United States, Department of Veterans Affairs, Medical Center, Asheville, North Carolina (Agency) and American Federation of Government Employees, Local 446 (Union)

[ v59 p605 ]

59 FLRA No. 110

UNITED STATES
DEPARTMENT OF VETERANS AFFAIRS
MEDICAL CENTER
ASHEVILLE, NORTH CAROLINA
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 446
(Union)

0-AR-3712

_____

DECISION

January 30, 2004

_____

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 George K. McPherson, Jr. 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 and cross-exceptions to the Arbitrator's award.

      The Arbitrator found that the grievant was entitled to backpay for the performance of higher-graded duties and denied the Union's request for attorney fees. For the reasons set forth below, we remand the award to the Arbitrator for a determination regarding the grievant's minimum qualifications and deny the remaining exceptions.

II.     Background and Arbitrator's Award

      The Agency assigned the grievant, a WG-4 Gardener-Motor Vehicle Operator, to relieve the regular shuttle van driver, classified as a GS-7 Program Support Assistant. The Union filed a grievance requesting that a desk audit be performed and that the grievant be promoted and paid at the GS-7 rate of pay for the time that he was assigned to relieve the Program Support Assistant. The grievance was submitted to arbitration, where, as relevant here, the Arbitrator set forth the issue as follows: "[D]id the Agency violate Article 12 of the Master Agreement by not temporarily promoting Grievant?" [n1]  Award at 3.

      The Arbitrator found that the Agency detailed the grievant to drive a shuttle van on a regular and recurring basis from early January 2002 to early February 2002. The Arbitrator also determined that, in driving the shuttle van, the grievant was performing a higher-graded duty. Id. at 10. The Arbitrator concluded that the Agency violated Article 12, Section 2(A) of the parties' agreement by not temporarily promoting the grievant to the GS-7 position for the time during which the grievant performed the duty of driving the shuttle van, the same duty the Program Support Assistant performed in that position. [n2]  Id. at 9-10.

      In rejecting the Agency's argument that the grievant was not qualified for temporary promotion to the GS-7 position, the Arbitrator found that the Union demonstrated that the Agency did not know and had never inquired about whether the grievant was qualified for the GS-7 position. [n3]  Id. at 8. The Arbitrator concluded that the grievant was qualified to perform the duties of the regular shuttle van driver, reasoning that it was "incongruous to argue that [the] [g]rievant is not qualified for the position when he performed the exact same duties of one" who is receiving the higher pay rate. Id. at 8.

      Finally, the Arbitrator denied the Union's request for attorney fees. Although the Arbitrator found that the Agency had engaged in a prohibited personnel practice, he concluded that attorney fees were not warranted in the interest of justice because the Agency's actions were not clearly without a rational basis or wholly unfounded, the Agency had not acted in bad faith or with knowledge that it could not prevail on the merits, and the Agency [ v59 p606 ] had a legitimate basis for believing that it had not violated the parties' agreement. Id. at 11.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency argues that the award is based on nonfacts. Specifically, the Agency alleges that the Arbitrator erroneously presupposed the existence of a "VA Shuttle Van Driver" position, a wholly separate position from the GS-7 Program Support Assistant position. Exceptions at 5. The Agency also alleges that the Arbitrator erred in determining that the driving duties performed by the grievant were higher-graded, and but for such a conclusion could not have arrived at his decision.

      In addition, the Agency contends that the substance of the grievance involves a classification issue excluded from the grievance procedure under 5 U.S.C. § 7121(c)(5). [n4]  The Agency further alleges that the award is contrary to 5 U.S.C. § 7103(a)(14)(B) because the award concerns the assignment of a grade level to a position. [n5] 

      The Agency further argues that the award infringes on its right to assign employees under 5 U.S.C. § 7106(a)(2)(A) by removing the Agency from the qualification process and by constructively qualifying and temporarily promoting the grievant to a position for which he does not possess the minimum qualifications. The Agency contends that regardless of whether the Agency knew the grievant's qualifications, the grievant must meet the minimum qualification requirements prescribed by the Office of Personnel Management to be temporarily promoted. Exceptions at 4.

B.     Union's Opposition and Cross-Exceptions

      The Union disputes the Agency's argument that the award is based on nonfacts. Specifically, the Union argues that the Arbitrator did not create a position based on the shuttle driving duties, but merely considered the fact that the regular shuttle van driver never performed any of the other duties in his position description.

      The Union also disputes the Agency's allegations that the award is contrary to law, arguing that the grievant was entitled to a temporary promotion under the parties' agreement and that the Agency's violation of the agreement constituted an unjustified personnel action entitling the grievant to be paid at the higher rate of pay for performing higher-graded duties. As to the Agency's minimum qualifications argument, the Union contends that the Agency provided no evidence as to what qualification requirement the grievant did not meet and that the Agency never made any inquiry into the grievant's qualifications.

      In its cross-exceptions, the Union argues that the attorney fees determination was premature because the parties had agreed that the fees issue would be resolved after the award was issued. In addition, the Union contends that the award is contrary to the Back Pay Act because the Arbitrator denied the Union's request for attorney fees. The Union asserts that the Arbitrator erred when, without offering any further explanation, the Arbitrator found that an award of fees would not be in the interest of justice. In this connection, the Union argues that the Agency knew or should have known that it would not prevail because the grievant had clearly performed the duties of a higher-graded position and had not been compensated.

IV.     Analysis and Conclusions

A.     The award is not based on nonfacts.

      To establish that an award is based on nonfact, the appealing party must demonstrate that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached. See United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593 (1993). An award will not be found deficient based on an arbitrator's determination on any factual matters that the parties disputed below. Id. at 594.

      In its first nonfact exception, the Agency contends that the Arbitrator erred by presupposing the existence of the "Shuttle Van Driver" position. However, in the award, the Arbitrator rejected the Agency's argument that promoting the grievant "allows the position of `VA shuttle driver' to spring into existence by default." Award at 9. The Arbitrator found that if a "VA shuttle driver" position was created, "it was created by the Agency by classifying [the Program Support Assistant] as a GS-7 employee whose sole duty was to drive the shuttle." Id. As the nature and duties of the Program Support Assistant position were matters the parties disputed below, the Agency's exception provides no basis [ v59 p607 ] for finding the award deficient. See United States Dep't of Def., The Adjutant Gen., Nat'l Guard Bureau, Tenn. Air Nat'l Guard, 56 FLRA 588, 590 (2000). Accordingly, the exception is denied.

      In its second nonfact exception, the Agency contends the Arbitrator erred in determining that the driving duties performed by the grievant were higher-graded, and that but for this error, the Arbitrator would have reached a different conclusion. In this regard, the Arbitrator found that, despite the Agency's knowledge that the Program Support Assistant was not qualified to perform any of the other GS-7 duties, the Agency classified the Program Support Assistant as a GS-7 "just to drive the shuttle." Award at 9. The Arbitrator added, "I do mean to imply . . . that the duty of driving the shuttle does not warrant a rating of GS-7." Id. at 9 n.4. The Arbitrator noted that his comment reflected only his observation that the Program Support Assistant was rated a GS-7 solely for driving the shuttle even though the position description lists several other duties. Id. The Agency argues that the award is based on nonfact because the Arbitrator contradicted himself by concluding that the driving duties were higher-graded while also stating, "I do mean to imply . . . that the duty of driving the shuttle does not warrant a rating of GS-7." Id. The Agency further argues that if the position does not warrant a GS-7 rating, then the Arbitrator has no basis to conclude that the duty is a higher-graded duty entitling the grievant to backpay.

      The award as a whole, including the Arbitrator's ultimate finding that the grievant was entitled to backpay for performance of higher-graded duties, supports a conclusion that the Arbitrator made a typographical error and intended to state that he did not "mean to imply" that the duty of driving the shuttle does not warrant a GS-7 rating. In addition, because the issue of whether the driving duties were higher-graded was disputed before the Arbitrator, the Agency's argument does not provide a basis for finding the award deficient as based on nonfact, and we deny the Agency's exception. See United States Dep't of Def., Def. Logistics Agency, Red River Army Depot, Texarkana, Tex., 55 FLRA 523, 527 (1999).

B.     The record is insufficient to determine whether the award is contrary to law.

      When an exception involves an arbitration award's consistency with law, the Authority reviews the 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 the arbitrator's legal conclusions are consistent with the applicable standard of law. See United States Dep't of Def., Dep'ts of the Army & 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.

1.     Sections 7121(c)(5) and 7103(a)(14)(B) of the Statute

      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 [the Office of Personnel Management] 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). United States Dep't of Hous. & Urban Dev., La. State Office, New Orleans, La., 53 FLRA 1611, 1616 (1998) (HUD). However, where the substance of the grievance concerns whether the grievant is entitled to a temporary promotion under a collective bargaining agreement by reason of having performed the established duties of a higher-graded position, the Authority has long held that the grievance does not concern the classification of a position within the meaning of § 7121(c)(5). Id.

      In this case, the substance of the grievance concerned the grievant's claim that he temporarily performed the duties of a previously established higher-graded position and that he was entitled, under the parties' agreement, to a temporary promotion and back pay. The grievant did not claim that his permanent position was improperly classified, nor did he request a change in the series, grade, or pay system of his officially assigned position. See HUD, 53 FLRA at 1616; United States Dep't of Def., Marine Corps Logistics Base, Albany, Ga., 57 FLRA 275, 277 (2001) (Marine Corps Logistics Base). [ v59 p608 ]

      Further, contrary to the Agency's argument, the Arbitrator did not evaluate the grade level of the duties permanently assigned to and performed by the grievant to determine their appropriate classification. Rather, the Arbitrator considered whether the grievant temporarily performed the established duties of the higher-graded Program Support Assistant position and whether the grievant was entitled to compensation for the temporary performance of those duties under the parties' agreement. See United States Dep't of the Navy, Naval Aviation Depot, Marine Corps Air Station, Cherry Point, N.C., 42 FLRA 795 (1991); Lexington-Blue Grass Army Depot, 32 FLRA 256 (1988).

      As the substance of the grievance before the Arbitrator, and the Arbitrator's findings, concerned whether the grievant was entitled to a temporary promotion under the parties' agreement, we find that the award does not concern the classification of a position within the meaning of 5 U.S.C. § 7121(c)(5) and 5 U.S.C. § 7103(a)(14)(B). Accordingly, the exception is denied.

2.     Section 7106(a)(2)(A) of the Statute

      When resolving an exception alleging that an award violates the management rights provision of § 7106(a) of the Statute, the Authority first determines whether the award affects a management right under § 7106(a). See United States Small Bus. Admin., 55 FLRA 179, 184 (1999). If such a right is affected, then the Authority will apply the framework established in United States Dep't of the Treasury, Bureau of Engraving & Printing, Wash., D.C., 53 FLRA 146 (1997) (BEP). If a management right is not affected, then the Authority will not apply the BEP framework. See Marine Corps Logistics Base, 57 FLRA at 277-78.

      The Authority has found that awards enforcing contractual provisions requiring temporary promotions do not affect management's right to assign employees. United States Dep't of Veterans Affairs, Ralph H. Johnson Medical Center, Charleston, S.C., 56 FLRA 381, 386 (2000). In this connection, the Authority has reasoned that an agency exercises its right to assign employees when it assigns higher-graded duties to the employees, and that an award does not affect that right when "the arbitrator merely determine[s] that the agency's constructive assignment of higher-graded duties to the grievant entitle[s] [the grievant] to compensation for the performance of those duties under the parties' agreement." Id. (internal quotation omitted).

      It is undisputed that the Agency assigned the grievant to perform the shuttle van driver duties. The Arbitrator found that, under the parties' agreement, the Agency's assignment of these duties to the grievant entitled the grievant to compensation for the performance of those higher-graded duties, and the Agency has not argued that this finding fails to draw its essence from the parties' agreement. As the award interprets and enforces the temporary promotion provisions of the parties' agreement, it does not affect management's right to assign work under § 7106(a). See id. at 387; AFGE, Local 1923, 38 FLRA 89, 96-97 (1990). In light of this determination, it is unnecessary to apply the two-prong test set forth in BEP, and we deny the exception. See Marine Corps Logistics Base, 57 FLRA at 278.

3.     Back Pay Act, 5 U.S.C. § 5596

    i.     Award of backpay

      The Authority has consistently held that, in order to be entitled to a temporary promotion, an "employee must meet the minimum qualification requirements prescribed by the Office of Personnel Management (OPM)" for the higher-graded position. United States Dep't of Health & Human Serv., Pub. Health Serv., Navajo Area Indian Health Serv., 50 FLRA 383, 386 (1995); See also United States Dep't of Justice, Bureau of Prisons, Fed. Corr. Inst., Loretta, Pa., 55 FLRA 339 (1999) (Member Wasserman concurring in part and dissenting in part) (DOJ). Where an arbitrator does not make any findings regarding the grievant's minimum qualifications and the record is insufficient for the Authority to make a determination as to whether the grievant possessed the minimum qualifications, the Authority will remand the case to the parties for resubmission to an arbitrator, absent settlement, to make a determination as to whether the grievant possessed the minimum qualifications for temporary promotion to a higher-graded position. See DOJ, 55 FLRA at 343; HUD, 53 FLRA at 1620.

      In this case, the record is insufficient to make a determination as to whether the grievant possessed the minimum qualifications required by OPM for a temporary promotion to the higher-graded GS-303-07 Program Support Assistant position. Although the Arbitrator concluded that the Agency never inquired about the grievant's qualifications for the GS-7 position and did not know if the grievant was qualified to hold the position, the Arbitrator did not address whether the grievant, in fact, met the OPM minimum qualifications requirement for the position. [n6]  In addition, neither party provided evidence as to the grievant's actual qualification for such a position. Given this lack of evidence in the record, we are unable to assess, based on the record, whether the grievant possessed the minimum qualification requirements. In such circumstances, and consistent [ v59 p609 ] with Authority precedent, we remand the award to the parties for resubmission to the Arbitrator, absent settlement, for determination as to whether the grievant met the minimum qualification requirements for the GS-7 position. See DOJ, 55 FLRA at 343; HUD, 53 FLRA at 1620.

    ii.     Award of Attorney Fees

      The threshold requirement for entitlement to attorney fees under the Back Pay Act, 5 U.S.C. § 5596, is a finding that the grievant was affected by an unjustified or unwarranted personnel action, which resulted in the withdrawal or reduction of the grievant's pay, allowances, or differentials. See United States Dep't of Def., Def. Distrib. Region E., New Cumberland, Pa., 51 FLRA 155, 158 (1995). Once such a finding is made, the Back Pay Act further requires that an award of fees must be: (1) in conjunction with an award of backpay to the grievant on correction of the personnel action; (2) reasonable and related to the personnel action; and (3) in accordance with the standard established under 5 U.S.C. § 7701(g), which pertains to attorney fee awards by the Merit Systems Protection Board (MSPB). See id. at 158.

      Section 7701(g), which applies to all cases except those involving employment discrimination, applies in this case. The prerequisites for an award of attorney fees under § 7701(g) are that: (1) the employee must be the prevailing party; (2) the award of fees must be warranted in the interest of justice; (3) the amount of the fees must be reasonable; and (4) the fees must have been incurred by the employee.

      An award of attorney fees is warranted in the interest of justice if: (1) the agency engaged in a prohibited personnel practice; (2) the agency actions are clearly without merit or wholly unfounded, or the employee is substantially innocent of charges brought by the agency; (3) the agency actions are taken in bad faith to harass or exert improper pressure on an employee; (4) the agency committed gross procedural error which prolonged the proceeding or severely prejudiced the employee; (5) the agency knew or should have known it would not prevail on the merits when it brought the proceeding; or (6) there is either a service rendered to the Federal workforce or there is a benefit to the public derived from maintaining the action. See United States Dep't of Def., Def. Mapping Agency, Hydrographic/Topographic Ctr., Wash., D.C., 47 FLRA 1187, 1193-94 (1993); Allen v. United States Postal Serv., 2 MSPR 420 (1980) (Allen). An award of fees is warranted if any of these criteria is satisfied. See id. at 1194.

      In its cross-exceptions, the Union contends that the Arbitrator's attorney fees determination was premature. However, the Union provides no evidence to support its claim that there was an agreement between the parties to not resolve the issue until after the award. Accordingly, we reject this argument. See Fed. Employees Metal Trades Council, 49 FLRA 1096, 1099-1100 (1994).

      In addition, the Union argues that the award is contrary to the Back Pay Act because the Arbitrator found that an award of attorney fees was not warranted without offering any further explanation. With respect to the interest of justice standard, the Union contends that "fees would be due under a number of bases. For example, the agency knew or should have known it would not prevail because the [g]rievant had plainly performed the duties of a properly classified higher-grade position and had not been compensated." Opposition at 7.

      The Arbitrator concluded that attorney fees were not warranted in the interest of justice because, among other reasons, the Agency did not act with knowledge that it could not prevail on the merits of the case. Award at 11. The only specific interest of justice factor cited by the Union is that the Agency knew or should have known it would not prevail. Because the Union provides no further explanation as to why the Arbitrator's specific factual finding should be overturned, and does not specify that attorney fees are warranted under any of the other interest of justice factors, the Union has not demonstrated that the Arbitrator erred. Accordingly, we find that the denial of attorney fees is not deficient as contrary to the Back Pay Act, and we deny the Union's exception. See AFGE, Nat'l Council of EEOC Locals No. 216, 50 FLRA 48, 50 (1994); United States Dep't of the Navy, Mare Island Naval Shipyard, Vallejo, Cal., 49 FLRA 820, 823 (1994).

V.     Decision

      We remand the award to the Arbitrator for a determination regarding the grievant's minimum qualifications and deny the remaining exceptions.



Footnote # 1 for 59 FLRA No. 110 - Authority's Decision

   The Arbitrator also set forth and resolved the issue of whether the grievance was timely. As no exceptions were filed to this issue, the Authority will not review it.


Footnote # 2 for 59 FLRA No. 110 - Authority's Decision

   Article 12, Section 2(A) of the parties' agreement states, in pertinent part, "[e]mployees detailed to a higher grade position for a period of more than ten (10) consecutive workdays must be temporarily promoted. The employee will be paid for the temporary promotion beginning the first day of the detail." Exceptions, Attachment 1 at 33 (Joint Exhibit 1).


Footnote # 3 for 59 FLRA No. 110 - Authority's Decision

   The GS-7 Program Support Assistant Position lists six categories of duties to be performed: drive and maintain gasoline, diesel, or electric powered wheeled vehicles; perform clerical or technical program support work for a variety of technical and/or program specialists in support of the Facilities Management Support Team; respond to questions from patients; provide administrative support; data collection and tracking support; and provide program resources services and support. Exceptions, Attachment 4 at 1- 2 (Joint Exhibit 4).


Footnote # 4 for 59 FLRA No. 110 - Authority's Decision

   The Statute provides that a negotiated grievance procedure may not include within its scope "any grievance concerning the classification of any position which does not result in the reduction in grade or pay of an employee." 5 U.S.C. § 7121(c)(5).


Footnote # 5 for 59 FLRA No. 110 - Authority's Decision

   The Statute states, in relevant part, that the term "conditions of employment" does not include "policies, practices, and matters relating to the classification of any position[.]" 5 U.S.C. § 7103(a)(14)(B).


Footnote # 6 for 59 FLRA No. 110 - Authority's Decision

   The Program Support Ass