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59 FLRA No. 17
OF GOVERNMENT EMPLOYEES
DEPARTMENT OF THE ARMY
ARMY MISSILE COMMAND
REDSTONE ARSENAL, ALABAMA
September 2, 2003
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1]
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator George V. Eyraud filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.
The Arbitrator held that the grievant was not entitled to backpay under the Back Pay Act. For the reasons discussed below, we deny the Union's exceptions.
II. Background and Arbitrator's Award
The grievant was temporarily promoted to a GS-11, Engineering Technician position effective February 22, 1987, and was permanently promoted to that position effective September 8, 1987. On May 3, 1998, the grievant was non-competitively promoted to a GS-802-12 position. According to the Arbitrator, the promotion was "retroactive to 1988." Award at 2. The grievant was not given backpay.
A grievance was filed on May 10, 1998, alleging that the grievant had performed GS-12 duties for ten years prior to his non-competitive promotion to that grade and, as such, that he was entitled to backpay from January 1988.
The Arbitrator denied the grievance. The Arbitrator found that "at all times subject to his back pay request" the grievant was "assigned to a GS-11 position and consequently was not entitled to back pay." Id. at 5. The Arbitrator stated that, even though a supervisor may have told the grievant that he would be promoted or considered a GS-12, "no employee has a legal right to promotion based upon improper promises of management, the grade level reflected on the Table of Distribution and Allowances, or because they or someone else believes they are performing the same duties as another employee at a higher grade." Id. at 4. In reaching this result, the Arbitrator cited United States v. Testan, 424 U.S. 392 (1976) (Testan) and Wilson v. United States, 229 Ct. Cl. 510 (1981) (Wilson). In sum, the Arbitrator found that the grievant was not entitled to backpay under the Back Pay Act, 5 U.S.C. § 5596.
III. Positions of the Parties
A. Union's Exceptions
The Union argues that the Arbitrator's award is inconsistent with the Back Pay Act. Specifically, the Union argues that the Arbitrator ignored the portion of that Act which states that a "personnel action includes the omission or failure to take an action or confer a benefit." Exceptions at 2 (citing 5 U.S.C. § 5596(b)(5)). In this connection, the Union argues that an "omission" occurred when management failed to request a desk audit and failed to submit a request for the grievant's non-competitive promotion to the official "who had the Classification Authority, [which] resulted in the grievant not being promoted." Id.
The Union further argues that the Arbitrator should not have relied on Testan and Wilson because they "are not relevant." Id. The Union distinguishes these cases, arguing that, here, "[t]he grievant was not grieving a wrongful classification, but that he was performing duties . . . at the GS-12." Id. In this connection, the Union notes that under Authority precedent, "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." Id. The Union contends that Army Regulation (AR) 690-300 provides authority for an award of backpay. [n2] [ v59 p91 ]
The Union also argues that the Arbitrator did not consider "all testimony/documentation submitted to him in coming to his decision." Exceptions at 3.
B. Agency's Opposition
The Agency argues that the Arbitrator did not fail to consider a portion of the Back Pay Act, as alleged by the Union, but instead, found the "omission" portion of the Back Pay Act "inapplicable to the instant dispute." Opposition at 3.
Further, the Agency argues that the award was correct in denying backpay because neither the Arbitrator, nor the Union in its exceptions, "identified a nondiscretionary policy in either [a] regulation or [the] collective bargaining agreement mandating temporary promotions for details to higher-graded work." Id. at 2. The Agency argues that AR 690-300, relied upon by the Union, does not mandate temporary promotions for employees who are assigned higher-graded duties.
IV. Analysis and Conclusions
A. The award is not contrary to the Back Pay Act.
The Authority reviews questions of law raised by an arbitrator's award and an exception to it de novo. NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citation omitted). In applying a standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. United States Dep't of the Air Force, Warner Robins AFB, Ga., 56 FLRA 541, 543 (2000) (citation omitted). In making such a determination, the Authority defers to the arbitrator's underlying factual findings. Id.
Under the Back Pay Act, 5 U.S.C. § 5596, 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. See United States Dep't of Def., Def. Commissary Agency, Fort Lee, Va., 56 FLRA 855, 859 (2000).
The Authority has held that an employee may be compensated for the temporary performance of higher-graded duties based on an agency regulation or collective bargaining provision making temporary promotions mandatory for details to higher-graded positions. United States Dep't of the Army, Headquarters, III Corps & Fort Hood, Fort Hood, Tex., 56 FLRA 544, 546 (2000). However, where an arbitrator fails to identify a non-discretionary agency policy set forth in an agency regulation or a collective bargaining agreement provision that would entitle a grievant to backpay for performing the duties of a higher-graded position, there is no unjust or unwarranted personnel action which would entitle the grievant to an award of backpay under the Back Pay Act. Id.
The Union has failed to identify a non-discretionary policy in an agency regulation or a collective bargaining agreement that would entitle the grievant to backpay. As noted previously, without citing any specific provision, the Union argues that AR 690-300 provides authority for an award of backpay. There is no evidence in the award or the record submitted to us that the Union made this argument before the Arbitrator, although it could have done so. Under 5 C.F.R. § 2429.5, the Authority will not consider issues that could have been, but were not, presented to the Arbitrator. AFGE, 57 FLRA 769 (2002). Accordingly, AR 690-300 is barred from consideration as it was raised for the first time in the Union's exceptions. Consequently, the Union's exception is denied. [n3]
B. The Arbitrator did not fail to conduct a fair
To establish that an award is deficient on the ground that an arbitrator failed to conduct a fair hearing, a party must demonstrate that the arbitrator refused to hear or consider pertinent or material evidence, or that other actions in conducting the proceeding so prejudiced a party as to affect the fairness of the proceedings as a whole. See AFGE, Local 1668, 50 FLRA 124, 126 (1995).
We construe the Union's contention that the Arbitrator failed to consider all of the testimony and documentation presented to him as a claim that the Arbitrator [ v59 p92 ] did not conduct a fair hearing. As a general matter, disagreement with an arbitrator's findings of fact and evaluation of evidence and testimony, including the credibility of witnesses and the weight to be given their testimony, does not provide a basis for finding an award deficient. United States Dep't of Veterans Affairs, Ralph H. Johnson Med. Ctr., Charleston, S.C., 57 FLRA 489, 493 (2001). The Union did not point to any evidence in the record to support its allegation, and did not submit any supporting documentary evidence, such as a transcript of the hearing, its post-hearing brief or the exhibits submitted to the Arbitrator. A union's "unsubstantiated allegations cannot establish that the [a]rbitrator . . . denied it a fair hearing." AFGE, Local 1406, 54 FLRA 150, 155 (1998). Consequently, the Union's allegation does not support a finding that the Arbitrator denied the grievant a fair hearing and we deny this exception.
The Union's exceptions are denied.
Concurring Opinion of Chairman Cabaniss:
write separately regarding the classification aspects of this case. The grievant alleged that he had been performing GS-12 duties for ten years prior to his promotion to that same level. Even if there had been some nondiscretionary policy in existence permitting the temporary promotion of employees to a higher grade, I fail to see how duties that have been allegedly performed for ten years could be considered temporary in nature such that a temporary (as opposed to permanent) promotion could legitimately be at issue. And, given the focus of the grievance and the exceptions on the Agency's alleged failure to submit a non-competitive promotion to the management official "who had the [c]lassification [a]uthority" (Exceptions at 2), I see little basis or need for any evaluation of whether the grievant might have been eligible for a temporary promotion. As this case presents an issue of whether the grievant should have been permanently promoted, I would dismiss the exceptions as being contrary to § 7121(c)(5) and thus not within the Authority's jurisdiction.
Footnote # 1 for 59 FLRA No. 17 - Authority's Decision
Footnote # 2 for 59 FLRA No. 17 - Authority's Decision
The Union does not cite any specific provision contained in AR 690-300. The portion of the regulation submitted by the Union addresses career-ladder promotions, non-competitive promotions "resulting from the addition of duties and responsibilities[,]" and "[s]pecial consideration for repromotion." Exceptions, Enclosure 2 at 1.
Footnote # 3 for 59 FLRA No. 17 - Authority's Decision
In its exceptions, the Union claims that the Agency failed to request a desk audit and failed to submit a request for the grievant's non-competitive promotion to the official "who had the Classification Authority, [which] resulted in the grievant not being promoted." Exceptions at 2. However, any claim that the grievant's position should be reclassified would be barred from resolution in the grievance procedure by § 7121(c)(5) of the Statute. Section 7121(c)(5) states that the Statute does not apply to "the classification of any position which does not result in the reduction in grade or pay of an employee." 5 U.S.C. § 7121(c)(5). Furthermore, the Back Pay Act "does not apply to any reclassification action . . . ." 5 U.S.C. § 5596(b)(3).