United States, Department of Veterans Affairs, Ralph H. Johnson Medical Center, Charleston, South Carolina (Agency) and National Association of Government Employees, Local R5-136 (Union)

[ v58 p413 ]

58 FLRA No. 101

UNITED STATES
DEPARTMENT OF VETERANS AFFAIRS
RALPH H. JOHNSON MEDICAL CENTER
CHARLESTON, SOUTH CAROLINA
(Agency)

and

NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES
LOCAL R5-136
(Union)

0-AR-3611

_____

DECISION

March 31, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Craig E. Overton 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 found that the Agency violated regulations and a settlement agreement between the parties by failing to timely promote the grievants, and he awarded the grievants backpay and service credits.

      For the following reasons, we deny the Agency's exceptions.

II.     Background and Arbitrator's Award

      As the result of a grievance alleging that several employees were performing the work of a higher grade (GS-7), the parties reached a settlement agreement, in which the Agency agreed to, among other things, reclassify the grievants' positions to GS-7. In October 2001, one year after the effective date of the grievants' reclassification to GS-7, the Agency declined to promote the grievants to GS-8. Another grievance was filed, which was submitted to arbitration, where the Arbitrator framed the issue as follows: "What shall be the disposition of the grievance, including remedy, if any?" Award at 2. [ v58 p414 ]

      The Arbitrator found that the parties to the settlement agreement intended that the grievants would be promoted to GS-8 once they "satisfied numeric performance standards and . . . met the time in grade requirement." Id. at 3. The Arbitrator also found that the grievants satisfied both conditions in October 2001 but were not promoted to GS-8 until April 2002. As for performance standards, the Arbitrator found that the grievants received "successful" performance ratings in April 2001 and that, in view of the fact that they were again rated "successful" in April 2002, there was "insufficient substantive evidence" demonstrating that their performance declined between April and October 2001. Id. at 16. With regard to time in grade, the Arbitrator found that, as of October 2001, the grievants had spent one year in grade GS-7.

      The Arbitrator concluded that the Agency failed to timely promote the grievants "pursuant to the regulations and the settlement agreement." Id[n1]  Accordingly, he directed the Agency to compensate the grievants for lost wages and any applicable service credits for the period from October 2001 until April 2002.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency argues that the award fails to draw its essence from the parties' agreement. Specifically, the Agency asserts that there is no language in the settlement agreement that discusses promoting the grievants.

      The Agency also argues that the award is contrary to the Back Pay Act, 5 U.S.C. § 5596. In this regard, the Agency contends that the Arbitrator did not cite any regulations or any other "non-discretionary provision" that required the Agency to promote the grievants. Exceptions at 6. In addition, the Agency asserts that there was witness testimony that the grievants would not have been promoted in October 2001 and that an Agency regulation requires promotion only after employees have performed "to the satisfaction of the supervisor." Id. at 8. The Agency relies on: Brown v. Secretary of the Army, 918 F.2d 214 (D.C. Cir. 1990); unpublished Comptroller General decision In re F.E.C., B-229,290 (June 10, 1988); In re Agnes Mansell, 64 Comp. Gen. 844 (1985); In re Douglas C. Butler, 58 Comp. Gen. 51 (1978); SSA, Office of Hearings & Appeals, Orlando, Fla., 54 FLRA 609 (1998); and AFGE, Local 2502, 17 FLRA 382 (1985).

B.     Union's Opposition

      The Union argues that the evidence supports the Arbitrator's conclusions that: (1) the parties to the settlement agreement intended for the grievants to be promoted to GS-8 upon meeting time in grade and performance requirements; and (2) but for the Agency's violation of the agreement, the grievants would have been promoted.     

IV.     Analysis and Conclusions

A.     The award draws its essence from the parties' agreement.

      We apply the deferential "essence" standard to review the Arbitrator's interpretation of the parties' settlement agreement. See, e.g., United States Dep't of the Navy, Naval Weapons Station, Yorktown, Va., 57 FLRA 917, 920 (2002). For an award to be found deficient as failing to draw its essence from the parties' agreement, it must be established 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 to the wording and purposes of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990). Where an arbitrator interprets an agreement as imposing a particular requirement, the fact that the agreement is silent with respect to that requirement does not, by itself, demonstrate that the award fails to draw its essence from the agreement. See, e.g., United States Dep't of Def., Educ. Activity, Arlington