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The decision of the Authority follows:
52 FLRA No. 86
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
DEPARTMENT OF VETERANS AFFAIRS
January 23, 1997
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 William E. Caldwell filed by both the Agency and 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 Arbitrator issued an award granting in part and denying in part a grievance alleging that the Agency violated the parties' collective bargaining agreement by refusing to provide certain employees temporary promotions.
The Union contends that the portion of the award denying the grievance should be overturned because it is based on a nonfact and it is contrary to law. The Agency filed an opposition to the Union's exceptions. The Agency contends that the portion of the award granting the grievance should be overturned because: (1) it is contrary to section 7121(c)(5) of the Statute and 5 U.S.C. § 5596(b)(3); and (2) it fails to draw its essence from the agreement. The Union did not file an opposition to the Agency's exceptions.
II. Background and Arbitrator's Award
This matter involves the arbitration of two separate grievances, requesting back pay and temporary promotions for several grievants who allegedly performed higher-graded duties for a period of greater than 30 days. The Arbitrator found that the grievance concerned "two separate issues." Award at 1. Issue I involved several WG-2 grievants who alleged that they performed higher-graded (WG-3) salad preparer duties on a 6-month rotational basis. Issue II involved several WG-4 grievants who alleged that they worked in the same capacity and under the same job description as food service worker leaders (WL-2) and, therefore, claim a higher rate of pay for that period.
A. Issue I: WG-2 Grievants
The Arbitrator found that Issue I concerned: (1) whether the grievance was arbitrable; (2) whether the Agency violated the agreement when it failed to temporarily promote the grievants to the WG-3 grade level for performing duties at the salad table; and (3) what the proper remedy would be.
The Arbitrator found that the grievance was arbitrable, and that the parties' dispute concerned the appropriate grade level of the salad table duties to which the grievants were assigned. The Arbitrator held that to resolve the dispute, he was required to determine whether the salad table duties were part of the grievants' WG-2 position or whether a WG-3 position ever existed to which the grievants were assigned. According to the Arbitrator, the record established that the duties had been assigned as WG-2 level work and that no WG-3 position containing those duties had been established. Therefore, the Arbitrator found that the Agency did not violate the agreement by failing to provide the grievants WG-3 pay for performing the salad preparer duties.
B. Issue II: WG-4 Grievants
The Arbitrator found that Issue II concerned: (1) whether the grievance was arbitrable; (2) whether the Agency violated the agreement when it failed to promote the grievants to the food service worker leader (WL-2) position after they commenced performing such duties; and (3) what the proper remedy would be.
The Arbitrator found that, like Issue I, Issue II was arbitrable. However, the Arbitrator also found that, unlike Issue I, Issue II concerned the grievants' performance of duties that already had been classified at a higher grade. The Arbitrator concluded that the Agency had violated the agreement by failing to provide the grievants higher pay for the performance of these duties. Therefore, the Arbitrator held that the grievants should be temporarily promoted and that they should receive back pay, with interest, for such period that they performed the duties of the higher grade.
III. Issue I: WG-2 Grievants
1. Union's Contentions
The Union contends that the Arbitrator incorrectly found that the salad table duties performed by the grievants were not properly classified as WG-3 duties. The Union argues that the record establishes that a WG-3 food service worker position had been established and filled by a former Agency employee until her retirement. The Union asserts that after the employee's retirement, the Agency simply assigned the employee's duties to the grievants, yet continued paying the grievants at the WG-2 level. Therefore, the Union asserts that the Arbitrator's finding that no WG-3 position existed to which the grievants could have been assigned and his denial of Issue I of the grievance was based on an "objectively ascertainable nonfact." Union Exceptions at 4.
The Union also asserts that the award is contrary to law. The Union cites U.S. Department of the Army, Fort Polk, Louisiana and National Association of Government Employees, Local R5-168, 44 FLRA 1548 (1992) (Fort Polk), as the law to which it believes the Arbitrator's award is contrary.
2. Agency's Opposition
The Agency contends that the Arbitrator correctly found that no WG-3 salad maker position existed during the time that the grievants were claiming compensation for performing the duties of that position. Therefore, the Agency argues, since the grievants were unable to prove that they were appointed to an existing and properly classified position, there was no entitlement to compensation.
The Agency did not address the Union's exception that the award is contrary to law.
B. Analysis and Conclusions
1. The Award as to the WG-2 Grievants Is Not Based on a Nonfact
To establish that an award is based on a nonfact, the appealing party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. American Federation of Government Employees, Local 1546, and U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Region West, 52 FLRA 94, 97 (1996).
We conclude that the Union has failed to establish that the Arbitrator's determination that a WG-3 food service worker position had not been established and classified during the period in dispute is clearly erroneous. Specifically, the Union's assertion that the award is based on an "objectively ascertainable nonfact" is without merit because the record does not establish that a WG-3 position existed to which the grievants could have been assigned. Therefore, the Union has not established that the award is deficient as based on a nonfact.
2. The Award as to the WG-2 Grievants Is Not Contrary to Law
The Union's exception that the award is contrary to Fort Polk challenges the award's consistency with law. Accordingly, the Authority must review the questions of law raised by the Arbitrator's award and the Union'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) (Prisons).
The Union's argument that the award conflicts with Fort Polk is frivolous. Fort Polk, which sustained an arbitrator's award of temporary promotions, is distinguishable in all respects from the Arbitrator's conclusion that the WG-2 grievants in this case were not entitled to temporary promotions. No basis is argued or apparent on which to conclude that Fort Polk requires awards of temporary promotions in other cases. As such, we conclude that the award does not conflict with Fort Polk or with section 7121(c)(5) of the Statute.
IV. Issue II: WG-4 Grievants
A. Positions of the Parties
The Agency challenges the Arbitrator's award as to Issue II on three grounds. First, the Agency contends that the award is contrary to section 7121(c)(5) of the Statute and 5 U.S.C. § 5596(b)(3)(1) because Issue II concerns classification matters that are excluded from these statutes. Second, the Agency argues that the award fails to draw its essence from Article 47, Section 3 of the parties' agreement, which exempts from the grievance procedure any claims that concern the classification of a position.(2) Third, the Agency contends that 5 C.F.R. § 335.102 (3) prohibits temporary promotions in excess of 2 years.(4)
The Union did not file an opposition to the Agency's exception.
B. Analysis and Conclusions
1. Contrary to Law
As previously noted, we address questions of law raised by the Arbitrator's award and these Agency exceptions de novo.
a. The Award as to the WG-4 Grievants Is Not Contrary to § 7121(c)(5) of the Statute or 5 U.S.C. § 5596(b)(3)
We conclude that the Arbitrator's award did not concern the classification of a position, within the meaning of section 7121(c)(5) of the Statute.(5) Rather, the award concerned whether the grievants performed higher-graded WL-2 duties. In this regard, the Arbitrator, as a factual matter, determined that a WL-2 position existed during the period of the dispute to which the grievants could have been assigned. The Arbitrator compared the grievants' duties to those of the WL-2 position to determine whether the grievants had performed the duties of the higher grade. The Arbitrator did not classify the grievants' positions or the higher-graded duties. Therefore, the award is not inconsistent with section 7121(c)(5) of the Statute. See Prisons, 51 FLRA at 1424-25. For the same reasons, the award is not contrary to 5 U.S.C. § 5596(b)(3), which applies only to reclassifications.
b. The Award as to the WG-4 Grievants Is Inconsistent With 5 C.F.R. § 335.102
5 C.F.R. § 335.102(f) places a 5-year limit on the duration of temporary promotions, unless OPM authorizes an extension of the temporary promotion beyond the 5-year limit. This 5-year limitation replaced, in 1994, the previous 2-year limitation. Because the regulation was amended subsequent to the filing of the grievance, a threshold question is presented of whether the 5-year or the 2-year limitation should be applied in determining the period of back pay that the Agency can award without OPM approval.
In Landgraf v. USI Film Products, U.S. , 114 S. Ct. 1483, 1501-1505 (1994), the Supreme Court discussed the circumstances when a change in the law could be applied retroactively. The Court stated that, where the application of new law would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed, the "traditional presumption" against retroactivity operates to deny such retroactive effect. Id. at 1505. The Court also stated, however, that this "traditional presumption" against retroactivity does not govern when there is "clear congressional intent" to the contrary. Id. Although Landgraf pertains to statutory enactments, the Authority applies these same principles to agency regulations. U.S. Department of Transportation, Federal Aviation Administration, Little Rock, Arkansas, 51 FLRA 216, 224 (1995).
It is clear that OPM intended the amended regulation to apply to all time-limited promotions occurring after the date of the amendment. See 58 Fed. Reg. 59,345 (1993) (in promulgating amendment to 5 C.F.R. § 335.102, OPM stated that agencies could use the regulation to effect temporary promotions retroactive to a date prior to the effective date of the amendment). Therefore, consistent with Landgraf, as well as Authority precedent, even assuming that applying the regulation would impair rights, increase liability, or impose new duties, as addressed in the Landgraf passage quoted above, we conclude that the 5-year rule applies in this case. See Defense Logistics Agency, Defense Distribution Region East, New Cumberland, Pennsylvania, 50 FLRA 282, n.* (1995).
The Arbitrator ordered that the grievants be reimbursed for the difference in pay between WG-4 and WL-2 that was lost due to the employer's violation of the agreement. The Arbitrator found that the difference should be granted for the period between September 24, 1983, and September 23, 1989. This period exceeds the 5-year limit in 5 C.F.R. § 335.102(f). Therefore, the award must be modified, consistent with the regulation, to award the grievants retroactive, temporary promotions, with back pay, for 5 years and to require the Agency to request OPM to authorize the Agency to grant retroactive, temporary promotions, with back pay, for the period in excess of 5 years. See id.
2. The Award as to the WG-4 Grievants Does Not Fail to Draw Its Essence From the Agreement
The Arbitrator found that Issue II did not concern a classification matter and, as such, Article 47, Section 3 did not apply. The Arbitrator's interpretation and application of the agreement are not inconsistent with its plain wording, and the Agency has not established that the Arbitrator's interpretation and application of the agreement are unfounded, implausible, or irrational. Accordingly, the Agency has not demonstrated that the award fails to draw its essence from the parties' agreement. Cf. U.S. Department of the Air Force, Oklahoma City Air Logistics Command, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 48 FLRA 342, 347 (1993).
The Union's exceptions as to Issues I are denied. The Agency's exceptions as to Issue II are denied, in part, and granted, in part. The award as to Issue II is modified to provide that, if the period of backpay as to any of the grievants exceeds 5 years, then that grievant shall be granted a retroactive, temporary promotion with back pay for a 5-year period, and the Agency must request approval from OPM to provide back pay for the period of time that exceeds 5 years.
(If blank, the decision does not have footnotes.)
1. 5 U.S.C. § 5596(b)(3) provides that the Back Pay Act "does not apply to any reclassification action . . . ."
2. Article 47, Section 3 states that:
Excluded from coverage of this procedure are grievances concerning . . . .
E. The classification of any position which does not result in the reduction in grade or pay of any employee.
3. 5 C.F.R. § 335.102(f) provides that an agency may:
Make time-limited promotions to fill temporary positions . . . for a specified period of not more than 5 years, unless O[ffice of] P[ersonnel] M[anagement] authorizes the agency to make and/or extend time-limited promotions for a longer period.
4. The Agency appears to be relying on a previous version of 5 C.F.R. § 335.102. Before it was amended on December 9, 1993, 5 C.F.R. § 335.102 placed a limit of 2 years on the duration of a temporary promotion, unless the OPM authorized an extension of the temporary promotion beyond the 2-year limit.
5. The Authority has construed the term "classification" in section 7121(c)(5) to have the same meaning 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 . . . ." Prisons, 51 FLRA at 1424 (quoting 5 C.F.R. § 511.101(c)).