40:1169(103)AR - - Interior, Bureau of Reclamation, Lower CO Dams Project Office, Boulder City, NV and AFGE Local 1978 - - 1991 FLRAdec AR - - v40 p1169
[ v40 p1169 ]
The decision of the Authority follows:
40 FLRA No. 103
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Charles N. Carnes filed by the Agency pursuant to section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union did not file an opposition to the Agency's exceptions.
Two general schedule (GS) reclamation guides employed by the Agency were assigned weekend overtime duties in the Maintenance Division. The employees contended that they were performing the duties of wage board (WB) mechanic helpers and should have been compensated at the WB overtime rate, rather than the GS overtime rate they received. The Union grieved the Agency's decision not to pay the grievants at the WB overtime rate. The Arbitrator sustained the grievance and directed the Agency to pay the grievants an amount equal to the difference between their regular GS rate and that of the WB rate he found the grievants should have received.
For the reasons stated below, we conclude that the Agency's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
The Union represents both GS employees and WB employees at the Agency. The Union has negotiated separate collective bargaining agreements governing the GS unit and the WB unit.
The grievants were employed as GS reclamation guides. The grievants volunteered to perform WB duties in the Agency's Maintenance Division on the weekends to "earn overtime and gain experience." Award at 12-13. The Chief of the Maintenance Division recommended that the grievants be assigned to perform the WB duties because he believed using the grievants would involve "'low dollar cost' part-time help." Id. at 13. There was no specific discussion about the proper overtime pay rates. However, the grievants "were under the impression that their pay would be 'adjusted' to reflect the difference between their GS rate and the WB rate for the job they were performing [on overtime]." Id. (1)
The grievants worked the weekend overtime assignments between March 1988 and December 4, 1988. They were compensated at an overtime rate of one and one-half times their GS salaries. In December 1988, the grievants were temporarily promoted to WB mechanic helper positions and assigned on a full-time basis to the Maintenance Division. At the time of the grievants' promotions the rate of pay for hydroelectric mechanic (HEM) helpers was being negotiated and that rate of pay was frozen pending the outcome of negotiations. After the issue was settled the grievants' pay was adjusted. However, the grievants did not receive compensation at the WB rate for the work they performed on overtime between March 1988 and December 4, 1988. The Agency did not adjust the grievants' pay to that of a WB employee because the grievants were considered to have "'volunteered' for overtime as GS employees and were paid accordingly." Id. at 13.
The Union claimed that as the grievants were performing WB mechanic helper duties on the weekends, they should have been compensated--as were past similarly-situated GS employees--at the higher WB overtime rate instead of the GS overtime rate they received. The Union filed a grievance over the Agency's refusal to pay the grievants "at the prevailing rate for the job classification" that they performed in the Maintenance Division between March 1988 and December 4, 1988. Id. at 14. Subsequently, the grievance was submitted to arbitration on the following stipulated issue: "What was the appropriate rate of pay for [the grievants] when [they] worked in the Maintenance Division from March 16, 1988, until December 4, 1988?" Id. at 17.
The Arbitrator determined that the grievants received temporary transfers from the GS unit to the WB unit when they were assigned weekend overtime duties in the Maintenance Division. The Arbitrator found that the inter-unit transfers were contemplated in the parties' collective bargaining agreements. The Arbitrator also found that neither the GS Agreement nor the WB Agreement requires a formal personnel or promotion action for temporary transfers of employees out of classification. The Arbitrator cited Article 10, section 3 of the parties' WB Supplementary Employee-Management Agreement No. 1 (WB Supplementary Agreement) and Article VIII of the GS Working Rules Agreement as the basis for paying an employee at a higher rate of pay when the employee performs work outside of their classification. Id. at 19-20.(2)
The Arbitrator further found that if the grievants "had been doing the work of a higher classification in their own [GS] unit" or "[i]f they had been WB employees assigned to do work in their WB unit[,] they would have qualified for higher pay under the terms of the [GS Working Rules Agreement or WB Supplementary Agreement, respectively]." Id. at 20. The Arbitrator concluded that "[i]t is inconceivable that after establishing the same agreed pay policy in both Agreements in respect to temporary assignments within each unit that the parties would have intended to not make the same policy applicable to the same kind of transfers between the units." Id. Further, the Arbitrator determined that "[n]othing in either Agreement prohibits such an application, and [that] the past practice for GS employees who have done WB work has been to pay them the difference in pay rates if the WB job carried a higher rate." Id.
The Arbitrator found that the part-time work that the grievants performed in the WB unit "would have to have been done in the lowest job classification in that unit, the [Hydroelectric Mechanic (HEM)] Helper." Id. at 22. The Arbitrator also found that the rate of pay of the hydroelectric mechanic helper was higher than the rate of pay of the GS reclamation guide. The Arbitrator stated that "the WB Agreements require that when work is done in any one of the WB classifications the Agency must pay the worker who does that job at the rate prescribed for the job." Id. at 21. Because "nothing in the WB Agreements excepts GS transferees from the operation of [the negotiated WB pay rules] when they are temporarily transferred to do WB work[,]" the Arbitrator concluded that "the [g]rievants should have been paid at the level equal to the start rate applicable to [the] HEM Helper position." Id. at 21, 22. According to the Arbitrator, in addition to their regular GS reclamation guide rate of pay, the grievants should have been paid "an amount equal to the difference between their Guide rates and that of the HEM Helper start rate for each of the weekends and part weekends they worked from March 16, 1988 until their transfer out of the GS unit on December 4, 1988." Id. at 22.
Accordingly, the Arbitrator sustained the grievance and directed the Agency to "promptly pay the [g]rievants an amount equal to the difference between their regular Guide rates and that of the appropriate HEM Helper rate for each of the weekends and part weekends they worked in the Maintenance Division from March 16, 1988, until December 4, 1988." Id.
III. First Exception
A. Agency's Contentions
The Agency contends that the Arbitrator's award is contrary to law. Specifically, the Agency contends that the award violates its right under section 7106(a)(2)(A) of the Statute to hire and assign employees and its right under section 7106(a)(2)(C) to make appointments.
The Agency states that in order for an employee to be entitled to compensation as a civilian employee of the Federal government "the employee must be appointed (temporarily promoted)" in accordance with applicable laws, rules and regulations "for assignment to an authorized position or office." Exceptions at 2. The Agency further states that this "appointment (temporary promotion) is made by an officer of the [A]gency to whom such authority has been delegated under 5 U.S.C. 302(b)." Id. The Agency argues that "[w]hat the Arbitrator failed to discern when he concluded 'that nothing in the WB Agreements excepts GS transferees from the operation' of the negotiated WB pay rules is that the mere performance of work outside of one's primary classification does not constitute a transfer or appointment in the technical, entitling sense of the term." Id. at 3, quoting Award at 21 (emphasis supplied by the Agency). The Agency asserts that a transfer does not take place "until cognizant management has exercised its 5 U.S.C. 7106(a)(2) rights of appointment." Id. at 3. In this regard, the Agency states that "it is not until . . . official personnel action takes place that the negotiated provisions of the wage board agreement become applicable to the employee." Id.
B. Analysis and Conclusions
The Agency's exception is unclear. It is not apparent whether the Agency is claiming the award is contrary to law because the legal prerequisites for the higher pay ordered by the Arbitrator have not been met, or whether the Agency is claiming that the award directly interferes with management's rights to assign and to select employees because it requires the appointment of the grievants to the higher-paying WB positions.
To the extent that the Agency is claiming that the award is deficient because the applicable legal prerequisite of appointment to the higher-paying position by a duly authorized official has not been met, we reject that exception. Where parties to a collective bargaining agreement provide for the temporary promotion of employees assigned to perform the work of a higher-graded position, an arbitrator may order the temporary promotion of an employee and backpay in accordance with that agreement. See U.S. Department of the Navy, Long Beach Naval Shipyard, Long Beach, California and International Federation of Professional and Technical Engineers, Local 174, 37 FLRA 1111 (1990).
The Arbitrator determined that the assignments to the WB positions were governed by the temporary promotion articles of the parties' collective bargaining agreements. The Arbitrator cited Article IV of the parties' GS agreement, which provides that pay for work "in a higher classification will be in accordance with [the] temporary promotion article." Award at 16. The Arbitrator also relied on Article VIII of the collective bargaining agreement covering the grievants' GS positions, which provides that "[i]f employees are assigned to higher paid unit positions for 8 hours or more, they will be paid at the higher rate provided . . . they are qualified for the higher paid unit position." Id. Section (e) of Article VIII also provides that employees "shall not be expected to serve in higher paid unit position[s] without proper compensation in accordance with [Article VIII]." Id. at 17. The Arbitrator also found that Article 10, section 3 of the WB Supplementary Agreement, which is applicable to the WB unit to which the grievants were transferred for the part-time work assignments, provides that an employee shall be paid at a higher rate of pay when the employee performs work outside of their classification in a higher-rated position. Id. at 20.
According to the Arbitrator, the agreement provisions cited above showed that the parties intended that the grievants' temporary transfers to the WB unit would be treated as temporary promotions and that employees temporarily transferred to a higher-graded position would be compensated in accordance with the temporary promotion article. Id. at 20. The Arbitrator concluded that because the grievants were temporarily transferred to the WB unit and they performed the work of the WB positions, they are entitled to be compensated at the rate of the higher-rated WB positions. Id. at 21. We find that the Arbitrator merely enforced the provisions of the parties' collective bargaining agreements as interpreted by him. The Agency has not demonstrated that the Arbitrator's interpretation of the parties' agreements is contrary to law.
To the extent that the Agency is claiming that the award is deficient because it requires the Agency to assign the grievants to the WB positions or select the grievants for appointment to the WB positions, we also reject that exception. The Arbitrator found that the grievants were recommended for the part-time assignments in the Maintenance Division by the Chief of the Maintenance Division. Award at 13. The Arbitrator states that "[u]se of the [grievants] was approved to begin in March of 1988." Id. Thus, the decision to select the grievants and the decision to assign them to perform work in the wage board unit was made by the Agency and is not required by the award. The award only requires the Agency to pay the grievants for work performed by them in the WB unit at the wage rate of the appropriate WB position as provided by the parties' collective bargaining agreements.
We find that the Arbitrator's award does not interfere with the Agency's discretion to select employees for higher-graded positions or the Agency's right to assign employees higher-graded duties. Rather, the Arbitrator's award merely determined, based on the parties' collective bargaining agreement, the appropriate rate of compensation for the WB work performed by the grievants in the WB unit after they were selected for and assigned to perform the WB work by the Agency. The Agency has not demonstrated that, by determining the appropriate rate of compensation for the WB work performed by the grievants, the Arbitrator issued an award that directly interferes with the Agency's rights under section 7106(a)(2)(A) and (C) of the Statute.
We conclude that the Agency has not established that the award is contrary to law or that the award directly interferes with the Agency's rights under section 7106(a)(2)(A) and (C) of the Statute.
IV. Second Exception
A. Agency's Contentions
The Agency contends that the Arbitrator's determination "that the WB Agreement requires that when work is done in any one of the WB classifications, the Agency must pay the worker who does that job at the rate prescribed for the job" violates Federal Personnel Manual (FPM) chapter 335, Requirement 3, which is a Government-wide regulation. Exceptions at 3 (quoting Award at 21). The Agency argues that "[a] literal reading of this determination would require the [Agency] to temporarily promote GS employees whenever they perform WB work even if they do not meet Office of Personnel Management (OPM) regulations" which provide that employees must be qualified under OPM qualification standards. Exceptions at 3.
The Agency concedes that "[t]he Arbitrator in discussing the two specific employees who had grieved this issue did discuss the contract language in both the GS contract and the WB contract requiring employees to be qualified prior to receiving temporary promotions." Id. However, the Agency asserts that the Arbitrator failed to "add the provision that employees must be qualified[.]" Id. at 4. The Agency states that "[t]his ambiguity is significant in terms of the parties' future determination of contractual requirements." Id. Accordingly, the Agency argues that "this portion of the Arbitrator's award directly violates the Governmentwide [sic] regulation requiring employees to be qualified prior to being promoted." Id.
B. Analysis and Conclusions
As we interpret it, the Agency's exception is that the award violates FPM chapter 335, subchapter 1-4, Requirement 3 because it requires that employees be temporarily promoted to a position without a determination that they are qualified for the position. We find that the Agency has failed to establish that the award is contrary to FPM chapter 335, subchapter 1-4, Requirement 3.
The Arbitrator ordered that the grievants be paid at the rate of the HEM Helper for the work performed by them in the wage board unit because he found that the "part-time work which the [g]rievants did in the WB unit would have to have been done in the lowest job classification in that unit, the HEM Helper." Id. at 22. Thus, the Arbitrator determined that the WB position to which the grievants could have been properly promoted was HEM Helper. The Agency does not claim that the grievants were not qualified for the HEM Helper positions. Consequently, the Agency has failed to demonstrate that the Arbitrator's award requiring that the grievants be temporarily promoted to, and paid at the rate of, the HEM Helper positions is contrary to FPM chapter 335, subchapter 1-4, Requirement 3. Compare American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 38 FLRA 89, 97 (1990) (award granting a temporary promotion was modified to provide for grievant's temporary promotion for all times that grievant met the minimum qualification requirements, where arbitrator did not address the grievant's qualifications to be temporarily promoted, agency had not substantiated that grievant was not qualified, and facts showed that grievant met minimum qualifications at some point because she received a permanent promotion); U.S. Department of Veterans Affairs, Medical Center, Buffalo, New York and Service Employees International Union, Local 200-C, 37 FLRA 379 (1990) (where the arbitrator found no evidence to show that the grievant was fully qualified for a higher-graded position, arbitrator's award temporarily promoting grievant to that position was remanded to parties to seek clarification as to whether the grievant was qualified for the temporary promotion). We conclude, therefore, that the Agency's exception does not provide a basis for finding the award deficient.
We note that the Agency also contends that as to employee qualifications, the award is "unacceptably ambiguous" because the Arbitrator "directs payment when 'work is done in any one of the WB classifications[.]'" Exceptions at 4. The Agency claims that "[t]his ambiguity is significant in terms of the parties' future determination of contractual requirements" because it would require in the future that employees receive a temporary promotion if they perform work in one of the WB classifications without regard to whether employees are qualified for a WB position. Id. However, the award does not mandate future temporary promotions without regard to the qualifications of employees. The award only resolves this grievance, consistent with the terms of the parties' collective bargaining agreement, by requiring the grievants to be paid for the work they performed in the WB unit at the rate of the WB position for which the grievants were qualified.
Therefore, we reject the Agency's argument that the award is "unacceptably ambiguous" and that it cannot comply with the award because of its ambiguity. The Agency's claim that the award is ambiguous does not provide a basis for finding the award deficient. Compare U.S. Department of Justice, Bureau of Prisons, Federal Correctional Institution, El Reno, Oklahoma and American Federation of Government Employees Local 171, 37 FLRA 559 (1990) (ambiguous award remanded to arbitrator to clarify whether the requirements of an applicable regulation have been met and to clarify the period of time encompassed by the remedy).
V. Third Exception
A. Agency's Contentions
The Agency contends that the award does not draw its essence from the parties' collective bargaining agreements. The Agency asserts that the Arbitrator's rationale for requiring GS employees to be paid under the WB agreement "whenever they perform work associated with the [WB] bargaining unit has no contractual foundation." Exceptions at 4. The Agency argues that the Arbitrator's reasoning in this respect is "faulty." Id. The Agency states that GS and WB employees "are covered by two separate units of recognition" and have "separate contracts with separate working and pay rules." Id. The Agency maintains that because there are different units "the pay rules do not apply between units." Id.
The Agency disputes the Arbitrator's finding that the "past practice for GS employees who have done WB work has been to pay [GS employees] the difference in pay rates if the WB job carried a higher rate." Award at 20. See also Exceptions at 4. The Agency contends that the Agency's past practice with respect to paying GS employees when they perform WB work "is just the opposite." Id. The Agency concedes that it has paid GS employees at a WB rate, but only under two specific conditions authorized by OPM: "1) when a GS employee applies and is selected from a vacancy notice for a temporary promotion in the WB unit, and 2) [when a GS employee] is appointed without competition for less tha[n] 120 days to the WB position." Id. at 5. The Agency argues that the grievants' circumstances "fit neither of these conditions." Id.
Further, the Agency asserts that during the parties' 1989 negotiations the Union proposed language "that would have required the [Agency] to pay GS employees the WB rate of pay whenever they were assigned WB work" and that it did not agree to the proposal. Id. at 4. The Agency contends that "[t]here is no co