American Federation of Government Employees, Local 3810 (Union) and United States, Department of Commerce, Economic Development Administration (Agency)

[ v61 p631 ]

61 FLRA No. 122

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 3810
(Union)

and

UNITED STATES
DEPARTMENT OF COMMERCE
ECONOMIC DEVELOPMENT ADMINISTRATION
(Agency)

0-AR-3979

_____

DECISION

July 26, 2006

_____

Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Gladys Gershenfeld 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.

      This matter concerns the Agency's denial of the grievant's career ladder promotion. For the reasons that follow, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      The grievant was hired in 1998 as a GS-13 Computer Specialist with a career ladder to a GS-14. In 2001 her immediate supervisor recommended that the grievant be promoted to the GS-14 level. However, the grievant's second and third level supervisors denied the promotion based in part on the mistaken belief that the grievant was seeking an accretion of duties promotion as opposed to a career ladder promotion. Award at 3. In 2003, the grievant was reclassified by the Agency as a GS-13 Information Technology Specialist and lost her career ladder opportunity to advance to the GS-14 level. Id. at 1, 4. In 2004, the grievant filed a grievance with the Agency claiming entitlement to a career ladder promotion.

      Upon review, the Agency denied the Union's grievance by asserting that it had sole discretion to grant or deny such promotions. [n1]  Thereafter, this matter was submitted to arbitration to resolve the following issue:

Did the Agency violate the Collective Bargaining Agreement and 5 C.F.R. [§] 335.104 when it did not promote [the grievant] to a GS-14 position? If so, what shall the remedy be?

Id. at 2.

      In resolving this issue, the Arbitrator determined that the Agency did not violate either Office of Personnel Management (OPM) Regulation or the parties' collective bargaining agreement when it chose not to promote the grievant to a GS-14 position. In so doing, the Arbitrator noted that the grievant was not performing GS-14 duties. Moreover, the Arbitrator noted that prior to a personnel action such as a promotion OPM requires supervisory approval and found that such approval is not likely to be given "pro forma." Id. at 5. Finally, the Arbitrator determined that the parties' had no collective bargaining agreement addressing promotions. As such, the Arbitrator denied the grievant's request for a retroactive promotion, back pay, interest, attorney fees and costs. However, the Arbitrator did find that the Agency should, where possible, provide the grievant with an opportunity to perform GS-14 level work in order to qualify for the higher grade.

III.     Positions of the Parties

A.      Union's Exceptions

      The Union argues that the Arbitrator's award is contrary to § 7106(a)(2)(c) of the Statute. It contends that under this section, where an agency has placed an employee in a career ladder position, such action constitutes the agency's "decision to promote that employee non-competitively at appropriate stages in the employee's career - up to the full performance level of the position once the requisite conditions have been met." Exceptions at 4, citing e.g., NAGE, Local R2-98, 29 FLRA 1303, 1310 (1987) (NAGE, Local R2-98).

      Additionally, the Union argues that the award is contrary to Fed. Energy Regulatory Comm'n, 58 FLRA 596 (2003) (FERC). In this respect, it argues that "an employee is entitled to a promotion based on the existence of a career ladder establishing such a promotion, and the employee meets the prerequisites prescribed in 5 CFR 335.114."  [n2]  Exceptions at 5. [ v61 p632 ] Furthermore, the Union claims that the grievant's promotion is a mere ministerial act, which has no correlation to level of the work assigned to the grievant, and argues that the Arbitrator's reliance on whether the grievant was performing higher graded work when seeking a promotion is immaterial. Id. at 4, 5. Accordingly, it states that "[i]n the absence of deficiencies articulated in performance appraisals, a non-competitive career ladder promotion must be granted." Id. at 5.

      Finally, the Union argues that the Arbitrator "mischaracterized" facts. Exceptions at 6. In this respect, the Union claims that the grievant was recommended for promotion by her supervisor and that the grievant's second and third line supervisors ignored this request. It further argues that "[h]ad the arbitrator correctly stated that no one replied to the [first line supervisor's] recommendation until a desk audit of [the grievant's] position was conducted over three years later, then the arbitrator would have logically concluded that the desk audit proposed by the Agency was simply `pretext' for improperly denying [the grievant's] career ladder promotion." Id. at 6-7.

B.      Agency's Opposition

      The Agency argues that management may fill positions from "among properly ranked and certified candidates for promotion; or any other appropriate source." Opposition at 10 (citing 5 U.S.C. § 7106(a)(2)(C)). Accordingly, the Agency claims that the Arbitrator was not legally required to promote the grievant.

      Additionally, the Agency argues that the grievant was not performing GS-14 duties. It notes that a desk audit revealed that the grievant was only performing, and her position only required her to perform, GS-13 work. Id. at 12. As such, it contends that under the circumstances it was not required to promote the grievant.

      Furthermore, the Agency notes that the Authority has found that the Code of Federal Regulations does not require the promotion of an employee in a career ladder position even where that employee has performed successfully for the past 52 weeks. Id. at 13 (citing NTEU, 60 FLRA 226 (2004); AFGE, AFL-CIO, Local 2206, 59 FLRA 30 (2003) (Local 2206)).

      Finally, with respect to the Union's nonfact claim, the Agency does not specifically address this exception.

IV.     Analysis and Conclusions

A.     The Award Is Not Contrary to Law

      When a party's exception challenges an arbitration award's consistency with law, rule, or regulation, the Authority reviews the questions of law raised in the exception and the arbitrator's award de novo. See NFFE, Local 1437, 53 FLRA 1703, 1709 (1998). When applying a de novo standard of review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. Id. at 1710. In making that assessment, the Authority defers to the arbitrator's factual findings. See NTEU, Chapter 50, 54 FLRA 250, 253 (1998).

      Here, the Arbitrator determined that, even though the grievant had received favorable performance appraisals, the grievant was not entitled to a career ladder promotion. See Award at 5-6. In its exceptions, the Union contends that the Arbitrator's finding that the grievant was not entitled to a career ladder promotion is contrary to our decision in FERC, 5 C.F.R. § 335.104, § 7106(a)(2)(C) and NAGE, Local R2-98 and other precedent. See Exceptions at 3-6. For the following reasons, we disagree.

      First, § 7106(a)(2)(C) does not compel an arbitrator or