United States, Environmental Protection Agency, Region 5, Chicago, Illinois, (Agency) and American Federation of Government Employees, Local 704 (Union)

[ v61 p247 ]

61 FLRA No. 48

UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
REGION 5
CHICAGO, ILLINOIS
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 704
(Union)

0-AR-3947

_____

DECISION

September 16, 2005

_____

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 Lamont E. Stallworth 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 the Union's grievance alleging that the Agency violated the parties' collective bargaining agreement and an Agency regulation by failing to timely promote the grievant to GS-11. For the reasons set forth below, we deny the Agency's exceptions.

II.     Background and Arbitrator's Award

      Pursuant to HR Policy Bulletin Number 213-4 (HR Policy Bulletin), the Agency appointed the grievant to a GS-9 Student Career Experience Position (SCEP) in [ v61 p248 ] September 2003.  [n1]  At the time of the appointment, the Agency informed the grievant that he would be promoted to the GS-11 level after working for the Agency for 320 hours. See Award at 4, 28. In December 2003, after working the required 320 hours, the grievant's supervisors submitted his promotion paperwork, but the grievant was not promoted to the GS-11 level until September 2004. The Union filed a grievance alleging that the Agency violated the collective bargaining agreement and an Agency regulation by failing to promote the grievant after he worked the required 320 hours. The parties were unable to resolve the grievance and it was submitted to arbitration, where the parties did not stipulate the issues and the Arbitrator did not formulate an issues statement.

      According to the Arbitrator, the record indicated that "the Agency informed the [g]rievant if he accepted their offer of employment, that the [g]rievant would be promoted to a GS-11 pay level after working for 320 hours." Award at 28. The Arbitrator determined that the grievant's appointment was pursuant to the HR Policy Bulletin and was "not improper[.]" Id. at 34-35; 29. The Arbitrator found that the Agency did not promote the grievant to the GS-11 level after he completed 320 hours of work and, instead, waited until September 2004 to promote him. Id. at 29; 5. The Arbitrator further found that there were "no legal impediments" to the Agency promoting the grievant and that "there was no reason to deny the [g]rievant the promotion that was based on any policy in effect at the time the [g]rievant was hired." Id. at 35. Based on these findings, the Arbitrator determined that the Agency violated Article 5, Section 7 (§ 7) and Article 28, Section 2 (§ 2) of the parties' agreement by not providing the grievant with "a proper amount of pay at the proper time" and by not allowing the grievant the "maximum opportunities to achieve the full potential of his career ladder[.]" [n2]  Id. at 36.

      The Arbitrator rejected the Agency's claim that the grievant "had no cause to rely upon the GS-11 promotion representations made by the [Agency] when making the job offer to the [g]rievant[.]" Id. at 31. The Arbitrator noted the Agency's reliance on decisions describing the "pitfalls of `government-fostered expectation[,]'" but distinguished the cases from the present matter. Id. (referencing Kizas v. Webster, 707 F.2d 524 (D.C. Cir. 1983) (Kizas); Applegate v. United States, 211 Ct. Cl. 380 (1975) (Applegate); and In the matter of Douglas C. Butler, 58 Comp. Gen. 51 (1978) (Butler). In this regard, the Arbitrator found that the decisions cited by the Agency were "factually distinct[,]" did not involve interpretation of the HR Policy Bulletin at issue in this case, and did not address the "contract rights" of government job applicants. See id.

      Based on the foregoing, the Arbitrator sustained the grievance and ordered the Agency to make the grievant whole for its failure to timely promote him to the GS-11 level.

III.     Positions of the Parties

A.      Agency's Exceptions

      The Agency claims that the award, finding that the Agency was obligated to promote the grievant after he worked for the Agency for 320 hours, is contrary to law because "[p]romotion is always a discretionary matter for an [a]gency." Exceptions at 8. In this regard, the Agency contends that "federal employees do not have a contractual right to be promoted at a certain time, despite what may be communicated to them orally." Id. The Agency asserts, citing Kizas, that the "law on point clearly states that an employee does not have a vested right to promotion and that the federal government cannot be bound by the doctrine of detrimental reliance in its hiring and promotion decisions." Id. at 9. The Agency relies on Applegate for the principles that "appointment with the Government does not constitute a contractual relationship" and that promotions are discretionary in the federal government. Id. at 12. In addition, [ v61 p249 ] the Agency relies on Butler to support its claim that "a personnel action may not be made retroactive so as to increase the rights of an employee to compensation." Id. at 13 (citing Butler, 58 Comp. Gen. at 53).

      The Agency also claims that the Arbitrator "pejoratively dismissed" the testimony of an Agency witness. Id. at 6. In addition, according to the Agency, the Arbitrator was predisposed to decide in favor of the grievant and the Arbitrator allowed his opinion that an "injustice" occurred to "override" his legal analysis. Id. at 14, 8.

B.      Union's Opposition

      The Union asserts that the Agency's exceptions "ignore[] the fact" that the award is "premised on the requirements of the collective bargaining agreement and Agency policy" and is not based "solely on the doctrine of detrimental reliance." Opposition at 6. The Union also asserts that the Agency does not challenge the Arbitrator's interpretation of the parties' agreement and the HR Bulletin. Regarding the Agency's claims based on Kizas, Applegate, and Butler, the Union contends that the Arbitrator correctly distinguished these cases from the present case. According to the Union, Kizas, Applegate, and Butler are inapposite because those cases concern "significantly different" fact situations and do not involve collective bargaining agreements or principles of contract law. See id. at 10, 13, 14. In addition, the Union contends that, to the extent the Agency claims that the Arbitrator was biased, the Agency was obligated to raise this issue before the Arbitrator. See Opposition at 9.

IV.      Analysis and Conclusions

A.      The award is not contrary to law.

      When a party's exceptions challenge an award's consistency with law, the Authority reviews the exceptions 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 NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

      At the outset, we note that, according to the Agency, the Office of Personnel Management (OPM) determined that the grievant was properly appointed to the GS-9 position. See Award at 21. We also note that the Agency concedes that the grievant satisfied the educational and job requirements for promotion to the GS-11 level pursuant to the HR Policy Bulletin and that there was no legal impediment to the Agency promoting the grievant to the GS-11 level after 320 hours of service. See Exceptions at 6, 12, 15.

      The Agency claims that the award is inconsistent with law because the Agency's decision to promote is always discretionary. Authority precedent is to the contrary, however. Specifically, an agency may be required to promote an employee at specific times, in situations where the effect of the parties' lawful agreement "is to require the [a]gency to certify an employee for promotion upon the employee's fulfillment of the qualifications for promotion." Soc. Sec. Admin., 51 FLRA 1700, 1706 (1996) (SSA); see United States Dep't of Veterans Affairs, Ralph H. Johnson Med. Ctr., Charleston, S.C., 58 FLRA 413, 415 (2003) (VA, Charleston); NFFE, Local 2030, 56 FLRA 667, 673 (2000).

      In this regard, in VA, Charleston, the arbitrator determined that a settlement agreement between the parties entitled the grievants to a promotion after one year in grade and achieving successful performance ratings. The Authority upheld the award, finding that, as the grievants had met the promotion requirements, they were entitled to a promotion consistent with the agreement and that the agency violated the agreement by failing to timely promote the grievants. See VA, Charleston, 58 FLRA at 415. Similarly, in NFFE, Local 2030 and SSA, the Authority upheld arbitral findings that the parties' agreements required the agencies to promote grievants to the next higher grade once they satisfied all the requirements for a career ladder promotion. See NFFE, Local 2030, 56 FLRA at 673; SSA, 51 FLRA at 1706. The Authority determined that, having found that the grievants met the "requisite conditions" for promotion, the arbitrators properly concluded that the grievants were entitled to promotions under the parties' agreement. NFFE, Local 2030, 56 FLRA at 673; SSA, 51 FLRA at 1706.

      This case is analogous to VA, Charleston, NFFE, Local 2030 and SSA. As noted above, the Agency concedes that there was no legal impediment to promoting the grievant to the GS-11 level after 320 hours of service. In addition, the Arbitrator found that the parties' agreement entitled the grievant to be promoted to GS-11 upon completing the required 320 hours of service for the Agency. Award at 21. Specifically, the Arbitrator determined that § 7 and § 2, entitling the grievant to "receive a proper amount of pay at the proper time" and to "achieve the full potential of his career ladder[,]" id. at 36, were violated by the Agency's failure to promote the grievant. The Agency does not dispute the Arbitrator's construction of the parties' agreement or contend that the contractual entitlement to promotion is [ v61 p250 ] unenforceable as inconsistent with law. Accordingly, as the parties' agreement entitled the grievant to be promoted and the Agency concedes that it had the legal authority to promote the grievant, the Agency has not established that the award is contrary to law. See VA, Charleston, 58 FLRA at 415; NFFE, Local 2030, 56 FLRA at 673; SSA, 51 FLRA at 1706.

      Moreover, the Agency's assertion that the award is contrary to Kizas, Applegate, and Butler because the Arbitrator improperly applied the doctrine of detrimental reliance provides no