National Labor Relations Board Union, Local 19 (Union) and Office of the General Counsel, National Labor Relations Board (Activity)
[ v07 p21 ]
07:0021(7)AR
The decision of the Authority follows:
7 FLRA No. 7
NATIONAL LABOR RELATIONS
BOARD UNION, LOCAL 19
Union
and
OFFICE OF THE GENERAL COUNSEL,
NATIONAL LABOR RELATIONS BOARD
Activity
Case No. O-AR-77
DECISION
THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
ARBITRATOR CARLTON J. SNOW FILED BY THE AGENCY UNDER SECTION 7122(A) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
7122(A)) (THE STATUTE).
ACCORDING TO THE ARBITRATOR, THIS CASE AROSE WHEN THE GRIEVANT, A
FIELD EXAMINER, WAS NOT PROMOTED SO THE DISPUTE SUBMITTED TO ARBITRATION
ONLY INVOLVED HIS FAILURE TO RECEIVE BACKPAY FOR THE PERIOD DURING WHICH
HE HAD BEEN DENIED THE PROMOTION. THE PARTIES AGREED THAT THE ISSUE
BEFORE THE ARBITRATOR WAS:
AS A RESULT OF THE ADVERSE RECOMMENDATION FOR PROMOTION OF (THE
GRIEVANT) FROM GRADE GS-11
TO GS-12, DID MANAGEMENT VIOLATE ARTICLE IV, SECTION 5; ARTICLE VI,
SECTIONS 1 AND 2; AND
ARTICLE VII, SECTION 2(A) OF THE AGREEMENT BETWEEN THE PARTIES? IF
SO, WHAT SHALL BE THE
APPROPRIATE REMEDY?
THE ARBITRATOR DETERMINED THAT THE ACTIVITY HAD FILED TO PROVIDE THE
GRIEVANT WITH TRAINING ESSENTIAL TO CORRECT A WRITING DEFICIENCY AND
THAT IN DOING SO IT VIOLATED ARTICLE VI, SECTION 2 AND ARTICLE IV,
SECTION 5 OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT. /1/ IN
ARRIVING AT THIS CONCLUSION, THE ARBITRATOR SPECIFICALLY FOUND THAT THE
GRIEVANT'S WRITING PROBLEM WAS THE MAJOR IMPEDIMENT TO HIS PROMOTION AND
THAT THE EVIDENCE INDICATED THAT IN OTHER RESPECTS HE WAS PERFORMING
ADEQUATE, JOURNEYMAN LEVEL WORK. THUS, THE ARBITRATOR FOUND THAT THE
FAILURE TO TRAIN THE GRIEVANT PLAYED A CRUCIAL ROLE IN THE DENIAL OF HIS
PROMOTION AND THAT, BUT FOR THIS FAILURE BY THE ACTIVITY, THE GRIEVANT
WOULD HAVE BEEN PROMOTED. THE ARBITRATOR ISSUED THE FOLLOWING AWARD:
HAVING CAREFULLY CONSIDERED ALL EVIDENCE SUBMITTED BY THE PARTIES IN
THIS MATTER, THE
ARBITRATOR CONCLUDES THAT THE EMPLOYER VIOLATED SECTION 5 OF THE
ARTICLE IV AND SECTION 2 OF
ARTICLE VI OF THE COLLECTIVE BARGAINING AGREEMENT BETWEEN THE
PARTIES.
THE REMEDY IS TWOFOLD. THE EMPLOYER SHALL FASHION A CAREER PLANNING
PROGRAM FOR THE
GRIEVANT WHICH TAKES INTO CONSIDERATION THE FIVE FACTORS ENUMERATED
IN SECTION 2 OF ARTICLE VI
AND IS DESIGNED TO ALLEVIATE THE GRIEVANT'S WRITING PROBLEM. SECOND,
THE GRIEVANT SHALL BE
MADE WHOLE REGARDING PAY OR ANY OTHER BENEFITS LOST BY HIM DURING THE
PERIOD FROM JULY 4, 1976
TO FEBRUARY 1, 1978 AS A RESULT OF THE CONTRACTUAL VIOLATIONS BY THE
EMPLOYER. BOTH PARTS OF
THE REMEDY SHALL BE ACCOMPLISHED WITHIN SEVENTY-FIVE DAYS OF THE DATE
OF THIS REPORT.
THE ARBITRATOR SHALL RETAIN JURISDICTION OF THIS MATTER FOR NINETY
DAYS FROM THE DATE OF
THIS REPORT IN ORDER TO RESOLVE ANY PROBLEMS RESULTING FROM THE
AWARD. IT IS SO ORDERED AND
AWARDED.
THE AGENCY FILED AN EXCEPTION TO THE ARBITRATOR'S AWARD UNDER SECTION
7122(A) OF THE STATUTE /2/ AND PART 2425 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR PART 2425). THE UNION FILED AN OPPOSITION.
IN ITS EXCEPTION THE AGENCY STATES THAT WHILE IT "BELIEVES THAT THE
ARBITRATOR'S AWARD OF MONETARY COMPENSATION TO THE GRIEVANT IS A FAIR
AND EQUITABLE WAY TO REMEDY THE CONTRACTUAL VIOLATIONS WHICH HAVE BEEN
FOUND," THERE IS "A SERIOUS QUESTION" AS TO WHETHER IT CAN PAY THE AWARD
UNDER THE PROVISIONS OF THE BACK PAY ACT OF 1966 /3/ AND ITS
IMPLEMENTING REGULATIONS. /4/ IN SUPPORT OF ITS EXCEPTION THE AGENCY
ARGUES THAT A FEDERAL EMPLOYEE IS ENTITLED TO RECEIVE ONLY THE SALARY OF
THE POSITION TO WHICH HE OR SHE WAS APPOINTED AND COMPENSATION MAY BE
RETROACTIVELY ADJUSTED ONLY IF THE CRITERIA OF THE BACK PAY ACT AND
IMPLEMENTING REGULATIONS ARE MET. THE AGENCY ASSERTS THAT THESE
CRITERIA REQUIRE THAT THE CONTRACT PROVISION FOUND TO HAVE BEEN VIOLATED
MUST MANDATE THAT A PROMOTION OR OTHER PERSONNEL ACTION OCCUR IN ORDER
TO CONSTITUTE A "NONDISCRETIONARY PROVISION" WITHIN WITH MEANING OF 5
CFR 550.802(D). /5/ IN THIS CASE THE AGENCY "QUESTION(S) WHETHER
ARTICLE VI AND ARTICLE IV, SECTION 5 OF THE AGREEMENT ARE
NONDISCRETIONARY PROVISIONS WITHIN THE MEANING OF THE (BACK PAY ACT) AND
ITS IMPLEMENTING REGULATIONS." THE AGENCY ARGUES THAT "APPLICABLE CASE
LAW SEEMS TO INDICATE THAT PARTICLE VI IS NOT A NONDISCRETIONARY
PROVISION WHICH MANDATES THAT EMPLOYEES BE PROMOTED AFTER THEY RECEIVE
TRAINING." /6/
THE UNION ARGUES IN ITS OPPOSITION THAT ARTICLE VI, SECTION 2 OF THE
AGREEMENT REQUIRES THE AGENCY TO TAKE A PRESCRIBED ACTION UNDER STATED
CONDITIONS OR CRITERIA WHICH, COUPLED WITH THE ARBITRATOR'S FINDING THAT
THE VIOLATION OF THIS PROVISION WAS THE DIRECT CAUSE OF THE DENIAL OF
THE GRIEVANT'S PROMOTION, BRINGS THE GRIEVANT'S CLAIM SQUARELY WITHIN
THE BACK PAY ACT AND ITS IMPLEMENTING REGULATIONS.
THE AGENCY'S EXCEPTION, THAT THE AWARD IS CONTRARY TO THE BACK PAY
ACT AND ITS IMPLEMENTING REGULATIONS, STATES A GROUND UPON WHICH THE
AUTHORITY WILL FIND AN AWARD DEFICIENT UNDER SECTION 7122(A)(1) OF THE
STATUTE. HOWEVER, IN THIS CASE, THE AGENCY HAS FAILED TO ESTABLISH THAT
THE AWARD, ORDERING THE AGENCY TO MAKE THE GRIEVANT "WHOLE REGARDING PAY
OR ANY OTHER BENEFITS LOST BY HIM . . . AS A RESULT OF THE CONTRACTUAL
VIOLATIONS," IS CONTRARY TO EITHER 5 U.S.C. 5596 OR 5 CFR PART 550,
SUBPART H. AS PREVIOUSLY NOTED, THE ARBITRATOR SPECIFICALLY FOUND THAT
"MANAGEMENT'S FAILURE TO PROVIDE TRAINING (AS REQUIRED BY THE CONTRACT)
PREVENTED THE GRIEVANT FROM RESOLVING HIS WRITING PROBLEM AND, IN
EFFECT, CAUSED THE DENIAL OF HIS PROMOTION." AN "UNJUSTIFIED OR
UNWARRANTED PERSONNEL ACTION" ENTITLING AN EMPLOYEE TO BACKPAY INCLUDES
AN ACT OF OMISSION WHICH IS FOUND TO VIOLATE A PROVISION OF A COLLECTIVE
BARGAINING AGREEMENT THAT "REQUIRES AN AGENCY TO TAKE A PRESCRIBED
ACTION UNDER STATED CONDITIONS OR CRITERIA." 5 CFR 550.802(C) AND (D).
THE ARBITRATOR DETERMINED THAT "THE PARTIES AGREED TO CONTRACTUAL
PROVISIONS MANDATING SUCH SPECIALIZED TRAINING" AND CONCLUDED ON THE
RECORD BEFORE HIM THAT "BUT FOR (THE GRIEVANT'S FAILURE TO RECEIVE) SUCH
TRAINING, HE WOULD HAVE BEEN PROMOTED" SINCE "(I)N OTHER RESPECTS, THE
GRIEVANT WAS PERFORMING ADEQUATE, JOURNEYMAN LEVEL WORK." THUS, THE
ARBITRATOR DETERMINED THAT THE CONTRACTUAL PROVISIONS REQUIRED THE
ACTIVITY TO TAKE PRESCRIBED ACTIONS UNDER STATED CONDITIONS AND
FORMULATED A REMEDY TO MAKE THE EMPLOYEE WHOLE FOR THE ACTIVITY'S
FAILURE TO DO SO. THE ACTIVITY APPEARS TO BE ARGUING THAT THE AGREEMENT
PROVISION FOUND TO BE VIOLATED MUST CONTAIN SPECIFIC LANGUAGE THEREIN
MANDATING A PROMOTION BEFORE ONE CAN BE GIVEN AND BACKPAY PAID UNDER THE
BACK PAY ACT. HOWEVER THERE IS NOTHING IN EITHER THE BACK PAY ACT OR
ITS IMPLEMENTING REGULATIONS TO SUPPORT SUCH AN ASSERTION. THUS, WHERE
AN ARBITRATOR HAS FOUND THAT THE AGREEMENT MANDATES THAT A PARTICULAR
ACTION BE TAKEN (AS IN THIS CASE, PROVIDING AN EMPLOYEE WITH TRAINING IN
A PARTICULAR AREA) AND THAT THE FAILURE TO TAKE THAT ACTION DIRECTLY
RESULTED IN AN EMPLOYEE NOT RECEIVING A PROMOTION THE EMPLOYEE OTHERWISE
WOULD HAVE RECEIVED, THAN AN ARBITRATOR'S AWARD DIRECTING THE PROMOTION
AND CORRESPONDING BACKPAY IS CLEARLY CONSISTENT WITH THE EMPLOYEE'S
STATUTORY ENTITLEMENT "TO RECEIVE FOR THE PERIOD FOR WHICH THE
(UNJUSTIFIED AND UNWARRANTED) PERSONNEL ACTION WAS IN EFFECT . . . 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 . . . ." /7/ THEREFORE, THE AGENCY'S EXCEPTION DOES NOT PROVIDE
A BASIS FOR FINDING THE AWARD DEFICIENT UNDER 5 U.S.C. 7122 AND SECTION
2425.3 OF THE AUTHORITY'S RULES AND REGULATIONS. /8/
FOR THE FOREGOING REASONS, THE AGENCY'S EXCEPTIONS ARE DENIED.
ISSUED, WASHINGTON, D.C., OCTOBER 15, 1981.
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES: ---------------
/1/ ACCORDING TO THE ARBITRATOR, ARTICLE VI, SECTION 2 PROVIDES:
ARTICLE VI: CAREER DEVELOPMENT AND TRAINING
SECTION 2. FACTORS TO BE CONSIDERED IN DEVELOPING CAREER PLANNING
AND TRAINING FOR UNIT
EMPLOYEES SHALL INCLUDE: (A) EDUCATION, (B) RELEVANT EXPERIENCE, (C)
PAST AND PRESENT JOB
PERFORMANCE, (D) RELEVANT INDIVIDUAL SKILLS AND CHARACTERISTICS, AND
(E) ESTIMATION OF
INDIVIDUAL POTENTIAL. THESE FACTORS DO NOT REFER TO THE CRITERIA FOR
PROMOTION.
ACCORDING TO THE ARBITRATOR, ARTICLE VI, SECTION 5 PROVIDES:
ARTICLE IV: RIGHTS AND OBLIGATIONS OF EMPLOYEES
SECTION 5. EMPLOYEES WILL NOT BE SUBJECT TO ARBITRARY OR
UNREASONABLE ACTS BY SUPERVISORY
PERSONNEL. HOWEVER, THIS SECTION IS NOT INTENDED TO BE USED AS A
PROCEDURE FOR PROTESTING THE
GENERAL POLICIES, PRACTICES OR PROCEDURES OF THE AGENCY WITHIN THE
MEANING OF ARTICLE III,
SECTIONS 1(B) AND 2.
/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, RULES, 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 (1976 AND SUPP. III 1979) WHICH PROVIDES IN
PERTINENT PART:
(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, ALLOWANCE, 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;
(3) FOR THE PURPOSE OF THIS SUBSECTION, "GRIEVANCE" AND "COLLECTIVE
BARGAINING
AGREEMENT" HAVE THE MEANINGS SET FORTH IN SECTION 7103 OF THIS TITLE,
"UNFAIR LABOR
PRACTICE" MEANS AN UNFAIR LABOR PRACTICE DESCRIBED IN SECTION 7116 OF
THIS TITLE, AND
"PERSONNEL ACTION" INCLUDES THE OMISSION OR FAILURE TO TAKE AN ACTION
OR CONFER A BENEFIT.
/4/ 5 CFR PART 550, SUBPART H (1981).
/5/ 5 CFR 550.802(D) PROVIDES:
(D) "NONDISCRETIONARY PROVISION" MEANS ANY PROVISION OF LAW,
EXECUTIVE ORDER, REGULATION,
PERSONNEL POLICY ISSUED BY AN AGENCY TO TAKE A PRESCRIBED ACTION
UNDER STATED CONDITIONS OR
CRITERIA.
/6/ IN SUPPORT OF THIS ARGUMENT THE AGENCY CITES NUMEROUS COMPTROLLER
GENERAL DECISIONS, RELYING PRIMARILY ON THE DECISION IN THE MATTER OF
JOHN CAHILL, 58 COMP.GEN 59(1978).
/7/ 5 U.S.C. 5596(B)(1)(A)(I) (SUPP. III 1979).
/8/ WE DO NOT FIND THE COMPTROLLER GENERAL GENERAL DECISIONS CITED BY
THE AGENCY AND ISSUED PRIOR TO ENACTMENT OF THE CIVIL SERVICE REFORM ACT
OF 1978 TO BE CONTROLLING IN THIS CASE. THUS, WHERE AN ARBITRATOR HAS
SPECIFICALLY FOUND THAT AN AGENCY IS REQUIRED UNDER A COLLECTIVE
BARGAINING AGREEMENT TO TAKE A PRESCRIBED ACTION UNDER STATED CONDITIONS
OR CRITERIA AND THAT ITS FAILURE TO DO SO HAS DIRECTLY RESULTED IN THE
EMPLOYEE'S FAILURE TO RECEIVE A PROMOTION HE OR SHE WOULD OTHERWISE HAVE
RECEIVED, THE AUTHORITY, IN ACCORDANCE WITH THE LIMITED REVIEW OF
ARBITRATION AWARDS MANDATED BY THE STATUTE, WILL NOT RE-EXAMINE OR
REINTERPRET THE COLLECTIVE BARGAINING AGREEMENT PROVISIONS WHICH WERE
BEFORE THE ARBITRATOR.