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57 FLRA No. 4
UNITED STATES DEPARTMENT
ANIMAL AND PLANT HEALTH
PLANT PROTECTION AND QUARANTINE
NATIONAL ASSOCIATION OF
March 14, 2001
Before the Authority: Dale Cabaniss, Chairman; Donald S. Wasserman and Carol Waller Pope, Members. [n1]
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Herbert N. Bernhardt filed by the Agency under § 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 the grievances of four employees who claimed that they were entitled to temporary promotions. For the following reasons, we conclude that the Agency has failed to establish that the award is deficient under § 7122(a) of the Statute. Accordingly, we deny the Agency's exceptions.
II. Background and Arbitrator's Award
The grievants claimed that they were entitled to temporary promotions from GS-9 to GS-11 positions under the parties' agreement because they worked at least 25% of the relevant time at the higher-graded level. When the grievances were not resolved, they were submitted to arbitration, where the Arbitrator set forth the issue as "whether the grievants worked at least [25%] of the relevant time at the GS-11 level." Award at 2.
The Arbitrator rejected the Agency's argument that one of the grievances was not arbitrable because it was not filed in accordance with contractual time limits. The Arbitrator found that the Agency's argument was untimely under Article X of the parties' agreement, which provides that arbitrability disputes must be submitted prior to any hearing on the matter.
With respect to the merits, the Arbitrator stated that, in an award by another arbitrator that was upheld by the Authority, [n2] Article XIX, Section 4 (Section 4) of the parties' agreement was interpreted to mandate temporary promotions for bargaining unit employees who perform higher-graded duties. [n3] The Arbitrator also noted that, in a prior interim award, he reached the same conclusion. See id.; Appendix A at 2-3 to Union's opposition. Therefore, according to the Arbitrator, the only remaining issue was the merits of the grievances.
The Arbitrator found the grievants performed at the GS-11 level for more than 25% of the relevant time. Accordingly, the Arbitrator concluded that the grievants were entitled to temporary promotion with backpay under Section 4 of the parties' agreement. In so doing, the Arbitrator stated that the purpose of Section 4 was "to enable the Agency to save money" by "utiliz[ing] [its] supervisory time more efficiently." Award at 48, 46.
III. Positions of the Parties
A. Agency's Exceptions
According to the Agency, the award is based on a nonfact because the GS-11 position description analyzed by the Arbitrator was abolished and, thus, was not in existence during the time frames the grievants claimed to have performed GS-11 work. The Agency argues that, as the Arbitrator based his award on an abolished position description, the award also is contrary to the Back Pay Act and § 7121(c)(5) of the Statute. In addition, the Agency contends that the award is contrary to: (1) APHIS Directive 444.1, which requires temporary promotions for more than sixty days to be made competitively; (2) decisions of the Comptroller General, which require grievants to establish they were formally detailed to higher-graded positions in order to claim temporary promotions; and (3) regulations implementing the Back Pay Act, 5 C.F.R. §§ 335.102(f) and 335.103(c)(I), which require use of competitive procedures and Office of Personnel Management approval for [ v57 p5 ] temporary promotions for more than 120 days and 5 years, respectively.
The Agency also argues that, in three respects, the award fails to draw its essence from the parties' collective bargaining agreement. In particular, the Agency objects to the Arbitrator's: (1) finding that the Agency's objection to the arbitrability of one of the grievances was untimely; (2) statement that the purpose of Section 4 is to permit the Agency to save money; and (3) the Arbitrator's refusal to deduct the initial sixty-day period of the temporary promotion from the backpay award. Finally, the Agency claims that the Arbitrator's award is contrary to the principle of res judicata because the Arbitrator improperly relied on the arbitrator's award in USDA.
B. Union's Opposition
The Union contends that, except for the Agency's claim regarding res judicata, the Agency's exceptions improperly raise matters for the first time in exceptions and, as a result, are barred by § 2429.5 of the Authority's Regulations. The Union points out that the Agency's post-hearing brief to the Arbitrator specifically relied on the position description the Agency now claims was abolished. The Union also contends that the Arbitrator's reference to the award in USDA does not demonstrate that the award is inconsistent with the principle of res judicata.
IV. Analysis and Conclusions
A. Certain Agency exceptions are barred by § 2429.5 of the Authority's Regulations.
Under § 2429.5 of the Authority's Regulations, the Authority will not consider issues that could have been, but were not, presented to the arbitrator. [n4] See, e.g., Int'l Ass'n of Fire Fighters, Local F-89, 50 FLRA 327, 328 (1995). Where an issue arises in the issuance of the award and could not have been presented to the Arbitrator, it is not precluded by § 2429.5. See, e.g., Prof'l Airways Sys. Specialists, Dist. No. 1, 48 FLRA 764, 768 n.* (1993).
Consistent with the Union's assertion, there is no indication in the award or elsewhere in the record that the Agency argued before the Arbitrator, as it does in its exceptions, that the position description relied on by the Arbitrator was not in existence during the time frames the grievants claimed to have performed GS-11 work. In fact, as the Union points out, the Agency specifically relied in its post-hearing brief to the Arbitrator on the GS-11 position description it now claims was abolished. See Appendix B at 1-7 to Union's Opposition. The Agency's argument could, and should, have been presented to the Arbitrator and, as a result, we refuse to consider the Agency's argument for the first time on exception. See, e.g., AFGE, Local 2145, 55 FLRA 366 (1999). The Agency's arguments that the award is contrary to the Back Pay Act and § 7121(c)(5) of the Statute are based on its contention that the Arbitrator improperly relied on an abolished position description. Accordingly, we also do not consider these exceptions.
Also consistent with the Union's assertion, there is no indication in the award or elsewhere in the record that the Agency made arguments before the Arbitrator, as it does in its exceptions, regarding APHIS Directive 444.1, Comptroller General decisions, or regulations implementing the Back Pay Act. As these arguments relate to the grievants' underlying entitlement to temporary promotions, they could, and should, have been presented to the Arbitrator. See, e.g., Office and Prof'l Employees Int'l Union, Local 268, 54 FLRA 1154, 1157-58 (1998). Accordingly, we refuse to consider these Agency arguments for the first time on exception.
Contrary to the Union's assertion, however, we will resolve on the merits the Agency's essence claims. In this regard, it is clear that the Agency raised the matter of the timeliness of the grievance below and, as such, is not barred by § 2429.5 of the Regulations. See Award at 1. Further, the Agency's objections to the Arbitrator's findings regarding the purpose of Section 4 as well as the Arbitrator's failure to exclude the first sixty days of the temporary promotions in calculating backpay arose only from the issuance of the award. Thus, there is no basis to conclude that the Agency should have presented these arguments to the Arbitrator.
B. The award does not fail to draw its essence from the agreement.
In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential standard of review that Federal courts use in reviewing arbitration awards in the private sector. See 5 U.S.C. § 7122(a)(2); AFGE, Council 220, 54 FLRA 156, 159 (1998). Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the collective bargaining agreement when the appealing party establishes that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990). [ v57 p6 ]
We construe the Agency's objection to the Arbitrator's finding that the Agency's objection to the arbitrability of one of the grievances was untimely as a challenge to the Arbitrator's determination of the procedural arbitrability of the grievance. An arbitrator's determination of the procedural arbitrability of a grievance may be found deficient only on grounds that do not challenge the determination of procedural arbitrability itself. See AFGE, Local 2921, 50 FLRA 184, 185-86 (1995). Such grounds include arbitrator bias or the fact that the arbitrator exceeded his or her authority. See id. at 186.
The Agency's contentions directly challenge the Arbitrator's determination of the procedural arbitrability of the grievance under the parties' agreement. Accordingly, this exception does not provide a basis for finding the award deficient. See id.
2. Purpose of Section 4
The Arbitrator interpreted Section 4 of the parties' agreement as enabling the Agency to "save money" by "utiliz[ing] [its] supervisory time more efficiently." Award at 48, 46. The Agency has not demonstrated that this interpretation is implausible, irrational, or in manifest disregard of the parties' agreement. We note that, even if the Arbitrator's interpretation of the purpose of Section 4 were incorrect, it would not affect the conclusion that the grievants were entitled to temporary promotions because they performed higher-graded duties. As such, the Agency has not shown that the award fails to draw its essence from the agreement on this ground.
3. Period of Back Pay
The Arbitrator's conclusion that the grievants' entitlement to backpay began when they started performing the higher-graded duties constituted his interpretation of the parties' agreement. Contrary to the Agency's contention, the agreement does not require all temporary promotions to begin on the sixty-first consecutive day. It merely states that a temporary promotion will be effected after, among other things, an employee has been assigned to a higher-graded position for more than sixty days. See supra note 3. That performance for sixty days is a prerequisite to a temporary promotion does not necessarily mean that those first sixty days are not compensable. As such, the Agency has failed to establish that the Arbitrator's award disregards the agreement or is unfounded, implausible, or irrational.
C. The award is not contrary to law.
Section 7122(a)(1) of the Statute provides that an arbitration award is deficient if it is contrary to any law, rule, or regulation. In reviewing awards for consistency with law, rule, or regulation, the Authority reviews the questions of law raised in a party's exceptions and the arbitrator's award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
The Authority has generally held that an arbitrator is not bound by another arbitrator's award. See, e.g., AFGE, Local 2459, 51 FLRA 1602, 1606 (1996). In this regard, the Authority has found that arbitrators are required to exercise independent and impartial judgment on issues before them. See AFGE, Local 1273, 44 FLRA 707, 712 (1992). However, arbitrators may consider reasoning and conclusions in other arbitration awards. See id. at 712-13, citing Steelworkers v. Enterprise Wheel and Car Corp., 363 U.S. 593, 597 (1960).
By stating in his interim award that he agreed with the analysis and findings in USDA, the Arbitrator made an independent judgment concerning the issues. In fact, the Arbitrator specifically stated that "an arbitrator may reject the reasoning of another arbitrator on identical facts involving the same parties." Appendix A at 2 to Union's opposition. The Agency does not provide any basis to find that the Arbitrator failed to exercise independent and impartial judgment in making a determination regarding the validity of the grievances. As such, we deny the exception.
The Agency's exceptions are denied.
Concurring Opinion of Chairman Cabaniss:
I write separately to reaffirm my concurring opinion in LIUNA, Local 28, 56 FLRA 324, 327-28 (2000). In that opinion, I expressly noted a failure of parties in arbitration to examine the implicit predicate to entitlement to temporary promotions, i.e., whether or not the duties involved are temporarily assigned to the employee seeking the temporary promotion. As noted there, a classification action takes place to the extent an arbitrator examines the grade level to be ascribed to duties permanently assigned an employee, regardless of whether a temporary or permanent promotion is sought, and that § 7121(c)(5) of our Statute would preclude such matters. Because the Authority's current line of cases no longer appear to address this requirement, I raise it to ensure that it is not overlooked.
Footnote # 1 for 57 FLRA No. 4
Footnote # 2 for 57 FLRA No. 4
Footnote # 3 for 57 FLRA No. 4
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 . . . days.
Award at 2 n.2.
Footnote # 4 for 57 FLRA No. 4
The Authority will not consider evidence offered by a party, or any issue, which was not presented in the proceedings before the . . . arbitrator.