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51:0594(53)AR - - NTEU Chapter 231 and Treasury, Customs Service, North Central Region, Chicago, IL - - 1995 FLRAdec AR - - v51 p594

[ v51 p594 ]
The decision of the Authority follows:

51 FLRA No. 53
















December 7, 1995


Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Sinclair Kossoff filed by the Union under section 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.

The Arbitrator denied a grievance requesting that the grievant be granted a retroactive temporary promotion. For the following reasons, we conclude that the Union's exceptions fail to establish that the award is deficient under section 7122(a) of the Statute. Therefore, we deny the exceptions.

II. Arbitrator's Award

The grievant occupies the position of Station Director at the Wild Horse, Montana border crossing, a one-person station. Station Director positions at one-person stations are classified at the GS-9 level. The Union filed a grievance on behalf of the grievant, claiming that he had performed the duties of a GS-11 Port Director position for over 3 years, and that the Agency had violated Article 20, sections 8.B, 9.A, and 11.C of the parties' collective bargaining agreement by failing to provide the grievant a temporary promotion.(1) The Agency denied the grievance, based on its position that the grievant was not detailed to another position, as the term "detail" is defined in the bargaining agreement.(2) The grievance was submitted to arbitration.

As relevant here,(3) the Arbitrator concluded that the grievant was not entitled to a temporary promotion. The Arbitrator rejected the Agency's argument that a change in job duties was required to meet the definition of "detail" contained in Authority case law and in the bargaining agreement. The Arbitrator found that even though the grievant's duties had not been changed, if the grievant had been performing GS-11 duties since his initial assignment as Station Director, then he would have been constructively detailed to the GS-11 position simultaneously with that initial assignment. However, the Arbitrator determined that the grievant did not perform the duties of a GS-11 Port Director. Specifically, the Arbitrator found that "the identity of the location as a port or a station determines the grade level of the Customs Inspector assigned there and not vice versa." Award at 19. The Arbitrator noted, in this regard, that both Port Director and Station Director positions previously were classified at the GS-9 level but that, pursuant to classification audits of both positions, only the Port Director positions were upgraded. The Arbitrator concluded that, although the grievant performed "essentially the same work" as a GS-11 Port Director, the fact the grievant performed those duties at a "station" rather than a "port" precluded a finding that he performed GS-11 work. Id. The Arbitrator determined that, in these circumstances, the grievant was not entitled to a temporary promotion, and he denied the grievance.

III. Exceptions

A. Union's Contentions

The Union contends that the award is contrary to Authority case law because the grievant satisfied the following three legal and contractual requirements for a temporary promotion: (1) the parties' collective bargaining agreement provides for temporary promotions for performing the duties of a higher-graded position; (2) the grievant temporarily performed the duties of a higher-graded position; and (3) the grievant met the minimum requirements for the position to which the grievant sought a temporary promotion. The Union disputes the Arbitrator's reliance on the difference between a "station" and a "port" in finding that the second requirement was not met. The Union contends that "it is sufficient if the employee performs the duties of a position already classified at a higher level." Exceptions at 8.

The Union also argues that the award fails to draw its essence from the parties' agreement because the award is contrary to the agreement's definition of "detail." Based on this definition, the Union contends that the fact that the grievant held the title of Station Director does not prevent a finding that he was constructively detailed to the Port Director position.

B. Agency's Opposition

The Agency argues that the second of the aforementioned requirements--that the grievant perform the duties of a higher-graded position--was not met in this case. The Agency contends that, as the Arbitrator specifically found that the grievant did not perform the duties of a GS-11 Port Director, the award is not contrary to Authority case law. The Agency also argues that the grievant was required to have performed the duties of a Port Director to meet the contractual definition of detail, and that the Arbitrator correctly concluded that the grievant could not perform those duties because he was not assigned to a port.

IV. Analysis and Conclusions

A. The Award is Not Contrary to Law

As a general rule, an employee is entitled only to the salary of the position to which the employee is appointed. U.S. Department of the Army, Fort Polk, Louisiana and National Association of Government Employees, Local R5-168, 44 FLRA 1548, 1563 (1992) (Fort Polk) (citing Cassandra McPeak and Wayne E. Dabney, 69 Comp. Gen. 140 (1989) (McPeak)). An exception to this general rule exists, permitting compensation for the temporary performance of the duties of a higher graded position, based on an agency regulation, or when the parties to a collective bargaining agreement agree to make temporary promotions mandatory for details to higher graded positions, thereby establishing a nondiscretionary agency policy which would provide a basis for backpay. U.S. Department of the Army, Army Armament Research, Development and Engineering Center and American Federation of Government Employees, Local 225, 49 FLRA 562, 565 (1994) (citing Wilson v. U.S., 229 Ct. Cl. 510 (1981) and McPeak, 69 Comp. Gen. at 141); Fort Polk, 44 FLRA at 1563.

The Arbitrator made a factual finding that the grievant did not perform the duties of the higher-graded GS-11 Port Director position because he worked at a station and not a port. The Union has not cited any law with which this finding conflicts. In addition, even if the Arbitrator erred in making this finding, no law has been cited or is apparent that requires a temporary promotion in situations where necessary conditions have been satisfied. Accordingly, the Union has not demonstrated that the award is contrary to law, and we deny this exception.

B. The Award Draws it Essence from the Parties' Bargaining Agreement

To demonstrate that an award fails to draw its essence from an agreement, the party making the allegation must show that the award: (1) is so unfounded in reason and fact, and so unconnected with the wording and the purposes of the collective bargaining agreement, as to manifest an infidelity to the obligation of the arbitrator; or (2) does not represent a plausible interpretation of the agreement; or (3) cannot in any rational way be derived from the agreement or evidences a manifest disregard of the agreement. E.g., United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-76 (1990).

The Union has not demonstrated that the award fails to draw its essence from the parties' agreement under any of these tests. The parties' agreement requires temporary promotions for details to higher graded positions. In this case, the Arbitrator found, as a matter of fact, that the grievant did not perform higher graded duties. The Union has not demonstrated that the Arbitrator's award, when examined in connection with the bargaining agreement, is unreasonable or implausible. Accordingly, the Union has not demonstrated that the award fails to draw its essence from the agreement.

V. Decision

The Union's exceptions are denied.

(If blank, the decision does not have footnotes.)

1. Article 20, section 8.B states, in pertinent part:

Details will be confined to a maximum period of one hundred and twenty days (120) days, unless prior approval for an extended detail is obtained . . . .

Article 20, section 9.A states, in pertinent part:

No employee may serve in a detail to a higher-graded position . . . on a non-competitive basis for more than thirty (30) days. In the case of a detail to a higher graded position, after thirty (30) days, one of the following courses of action will be taken:

(1) the employee will be taken off the detail; or

(2) if he meets . . . qualifications . . . and it is determined by the Employer that the employee should continue serving at the higher grade level . . . then a temporary non-competitive promotion will become effective . . . .

Article 20, section 11.C states, in pertinent part:

An employee who is detailed to a higher-graded position for thirty-one (31) days or more, and who meets the requirements of Subsection B above, will be temporarily promoted . . . .

Award at 5-6.

2. The agreement defines "detail" as "[t]he temporary assignment of an employee to a different position for a specified period, with the employee returning to his regular duties at the end of the detail." Award at 17.

3. The Arbitrator rejected the Agency's arguments that the grievance was not timely filed and that the issue concerned a classification matter. As no exceptions to these findings were filed, the Authority will not consider them.