[ v55 p339 ]
55 FLRA No. 54
U.S. DEPARTMENT OF JUSTICE
BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3951
March 30, 1999
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. [n1]
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Edward J. O'Connell 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 a grievance alleging that the grievant had performed higher-graded duties but had not received additional compensation. For the following reasons, we set aside the portion of the award directing that the grievant be compensated at the GS-8 grade level. We remand the portion of the award which concerns the grievant's qualifications for increased compensation under applicable government-wide regulations, to the parties for further action consistent with this decision.
II. Background and Arbitrator's Award
The grievant was a GS-5 Safety Specialist Trainee when his supervisor, a GS-11 Safety Manager, left her position. The grievant was then designated as the Acting Safety Manager and performed the full range of the Safety Manager's responsibilities from June 1995 until March 1996, when a permanent replacement was hired. In November 1995, while serving as the Acting Safety Manager, the grievant received a regularly scheduled career ladder promotion and became a GS-7 Safety Specialist Trainee. The grievant was compensated at the GS-7 level until the new Safety Manager arrived.
Thereafter, the Union filed a grievance alleging that the Agency had failed to compensate the grievant at the grade applicable to the Safety Manager position during the period that he served as the Acting Safety Manager. When the grievance was not resolved, it was submitted to arbitration on the following issue, as stipulated by the parties:
The issue involved is that the [A]gency thru (sic) 5 CFR 335.102 exercised its authority to temporarily promote the grievant to the position of Safety Manager. At the time of [his] promotion he was given a pay grade of GS 7 step 2. The position he was promoted into carried the pay grade of GS 11. The [A]gency has refused to properly compensate [the grievant] pursuant to PS 3000.02C which states "an employee who will be assigned to a higher grade position in the unit for three full weeks or more and who is qualified will be temporarily promoted and will receive the rate of pay for the higher position effective the first day of the first pay period of the assignment. [The grievant] was placed in this position and held to the same standards that the position called for.
The requested remedy is that the [grievant] be fully compensated for time spent in the position of Safety Manager, according to all laws, rules, [and] regulation[s]. Also any other remedy deemed necessary and appropriate.
Award at 3.
Before the Arbitrator, the Agency did not dispute that the grievant had been designated as the Acting Safety Manager or had performed the higher graded responsibilities. Nevertheless, the Agency maintained that it was precluded from temporarily promoting the grievant pursuant to its Human Resource Management Manual. In particular, the Agency claimed that the grievant did not meet the necessary requirements for a temporary promotion set forth in section 13 and section 20 of Program Statement (PS) 3000.02. [n2] The Agency also claimed that the grievant did not meet the time-in-grade and qualification requirements established by the Office of Personnel Management (OPM) and incorporated by reference in section 13. [ v55 p340 ]
The Union argued that under 5 C.F.R. § 300.603(b)(7), time-in-grade restrictions can be waived in order to avoid hardship to an agency or inequity to an employee. [n3] The Union maintained that by appointing the grievant to the position of Acting Safety Manager and receiving the benefit of his work, the Agency had effectively waived the time-in-grade requirements. In the alternative, the Union maintained that the time-in-grade requirements did not apply because the purpose of such restrictions is to "`prevent excessively rapid promotion'" and the grievant was not a candidate for advancement to the Safety Manager position. Id. at 7. Finally, because the entry level for the Safety Manager was a GS-7, the Union argued that the grievant was entitled to promotion to a GS-8.
The Arbitrator sustained the grievance and found that the grievant was entitled to back pay for the time he served as the Acting Safety Manager. In so finding, the Arbitrator interpreted the requirements of PS 3000.02, section 13 and section 20. The Arbitrator found that by its terms, section 13, entitled "Determining Basic Eligibility," only applies to applicants for permanent positions. He, therefore, rejected the Agency's contention that under this provision, the grievant was ineligible for a temporary promotion.
By contrast, the Arbitrator determined that section 20, entitled "Temporary Promotion," does provide authority for compensating the grievant at a higher rate of pay. The Arbitrator found that by its terms, section 20(a) provides, as relevant here, that an employee "who is qualified will be temporarily promoted and will receive the rate of pay for the higher grade position . . . ." Id. at 5. The Arbitrator further found that the term "qualified" was not specifically defined. Noting that Webster's Dictionary defines "qualified" as meaning "capable" or "competent," the Arbitrator reasoned that because the Agency designated the grievant to serve as the Acting Safety Manager, it could not "credibly maintain" that he was not capable or competent. Id. at 11. As such, the Arbitrator rejected the Agency's contention that the grievant did not qualify for a temporary promotion.
Finally, the Arbitrator addressed the Union's contention that "although the Grievant might not be entitled to the GS-11 rate held by the departed Safety Manager, he is entitled to be compensated at the GS- level from the time of his designation as Acting Safety Manager until March, 1996, when a permanent replacement arrived . . . ." Id. at 13. Finding nothing in the record to rebut this assertion, the Arbitrator directed the Agency to "compensate [the grievant] accordingly." Id.
III. Positions of the Parties
A. Agency's Exceptions
The Agency contends that the award is deficient because it is contrary to law and is based on nonfact. With regard to the first ground, the Agency contends that the award is contrary to the Back Pay Act. According to the Agency, in order for an employee to qualify for a temporary or permanent promotion, the employee must meet the minimum qualification requirements for the position. The Agency asserts that these include the time-in-grade requirements set forth in 5 C.F.R. § 300.604(b), which can be waived at the agency's discretion under 5 C.F.R. § 300.603(b)(7). [n4] The Agency also asserts that minimum qualifications may also include a specific amount of specialized experience that, unlike a time-in-grade requirement, "need not" be waived. Exceptions at 6.
The Agency maintains that, in this case, the grievant was required to satisfy criteria pertaining to both time-in-grade and specialized experience before he could be compensated under the Back Pay Act. However, the Agency claims that the Arbitrator erroneously concluded that the grievant was only required to satisfy the minimum qualification requirements set forth in PS 3000.02, section 20. The Agency maintains that, as a result, the award is deficient because it fails to address [ v55 p341 ] whether the grievant met the time-in-grade requirements set forth in section 5 C.F.R. § 300.604(b).
The Agency further contends that the record fails to establish that the grievant met the time-in-grade requirement necessary to receive a temporary promotion. According to the Agency, under 5 C.F.R. § 300.604(b), candidates for promotion to positions at levels GS-6 through GS-11 must have completed a minimum of 52 weeks in positions at the next lower grade level. Here, the Agency points out that the grievant completed 52 weeks of time-in-grade at the GS-5 level in November 1995, "and it was only then that he became eligible for promotion to a higher-graded position." Exceptions at 6. Consequently, the Agency contends that the award -- in which the grievant is found to be eligible for back pay at the GS-8 level for the entire period of his service as the Acting Safety Manager -- is contrary to the Back Pay Act. The Agency also rejects the Union's claim that the time-in-grade requirement had been effectively waived. The Agency contends that waiver is only permitted under 5 C.F.R. § 300.604(b) "with the prior approval of the agency head or his or her designee." Id. at 8 (quoting 5 C.F.R. § 300.603(b)(7)). In the Agency's view, "[a]bsent a specific record showing of waiver of this requirement, or a finding of waiver by the arbitrator, there is no basis for waiving the requirement here." Id.
In addition to failing to satisfy the time-in-grade requirement, the Agency also argues that the grievant failed to satisfy the specialized experience requirement qualifying him for an entry-level GS-7 Safety Manager position until November 1995. The Agency asserts that the vacancy announcement for the Safety Manager position required applicants "to possess one year of specialized experience equivalent to the next lower grade in matters related to safety and occupational health." Id. at 9. Accordingly, the Agency argues that the Arbitrator ignored the specialized experience requirement "established by the [A]gency" by finding that the grievant was eligible for promotion to a GS-8 in July 1995. Id. The Agency adds that there is no finding by the Arbitrator that the specialized experience requirement had been waived.
If it is determined that the grievant should have received a temporary promotion, the Agency maintains that the grievant was only entitled to compensation at a GS-7 level. The Agency explains that under 5 C.F.R. § 300.603(b)(7), if the time-in-grade requirement for a temporary promotion is waived, "`an employee may not be promoted more than three grades during any 52-week period' . . . ." Id. at 11. The Agency argues that pursuant to this regulation the grievant could only have been promoted from a GS-5 to a GS-8. However, as the Safety Manager position does not exist at the GS-8 level, the Agency argues that the grievant could only be compensated "at the entry GS-7 level for service as an Acting Safety Manager." Id.
As a second ground, the Agency maintains that the award is based on a nonfact. The Agency argues in this regard that assuming, for the sake of argument, that the grievant had qualified for a temporary promotion, the award remains deficient because it directs the Agency to compensate the grievant at a GS-8. According to the Agency, it is undisputed that the position of Safety Manager is only graded at the GS-7/9/11 levels. Therefore, the Agency submits that as the remedy ordered by the award is based on a level of pay that does not exist, the award is based on nonfact.
B. Union's Opposition
The Union asserts that the Agency's exceptions fail to establish that the award is deficient and, therefore, requests that they be denied.
With regard to the Agency's claim that the award is inconsistent with the Back Pay Act, the Union observes that the Arbitrator based his findings on specific regulations set forth in the Human Resources Management Manual. The Union states that these regulations mandate temporary promotions for the performance of duties of a higher graded position for an extended period of time. According to the Union, the Arbitrator undertook "an exhaustive analysis" of the relevant regulatory provisions and ultimately "rejected the arguments which the Agency now restates on appeal . . . ." [ v55 p342 ] Opposition at 2. In particular, the Union cites a portion of the Arbitrator's decision in which he specifically finds:
[T]here is no claim that the [g]rievant was not "qualified" in any respect. In addition to the complementary comments about his performance in the Quarterly Reviews, the Agency is estopped from now denying the fact of the [g]rievant's qualifications to perform the Acting Safety Manager's duties. Furthermore, it has never claimed that he was not qualified, except for not meeting the inapplicable eligibility criteria of Section 13.
Id. at 3 (emphasis omitted). The Union maintains that the Arbitrator effectively found that the Agency waived the qualification requirements and that the Arbitrator's findings are entirely consistent with the controlling provisions of the C.F.R. The Union also argues that "the Agency does not claim that it lacks the authority to waive the qualification requirements or that a waiver in this case is in any other way inconsistent with the regulations." Id.
Concerning the Agency's contention that the award is based on nonfact, the Union argues that because the Arbitrator's conclusions resulted from his evaluation of the evidence and his interpretation of the parties' agreement, it cannot be challenged as nonfact. The Union also argues that the Agency is contesting the Arbitrator's interpretation of a factual matter that was disputed at arbitration -- the level of pay to which the grievant was entitled. Consequently, the Union asserts that the award is not deficient on this basis.
IV. Analysis and Conclusions
A. The Record Is Insufficent To Determine Whether the Award is Contrary to Law
As described above, the Agency contends, for a variety of reasons, that the award is contrary to the Back Pay Act. As the Agency's contentions involve the award's consistency with law, we review the questions of law raised by them de novo. See 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). In applying the standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. National Federation of Federal Employees, Local 1437 and Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id. The Authority also defers to an arbitrator on questions of contract interpretation. See id. at 1709 n.4.
Under the Back Pay Act, an award of backpay is authorized only where an arbitrator finds that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; and (2) the personnel action has resulted in the withdrawal or reduction of the employee's pay, allowances or differentials. 5 U.S.C. § 5596(b)(1). See also U.S. Department of Health and Human Services and National Treasury Employees Union, 54 FLRA 1210, 1218-19 (1998).
An arbitrator may properly award back pay under the Back Pay Act when it is determined that an agency has denied an employee a temporary promotion to which the employee was entitled under an applicable regulation for having performed the duties of a higher-graded position for an extended period of time. See U.S. Department of Health and Human Services, Public Health Service, Navajo Area Indian Health Service and Laborers' International Union of North America, Navajo Nation Health Care Employees, Local 1376, 50 FLRA 383, 385 (1995). However, the Authority has consistently held that the "employee must meet the minimum qualification requirements prescribed by the Office of Personnel Management (OPM)" for the higher-graded position in order to receive a temporary or permanent promotion to that position. Id. at 386. See also U.S. Department of Housing and Urban Development, Louisiana State Office, New Orleans, Louisiana and American Federation of Government Employees, Local 3475, 53 FLRA 1611, 1619 (1998) (HUD) (remanding award providing retroactive temporary promotion and back pay for performing higher-graded duties because record did not indicate whether the grievant possessed the minimum qualification requirements); U.S. Department of the Army, Headquarters Fort Dix, Fort Dix, New Jersey and American Federation of Government Employees, Local 1930, 49 FLRA 730, 736 (1994) (Fort Dix) (arbitrator's award, including back pay, for performing higher-graded duties set aside because grievant did not possess the specialized experience required for promotion); Adjutant General, State of Michigan, Department of Military Affairs and National Association of Government Employees, 11 FLRA 13, 14 (1983) (setting aside award providing retroactive temporary promotion and back pay for performing duties of higher graded position because grievant did not possess the minimum qualifications).
In this case, the Arbitrator did not address whether the grievant possessed either the minimum qualification requirements concerning time-in-grade, set forth in 5 C.F.R. § 300.604(b), or whether the Agency waived these requirements under 5 C.F.R. § 300.603(b)(7). [ v55 p343 ] These requirements are clearly stated in the regulations, which provide that an employee may be "advanced" up to three grades during any 52 week period: (1) to avoid either "hardship to an agency" or "inequity to an employee", and (2) with the "prior approval of the agency head or his or her designee." See note 4, supra. In addition, the regulations make clear that the waiver is authorized in "an individual meritorious case". Id. In short, the regulations require a case-by-case assessment that certain specified conditions have been satisfied.
The Arbitrator made no findings concerning the requirements in OPM's Government-wide regulations. We have considered whether the Arbitrator's statement that "the Agency is estopped from now denying the fact of the [g]rievant's qualifications to perform the Acting Safety Manager's duties", Award at 12, can be construed as such findings, or as the conclusion that a waiver had been granted. However, inferring the necessary findings would, in effect, create a blanket rule that allowing an employee to temporarily perform the duties of a higher grade always constitutes waiver. Although the fairness of this approach makes its adoption indisputably attractive, doing so requires ignoring both the terms of 5 C.F.R. §§ 300.604(b) and 300.603(b)(7), and long-standing Authority precedent. At best, the Arbitrator's statement is ambiguous. It does not, in our view, support a finding that the Agency waived the time-in-grade requirements.
Similarly, the record is insufficient to make a determination as to whether the grievant possessed the minimum requirements concerning specialized experience as required by 5 C.F.R. § 335.102. The Arbitrator did not address this requirement at all.
We are unable to assess, based on the record, whether the grievant was entitled to a temporary promotion to the Safety Manager's position, as the Arbitrator found, or whether the award is deficient, as the Agency claims. In such circumstances, and consistent with Authority precedent, we remand the award to the parties. See HUD, 53 FLRA at 1620 (citing U.S. Department of Veterans Affairs, Medical Center, Buffalo, New York and Service Employees International Union, Local 200-C, 37 FLRA 379, 384-85 (1990)). On remand, absent settlement, the parties should submit this case to the Arbitrator to make a determination as to whether the grievant met the time-in-grade requirements for a temporary promotion set forth in 5 C.F.R. § 300.604(b), or whether the Agency waived these requirements under 5 C.F.R. § 300.603(b)(7), and whether the grievant met the requisite specialized experience requirements set forth in 5 C.F.R. § 335.102.
B. The Portion Of the Award Pertaining to the Remedy Is Based On Nonfact
As a second ground, the Agency maintains that the award is based on nonfact because if the Authority determines that the grievant was entitled to a temporary promotion, it directs the Agency to compensate the grievant at the GS-8 grade level.
To establish that an award is based on nonfact, the appealing party must establish that the central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993). However, the Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties had disputed at arbitration. Id. at 594 (citing National Post Office Mailhandlers v. U.S. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)). We conclude that the award is deficient as based on nonfact.
As previously noted, the Arbitrator directed that the grievant be "compensated at the GS- level from the time of his designation as Acting Safety Manager until March, 1996, when a permanent replacement arrived . . . ." Award at 13. Nevertheless, it is undisputed that the Safety Manager position was not classified as a GS-8 but, instead, was classified as a GS-7/9/11. Therefore, this position did not exist at the GS-8 level. We conclude that a central finding underlying the award -- that there was in fact a GS-8 Safety Manager position -- is clearly erroneous, but for which the Arbitrator would have reached a different result. See U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Region West, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 53 FLRA 460, 462 (1997). There is nothing in the record to indicate that this matter was disputed by the parties at arbitration. Moreover, it is clear that the Agency was not responsible for the Arbitrator's erroneous belief that the Safety Manager position existed at the GS-8 level. See U.S. Army Missile Materiel Readiness Command, 2 FLRA 432, 438 (1980) (in order for an award to be found deficient as based on nonfact, it must be established that the "parties were not responsible for the arbitrator's misapprehension[.]"). Accordingly, we order that this aspect of the award be set aside. [n5]
The portion of the award directing that the grievant be compensated at the GS-8 level is set aside. The remainder of the award is remanded to the parties for further action consistent with this decision.
File 1: Authority's Decision in 55 FLRA No.
File 2: Opinion of Member Wasserman
Footnote # 1 for 55 FLRA No. 54 - Authority's Decision
Footnote # 2 for 55 FLRA No. 54 - Authority's Decision
13. Determining Basic Eligibility. Applicants are considered eligible for the position if they meet or will meet minimum OPM qualification standards, time-in-grade requirements and any specified selective placement factors within thirty days after the closing date of the announcement. The local HRM office will make an initial determination whether the applicant meets minimum requirements and complete the appropriate qualifications rating sheet. The announcing office will review the initial determination of qualifications.
20. Temporary Promotion
a. An employee who will be assigned to a higher grade position in the unit for three full weeks or more and who is qualified will be temporarily promoted and will receive the rate of pay for the higher grade position effective the first day of the first full pay period of the assignment. Temporary promotions will not be made for less than three weeks. Short-term assignments will not be made for the purpose of avoiding temporary promotions.
Agency's Exceptions, Attachment JE-4, PS 3000.02, Chapter 3 at 32, 38.
Footnote # 3 for 55 FLRA No. 54 - Authority's Decision
According to the Arbitrator, the Union argued that section 300.603(a)(7) authorizes waiver of time-in-grade requirements. See Award at 7. However, the provision for waiver of time-in-grade requirements is set forth in section 300.603(b)(7). We believe the Union's reference to (a)(7) was inadvertent and we cite the correct regulatory provision.
Footnote # 4 for 55 FLRA No. 54 - Authority's Decision
(b) Advancement to positions at GS-6 through GS-11. Candidates for advancement to a position at GS-6 through GS-11 must have completed a minimum of 52 weeks in positions:
(1) No more than two grades lower (or equivalent) when the position to be filled is in a line of work properly classified at 2-grade intervals[.]
5 C.F.R. § 300.603(b)(7) authorizes:
(7) Advancement to avoid hardship to an agency or inequity to an employee in an individual meritorious case but only with the prior approval of the agency head or his or her designee. However, an employee may not be promoted more than three grades during any 52-week period on the basis of this paragraph.
To qualify for a waiver of time-in-grade requirements, all other applicable requirements, such as qualification standards, must also be met. See 5 C.F.R. § 300.603(b).
Footnote # 5 for 55 FLRA No. 54 - Authority's Decision
Our dissenting colleague reaches the same conclusion based on finding the award to be contrary to law. We apply a nonfact analysis because the Agency's argument regarding this issue is specifically framed in nonfact terms and relies on a nonfact case for support. We see no reason to resolve this issue on the basis of an argument that was not advanced.