National Treasury Employees Union (Union) and United States, Department of Health and Human Services, Health Resources and Services, Administration (Agency)

[ v60 p226 ]

60 FLRA No. 48

NATIONAL TREASURY
EMPLOYEES UNION
(Union)

and

UNITED STATES
DEPARTMENT OF HEALTH
AND HUMAN SERVICES,
HEALTH RESOURCES AND SERVICES
ADMINISTRATION
(Agency)

0-AR-3808

_____

DECISION

September 9, 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 Robert E. Nagle filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions. [n1] 

      The Arbitrator denied a grievance alleging that the Agency violated the parties' agreement by failing to promote the grievant to the GS-13 level. For the reasons set forth below, we deny the Union's exceptions.

II.      Background and Arbitrator's Award

      The grievant was hired in 1997 as a Public Health Analyst at the GS-12 level. The Public Health Analyst position is a career-ladder position with a promotion potential to GS-13.

      In 1998, after the grievant had worked in the position for a year, the grievant requested a promotion to the GS-13 level. The Agency denied the request. In 1999, the grievant again requested a promotion, and the Agency again denied the request.

      In December 2002, a grievance was filed alleging that the grievant had been improperly denied a career-ladder promotion. The Agency denied the grievance on the ground that "although [the grievant] had received favorable reviews for her performance at the GS-12 level, she had not successfully demonstrated the knowledge or ability to handle any of the more difficult assignments of a GS-13, and with the degree of independence required at that next higher grade." Award at 3.

      The grievance was unresolved and was submitted to arbitration on the following stipulated issue:

Was management's denial of grievant's career ladder promotion done in accordance with law, rule, regulation and collective bargaining agreement? If not done correctly, what should the remedy be?

Id. at 2. [n2] 

      The Arbitrator denied the grievance. The Arbitrator determined that the grievant was not entitled to a career-ladder promotion because she did not satisfy the criteria for promotion set forth in the collective bargaining agreement. The Arbitrator found that the evidence did not establish that the grievant "performed the majority of the more difficult job duties that are unique to the GS-13 position description or that she did so with the requisite degree of independence." Id. at 12. The Arbitrator further found that, although the grievant's supervisor regularly gave the grievant "favorable" performance appraisals, the supervisor also regularly discussed with the grievant the "deficiencies" in the grievant's performance that were related to her "non-promotion." Id. at 13-14.

      The Arbitrator rejected the Union's argument that the grievant had demonstrated her ability to perform GS-13 work because for several years the grievant had received favorable ratings from her supervisor for her [ v60 p227 ] work on the homeless children program. The Arbitrator found that "[i]t is not clear that [the grievant's supervisor] intended, in the testimony cited by the Union, to characterize the role that was actually assigned to [the grievant] with respect to the Homeless Children program as specifically GS-13 work" because "[s]he seemed to qualify her statement by adding that it was work that had been done previously by a GS-13 . . . ." Id. at 16-17. The Arbitrator added that it "seemed unlikely" that work on the homeless children program would have been included as a critical element in the grievant's performance standards "if it had been regarded as a uniquely GS-13 duty." Id. at 17. In any event, the Arbitrator concluded that, based on the record, the grievant's work on the homeless children program was no "more reflective of her ability to perform at the GS-13 level than were her other assignments." Id.

      Furthermore, the Union argued before the Arbitrator that the grievant was entitled to a career-ladder promotion in 1998 because the parties' agreement in effect in 1998 did not address career-ladder promotions and the grievant satisfied the requirements for a career-ladder promotion as set forth in the Code of Federal Regulations by receiving a successful performance evaluation and working 52 weeks at a lower grade. [n3]  In support, the Union cited NFFE, Local 2030, 56 FLRA 667 (2000) (Local 2030.) The Arbitrator rejected this argument and found that Local 2030 was distinguishable. The Arbitrator found that in Local 2030 "the agency had no intent at all to withhold the promotion, and the problem was simply that the employee's supervisor had not been aware of the need to file the necessary paperwork to effect the promotion." Award at 18. Thus, in the absence of other authority, the Arbitrator found that the Union's argument that the grievant was entitled to a career-ladder promotion in 1998 was unpersuasive. See id.

      Consequently, the Arbitrator denied the grievance.

III.      Union's Exceptions

      The Union contends that the award is based on a nonfact and is contrary to law.

      The Union contends that the Arbitrator's finding that the work on the homeless children program assigned to the grievant was not GS-13 level work is a central fact underlying the award and was clearly erroneous. See Exceptions at 1-2, 4, 5. The Union argues that this finding by the Arbitrator is inconsistent with the testimony provided by the grievant's supervisor that she had assigned the grievant GS-13 work.

      Furthermore, the Union contends that the Arbitrator's finding that the grievant was not entitled to a career-ladder promotion in 1998 is contrary to Authority precedent. See id. at 2, 6. The Arbitrator states that the Authority has held "that a career[-]ladder promotion is nondiscretionary and will be granted once the employee has fulfilled the requirements for a career[-]ladder promotion." Id. at 7. In support, the Union cites SSA, 51 FLRA 1700 (1996); United States Dep't of Housing and Urban Development, Greensboro, N.C., 33 FLRA 81 (1988) (HUD); and NAGE, Local R2-98, 29 FLRA 1303 (1987) (Local R2-98).

      The Union argues that the parties' 1998 agreement did not address career-ladder promotions and that the grievant satisfied requirements for a career-ladder promotion set forth in the Code of Federal Regulations by receiving a successful performance evaluation and working 52 weeks at a lower grade. See id. at 7-8. In this regard, the Union asserts that in 1998, there was no requirement that the grievant demonstrate her ability to perform duties of the next higher grade as was later imposed by the parties' agreement. See id. at 7.

      The Union also argues that the Arbitrator incorrectly distinguished Local 2030 by stating that the agency in that case had no intent to withhold promotion. Id. The Union explains that in distinguishing Local 2030 from the instant case, "the Arbitrator was creating a new requirement to be fulfilled, namely, the agency must also have the intent to promote the employees." Id.

IV.      Analysis and Conclusions

A.      The Award Is Not Based on a Nonfact

      The Union contends that the award is based on a nonfact. In this regard, the Union contends that the Arbitrator's finding that the work on the homeless children program assigned to the grievant was not GS-13 level work is a central fact underlying the award and was clearly erroneous. See Exceptions at 1-2, 4, 5.

      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). 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 hearing. Id. at 594 (citing Nat'l Post Office Mailhandlers v. United States Postal Serv., 751 F.2d 834, 843 (6th Cir. 1985)).

      Because the parties disputed before the Arbitrator whether the work on the homeless children program assigned to the grievant was GS-13 level work, we find [ v60 p228 ] that the Union's claim does not establish that the award is deficient. Accordingly, we deny the exception.

B.      The Award Is Not Contrary to Law

      The Authority reviews questions of law raised by an arbitrator's award and an exception to it de novo. NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citation omitted). In applying a standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. United States Dep't of the Air Force, Warner Robins AFB, Ga., 56 FLRA 541, 543 (2000) (citation omitted). In making such a determination, the Authority defers to the arbitrator's underlying factual findings. Id.

      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." Local R2-98, 29 FLRA at 1310. "The agency's selection of an employee and the placement of that employee 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. (citation omitted).

      Here, the Arbitrator determined that, even though the grievant had received favorable performance appraisals, the grievant was not entitled to a career-ladder promotion because she did not satisfy the promotion criteria of the collective bargaining agreement. See Award at 14, 15. In its exceptions, the Union contends that the Arbitrator's finding that the grievant was not entitled to a career-ladder promotion in 1998 is contrary to Authority precedent. See Exceptions at 2, 6. The Union relies on Local 2030. For the following reasons, we disagree.

      The Union's argument that the grievant satisfied requirements for a career-ladder promotion set forth in the Code of Federal Regulations by receiving a successful performance evaluation and working 52 weeks at a lower grade is without merit. The Union has not specified any provision of the Code of Federal Regulations or Authority precedent that requires a career-ladder promotion when, as in this case in 1998, employees received a successful performance evaluation and worked 52 weeks at a lower grade. Cf. AFGE, AFL-CIO, Local 2206, 59 FLRA 30 (2003) (Local 2206) (5 C.F.R. § 335.104, 5 C.F.R. § 300.604 or C.F.R. § 430.203 do not require a career-ladder promotion when employees received a successful performance evaluation and worked 52 weeks at a lower grade).

      The Union also has not specified any provision of the Code of Federal Regulations or Authority precedent that precludes an arbitrator from finding that the performance of the majority of the more difficult job duties that are unique to the next higher grade or the performance of such duties with the requisite degree of independence are criteria an employee must satisfy to be entitled to a promotion under a career-ladder. See NTEU, 32 FLRA 1141, 1148 (1988) (a career-ladder promotion can occur "when the conditions prescribed by agreement or regulation are met"); cf. Local 2206, 59 FLRA 30 and HUD, 33 FLRA 81 (Authority denied exceptions to an award in which the arbitrator found that the conditions for a career-ladder promotion had not been satisfied).

      Finally, the Union's reliance on Local 2030 is misplaced. In that case there was no dispute, as here, over whether the grievant met the requirements of promotion nor does that decision address the requirement for a career-ladder promotion under the Code of Federal Regulations.

      Accordingly, we deny the exception.

V.      Decision

      The Union's exceptions are denied.


APPENDIX

      Article 21, Section 7 of the parties' collective bargaining agreement provides:

Career advancement is the intent and expectation in the career ladder system. While promotions within career ladders are neither automatic nor mandatory, they are expected when an employee is capable of performing duties at the next higher grade in the career ladder and when, at a minimum, the employee meets the following additional requirements:
1.      The employee's current performance rating is not below the fully successful level;
2.      Requirements of law and regulation are met, i.e., time-in-grade restrictions and qualification requirements;
3.      When the additional cost is within budgetary limitations;
"Is capable of performing duties" does not necessarily mean that the employee currently performs the duties at the next higher grade, rather that current demonstrated performance indicates that the employee can perform some of the more difficult duties inherent at the next higher grade and with greater independence.
Promotions in career ladders shall be effective at the beginning of the first full pay period following a determination by the Employer that the employee has met the above criteria.



Footnote # 1 for 60 FLRA No. 48 - Authority's Decision

   The Authority issued an Order to Show Cause why the Agency's opposition which was due on May 3, 2004, should not be dismissed as having been untimely filed with the Authority on May 4, 2004. In its response to the Order, the Agency states that it prepared the opposition for pickup by FedEx on May 3, 2004, and that it was delivered the following day by FedEx. The Agency asserts that it was unaware that there was a difference between filing by mail and commercial delivery until it received the Authority's Order to Show Cause. The Agency argues that FedEx should have the same status as the United States Postal Service and asserts that filing the opposition one day late does not prejudice the proceedings or harm the Union.

      Section 2429.21(b) of the Authority's Regulations provides that "[i]f the filing is by personal or commercial delivery, it shall be considered filed on the date it is received by the Authority. . . ." 5 C.F.R. § 2429.21(b). Furthermore, Authority precedent establishes that service by Federal Express is service by commercial delivery, rather than by mail. See, e.g., AFGE, Local 3434, 49 FLRA 382, 384 (1994) ("Federal Express is not a component of the U.S. Postal Service"). As the Agency filed the opposition by FedEx after the deadline had expired, it was untimely filed. In addition, the Agency has not shown that extraordinary circumstances warrant waiving the expired deadline. Therefore, we will not consider the Agency's opposition.


Footnote # 2 for 60 FLRA No. 48 - Authority's Decision

   The relevant portions of the collective bargaining agreement are set forth in the Appendix.


Footnote # 3 for 60 FLRA No. 48 - Authority's Decision

   The record does not include a copy of the parties' agreement that was in effect in 1998. The Union claimed before the Arbitrator that that collective bargaining agreement did not contain a provision that addressed career-ladders and the Arbitrator did not find otherwise. See Award at 17-18. The parties' agreement that became effective on August 1, 1999, contains a contractual provision that addresses career-lad