United States, Department of Housing and Urban Development (Agency) and American Federation of Government Employees, Local 3294 (Union)

[ v59 p243 ]

59 FLRA No. 37

UNITED STATES
DEPARTMENT OF HOUSING
AND URBAN DEVELOPMENT
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
LOCAL 3294
(Union)

0-AR-3518

_____

DECISION

September 26, 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 Gregg L. McCurdy filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. § 7101 et seq., and part 2425 of the Authority's Regulations. The Union filed an opposition. Both parties filed supplemental submissions. [n1] 

      The Arbitrator found that four grievants (Grievants A, B, D, and H) were due backpay for various periods because they did not receive career-ladder promotions as of their one-year anniversary dates. For the reasons that follow, we deny the exceptions in part, and find that the award is deficient in part. Because the Arbitrator did not determine which two employees could have received backpay, we remand this matter to the parties absent settlement, for resubmission to the Arbitrator to determine, if possible, which two of the three GS-13 grievants would have been promoted.

II.     Background and Arbitrator's Decision

      The four grievants were Community Builders who were hired competitively into career-ladder positions and were seeking promotion to the next higher grade as of their one year anniversary dates, based upon contractual provisions relating to career-ladder promotions. [n2]  When the grievants did not receive career-ladder promotions after their one-year anniversary dates, they filed grievances, that were not resolved. [n3]  The parties submitted the following issue to arbitration:

[w]hether the failure of management to promote the community builders ([g]rievants) violated the [parties' agreement].

Award at 2.

      The Arbitrator noted that Article 13, Section 13.13, of the parties' collective bargaining agreement sets forth the career-ladder promotion criteria. [n4]  Among other things, Section 13.13 listed "[t]he availability of enough work at the next higher grade" as a condition for a career-ladder promotion. See id. at 6. The agreement also required the Agency to promptly notify employees, by their anniversary dates, whether they would be promoted.

      As found by the Arbitrator, and not disputed by the parties, the grievants' anniversary dates passed without receipt of the requisite notification as to whether they would be promoted in their career-ladders. The Arbitrator also found, as stipulated by the parties, that at the completion of one year time-in-grade periods, all four grievants had "fully successful," or better, annual performance evaluations on record. According to the Arbitrator, there was no dispute that each grievant had met the time-in-grade requirements and that each grievant had demonstrated the ability to perform at the next higher grade. See Award at 2, 8, 11. [n5]  [ v59 p244 ]

      The issue in contention was the availability of enough work at the next higher grade level. In examining the availability of work, the Arbitrator noted that, subsequent to the grievants' anniversary dates, the Agency reevaluated its Community Builder workload Agency-wide and its staffing patterns for Community Builders. Award at 3-4. As a result of the analysis, the Agency subsequently decided to terminate the Community Builder career-ladder positions and revert to positions at each location having specific grade levels, based on the amount of grade-specific work available at that location, with the positions to be filled by competitive staffing procedures. Id. at 9.

      As to the employees occupying Community Builder career-ladder positions, the Agency decided to follow a promotion procedure that examined the amount of Community Builder work and its grade level at each location. For example, if there was sufficient GS-14 level work at a particular office to permit all GS-13 career-ladder Community Builder employees at that location to receive a promotion, then all of them were promoted noncompetitively. However, if there was not sufficient GS-14 level work to permit all of the GS-13 career-ladder Community Builder employees to receive a noncompetitive promotion, then none of the GS-13 career-ladder Community Builder employees received a promotion. Instead, the Agency advertized the competitive promotion opportunity for the limited number of higher-level positions for which work was available, and former career-ladder employees could apply for the vacancies.

      The Arbitrator rejected the Agency's claim that it did not violate the parties' agreement because Grievant H "received a timely career ladder promotion that was adequately in compliance with § 13.13." Id. at 7. In this connection, the Arbitrator found that the grievant was promoted noncompetitively approximately 6 months after his anniversary date. The Arbitrator rejected the Agency's claim that no work was available to promote the grievant sooner. According to the Arbitrator, if this was the case, then the Agency "need only have provided the timely written notice that no work was then available . . . ." Id. at 10. As such was not done, and noting that the parties' agreement did not "prevent[] the Agency from giving a career ladder promotion . . . thereafter as work is known to be available[,]" the Arbitrator found that the Agency violated the parties' agreement. Id.

      As to Grievants A, B, and D, the Arbitrator found that the Agency had failed to notify them regarding lack of higher graded work. The Arbitrator also found that the Agency's practice of not promoting any employee until there was enough higher graded work for all employees was not consistent with the parties' agreement. According to the Arbitrator, because there was enough higher graded work for two of the GS-13 employees, the Agency should have promoted two of them to GS-14 as of their anniversary dates. However, the Arbitrator declined to determine which of the two grievants would have been promoted, noting that "it is the duty as well as function of management to . . . determine, by one reasonable evaluative process or another, which two eligible employees of the three will be promoted . . . ." Id.

      As a remedy for the three GS-13 grievants, the Arbitrator ordered that all of them be paid the difference between their GS-13 salary and their GS-14 pay, from their anniversary dates until September 10, 2000, when two of the GS-13s were promoted to GS-14. Id. at 12.

III.     Positions of the Parties

A.     Agency's Exceptions

1.     Nonfact

      The Agency's exceptions include several assertions that sufficient work was not available for the grievants as of their anniversary dates, and thus, no impropriety occurred when the Agency failed to promote them as of those dates. For example, the Agency claims there is a lack of a causal relationship between the failure to promote on anniversary dates and the loss of pay because no work was available for grievant H (Exceptions at 8) or for grievants A, B, and D (id. at 9) at those times. The Agency also claims there is a failure to comply with Prong II of the framework set forth in Dep't of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 53 FLRA 146, 151-54 (1997) (BEP), because even if the grievants had received timely notifications on their promotion dates, grievant H would not have been promoted until January 2, 2000 (when the Agency actually promoted grievant H) because it was not until then that sufficient work was identified , and none of the GS-13 grievants would have been promoted until some time in October 1999 (when two of them were promoted) because it was not until that time that sufficient work was identified for them. Exceptions at 11-12. We construe these assertions as raising the contention that the award is based upon a nonfact. [ v59 p245 ]

2.     Contrary to the Back Pay Act

      The Agency contends that the Back Pay Act, 5 U.S.C. § 5596, requires evidence of a causal relationship between the unjustified or unwarranted personnel action and a loss or reduction in pay, allowances, or differentials. The Agency further contends that the Arbitrator failed to show the necessary causal connection between the Agency actions at issue and the monetary loss envisioned by the arbitrator's remedy.

      The Agency asserts that sufficient work was not available for the grievants for an anniversary date promotion, but promotions were accomplished when the work did become available. The Agency argues that its delay in providing a written explanation or making a prompt determination did not result in the failure of any grievant to be promoted on his or her anniversary date because the lack of available work prevented their promotions. Accordingly, the Agency argues that because the award fails to show the necessary causal connection between the Agency's delay in promoting the grievants and the alleged monetary loss in the award's remedy, the award is deficient and must be set aside.

      And, as to Grievants A, B, and D in particular, the Agency argues that the award fails to fulfill the "but for" Back Pay Act requirement because the Arbitrator specifically declined to find which of the three grievants would have been promoted.

3.     Management's Rights

      The Agency contends that the award violates management's right to select under § 7106(a)(2)(C) of the Statute. The Agency argues that because the award in effect ordered retroactive promotions of the grievants, it affects management's right to make selections.

      According to the Agency, under the framework set forth in BEP, 53 FLRA at 151-54, the Authority applies a two-prong test to determine whether an award is deficient as conflicting with an agency's rights under § 7106(a) of the Statute. The Agency contends that in interpreting Section 13.13 of the parties' agreement and enforcing that provision, by mandating that the Agency retroactively promote grievants, the Arbitrator's actions satisfy Prong I of the BEP test. However, the Agency argues that the Arbitrator's remedy does not constitute a reconstruction of what the Agency would have done, even if a violation of the agreement had not occurred. The Agency maintains that it would not have promoted the grievants as of their anniversary dates, because sufficient higher-graded work had not been identified at that time and thus was not available for the grievants to perform. Therefore, the Agency argues that the award is deficient as to Prong II of the BEP test.

B.     Union's Opposition

1.     Nonfact

      The Union did not specifically address this contention.

2.     Contrary to the Back Pay Act

      According to the Union, "where an arbitrator has found that the agreement mandates that a particular action be taken and that the failure to take that action resulted in an employee not receiving a promotion the employee would have received, then the arbitrator's award directing the promotion and corresponding backpay is clearly consistent with the employee's entitlement[.]" Opposition at 10 (citing NLRB Union, Local 19, 7 FLRA 21 (1981)). The Union contends that there is a clear causal connection, noted by the Arbitrator, between the Agency's actions and the loss of promotion that is remedied by the award. Therefore, the Union asserts that the award should not be set aside.

3.     Management's Rights

      According to the Union, the award does not violate § 7106(a)(2)(C) of the Statute and "this section does not even apply to this [a]rbitration." Opposition at 10. In this regard, the Union contends that the parties negotiated Article 13 as the process for career-ladder promotions and that an employee in a career-ladder position has already been "selected." Id. The Union argues that if the Agency had acted in accordance with the parties' agreement, a determination would have been made to promote the grievants in a career-ladder promotion. The Union also asserts that, because these are career-ladder promotions, the employees have already been selected, and there is no interference with management's right to select--the career-ladder promotion is merely a ministerial act implementing a prior Agency decision to place the employee in a career-ladder.

IV.     Analysis and Conclusions

A.      The Award is Not Based on a Nonfact

      To establish that an award is based on a nonfact, the appealing party must show 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 AFB, Denver Colo., 48 FLRA 589, 593 (1993) (Lowry AFB). The Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter [ v59 p246 ] that the parties disputed at hearing. Id. at 594 (citing Nat'l Post Office Mailhandlers v. United States Postal Serv., 751 F.2d 834, 843 (6th Cir. 1985)).

      We note that the parties disputed at the hearing whether sufficient work was available as of the grievants' anniversary dates such that they would otherwise be entitled to promotion at that time. Award at 5, 7. The Arbitrator knew of this contractual requirement for promotion and noted that this question constituted "the crux of the dispute." Id. at 9. As the parties disputed before the Arbitrator whether sufficient work was available as of the grievants' anniversary dates such that the contractual requirement for such work was satisfied, the Agency has not shown that the award is based upon a nonfact. Therefore, we deny this exception.

B.     The Award is Contrary to the Back Pay Act in Part

      When an exception involves an award's consistency with law, the Authority reviews any question of law raised by the exception and the award de novo. See 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 the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See United States Dep't of Defense, Dep'ts of the Army and the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (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 where an arbitrator finds that: (1) the aggrieved employees were affected by an unjustified or unwarranted personnel action; and (2) the personnel action resulted in the withdrawal or reduction of the grievant's pay, allowances, or differentials. United States Dep't of the Treasury, United States Customs Serv., El Paso, Tex., 55 FLRA 553, 559 (1999) (Customs Serv.); see also United States Dep't of Health and Human Servs., 54 FLRA 1210, 1218-19 (1998) (clarifying that a "but for" assessment is not a separate, independent requirement of the Act, but merely amplifies the Act's causal connection requirement).

      The Agency asserts that sufficient work was not available for the grievants as of their anniversary dates, and thus there was no causal relationship between the alleged failure to promote them as of that time and the loss of pay that is remedied by the backpay award because the grievants could not have been promoted as of that time. Contrary to the Agency's assertions, based upon the record evidence, the Arbitrator made a finding of fact when he determined that sufficient work was available as of the anniversary dates for grievant H and two of the other three grievants. And, based upon that finding, the Arbitrator concluded that the Agency violated the agreement when it failed to effect promotions as of the relevant anniversary dates because he concluded that all of the contractual requirements for a career-ladder promotion had been fulfilled. Therefore, we conclude that the Agency has failed to establish that there is no causal connection between the failure to promote the grievants as of their anniversary dates and the loss of any pay from not having been promoted as of that time.

      However, according to the Arbitrator, only enough GS-14 work existed for the promotion of two of the three GS-13 grievants as of their anniversary dates. Therefore, there is no causal connection between the Agency's actions and a loss of pay by any or all of the three grievants, and that portion of the award providing backpay to Grievants A, B, and D is not consistent with the Back Pay Act. Thus, we set aside that portion of the award, pertaining to Grievants A, B, and D.

      In sum, we set aside that part of the award providing backpay to Grievants A, B, and D because it does not comply with the Back Pay Act. Because the Arbitrator did not determine which two employees among Grievants A, B, and D would have been promoted and would have received backpay, and we cannot make that determination based on the record, we remand this matter to the parties, absent settlement, for resubmission to the Arbitrator to determine, if possible, which two of the three GS-13 grievants would have been promoted. See NAGE, Local R4-45, 55 FLRA 695, 699 (1999) (then Member Cabaniss dissenting in part as to other matters) (remand to determine which employees would receive temporary promotions and backpay). We also find that the portion of the award pertaining to Grievant H is consistent with the Back Pay Act and deny the exception as to Grievant H.

C.     The Award does not Violate Management's
         Rights under § 7106(a)(2)(C)

      As stated above, when an exception contends that an award is contrary to law, the Authority reviews any questions of law raised by the exception and the award de novo.

      A career-ladder promotion "is the direct result of an agency's decision to select an employee and place the employee in a career-ladder position in the agency." NAGE, Local R2-98, 29 FLRA 1303, 1310 (1987). [ v59 p247 ]

The Agency's selection of an employee and the placement of that employees in a career-ladder position also constitutes the agency's decision to promote that employee noncompetitively at appropriate stages in the employee's career up to the full performance level of the position once the requisite conditions have been met.

Id. (citations omitted). See United States Dep't of Health and Human Servs., Office of the Assistant Sec'y for Mgmt. & Budget, Office of Grant and Contract Fin. Mgmt., Div. of Audit Resolution, Washington, D.C., 51 FLRA 747, 750 (1996), reconsideration denied, 51 FLRA 982 (1996). Therefore, an arbitrator's enforcement of a career-ladder provision in a collective bargaining agreement, when the grievant is in a career-ladder position and has fulfilled all the requirements of the career-ladder, does not affect management's right to select under § 7106(a)(2)(C) of the Statute. Thus, there is no need to apply the test set forth in BEP, 53 FLRA at 151-54. Accordingly, we deny this exception.

VII.     Decision

      We deny the Agency's exceptions as to nonfact and its right to select under § 7106(a)(2)(C) of the Statute. We deny the Agency's Back Pay Act exception as to Grievant H but grant the exception as to Grievants A, B, and D. Because the Arbitrator did not determine which two employees among Grievants A, B, and D would have been promoted and would have received backpay, we remand this matter to the parties, absent settlement, for resubmission to the Arbitrator to determine, if possible, which two of the three GS-13 grievants would have been promoted.


APPENDIX

Article 13, Section 13.13 states:

Management shall make prompt determinations regarding career ladder promotions of their employees. Management shall notify the employee by his/her anniversary date whether or not a promotion shall be recommended and provide a written explanation if the employee shall not be promoted. A career-ladder promotion is dependent on:
(1)     The employee's demonstration of the ability to perform the duties of the next higher grade to the satisfaction of his/her supervisor. A copy of the promotion criteria (position description or performance standards for the next grade) shall be given to an employee as he/she enters each level of a career-ladder.
(2)     The availability of enough work at the next higher grade.
(3)     Meeting the minimum qualification and other regulatory requirements.

Award at 6.



Footnote # 1 for 59 FLRA No. 37 - Authority's Decision

   The Authority's Regulations do not provide for the filing of a response to an opposition to a party's exceptions, or a reply to such a response. Although § 2429.26(a) of our Regulations permits the filing of additional documents, the Authority has held that it is incumbent on the moving party to demonstrate why the Authority should consider such supplemental submissions. See United States Dep't of the Navy, Naval Sea Systems Command, 57 FLRA 543, 543 n.1 (2001); United States Dep't of Agric., Food Safety and Inspection Serv., W. Region, 36 FLRA 393, 400 n.* (1990). Neither the Agency nor the Union has demonstrated that its additional submission should be considered. Accordingly, we have not considered the submissions.


Footnote # 2