and we deny this exception. See, e.g., United States Dep't of Justice, Fed. Bureau of Prisons, Atlanta, Ga., 51 FLRA 1422, 1425 (1996) (Authority deferred to arbitrator's findings of fact in determining that award was not contrary to § 7121(c)(5)).

C.     The award is deficient because the grievant was not qualified for the consumer safety officer position.

      An arbitrator may properly award backpay under the Back Pay Act when the arbitrator determines that an agency has denied an employee a temporary promotion to which the employee was entitled under a collective bargaining agreement for having performed the duties of a higher-graded position. See, e.g., United States Dep't of Health and Human Services, Pub. Health Serv., Navajo Area Indian Health Serv., 50 FLRA 383, 385 (1995) (HHS). However, the employee must meet the minimum qualification requirements prescribed by OPM for the position to which the employee is to be promoted. See 50 FLRA at 385-86 (citing 5 C.F.R. § 335.103(b)(3) (Requirement 3)). [n4]  When the employee does not meet a minimum qualification requirement prescribed by OPM, a failure to promote the employee does not constitute an unjustified or unwarranted personnel action under the Back Pay Act, and no backpay remedy is available under the Act. See id. at 386; United States Dep't of the Army, Headquarters Fort Dix, Fort Dix, N.J., 49 FLRA 730, 737 (1994) (Ft. Dix).

      OPM's Qualification Standards Operation Manual specifies as a minimum education requirement for [ v58 p570 ] the position of consumer safety officer 30 credit hours of science courses. It is not disputed that the grievant does not satisfy this requirement. Consequently, the grievant was not qualified for the position of consumer safety officer, GS-12, and could not be temporarily promoted to that position. Accordingly, we find that the Agency's failure to promote the grievant did not constitute an unjustified or unwarranted personnel action and that the Arbitrator's award of backpay is deficient as contrary to the Back Pay Act. [n5]  See HHS, 50 FLRA at 386; Ft. Dix, 49 FLRA at 737.

      In our view, the Arbitrator's perceived intent of "public sector collective bargaining agreements" does not permit the grievant's promotion. Award at 29. In the Federal sector, the parties' collective bargaining agreement cannot authorize the temporary promotion of the grievant. See HHS, 50 FLRA at 385-86 (in order to be promoted, Federal employees must meet the minimum qualification requirements prescribed by OPM for the position to which the employee is to be promoted). Furthermore, such is not the intent of the agreement. It clearly provides that to be temporarily promoted under Article 34, the employee must "meet[] the appropriate qualification requirements."

      In addition, the Arbitrator's reliance on the Agency's appointment of an employee as a consumer safety officer after the employee had been converted to a consumer safety officer position by the National Marine Fisheries Service also does not permit the grievant's promotion. As the Arbitrator specifically found, this employee was converted to the position of consumer safety officer by another agency and under the add-on rule, the Agency (FDA) could not reject his qualifications. However, the add-on rule did not apply to the grievant.

      As described by the Arbitrator, under the add-on rule, once an employee is placed in a position series, the employee's qualifications are not reexamined to determine whether the employee meets minimum qualification requirements, including minimum educational requirements. See Award at 10. Unlike the employee appointed by the Agency as a consumer safety officer after conversion to consumer safety officer by the National Marine Fisheries Service, the add-on rule did not apply to the grievant because she had never been appointed to a consumer safety officer position. Id. Consequently, the grievant's qualifications for the consumer safety officer position were subject to review by the Agency, and the Arbitrator erred by attempting to distinguish between transfers and promotions.

      Moreover, even if the add-on rule provides circumstances under which employees may be promoted despite lack of minimum education requirements, the grievant's case did not present such circumstances. As the Authority has specifically held, there is no provision for the waiver by an agency of OPM minimum qualification requirements. See HHS, 50 FLRA at 386 n.4; Hill Air Force Base, Utah, 30 FLRA 6, 8 (1987) (Hill AFB); cf. United States Dep't of Justice, Bureau of Prisons, Fed. Correctional Inst., Loretta, Pa., 55 FLRA 339, 343 (1999) (with respect to time-in-grade requirements which are waivable by an agency, the Authority noted that creating a blanket rule of waiver whenever an agency allowed an employee to perform higher-graded duties may be fair, but it would ignore title 5 of the C.F.R.).

      Finally, to the extent the award is founded on the Arbitrator's perception of inequity, the Authority has stated that it does not condone the inequity of assigning employees higher-graded duties for which they cannot be promoted, but nevertheless holds that employees who fail to meet minimum qualification requirements cannot be promoted consistent with OPM regulations. See AFGE Local 1631, 23 FLRA 507, 508 (1986).

V.     Decision

      The award is set aside to the extent that the Arbitrator found a violation of Article 34 of the agreement and awarded backpay.



Footnote # 1 for 58 FLRA No. 139 - Authority's Decision

   Article 34, Section 1C provides:

The Employer agrees that an employee who is detailed to a higher grade position for a period of more than thirty (30) consecutive calendar days will be temporarily promoted to that position . . . , providing the employee meets the appropriate qualification standards.

Footnote # 2 for 58 FLRA No. 139 - Authority's Decision

   The Arbitrator denied the Union's discrimination grievance, which alleged that male employees had been appointed as consumer safety officers without the requisite number of science course credits. She found that these employees had originally been appointed consumer safety officers by other agencies and that the Agency (FDA) "had no choice with respect to qualifying these employees for transfer (not promotion) as [consumer safety officers] at the [Agency]." Id. at 37-38. No exceptions were filed to the denial of the discrimination grievance.


Footnote # 3 for 58 FLRA No. 139 - Authority's Decision

   In LIUNA Local 28, relied on by the Agency, then-Member Cabaniss stated that she would find that a grievance concerned a classification matter if the disputed duties were duties permanently assigned to the grievant's appointed posit