United States, Department of Agriculture, Grain Inspection, Packers and Stockyards Administration, Federal Grain Inspection Service, New Orleans, Louisiana (Agency) and American Federation of Government Employees,, Local 3157 (Union)

[ v59 p411 ]

59 FLRA No. 59

UNITED STATES
DEPARTMENT OF AGRICULTURE,
GRAIN INSPECTION, PACKERS
AND STOCKYARDS ADMINISTRATION
FEDERAL GRAIN INSPECTION SERVICE
NEW ORLEANS, LOUISIANA
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
LOCAL 3157
(Union)

0-AR-3655

_____

DECISION

October 15, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members  [n1] 

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Daniel F. Jennings 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 grievance concerns the details of employees to supervisory positions. For the reasons that follow, we set aside a portion of the award.

II.     Background and Arbitrator's Award

      The grievants in this case are Agriculture Commodity Graders (ACG), GS-9, who periodically are detailed to perform the work of a supervisory ACG, GS-11. The Union's Executive Vice President (VP) filed a grievance on his own behalf and that of other ACGs alleging, inter alia, that the Agency's use of nonsupervisory employees to substitute for supervisory personnel to save money was contrary to the parties' agreement, which provides that the "Agency will not use details to avoid filling positions at a higher grade level[.]" Award at 4 (citing Article 24, Section 6).

      The parties submitted the following issues to arbitration:

Did the Agency violate law, regulation and/or a valid applicable collective bargaining agreement by: (1) Assigning supervisors selected via Announcement #6-34-285-9 to work other than on a Friday through[ ] Monday workweek and (2) Using nonsupervisory GS-9 personnel on detail to avoid filling supervisory GDS-11 positions? If so, what is the appropriate remedy?

Award at 3 (footnote omitted); Agency Exceptions, Exhibit G.

      As to the only issue in contention here, the Arbitrator determined that when GS-9 ACGs are detailed into GS-11 ACG positions, they perform some but not all of the supervisory duties that comprise the GS-11 ACG classification. The Arbitrator found that the Agency receives some "economic benefit" for using lower paid employees to perform the duties of a higher paid employee. Award at 19. Thus, the Arbitrator concluded that the Agency violated Article 24, Section 6 of the parties' collective bargaining agreement when it used nonsupervisory personnel to perform supervisory work. The Arbitrator directed the Agency to provide backpay at the rate of GS-11 to each employee who had been detailed and assigned to cover the supervisory GS-11 ACG position during the period of time retroactive to fifteen days prior to March 30, 2001, the date the grievance was first filed.

      As to the Union VP's requested remedy of a promotion to GS-10, the Arbitrator determined that he did not have the authority to direct the promotion of an employee to a job classification that has not been developed and approved for the Agency as the Agency has only GS-9 and GS-11 ACGs.

III.     Agency's Exceptions

A.     Back Pay Act

      The Agency asserts that for an award of backpay to be authorized under the Back Pay Act, it must be determined that: 1) the grievants were affected by an unjustified or unwarranted personnel action; 2) the action resulted in the withdrawal or reduction of pay; and 3) but for the action, the grievant otherwise would not have suffered the withdrawal or reduction. The Agency maintains that generally employees are only entitled to the salary of the position to which the [ v59 p412 ] employees are appointed. The Agency acknowledges the exception to this rule, for situations where an agency regulation or a provision in a collective bargaining agreement makes temporary promotions mandatory for details to higher graded positions. According to the Agency, the Arbitrator here did not find any provision mandating temporary promotions because the Agency has no such regulation and the governing agreement contains no such language.

B.     Management's Right to Assign Employees under § 7106(a)(2)(A) of the Statute

      The Agency contends that the award conflicts with management's right to assign employees under § 7106(a)(2)(A) of the Statute. The Agency asserts that the Arbitrator incorrectly relied on two private sector cases and on Article 24, Section 6 of the parties' agreement, which provides that the "Agency will not use details to avoid filling positions at a higher grade level[.]" Exceptions at 2. The Agency also asserts that, before the Arbitrator, it argued that the agreement provision is unenforceable, but the Arbitrator refused to accept evidence of that. The Agency contends that, if the award is left undisturbed, it would be forced to give a temporary promotion to anyone detailed to perform the duties of a higher level position, even if only for one day, and the Agency argues that this would interfere with its right to assign employees.

C.     Essence

      The Agency contends that the award fails to draw its essence from the parties' agreement because the Arbitrator misapplied Article 24, Section 6 to conclude that the employees should receive temporary promotions regardless of length or reason for a detail to a higher graded position. According to the Agency, the agreement only provides for temporary promotions in situations where the duration of the detail is expected to last at least 120 days. The Agency asserts that the award would prevent the Agency from detailing employees to higher graded positions "in every case." Exceptions at 3.

IV.     Analysis and Conclusions

A.     The Award Is Contrary to the Back Pay Act

      The Agency's exception involves the consistency of the arbitration award with law. As such, the Authority reviews the question of law raised in the Agency's exception and the Arbitrator's award de novo. NTEU, Chapter 24, 50 FLRA 330, 332 (1995). In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

      The Authority has long held that under the Back Pay Act, an award of backpay is authorized only when an arbitrator finds that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; and (2) the personnel action has resulted in the withdrawal or reduction of the grievant's pay, allowances or differentials. See United States Dep't of Health and Human Servs., 54 FLRA 1210, 1219 (1998) (DHHS). [n2] 

      With regard to the first requirement, a breach of a collective bargaining agreement constitutes an unjustified or unwarranted personnel action. See GSA, 55 FLRA 493, 496 (1999). An arbitrator's finding of an agreement violation satisfies this requirement. See United States Dep't of Def., Army & Air Force Exch. Serv., Dallas, Tex., 49 FLRA 982, 991-93 (1994) (finding that agency violated "law, regulations, and the collective bargaining agreement" sufficient). In the case before us, the Arbitrator found that the Agency violated Article 24, Section 6 of the parties' agreement. [n3] 

      The second part of the Back Pay Act test requires that there be a showing that a personnel action resulted in the withdrawal or reduction of the grievant's pay. In this regard, the Authority has held that an employee may be compensated for the temporary performance of higher-graded duties based on a provision of a collective bargaining agreement making temporary promotions mandatory for details to higher-graded positions. United States Dep't of the Air Force, Warner Robins Air [ v59 p413 ] Logistics Ctr., Robins Air Force Base, Ga., 52 FLRA 938, 942 (1997). However, the Authority has also held that an arbitrator's award ordering compensation at the pay rate of the higher-graded position is deficient under the Back Pay Act if the arbitrator fails to identify the provision of the agreement mandating the requisite temporary promotion to that position. See United States Dep't of the Army, Headquarters, III Corps & Fort Hood, Fort Hood, Tex., 56 FLRA 1121 (2001).

      Here the Arbitrator found that Article 24, Section 6 of the parties' agreement was violated and because the Agency had received an "economic benefit" from its use of lower graded employees to perform higher graded work. Therefore, he awarded backpay in accordance with the private sector precedent cited in his award. However, this arbitral action does not amount to a finding that Article 24, Section 6 mandates temporary promotions for employees detailed to higher graded positions and the Arbitrator cited no other agreement provision or regulation that would mandate a temporary promotion for the grievants. [n4]  While Article 24, Section 6 of the agreement requires details to other activities or to higher-graded positions for more than 30 calendar days to be documented by notification to the employee and a copy of Standard Form 52 filed in the employee's Official Personnel Folder, Id. at 58, neither the parties' agreement nor Agency regulation mandates temporary promotions for employees on detail to higher-graded positions. As a result, there is no causal connection between the Agency's actions and the grievants' failure to receive temporary promotions. Thus, the Arbitrator's backpay award is not consistent with the requirements of the Back Pay Act and is set aside.

B.     The Award Does Not Conflict with Management's Right to Assign Employees under § 7106(a)(2)(A) of the Statute

      Where an agency assert that an arbitrator's award violates management's rights, the Authority first determines whether the award affects management's rights. See United States Small Business Admin., 55 FLRA 179, 184 (1999). If it does, then the Authority applies the two-prong test set forth in United States Dep't of the Treasury, Bureau of Engraving & Printing, Washington, D.C., 53 FLRA 146, 151-54 (1997) (BEP).

      The Authority has long held that management's right to assign employees under § 7106(a)(2)(A) includes the right to establish the necessary qualifications and skills for a position, and to assess whether employees under consideration for assignment to a position posses the requisite qualifications and skills. See AFGE, Local 1138, Council 214, 51 FLRA 1725, 1728 (1996). The right to assign employees is not limited to just the initial hiring of an individual; it can also arise in circumstances involving the selection of employees for personnel actions subsequent to the initial selection of the individual for employment. The right to assign employees may also be implicated by temporary personnel actions involving temporary reassignments, details and loans. See United States Dep't of the Navy, Phila. Naval Shipyard, Phila., Pa., 51 FLRA 1777, 1782 (1996). The arbitration award in this case does not require the Agency to hire additional employees or fill vacant positions, does not limit the Agency's ability to determine the qualifications and skills necessary for these employees to perform the duties of their position, and does not prohibit the Agency from vacating posts. In sum, there is nothing in the award that limits the Agency's right to assign employees or that prevents the Agency from assigning employees to details. [n5]  In light of this determination, we need not further address the BEP test. Therefore, we deny this exception

C.     The Award Does Not Fail to Draw its Essence
from the Parties' Collective Bargaining Agreement

      To demonstrate that an award fails to draw its essence from a collective bargaining agreement, a party must show that the award: (1) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; or (2) does not represent a plausible interpretation of the agreement; or (3) cannot in any rational way be derived from the agreement; or (4) evidences a manifest disregard of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).  [n6]  [ v59 p414 ]

      The Arbitrator concluded that the Agency had violated Article 24, Section 6 of the parties' agreement by using lower graded employees to perform higher graded work, where the agreement states that the Agency will not use details to avoid filling positions at a higher grade level. The Agency's exception does not demonstrate that the Arbitrator's interpretation of this provision is unfounded in reason and fact, does not represent a plausible interpretation of the agreement, cannot be derived from the agreement, or evidences a manifest disregard of the agreement. Thus, the award does not fail to draw its essence from the parties' agreement. Accordingly, we deny the exception as it pertains to the violation of the parties' agreement.

V.     Decision

      We find that the portion of the award providing backpay to the employees who were temporarily detailed to the GS-11 ACG position must be set aside on the ground that it is contrary to the Back Pay Act. We deny the Agency's other exceptions. [n7] 


Member Pope's opinion, dissenting in part:

      I agree with the majority opinion in all respects except one. Specifically, I disagree with the majority's decision to set aside the award without remanding for an alternative remedy. In this regard, for the reasons set forth in my separate opinion in United States Dep't of Veterans Affairs, Cleveland Reg'l Office, Cleveland, Ohio, 59 FLRA No. 38 (Sept. 29, 2003) (slip op. at 16), I would remand this matter to the parties, absent settlement, for resubmission to the Arbitrator for a determination as to whether an alternative remedy is appropriate. See, e.g., AFGE, Local 2608, 56 FLRA 776, 778 (2000) (Authority remanded where remedy was set aside but finding of underlying violation was undisturbed). Accordingly, I dissent in part.



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

   Member Pope's opinion, dissenting in part, is set forth at the end of this decision.


Footnote # 2 for 59 FLRA No. 59 - Authority's Decision

   In DHHS the Authority clarified the elements of the Back Pay Act framework and stated that the "but for" requirement is not a separate, independent element of the Back Pay Act. See DHHS, 54 FLRA at 1219. Thus, the Authority follows a two-prong test, rather than the three-prong test cited by the Agency.


Footnote # 3 for 59 FLRA No. 59 - Authority's Decision

   Article 24, Section 6 of the parties' agreement states:

The parties recognize that details to other positions and activities are a necessary and integral part of mission accomplishment. Details to other activities or to higher graded positions for more than 30 calendar days will be documented by notification to the employee and a copy of Standard Form 52 filed in the employee's Official Personnel Folder. The Agency will not use details to avoid filling positions at a higher grade level, nor will they be made on the basis of personal favoritism. Should the requirements of the Agency necessitate an employee's being detailed to a lower graded position, this will in no way adversely affect the employee's salary, classification, or job standing.

Exceptions, Exhibit I 1.


Footnote # 4 for 59 FLRA No. 59 - Authority's Decision

   We also note that Article 23, Section 1 of the parties' agreement specifically states that "[w]hile on detail, the employee remains in the same grade and receives the same salary as he would in the employee's official position." Exceptions, Appendix I 1, at 55.


Footnote # 5 for 59 FLRA No. 59 - Authority's Decision

   The Arbitrator found Article 24, Section 6 to provide that "details to other positions and activities are a necessary and integral part of other mission statements. Details to other activities or to higher graded activities for more than 30 calendar days will be documented by notification to the employee . . . ." Award at 19.


Footnote # 6 for 59 FLRA No. 59 - Authority's Decision

   The Agency also contends that the backpay remedy in the award fails to draw its essence from the agreement. T