Council of District Office Locals, American Federation of Government Employees, San Francisco Region, AFL-CIO (Union) and Office of Program Operations, Field Operations, Social Security Administration, San Francisco Region (Activity) 

 5 FLRA No. 100
 
 COUNCIL OF DISTRICT OFFICE LOCALS,
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, SAN FRANCISCO REGION,
 AFL-CIO
 Union
 
 and
 
 OFFICE OF PROGRAM OPERATIONS,
 FIELD OPERATIONS, SOCIAL
 SECURITY ADMINISTRATION,
 SAN FRANCISCO REGION
 Activity
 
                                            Case No. 0-AR-123
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR DAVID A. CONCEPCION FILED BY THE AGENCY UNDER SECTION 7122(A)
 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
 7122(A)).
 
    ACCORDING TO THE ARBITRATOR'S AWARD, THE DISPUTE IN THIS MATTER AROSE
 WHEN THE GRIEVANT, A CLAIMS DEVELOPMENT CLERK, GS-4, IN THE ACTIVITY'S
 SANTA ROSA DISTRICT OFFICE, APPLIED FOR AND WAS APPOINTED TO A DATA
 REVIEW TECHNICIAN POSITION AT THE GS-4 LEVEL.  THE DATA REVIEW
 TECHNICIAN POSITION IS A CAREER LADDER POSITION WITH A PAY RANGE FROM
 GS-4 TO GS-10.  THE POSITION WAS POSTED FOR GRADES GS-4 THROUGH GS-7.
 THE PROMOTION CERTIFICATE SHOWED THAT THE GRIEVANT WAS CERTIFIED AS
 QUALIFIED AT BOTH THE GS-4 AND GS-5 LEVELS FOR THE DATA REVIEW
 TECHNICIAN POSITION.
 
    SUBSEQUENT TO HER SELECTION FOR THE NEW POSITION, THE EMPLOYEE FILED
 A GRIEVANCE CHALLENGING THE ACTIVITY'S FAILURE TO APPOINT HER TO THE
 DATA REVIEW TECHNICIAN POSITION AT THE HIGHEST GRADE LEVEL (GS-5) FOR
 WHICH SHE WAS QUALIFIED. THE THRUST OF THE GRIEVANCE WAS THAT THE
 ACTIVITY HAD ABRIDGED A PAST PRACTICE WHEREBY A PROMOTED EMPLOYEE IS
 ALWAYS PLACED AT THE HIGHEST GRADE LEVEL FOR WHICH HE OR SHE IS
 QUALIFIED.
 
    THE ARBITRATOR FIRST OBSERVED THAT BOTH THE COLLECTIVE BARGAINING
 AGREEMENT BETWEEN THE PARTIES AND THE AGENCY'S MERIT PROMOTION PLAN ARE
 SILENT ON THE ISSUE OF WHETHER A PERSON PROMOTED IS TO RECEIVE A GRADE
 INCREASE. OBSERVING THAT AN INCREASE IN GRADE CONCOMITANT WITH A
 PROMOTION CAN BE VIEWED AS AN EMPLOYEE BENEFIT RELATING TO THE
 PROMOTIONAL PROCESS, THE ARBITRATOR FRAMED THE KEY TEST UPON WHICH HIS
 DETERMINATION WOULD TURN IN THE FOLLOWING MANNER:
 
    (I)T MUST BE SHOWN THAT MANAGEMENT BY ITS ACTION HAS SO CONSISTENTLY
 ACTED IN A CERTAIN
 
    MANNER AS TO HAVE CREATED A BENEFIT, THROUGH PAST PRACTICE, AND THAT
 THE BENEFIT HAS ATTAINED
 
    A STATUS EQUAL TO THE PROVISIONS WHICH HAVE BEEN NEGOTIATED.
 
    APPLYING THIS TEST, THE ARBITRATOR CONCLUDED:
 
    THE FACTS SUPPORT THE (UNION'S) CONTENTION THAT PROMOTING TO THE
 HIGHEST GRADE LEVEL TO
 
    WHICH A SELECTEE IS QUALIFIED IS AN ESTABLISHED PAST PRACTICE.  THE
 PRACTICE INVOLVES A MAJOR
 
    CONDITION OF EMPLOYMENT, IT WAS ESTABLISHED UNILATERALLY AND
 ADMINISTERED UNILATERALLY BY
 
    MANAGEMENT, IT WAS THE SUBJECT OF CONSULTATION AND NEGOTIATION, IT
 WAS CONSISTENTLY FOLLOWED
 
    OVER A FIVE YEAR PERIOD INVOLVING FIFTY TO ONE-HUNDRED PROMOTIONAL
 ACTIONS, IT WAS A SPECIFIC
 
    PRACTICE;  AND BOTH MANAGEMENT AND THE WORK FORCE ACCEPTED IT AS
 ESTABLISHED AND RELIED UPON
 
    THAT BELIEF NOT ONLY IN THE SEEKING OF PROMOTION BUT IN ADVISING ON
 PROMOTION.  HAVING FOUND THAT THE PAST PRACTICE ADVOCATED BY THE UNION
 DID EXIST, THE ARBITRATOR SUSTAINED THE GRIEVANCE.
 
    IN FORMULATING A REMEDY, THE ARBITRATOR CONCLUDED THAT FOR PURPOSES
 OF THE BACK PAY ACT /1/ AN ESTABLISHED PAST PRACTICE SUCH AS THE ONE HE
 FOUND TO EXIST IN THIS CASE IS JUST AS MUCH A PART OF THE COLLECTIVE
 BARGAINING AGREEMENT AS ITS ACTUAL WRITTEN PROVISIONS.  THUS, IN
 SUMMARY, HE HELD THAT THE BENEFIT AT ISSUE (I.E., THE RIGHT WHEN
 PROMOTED TO BE PLACED AT THE HIGHEST GRADE LEVEL FOR WHICH ONE IS
 QUALIFIED), ALTHOUGH AN UNWRITTEN POLICY, IS STILL AN INTEGRAL PART OF
 THE PARTIES' AGREEMENT AND AS SUCH CONSTITUTES A "NON-DISCRETIONARY
 OBLIGATION" WHICH THE ACTIVITY FAILED TO MEET.  ACCORDINGLY, THE
 ARBITRATOR FOUND THAT AN AWARD OF BACKPAY IS PROPER AND DIRECTED THAT
 THE ACTIVITY PROMOTE THE GRIEVANT TO THE GS-5 DATA REVIEW TECHNICIAN
 POSITION RETROACTIVE TO SEPTEMBER 9, 1979.
 
    THE AGENCY FILED AN EXCEPTION TO THE ARBITRATOR'S AWARD UNDER SECTION
 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE /2/
 AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR PART
 2425). THE UNION FILED AN OPPOSITION.
 
    THE AGENCY ASSERTS THAT THE ARBITRATOR'S AWARD OF BACKPAY AND A
 RETROACTIVE PROMOTION IS NOT SANCTIONED BY THE BACK PAY ACT AND IS
 THEREFORE CONTRARY TO LAW AND MUST BE VACATED PURSUANT TO SECTION
 7122(A)OF THE STATUTE. THE KEY TO THAT ASSERTION IS THE AGENCY'S CLAIM
 THAT THE GRIEVANT WAS NOT AFFECTED BY AN "UNJUSTIFIED OR UNWARRANTED
 PERSONNEL ACTION" AS CONTEMPLATED BY THE BACK PAY ACT.  /3/ CITING
 VARIOUS DECISIONS OF THE COMPTROLLER GENERAL OF THE UNITED STATES, THE
 AGENCY CONTENDS THAT IN ORDER FOR AN "UNJUSTIFIED OR UNWARRANTED
 PERSONNEL ACTION" TO HAVE TAKEN PLACE IN THIS CASE IT MUST HAVE BEEN
 DETERMINED THAT IN NOT PLACING THE GRIEVANT IN THE HIGHEST GRADE LEVEL
 IN THE CAREER LADDER FOR WHICH SHE WAS QUALIFIED, THE ACTIVITY ABRIDGED
 A NON-DISCRETIONARY POLICY AS ESTABLISHED BY THE RELEVANT PROVISIONS OF
 THE PARTIES' COLLECTIVE BARGAINING AGREEMENT.  THE AGENCY ARGUES THAT
 BECAUSE THE COLLECTIVE BARGAINING AGREEMENT CONTAINS NO EXPLICIT
 LANGUAGE WHICH WOULD REQUIRE THAT THE GRIEVANT BE PLACED AT THE GS-5
 LEVEL, THE AGREEMENT CANNOT BE SAID TO INCORPORATE A NON-DISCRETIONARY
 POLICY TO THAT EFFECT.
 
    THE AUTHORITY FINDS THAT THE AGENCY HAS FAILED TO DEMONSTRATE THAT
 THE ARBITRATOR'S AWARD, ORDERING THE GRIEVANT RETROACTIVELY PROMOTED
 WITH BACKPAY, IS INCONSISTENT WITH THE BACK PAY ACT.  IT IS WELL
 ESTABLISHED THAT AN ARBITRATOR MAY AWARD A RETROACTIVE PROMOTION WITH
 BACKPAY TO AN AGGRIEVED EMPLOYEE WHEN THE ARBITRATOR FINDS THAT THE
 AGENCY VIOLATED ITS COLLECTIVE BARGAINING AGREEMENT AND THAT THE
 VIOLATION RESULTED IN THE DENIAL OF A PROMOTION TO THE AGGRIEVED
 EMPLOYEE THAT THE EMPLOYEE WOULD OTHERWISE HAVE RECEIVED.  /4/ IN HIS
 AWARD HEREIN, THE ARBITRATOR SPECIFICALLY FOUND THAT THE AGENCY HAD
 VIOLATED AN ESTABLISHED PAST PRACTICE WHEN IT FAILED TO PLACE THE
 GRIEVANT AT THE HIGHEST GRADE LEVEL FOR WHICH SHE WAS QUALIFIED, AND THE
 AUTHORITY HAS PREVIOUSLY HELD THAT "(I)T IS WELL ESTABLISHED THAT 'THE
 PRACTICES OF THE INDUSTRY AND THE SHOP-- (ARE) EQUALLY A PART OF THE
 COLLECTIVE BARGAINING AGREEMENT ALTHOUGH NOT EXPRESSED IN IT.'"
 LETTERKENNY ARMY DEPOT AND NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
 LOCAL 1429, 5 FLRA NO. 35(1981), CITING STEELWORKERS V. WARRIOR AND GULF
 NAVIGATION CO., 363 U.S. 574, 582(1960).  ACCORDINGLY, THE AGENCY'S
 RELIANCE UPON THE ABSENCE OF SPECIFIC CONTRACT LANGUAGE IS MISPLACED.
 IT IS CLEAR THAT THE ARBITRATOR'S AWARD IN THIS CASE MEETS THE
 REQUIREMENTS OF THE BACK PAY ACT FOR A FINDING UNDER A COLLECTIVE
 BARGAINING AGREEMENT OF AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION.
 ACCORDINGLY, THE AGENCY'S EXCEPTION PROVIDES NO BASIS FOR FINDING THE
 AWARD DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION 2425.3 OF THE
 AUTHORITY'S RULES AND REGULATIONS.  /5/
 
    FOR THE FOREGOING REASONS AND PURSUANT TO SECTION 2425.4 OF THE
 AUTHORITY'S RULES AND REGULATIONS, THE ARBITRATOR'S AWARD IS SUSTAINED.
 
    ISSUED, WASHINGTON, D.C., MAY 29, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ 5 U.S.C. 5596 (SUPP. III 1979).
 
    /2/ 5 U.S.C. 7122(A) PROVIDES:
 
    (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
 AUTHORITY AN EXCEPTION
 
    TO ANY ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION (OTHER THAN AN
 AWARD RELATING TO A
 
    MATTER DESCRIBED IN SECTION 7121(F) OF THIS TITLE).  IF UPON REVIEW
 THE AUTHORITY FINDS THAT
 
    THE AWARD IS DEFICIENT--
 
    (1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION;  OR
 
    (2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
 PRIVATE SECTOR
 
    LABOR-MANAGEMENT RELATIONS;
 
    THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
 CONCERNING THE AWARD AS IT
 
    CONSIDERS NECESSARY, CONSISTENT WITH APPLICABLE LAWS, RULES, OR
 REGULATIONS.
 
    /3/ 5 U.S.C 5596 (SUPP. III 1979) PROVIDES IN PART AS FOLLOWS:
 
    (B)(1) AN EMPLOYEE OF AN AGENCY WHO, ON THE BASIS OF A TIMELY APPEAL
 OR AN ADMINISTRATIVE
 
    DETERMINATION (INCLUDING A DECISION RELATING TO AN UNFAIR LABOR
 PRACTICE OR A GRIEVANCE) IS
 
    FOUND BY APPROPRIATE AUTHORITY UNDER APPLICABLE LAW, RULE,
 REGULATION, OR COLLECTIVE
 
    BARGAINING AGREEMENT, TO HAVE BEEN AFFECTED BY AN UNJUSTIFIED OR
 UNWARRANTED PERSONNEL ACTION
 
    WHICH HAS RESULTED IN THE WITHDRAWAL OR REDUCTION OF ALL OR PART OF
 THE PAY, ALLOWANCES, OR
 
    DIFFERENTIALS OF THE EMPLOYEE--
 
    (A) IS ENTITLED, ON CORRECTION OF THE PERSONNEL ACTION, TO RECEIVE
 FOR THE PERIOD FOR WHICH
 
    THE PERSONNEL ACTION WAS IN EFFECT--
 
    (I) AN AMOUNT EQUAL TO ALL OR ANY PART OF THE PAY, ALLOWANCES, OR
 DIFFERENTIALS, AS
 
    APPLICABLE WHICH THE EMPLOYEE NORMALLY WOULD HAVE EARNED OR RECEIVED
 DURING THE PERIOD IF THE
 
    PERSONNEL ACTION HAD NOT OCCURRED, LESS ANY AMOUNTS EARNED BY THE
 EMPLOYEE THROUGH OTHER
 
    EMPLOYMENT DURING THAT PERIOD(.)
 
    /4/ VETERANS ADMINISTRATION HOSPITAL AND AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, LODGE 2201, 4 FLRA NO. 57(1980);  AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2814 AND FEDERAL RAILROAD
 ADMINISTRATION, DEPARTMENT OF TRANSPORTATION, 3 FLRA NO.  21(1980).
 
    /5/ THE AUTHORITY NOTES THAT, IN THE CIRCUMSTANCES OF THIS CASE,
 MANAGEMENT COULD HAVE DECIDED TO FILL THE POSITION AT THE LOWEST GRADE
 LEVEL BY POSTING THE ENTRY JOB ONLY AT THAT LEVEL OR BY SELECTING AN
 APPLICANT WHO WAS CERTIFIED AS QUALIFIED ONLY AT THE LOWEST GRADE LEVEL.
  IN THIS REGARD, AS STATED BY THE ARBITRATOR IN HIS AWARD AT PAGE 11:
 
    (T)HE (ACTIVITY) IS NOT NECESSARILY IMPEDED BY THE (PAST) PRACTICE
 FROM MEETING ITS OBJECTIVE OF FILLING A POSITION AT THE LOWEST GRADE LEVEL IN
 ALL CASES . . . IF THE EMPLOYEE IS CERTIFIED ONLY AT GS-4, THE (ACTIVITY) HAS NO
 OBLIGATION TO PLACE THAT EMPLOYEE AT A HIGHER LEVEL.