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51:1210(96)AR - - Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine and National Association of Agriculture Employees - - 1996 FLRAdec AR - - v51 p1210

[ v51 p1210 ]
The decision of the Authority follows:

51 FLRA No. 96














April 25, 1996


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Aaron S. Wolff filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

The Arbitrator sustained, in part, a grievance alleging that the Agency violated the parties' collective bargaining agreement by failing to temporarily promote the grievants for a period of time prior to the time the grievants were permanently promoted.

For the following reasons, we conclude that the Agency's exceptions fail to establish that the award is deficient under section 7122(a) of the Statute. Therefore, we deny the exceptions.

II. Background and Arbitrator's Award

The grievants are plant protection and quarantine (PPQ) officers who, prior to April 1993, were classified at the GS-9 level. In October 1992, the grievants filed a grievance requesting that the Agency temporarily promote them to the then existing GS-11 PPQ officer position (hereinafter the "old GS-11 position"). In December 1992, the Agency denied the grievances on the grounds that the grievants were "neither detailed to GS-11 positions, nor were they assigned GS-11 duties." Award at 12. The grievances were submitted to arbitration, where the grievants requested temporary promotions from their GS-9 positions to the old GS-11 position, retroactive to a date 60 days after they allegedly first began performing the grade-controlling duties of that position. In April 1993, while the grievances were pending, the grievants were permanently promoted to a new GS-11 position.(1)  

The Arbitrator found that for 7 years prior to the grievants' permanent promotions to the new GS-11 position, the Agency had assigned the grievants duties that were substantially the same as the duties of the old GS-11 position. In addition, the Arbitrator found that both Article XIX, Section 4 of the parties' agreement(2) and APHIS Directive 444.1(3) required the Agency to temporarily promote the grievants for the period of time they performed the old GS-11 duties. The Arbitrator interpreted the language in the Directive stating that "[a] temporary promotion should be used when a situation requires the service of an employee in a higher grade position" to be mandatory and not discretionary. APHIS Directive 444.1 (emphasis added). The Arbitrator awarded the grievants back pay equal to the difference between what they earned as GS-9 officers and what they should have earned in the old GS-11 position for a period of 2 years prior to their permanent promotions to the new GS-11 position.(4)

III. Exceptions

A. Agency's Contentions

The Agency contends, first, that the award is deficient because it concerns a classification matter within the meaning of section 7121(c)(5) of the Statute.(5) The Agency claims that the award concerns a classification matter because: (1) a GS-11 position was not classified and established in the proximity of the incumbents' duty stations during the time period the grievants claimed that they performed the duties of that position; and (2) "in instances where the [g]rievants clearly performed the duties of a higher grade position in an acting capacity . . . they were temporarily promoted." Exceptions at 13.

Second, the Agency argues that the award is deficient because it is contrary to an Agency regulation. Specifically, the Agency contends that the award is contrary to APHIS Directive 444.1 because that Directive does not mandate temporary promotions. In addition, the Agency contends that the award is contrary to the Directive because the Directive provides for a temporary promotion only where "a situation requires the service of an employee in a higher grade[d] position," and that, in this case, the services of higher graded employees were not required. Id. at 9.

Third, the Agency argues that the award is deficient because it fails to draw its essence from the parties' bargaining agreement. Specifically, the Agency contends that: (1) the Arbitrator improperly relied on Article XVIII, Section 4 because that provision has nothing to do with classification of positions or with promotions;(6) and (2) the Arbitrator misinterpreted Article XIX, Section 4.

Finally, the Agency argues that the award is deficient because the Arbitrator exceeded his authority by reclassifying the positions in question from GS-9 to GS-11, and by making classification decisions based on testimony, rather than OPM Classification Standards.

B. Union's Opposition

Citing AFGE, Local 987 and U.S. Department of the Air Force, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 37 FLRA 386 (1990), the Union argues that Authority precedent establishes that a grievance over the performance of grade-controlling duties of a higher-graded position in the context of a request for a retroactive temporary promotion does not raise a classification matter within the meaning of section 7121(c)(5) of the Statute. The Union also argues that, in accordance with APHIS Directive 444.1, the Arbitrator properly determined that the grievants were entitled to retroactive temporary promotions because they performed the grade-controlling duties of the higher graded position. In addition, the Union asserts that because management assigned the grievants to higher-graded duties, management required the grievants to perform the services of the higher-graded position.

The Union also argues that the award does not fail to draw its essence from the bargaining agreement. According to the Union, the Arbitrator referred to, but did not rely on, Article XVIII, Section 4, and relied solely on Article XIX of the bargaining agreement and on the APHIS Directive.

In addition, the Union, although not directly addressing the Agency's arguments that the Arbitrator exceeded his authority, argues that the Arbitrator did not make a classification decision. Rather, according to the Union, the Arbitrator determined that the grievants performed duties that were already classified at a higher level.

IV. Analysis and Conclusions

A. The Award is Not Contrary to Law

As the Agency's first exception involves the award's consistency with law, we must review the questions of law raised by the Arbitrator's award and the Agency's exception de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)).

Section 7121(c)(5) of the Statute removes from the scope of negotiated grievance procedures and, thereby, bars an arbitrator from resolving, any grievance concerning the classification of a position that does not result in reduction in grade or pay of an employee. American Federation of Government Employees, Local 2025 and U.S. Department of the Air Force, Ninth Reconnaissance Wing, Beale Air Force Base, California, 50 FLRA 39, 42 (1994) (Beale). The Authority has construed the term "classification" in section 7121(c)(5) to have the same meaning as in 5 C.F.R. § 511.101(c), which defines the term as "the analysis and identification of a position and placing it in a class under the position-classification plan established by OPM under chapter 51 of title 5. . . ." Id. (quoting 5 C.F.R. § 511.101(c)); U.S. Department of the Army, Fort Polk, Louisiana and National Association of Government Employees, Local R5-168, 44 FLRA 1548, 1542 (1992) (Ft. Polk). Consistent with this construction, the Authority has long held that grievances concerning whether a grievant is entitled to a temporary promotion under a bargaining agreement by reason of having performed the duties of a higher-grade position do not concern the classification of a position, within the meaning of section 7121(c)(5). E.g., Beale, 50 FLRA at 42 (citing Ft. Polk).

The Agency provides no support, and none is apparent, for its bare assertion that this case involves a classification issue because, during the relevant time period, the old GS-11 position did not exist in the proximity of the incumbents' duty stations. In this regard, the Agency does not deny that the old GS-11 position existed in the Agency during that time period. The Agency also provides no support, and none is apparent, for its bare assertion that this case involves a classification issue because the grievants had received previous temporary promotions. Accordingly, consistent with long-standing Authority precedent, there is no basis on which to conclude that this award involves a classification issue. See U.S. Department of Agriculture, Forest Service and National Federation of Federal Employees, Local 450, 35 FLRA 542, 549-50 (1990) (Authority rejected agency claim that a position that is classified in the agency must also be classified in the grievant's subdivision in order for the grievant to be temporarily promoted). Therefore, we deny this exception.

B. The Award is Not Contrary to an Agency Regulation

Section 7122(a)(1) of the Statute provides that an arbitration award will be found deficient if it conflicts with any rule or regulation. For purposes of section 7122(a)(1), the Authority has defined rule or regulation to include both Government-wide and governing agency rules and regulations. U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186, 195 (1990) (Ft. Campbell). As was the case with the Agency's first exception, we review the question raised herein de novo.

Collective bargaining agreements, and not agency regulations, govern the disposition of matters to which they both apply. Ft. Campbell, 37 FLRA at 194. The Arbitrator interpreted the parties' agreement as establishing an entitlement to temporary promotions. Accordingly, the contract, not the Directive, governs the matter in dispute and we deny this Agency exception.(7) We note that, as plainly worded and interpreted by the Arbitrator, the parties' agreement provides that temporary promotions are to be handled in accordance with the Directive. As such, the agreement effectively incorporates the Directive. Where an agency regulation with which an award allegedly conflicts has been incorporated in a collective bargaining agreement, the matter becomes one of contract interpretation. Panama Canal Commission and International Association of Firefighters, Local 13, 41 FLRA 284, 292-93 (1991). As such, we will determine whether the award draws its essence from the bargaining agreement provision which incorporates the Directive. Id. at 293.

C. The Award Does Not Fail to Draw its Essence from the Parties' Collective Bargaining Agreement

To demonstrate that an award fails to draw its essence from a collective bargaining agreement, a party must show that the award: (1) is so unfounded in reason and fact and so unconnected with the wording and 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. U.S. Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 576 (1990). The Agency has not demonstrated that the award is deficient under any of these tests.

In a section titled "Background," under the subsection titled "The Grievances," the Arbitrator included a grievant's contention that Article XVIII, Section 4 of the bargaining agreement required the Agency to temporarily promote the grievant for the period of time he performed the higher graded duties. However, in his analysis, the Arbitrator based his decision on his interpretation of Article XIX and the Directive only, and did not mention Article XVIII, Section 4. As the Agency has failed to show that the Arbitrator relied on or interpreted Article XVIII, Section 4, we reject the Agency's argument that the award fails to draw its essence from that provision.

The Arbitrator concluded that the part of Article XIX, Section 4 stating that the Agency "shall" follow the Directive was mandatory. The Agency has provided no argument that the Arbitrator incorrectly interpreted this provision. The Agency, therefore, has failed to show that the Arbitrator's interpretation of Article XIX is unreasonable or implausible. Accordingly, the Agency has failed to show that the award fails to draw its essence from the bargaining agreement, and we deny this exception.

D. The Arbitrator Did Not Exceed His Authority

An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. U.S. Department of the Navy, Naval Base, Norfolk, Virginia and American Federation of Government Employees, Local 22, 51 FLRA 305, 307-08 (1995).

As discussed above, the record does not support a conclusion that the Arbitrator made a classification decision. The Agency, therefore, has failed to show that the manner in which the Arbitrator made the alleged classification decision exceeded his authority. Accordingly, we deny this exception.

V. Decision

The Agency's exceptions are denied.

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

1. The new GS-11 position was created as the result of a study which concluded that the PPQ officers' job had evolved over approximately 10 years, and that the officers were performing new duties that properly could be classified at the GS-11 level.

2. Article XIX, Section 4, provides:

The parties recognize that temporary promotions are of mutual benefit and shall be handled according to APHIS Directive 444.1. This includes temporary promotions for service in higher grade positions over sixty (60) days.

Award at 3.

3. Section D, the relevant part of APHIS Directive 444.1, provides:

D. Use of Temporary Promotions. A temporary promotion should be used when a situation requires the service of an employee in a higher grade position expected to last for more than 60 days but less than 2 years.

1. A temporary promotion is appropriate:

a. When an employee has to perform the duties of a position during the extended absence of the incumbent.

b. To fill a position which has become vacant until a permanent appointment is made.

c. To compensate an employee while he or she participates in a special project, long-term agency situation or assignment involving higher grade duties.

For such purposes, a temporary promotion gives better recognition to management's needs and the employee's new responsibilities. It also compensates the employee for the higher grade work he or she is performing.

Award at 84 (emphasis omitted).

4. Relying on the Authority's decision in American Federation of Government Employees, Local 1592 and U.S. Department of the Air Force, Hill Air Force Base, Utah, 44 FLRA 147 (1992) (Local 1592), the Arbitrator concluded that his authority to award backpay was limited to 2 years. The Arbitrator directed the Agency to request the Office of Personnel Management (OPM) to authorize the Agency to grant grievants retroactive temporary promotions with full backpay for periods in excess of 2 years. The Arbitrator also awarded the Union interest on the backpay, and attorney fees. We note that the regulation cited by the Authority in Local 1592 as limiting to 2 years the duration of a temporary promotion was amended effective December 9, 1993, to incorporate a 5-year limitation. See 5 C.F.R. § 335.102. As no exception was filed to the award on this point, we do not decide whether the previous or the amended regulation applies. However, as the award directed the Agency to seek authorization from OPM, that matter presumably will be clarified when OPM applies its regulation in response to the Agency's request.

5. Section 7121(c)(5) provides that negotiated grievance procedures may not include within their scope any grievances concerning "the classification of any position which does not result in the reduction in grade or pay of an employee."

6. Article XVIII, Section 4, provides:

When making assignments, the [e]mployer shall make positive efforts to assign employees to tasks which are consistent with their job description, and do not diminish the employee's position.

Award at 3 (emphasis omitted).

7. Even if we were to examine the Directive itself to determine whether the Arbitrator's reasoning and/or remedy is inconsistent with it, Authority precedent would support the same result. In this regard, the Agency's asserted interpretation of the Directive as permitting but not requiring temporary promotions is inconsistent, at least in part, with the Arbitrator's statement, which the Agency has not disputed, that, during arbitration proceedings, the Agency agreed that the grievants "were entitled" to temporary promotions if they were assigned and performed higher-graded duties. Award at 115. That is, it appears that during the arbitration proceeding, the Agency itself effectively interpreted the Directive in a manner that would not render the award deficient under section 7122(a) of the Statute. Where an agency previously acted in a manner inconsistent with the interpretation of an agency regulation it asserted in support of an exception to an award, the Authority refused to defer to that interpretation. U.S. Department of Justice, Federal Bureau of Prisons, Medical Facility for Federal Prisons and American Federation of Government Employees, Local 1612, 51 FLRA No. 91 (1996).