United States, Department of the Air Force, 81ST Training Wing, Kesler Air Force Base, Mississippi (Agency) and American Federation, of Government Employees, Local 2760 (Union)

[ v60 p425 ]

60 FLRA No. 83

UNITED STATES
DEPARTMENT OF THE AIR FORCE
81ST TRAINING WING
KEESLER AIR FORCE BASE, MISSISSIPPI
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2760
(Union)

0-AR-3844

_____

DECISION

November 18, 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 David E. Walker 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.

      The Arbitrator sustained a grievance alleging that the grievant was entitled to a retroactive temporary promotion and back pay for the performance of higher-graded duties.

      For the following reasons, we find that the award is deficient and set it aside.

II.     Background and Arbitrator's Award

      The grievant is employed in the Agency's Civilian Personnel Flight, Personnel Management Element. In March 2001, she was promoted to a General Schedule (GS)-5 personnel clerk position, which in October 2001, under the job title of "Human Resources Assistant (HRA)," was converted to a permanent position.

      In April 2001, an employee employed as an HRA, GS-7, resigned. The "preponderance" of record testimony "established that most, if not all," of this employee's work was given to the grievant. Award at 2. Although the former employee was reemployed by the Agency four months later, there was "no credible evidence [that] this affected the duties that the grievant had undertaken" and was continuing to perform. Id. In late 2003, the grievant conferred with the temporary chief of her office concerning a promotion to GS-7. As a result of the meeting, the grievant submitted to her supervisor two amendments to update her personal qualification that reflected work she had performed since 2001 until 2003. The grievant's supervisor claimed that the duties shown on the amendments "did not amount to . . . GS-7 work." Id.

      On December 19, 2003, the Union filed a grievance requesting that the grievant be retroactively temporarily promoted to a GS-7 and that backpay be awarded from April 24, 2001 to December 19, 2003. The matter was not resolved, and the parties submitted the grievance to arbitration.

      The Arbitrator framed the issue as follows:

Did the grievant, while classified as a GS-203-05 . . . employee, do the work of a GS-203-07 from April 24, 2001 to December 10, 2003, on a regular and recurring basis and for more than 25% of the time. If she did, what remedy, if any, should there be.

Id. at 3. The Arbitrator found that after the grievance was filed--which covered a thirty-two month period beginning around April 24, 2001--the grievant's duties were "substantially curtailed by being limited to GS-5 clerical work." Id. at 3.

      The Arbitrator further found that the evidence was "substantial and persuasive . . . that the grievant performed duties peculiar to the GS-7 . . . position" as provided in the position description for the GS-7 position. Id. at 5. Also, based on the evidence in the record, the Arbitrator concluded that these duties required substantially more than 25% of the grievant's time and effort. In so concluding, the Arbitrator rejected the Agency's contention that "while the grievant may have performed GS-7 functions those were primarily ministerial in nature, without the ultimate responsibility vested in employees rated as GS-7[s]." Id. at 5.

      The Arbitrator concluded that the grievance should be sustained because:

Article 3(A)(1) of the Agreement incorporates a commitment to comply with "regulations of appropriate authorities." Because 5 U.S.C. § 2301[] requires inter alia that there be equal pay for work of equal value, the failure to temporarily promote grievant after April 24, 2001 [ v60 p426 ] was a prohibited personnel practice under 5 U.S.C. § 2302(b)(11).[ [n1] ]

Id. Concerning the appropriate remedy, the Arbitrator stated that:

Temporary promotions . . . are authorized by classified service regulatory law and the Air Force Manual [AFM]. [Citing 5 C.F.R §§ 335.102(f), 300.602, 316.401 and AFMAN 36-203, Chapt. 2.20.] However, even within these authorizing regulations there are . . . limitations . . . . Grievant did not gain the fifty-two weeks time-in- grade at the GS-5 position necessary for . . . [a] temporary promotion under 5 C.F.R § 300.603 until March 3, 2002. Considering this . . . it is the judgment of this [A]rbitrator that the temporary promotion to GS-7 . . . should be made retroactive to no earlier than March 3, 2002, and . . . ending on December 19, 2003.[ [n2] ]

Id. at 5-6.

      The Arbitrator "acknowledge[d] that the length of this temporary promotion exceed[ed] that allowable under AFMAN 36-203, absent competitive placement." Id. at 6. However, according to the Arbitrator, the failure of the Agency to invoke the competitive process should not result in a decision favorable to the Agency. The Arbitrator also noted the Agency's reliance on United States v. Testan, 424 U.S. 392 (1976) as a defense against the Arbitrator's awarding of backpay, but found that this case was distinguishable. The Arbitrator stated that unlike Testan, in the instant case the grievant's right of "redress arises from [the Statute]. Id. at 7. The Arbitrator also rejected the Agency's claim that the dispute concerned a classification matter. The Arbitrator found that the grievant was not claiming a right to be reclassified as a GS-7 and that instead, she was only claiming a right to a temporary promotion.

      The Arbitrator concluded that under the parties' agreement and regulations, the grievant was entitled to an award of backpay at the GS-7 rating for her service between March 3, 2002 and December 19, 2003, less any compensation received from the Agency during that time period. Accordingly, he sustained the grievance.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency asserts that the grievance and the award concern the classification of a position within the meaning of § 7121(c)(5) of the Statute that is excluded from the grievance procedure. Therefore, according to the Agency, the award is contrary to law and further the Arbitrator exceeded his authority by making a determination on a classification issue. According to the Agency, a classification issue arises where the substance of a grievance concerns the grade level of duties assigned to and performed by the grievant. The Agency asserts that in this case the grievant's supervisor testified that: (1) she never assigned any work to the grievant that was at the GS-7 level; (2) there was no position vacant for the assignment of GS-7 work; and (3) the grievant never mentioned that she was doing GS-7 level work. The Agency argues that this testimony establishes that the grievance and the award concern the classification of a position within the meaning of § 7121(c)(5) of the Statute.

      The Agency further asserts that the award does not draw its essence from the parties' agreement. According to the Agency, there is no provision in the agreement that entitles the grievant to pursue a classification appeal through the parties' negotiated grievance procedure. The Agency states that Article 14 of the agreement provides that "when an employee is dissatisfied with the classification of his or her position, the appeal channels are available as prescribed by Classification Appeal Regulations and Procedures." Exceptions at 4. The Agency contends that by ordering the grievant temporarily promoted to a GS-7, the Arbitrator "materially subtract[ed] from the clear and unambiguous provisions of the . . . [A]greement." Id. Therefore, according to the Agency, the award does not represent a plausible interpretation of the agreement and reflects a manifest disregard for the specific terms of the agreement. Id.

      The Agency asserts that the award is contrary to the Back Pay Act. Citing United States Dep't of the Army, Fort Polk, La., 44 FLRA 1548 (1992) (Fort Polk), where the Authority found, among other things, that the Agency's failure to comply with the parties' agreement constituted the required finding that the grievant had been affected by an unjustified or unwarranted personnel action, the Agency contends that there [ v60 p427 ] is no provision in the agreement that entitles the grievant to a temporary promotion based on having temporarily performed the duties of a higher-graded position. The Agency asserts that the grievant is not entitled to backpay or retroactive credit because she "was never formally nor informally promoted to [the GS-7] level nor was she assigned GS-07 level duties." Exceptions at 4 (emphasis omitted). The Agency thus contends that no unwarranted personnel action was taken such that the grievant suffered a reduction in pay. In support of this contention, the Agency cites Collier v. United States, 56 Fed. Cl. 354 (2003) and Testan.

B.      Union's Opposition

      First, the Union asserts that the grievance does not concern a classification matter. The Union contends that, as the Arbitrator recognized, the grievant is not seeking a reclassification, but rather a temporary promotion to a GS-7 position. The Union also asserts that Social Security Administration, Baltimore, Md., 20 FLRA 694 (1985) cited by the Agency is distinguishable from this case.

      The Union asserts that there is no merit to the Agency's contention that the award fails to draw its essence from Article 14. According to the Union, because the grievant was not seeking a permanent higher-grade for her position, the Agency's argument that she should have followed the agreed-upon method for resolving grievances set forth in Article 14 of the agreement is incorrect. The Union asserts that the grievant properly followed the agreed-upon method for resolving grievances set forth in Article 24.

      The Union further contends that 5 C.F.R. §§ 316.401 and 335.102(f) and AF regulation, AFMAN 36-203, Chpt. 2.20, establish the authority to make temporary promotions. Thus, according to the Union, the Agency was bound by regulatory authorities granting it the authority to issue the grievant a temporary promotion, which were incorporated into the agreement pursuant to Article 24. The Union also states that while 5 U.S.C. §§ 2301 does not independently authorize an arbitral remedy, an arbitrator may order relief to correct a prohibited personnel practice when the award is based on a law, rule, or regulation implementing or concerning the merit system in question. The Union asserts that here the Arbitrator cited AF regulation, AFMAN 36-203, Chpt. 2-20, Government-wide regulations, and the Back Pay Act as a basis for the award.

      The Union contends that the Arbitrator properly ordered that the grievant be compensated at the GS-7 level pursuant to the Back Pay Act. The Union asserts that the Arbitrator found based on the evidence in the record that the grievant undertook the GS-7 level duties of her co-worker after this employee resigned and the grievant's claim of entitlement to a temporary promotion is based on the agreement, law and Government-wide regulation. The Union also contends that the decisions in Testan and Collier are distinguishable from this case.

IV.     Analysis and Conclusions

A.      The Award Does Not Concern a Classification Matter

      The Agency asserts that the grievance and the award concern the classification of a position within the meaning of § 7121(c)(5) of the Statute that is excluded from the grievance procedure.

      When a party's exceptions involve an award's consistency with law, the Authority reviews the questions of law raised by the arbitrator's award and the party's exceptions de novo. 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 a de novo standard of review, the Authority assesses whether the 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.

      Under § 7121(c)(5) of the Statute, a grievance concerning "the classification of any position which does not result in the reduction of grade or pay of an employee" is removed from the scope of the negotiated grievance procedures. The Authority has held that when the substance of a grievance concerns whether the grievant is entitled to be compensated at a higher rate of pay by reason of having temporarily performed the established duties of a higher graded position, the grievance does not concern the classification of a position within the meaning of § 7121(c)(5). NTEU, Chapter 73, 57 FLRA 412, 414 (2001) (NTEU). In comparing the duties performed by a grievant with the properly classified duties of the higher-graded position claimed as the basis for the temporary promotion, an arbitrator is not involved in making a classification determination. See, e.g., id., 57 FLRA at 414. However, when the duties of a position have not been previously classified, a grievance seeking a temporary promotion to that position concerns a classification matter within the meaning of § 7121(c)(5) of the Statute. See United States Nuclear Regulatory Comm'n, 54 FLRA 1416, 1421-22 (1998). [ v60 p428 ]

      In this case, the Arbitrator found that the grievance concerned whether the grievant performed the higher-graded duties of a GS-7 Human Resources Assistant which would have entitled her to a "temporary promotion to that rating." Award at 6 n.3. The Arbitrator found that the evidence "[w]as substantial and persuasive" that the grievant performed duties peculiar to the GS-7 position as provided in the position description for the GS-7 position on a regular and recurring basis. Id. at 5. This is not, on its face, a classification determination. The Arbitrator did not evaluate the grade level of the duties permanently assigned to and performed by the grievant to determine the appropriate classification. Rather, he focused simply on whether the grievant performed the established duties of a higher graded position, comparing the grievant's duties to those performed by a GS-7 Human Resources Assistant. The Arbitrator thus did not make a classification determination. Accordingly, the award is not contrary to § 7121(c)(5) of the Statute. See, e.g., NTEU, 57 FLRA at 414.

B.      The Arbitrator Did Not Exceed his Authority

      The Agency asserts that the Arbitrator exceeded his authority by making a determination on a classification issue that is excluded from the grievance procedure.

      An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. See United States Dep't of Defense, Army and Air Force Exchange Service, 51 FLRA 1371, 1378 (1996) (Dep't of Defense). In the absence of a stipulation by the parties of the issue to be resolved, an arbitrator's formulation of the issues is given substantial deference. See AFGE, Local 987, 50 FLRA 160, 161-62 (1995).

      As the parties in the instant case did not stipulate the issue, the Arbitrator was free to formulate the issue. See Dep't of Defense, 51 FLRA at 1378. The Arbitrator described, in pertinent part, the issue presented to him as "[d]id the grievant, while classified as a GS-203-05 civil service employee, do the work of a GS-203-07 from April 24, 2001 to December 10, 2003, on a regular and recurring basis . . . ." Award at 3. The Arbitrator's determination that the grievant performed work at the GS-7 level responds to the issue properly defined by the Arbitrator and, as discussed above, such issue does not concern a classification matter. Therefore, the Agency has not demonstrated that the Arbitrator exceeded his authority.

C.      The Award Draws Its Essence from the Agreement

      Referring to Article 14, the Agency asserts that the award does not draw its essence from the agreement because a classification appeal may not be pursued through the negotiated grievance procedure.

      To demonstrate that an award fails to draw its essence from the collective bargaining agreement, the appealing party must show that the award: (1) is so unfounded in reason and fact, and so unconnected with the wording and purposes of the 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, 575-77 (1990).

      According to the agency, Article 14 of the agreement provides that "when an employee is dissatisfied with the classification of his or her position, the appeal channels are available as prescribed by Classification Appeal Regulations and Procedures." Exceptions at 4. However, as previously discussed, the grievance here concerns a temporary promotion, not a classification matter. As the grievance does not concern a classification matter, the Agency has provided no basis for finding the Arbitrator's interpretation of the contract implausible, irrational, or unconnected to the wording of the agreement.

D.      The Award Is Contrary to the Back Pay Act

      As stated above, the Authority reviews questions of law raised by an arbitrator's award and an exception to it de novo. In making that determination, the Authority defers to the arbitrator's underlying factual findings.

      In this case, the Agency contends that there is no provision in the agreement that entitles the grievant to a temporary promotion based on having temporarily performed the duties of a higher-graded position. We construe the Agency's assertion as a claim that the award of the temporary promotion is contrary to law, including the Back Pay Act.

      Regarding the applicability of the Back Pay Act, the Authority has held that under 5 U.S.C. § 5596, an award of backpay is authorized only where 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 employee's pay, allowances, or differentials. See United States Dep't of the Army, United States Army Reserve Personnel Command, St. Louis, [ v60 p429 ] Mo., 59 FLRA 455, 456 (2003) (Chairman Cabaniss concurring) (Army Reserve Personnel Command).

      As a general rule, an employee is entitled only to the salary of the position to which the employee is appointed. United States Dep't of the Interior, Bureau of Indian Affairs, Wapato Irrigation Project, Wapato, Wash., 57 FLRA 548, 550 (2001) (citing United States Dep't of the Army, Fort Polk, 44 FLRA at 1563, citing Cassandra G. McPeak and Wayne E. Dabney, 69 Comp. Gen. 140 (1989) (McPeak)). An exception to this general rule exists, permitting compensation for the temporary performance of the duties of a higher-graded position, based on an agency regulation, or when the parties to a collective bargaining agreement agree to make temporary promotions mandatory for details to higher graded positions, thereby establishing a nondiscretionary agency policy which would provide a basis for backpay. United States Dep't of the Army, Army Armament Research, Dev. and Eng'g. Ctr., 49 FLRA 562, 565 (1994) (citing Wilson v. U.S., 229 Ct. Cl. 510 (1981) and McPeak, 69 Comp. Gen. at 140); Fort Polk, 44 FLRA at 1563.

      Absent such a regulation or collective bargaining provision, the fact that a grievant performed higher-graded duties is insufficient to entitle the grievant to an award of backpay. See, e.g., Army Reserve Personnel Command, 59 FLRA at 456 (citing United States Dep't of the Air Force, 88th Air Base Wing, Aeronautical Sys. Div., Wright-Patterson Air Force Base, Ohio, 52 FLRA 285 (1996)). Thus, where an arbitrator fails to identify a non-discretionary agency regulation or a collective bargaining agreement provision that would entitle a grievant to backpay for performing the duties of a higher-graded position, there is no unjustified or unwarranted personnel action which would entitle the grievant to an award of backpay under the Back Pay Act. United States Dep't of the Army, Headquarters, III Corps & Fort Hood, Fort Hood, Tex., 56 FLRA 544, 546 (2000).

      In this case, the Agency asserts that there is no provision in the agreement that entitles the grievant to a temporary promotion based on having temporarily performed the duties of a higher-graded position. In awarding the temporary promotion and backpay, the Arbitrator stated that:

Article 3(A)(1) of the [a]greement incorporates a commitment to comply with "regulations of appropriate authorities." Because 5 U.S.C. § 2301[] requires inter alia that there be equal pay for work of equal value, the failure to temporarily promote grievant after April 24, 2001 was a prohibited personnel practice under 5 U.S.C. § 2302(b)[(12)].

Award at 5. Our review of Article 3(A)(1) demonstrates that it does not address whether employees may receive temporary promotions when they perform the duties of a higher-graded position. Thus, Article 3(A)(1), in itself, does not contain a nondiscretionary Agency policy that permits compensation for the temporary performance of the duties of a higher-graded position.

      The Arbitrator's reliance on 5 U.S.C. §§ 2301 and 2302(b)(12) also cannot serve as a basis for awarding the temporary promotion. Merit system principles are hortatory and are not self-executing. Because they are not self-executing and, alone, cannot form the basis of a legal action, they cannot independently authorize or serve as the basis for an arbitration remedy. See, e.g., United States Dep't of Transportation, National Highway Traffic Safety Administration, 58 FLRA 333, 336 (2003) and the cases cited therein. Additionally, an arbitrator "can award relief under section 2302(b)(1[2]) for violations of merit system principles only if the arbitrator also finds a violation of a law, rule, or regulation that implements or directly concerns those merit system principles." Id. at 336-37 (citing Indian Educators Fed'n, New Mexico Fed'n of Teachers, 53 FLRA 352, 360 (1997).

      Although the Arbitrator here found a violation of a merit system principle set forth in § 2301(b), the Arbitrator did not find a violation of any law, rule, or regulation implementing or concerning those principles. Consequently, the Arbitrator erred by finding a prohibited personnel practice under § 2302(b)(12). See e.g. United States Dep't of Defense, Army Chemical and Military Police Ctrs., Fort McClellan, Ala., 39 FLRA 457, 463 (1991) (arbitrator erred by finding a prohibited personnel practice under § 2302(b)(12) because the arbitrator did not find a violation of law, rule, or regulation implementing or concerning merit system principles).

      The Arbitrator also relied on 5 C.F.R §§ 335.102(f), 300.602, and 316.401. However, these provisions do not implement a mandate of law or other outside authority which is essentially nondiscretionary. For instance, 5 C.F.R § 335.102(f) gives an agency authority to make time-limited promotions to fill temporary positions, but this provision does not mandate that an agency grant an employee a temporary promotion. Also, the Arbitrator did not identify any provision in AFMAN 36-203, Chpt.2.20 that establishes a nondiscretionary agency policy mandating a temporary promotion, nor did the Union specify any wording in the regulation that it relied on to support its [ v60 p430 ] position. The Union provided only an internet citation to an Air Force regulation dated December 12, 2002, rather than a copy of the regulation. Therefore, there is nothing in the record that establishes that either the contract article or regulations, relied on by the Arbitrator or the Union to support the granting of a temporary promotion, set forth a nondiscretionary agency policy that mandates a temporary promotion for the performance of duties of a higher-graded position.

      Consistent with the foregoing, nothing in the agreement nor any of the regulations relied on by the Arbitrator or cited by the Union mandate that the Agency grant the grievant a temporary promotion. Because the Arbitrator has not identified or relied on a non-discretionary policy mandating a temporary promotion, the award of backpay to the grievant is deficient as contrary to the Back Pay Act and, therefore, the award must be set aside. See, e.g., Army Reserve Personnel Command, 59 FLRA at 456.

V.      Decision

      The award is set aside.


APPENDIX

ARTICLE 3

LEGAL AND REGULATORY REQUIREMENTS

Section A. This agreement and any supplemental, implementing, subsidiary or informal agreements shall be subject to the following requirements:

      1. In the administration of all matters covered by the agreement, officials and employees are governed by existing or future laws and the regulations of appropriate authorities, including policies set forth in the Federal Personnel Manual; by published agency policies and regulations in existence at the time the agreement was approved; and by subsequent published agency policies and regulations required by law or by the regulations of appropriate authorities, or authorized by the terms of a controlling agreement at a higher agency level.

Union Opposition, Attachment at 2.

5 U.S.C. § 2301 provides, in pertinent part as follows:

      (b)      Federal personnel management should be implemented consistent with[, among others,] the merit system principles [that]:

     . . . .
(3) Equal pay should be provided for work of equal value, with appropriate consideration of both national and local rates paid by employers in the private sector, and appropriate incentives and recognition should be provided for excellence in performance.

5 U.S.C. § 2302(b)(11) provides, in pertinent part as follows:

      (b) Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority--

     . . . .
(11) take or fail to take any other personnel action if the taking of or failure to take such action violates any law, rule, or regulation implementing, or directly concerning, the merit system principles contained in section 2301 of this title.

The pertinent part of the provisions of Part 300 of Title 5 C.F.R. follows:

§ 300.602 Definitions.

      (Sets forth definitions of terms used in Subpart F, which concerns Time-in-Grade Restrictions)

§ 335.102 (Agency authority to promote, demote, or reassign.

      Subject to § 335.103 and, when applicable, to part 319 of this chapter, an agency may:

(f) Make time-limited promotions to fill temporary positions, accomplish project work, fill positions temporarily pending reorganization or downsizing, or meet other temporary needs for a specified period of not more than 5 years, unless OPM authorizes the ag