U.S. Federal Labor Relations Authority

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52:0217(21)AR - - HHS, National Institutes of Occupational Safety and Health, Cincinnati, OH - - 1996 FLRAdec AR - - v52 p217

[ v52 p217 ]
The decision of the Authority follows:

52 FLRA No. 21











LOCAL 3840





September 27, 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 Nicholas Duda, Jr. filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and section 2425 of the Authority's Regulations. The Union did not file an opposition to the Agency's exceptions.

The Arbitrator upheld a grievance concerning the Agency's failure to promote the grievant and directed the Agency to promote the grievant with backpay.

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

II. Background and Arbitrator's Award

In October 1991, the Agency posted a vacancy notice for a Grade 6/7 Staff Specialist position which stated that the position had promotion potential to GS-7 if filled at the GS-6 level. The posting also stated that after "serving a minimum time-in-grade of 52 weeks at the next lower grade," the successful bidder could apply for the higher grade. Award at 3. The grievant was selected for the position as a GS-6, effective December 29, 1991.

On January 4, 1993, after the grievant had served 1 year in grade, management requested the Personnel Management Office to promote her. Subsequently, management assured the grievant that she would receive a promotion but that the paperwork process took time.

In the spring of 1993, the Centers for Disease Control (CDC) informed the Agency that it would begin monitoring employee classifications more closely.(1) In late 1993, Agency supervisors told the grievant that her job had been changed, resulting in a reduction in the job's classification to GS-5 upon becoming vacant. In October 1994, the grievant's request for promotion was returned to her without approval. Subsequently, she filed a grievance in which she requested prospective pay as a GS-7, and backpay based on the pay differential between GS-6 and GS-7.

The Agency denied the grievance at Steps 1 and 2 on the ground that it involved a classification matter that is excluded from the grievance procedure under Article 25, Section 10 of the parties' collective bargaining agreement.(2) At Step 2, the Union claimed that the "grievance was not filed as a complaint about the classification of a position . . . . This grievance was filed as a complaint against Personnel for the negligent way in which they handled the request for promotion." Id. at 5. The Union further stated that the grievant would have received her promotion in January 1993, long before the Agency began auditing positions, had the Personnel Management Office acted on the promotion request in a timely manner.

The issue before the Arbitrator was framed as follows:

Whether the rights of Grievant were violated by the failure of Cincinnati Human Resources to implement the January 4, 1993 Department request to pay her on the basis of Level 7 for the position she was performing, and if so, what remedy is appropriate?

Id. at 10.

The Union argued that it had been the Agency's past practice to promote employees appointed to positions that were announced with promotion potential to the next highest grade after they have served 1 year at the next lower grade. The Agency claimed that the grievance pertained to the classification of a position within the meaning of section 7121(c)(5) of the Statute.(3)

The Arbitrator upheld the grievance. He concluded that the grievance did not concern the classification of the grievant's job, but rather concerned a promotion request and therefore that was not barred by the parties' agreement. In this regard, he found that, by not promptly promoting the grievant, the Agency violated its consistent and long-standing policy to promptly effectuate such promotions after an employee has satisfactorily completed the 52-week period.(4) The Arbitrator determined that had the Agency acted promptly when the promotion request was forwarded, i.e., before CDC began to monitor classifications in the spring of 1993, the grievant would have been promoted. Accordingly, he issued the following award:

The Employer is directed to promote [the] [g]rievant to Grade 7 while she performs the job which she bid (Staff Specialist) until such time as the classification of that job may be changed after a change in job duties. Also[,] the Employer is directed to make [the][g]rievant whole for the difference between what she has been paid since January 4, 1993 and what she would have been paid had she been paid on the basis of Grade 7 rather than 6 since that time.

Id. at 22.

III. Exceptions

The Agency argues that the Arbitrator erred in concluding that the classification of the grievant's position was not in issue. Relying on U.S. Equal Employment Opportunity Commission, Memphis District Office, Memphis, Tennessee and National Council of EEOC Locals No. 216, American Federation of Government Employees, AFL-CIO, 18 FLRA 88 (1985) (EEOC) and Veterans Administration Medical Center, Tampa, Florida and American Federation of Government Employees, Local 547, 19 FLRA 1177 (1985) (Local 547), the Agency asserts that the Authority should find that the substance of the grievance pertains to the grade level or classification of the grievant's job within the meaning of section 7121(c)(5) of the Statute, thereby precluding the matter from being raised in a grievance.

The Agency also contends that the award is contrary to law and Comptroller General opinions that deny retroactive promotions with backpay where no regulation, agency instruction or policy, or provision in a negotiated agreement mandates career-ladder promotions. In this regard, the Agency argues that the grievant does not occupy a career-ladder position. The Agency also asserts that the Arbitrator "has failed to point to any specific provision in the Agreement, Merit Promotion Plan, or elsewhere, that would indicate [the grievant's] promotion would be mandated pursuant to a nondiscretionary agency policy." Exceptions at 14.

IV. Analysis and Conclusions

A. The Award Does Not Concern a Classification Matter Within the Meaning of Section 7121(c)(5) of the Statute

As the Agency's exceptions challenge the award's consistency with law, the Authority must review the questions of law raised by the Arbitrator's award and the Agency's exceptions de novo. E.g., U.S. Department of Justice, Federal Bureau of Prisons, Atlanta, Georgia, and American Federation of Government Employees, Council of Prisons Local 1145, 51 FLRA 1422, 1424 (1996) (Local 1145).

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. E.g., id. 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)). Consistent with this construction, where an arbitrator determines that a grievant is entitled to a career-ladder,(5) temporary, or other noncompetitive promotion based on previously-classified duties, the award has been held not to concern a classification matter. U.S. Department of the Air Force, Air Education and Training Command, Randolph Air Force Base, San Antonio, Texas and American Federation of Government Employees, Local 1840, 49 FLRA 1387, 1389 (1994).

We conclude that the substance of the matter in dispute in this case concerns the grievant's denial of a promotion, not the classification of her position. See, e.g., American Federation of Government Employees, Local 1760 and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Region II, 37 FLRA 1193, 1198 (1990) (grievance concerned entitlement to career-ladder promotions, not reclassifications, based on agency practice); National Treasury Employees Union and U.S. Customs Service, Pacific Region, 32 FLRA 1141 (1988) (grievance concerned a promotion, not a classification, matter because grievant became eligible for a promotion before agency issued policy directive changing criteria for promotion). In this regard, the stated basis of the grievance was the denial of the promotion. In response to the Agency's denial of the grievance on the ground that it concerned a classification matter and was not grievable, the Union claimed that the subject of the grievance concerned the negligent way in which the Agency's Personnel Office handled the request for promotion. The Arbitrator found that the issue concerned the denial of management's request to promote the grievant. In rejecting the Agency's claim that the grievance was barred by the parties' agreement, the Arbitrator stated: "This case does not challenge the classification of [g]rievant's job. On the contrary[,] her claim is that the scoring of her job is Grade 7, with which she does not disagree. She wants to be paid at that rate." Award at 19.

The Arbitrator further found that, consistent with the Agency's past practice of promoting employees, such as the grievant, who perform satisfactorily for 52 weeks, the grievant was entitled to be promoted in January 1993, when her supervisor requested that she be promoted. The Arbitrator also found that had the Agency acted in accordance with this nondiscretionary promotion policy at the time the request was made, the grievant would have been promoted well before the Agency had begun to reevaluate position classifications. Thus, the award establishes that the Arbitrator effectively determined that the grievant occupied a career-ladder position. As such, she was entitled to a promotion after the requisite conditions were met, i.e., satisfactory performance for 52 weeks. See Local 3342, 51 FLRA at 1706. Accordingly, we conclude that the award does not conflict with section 7121(c)(5) of the Statute because the award does not concern the classification of the grievant's position. See Local 1145, 51 FLRA at 1425 (Authority deferred to arbitrator's finding of fact underlying conclusion that award does not conflict with section 7121(c)(5)).

The Agency's reliance on EEOC and Local 547 is misplaced because the facts in those cases are distinguishable from the facts in this case. Unlike here, at the time of the promotion recommendation in EEOC, the agency had already determined that the highest supportable grade for the position was GS-5 and had stopped promoting individuals to GS-6. EEOC, 18 FLRA at 88. The Authority determined that the award was contrary to section 7121(c)(5) because the substance of the grievance and award concerned the grade level to which the grievant could be promoted, which is a matter concerning classification within the meaning of section 7121(c)(5). Id. at 89-90. Similarly, the Authority concluded in Local 547 that the essential nature of the grievance concerned whether the grievant's position was properly classified and thus was barred by section 7121(c)(5). Local 547, 19 FLRA at 1179.

B. The Award of Promotion and Backpay Is Consistent With the Back Pay Act and Comptroller General Decisions

Under the Back Pay Act, an award of backpay is authorized if: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; (2) the personnel action directly resulted in the withdrawal or reduction of the grievant's pay, allowances, or differentials; and (3) but for such action, the grievant otherwise would not have suffered the withdrawal or reduction. E.g., Local 3342, 51 FLRA at 1705 (1996). A violation of a collective bargaining agreement constitutes an unjustified or unwarranted personnel action under the Back Pay Act. Id. The Agency contests only whether the first requirement is met.

The award of backpay is consistent with Authority case law. See Council of District Office Locals, American Federation of Government Employees, San Francisco Region, AFL-CIO and Office of Program Operations, Field Operations, Social Security Administration, San Francisco Region, 5 FLRA 759 (1981) (SSA). In SSA, the grievant was appointed to a GS-4 position and contended that the agency abridged a past practice that placed a promoted employee at the highest grade level for which he or she qualified. The arbitrator found that such a past practice concerning promotions existed and that, for the purpose of formulating a remedy consistent with the Back Pay Act, an established past practice is as much a part of the collective bargaining agreement as the actual written provisions. The arbitrator concluded that the promotion benefit at issue, "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." Id. at 760. Accordingly, the arbitrator awarded the grievant a promotion with backpay.

In denying the agency's exceptions to the award, the Authority agreed with the arbitrator and found that the past practice was incorporated in the collective bargaining agreement even though it was not so expressly stated. Id. at 762 (citing Letterkenny Army Depot and National Federation of Federal Employees, Local 1429, 5 FLRA 272 (1981) (citing Steelworkers v. Warrior and Gulf Navigation Co., 363 U.S. 574, 582 (1960)). Thus, the award met the first requirement under the Back Pay Act.

As in SSA, the Arbitrator found that the Agency had a policy, established by past practice, that it violated by failing to promote the grievant when she became eligible for that promotion. This practice created a nondiscretionary policy concerning a term or condition of employment that became incorporated into the parties' agreement. Thus, the first requirement under the Back Pay Act has been met. The Agency does not allege, and there is no basis for concluding, that the other requirements under the Back Pay Act or any other law have not been met.(6) Accordingly, the award is not contrary to law.

V. Decision

The Agency's exceptions are denied.

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

1. In this regard, CDC staff identified the grievant's occupational series, among others, that were misclassified.

2. Article 25, Section 10 of the parties' agreement provides, in relevant part, that complaints about "[t]he classification of any position which does not result in the reduction in grade or pay of an [e]mployee" "are not considered grievances for the purpose of this [a]greement and are specifically excluded from this grievance procedure . . . ."

3. Section 7121(c)(5) excludes from the coverage of negotiated grievance procedures grievances concerning "the classification of any position which does not result in the reduction in grade or pay of an employee."

4. The Arbitrator found that two employees who had previously held the same position as the grievant were promoted to the GS-7 level after satisfactorily completing 52 weeks of work.

5. A career-ladder promotion is the direct result of an agency's decision to select an employee and place the employee in a career-ladder position in the agency. The agency's selection of an employee and the placement of that employee in a career-ladder position also constitutes the agency's decision to promote that employee noncompetitively at appropriate stages in the employee's career up to the full performance level of the position, once the requisite conditions have been met. National Association of Government Employees, Local R2-98 and Department of the Army, Watervliet Arsenal, Watervliet, New York, 29 FLRA 1303, 1310 (1987); see also Social Security Administration and American Federation of Government Employees, Local 3342, 51 FLRA 1700, 1705-06 (1996) (Local 3342).

6. Under Comptroller General case law, where an agency violates its own unwritten nondiscretionary policy, a promotion may be effected retroactively with backpay. See Comp. Gen. No. B-216605 (Mar. 25, 1985); Comp. Gen. No. B-211784 (May 1, 1984) (unpublished); Comp. Gen. B-186916 (Apr. 25, 1977) (unpublished). The Comptroller General cases relied on by the Agency (Exceptions at 13, 14, 17) are distinguishable because, unlike here, the delay in employee promotions was not due to a violation of an agency's nondiscretionary policy to promote.