[ v59 p820 ]
59 FLRA No. 149
DEPARTMENT OF EDUCATION
OF GOVERNMENT EMPLOYEES,
April 12, 2004
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 Irwin Kaplan 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 did not file an opposition to the Agency's exceptions.
The Arbitrator found that the Agency violated the parties' collective bargaining agreement (CBA) by failing to promote the grievant to a GS-9 position. To remedy the violation, the Arbitrator ordered a retroactive promotion. For the reasons that follow, we find that the Agency has failed to demonstrate that the award is deficient and deny the Agency's exception.
II. Background and Arbitrator's Award
The Union filed a grievance alleging that the Agency violated the parties' CBA by failing to promote the grievant to a GS-9 position. The Union asserted that the Agency failed to provide the grievant with the required assistance during the appraisal period in order to be promoted to the next grade and requested a retroactive promotion to a GS-9 position. The Agency asserted that the grievant was not eligible for promotion until August 12, 2002, when she successfully completed a proficiency process. The Agency also pointed out the similarity of the grievance to prior grievances and "maintain[ed] that the Union [wa]s barred from pursuing any remedy not encompassed within the instant grievance . . . ." Award at 2 (footnote omitted).
The Arbitrator found the following: The grievant, an experienced Government employee, applied to fill an Agency vacancy for a Loan Analyst position that had career ladder potential, beginning at the GS-7 level with promotion potential to GS-11. On December 4, 2000, the grievant began work at the GS-7 grade level. When the grievant interviewed for the position she was not told that she had to complete a proficiency process and only learned of this requirement from her mentor after she began work. The mentor provided the grievant little information concerning this process and was frequently absent from work which required the grievant to seek assistance with the process from other employees. Also, the grievant's supervisor, who was the Hearing Branch Chief and did not testify at the hearing, mentioned the proficiency process to the grievant and her mentor but did not provide specific instructions for completing it.
In February 2001, the grievant, through an e-mail to her supervisor, requested information on the proficiency process, to which the supervisor never responded. [n1] The Arbitrator found that between April and June 2001, the supervisor provided the grievant and other new hires Evaluation for Promotion (EP) Forms, outlining core and branch proficiencies that had to be completed for promotion, but according to the grievant, this was "very confusing." Id. at 4. In late June 2001, the grievant began working on her proficiency package, but her mentor was frequently absent. In September 2001, the grievant submitted the package to her supervisor. The supervisor informed the grievant that she "had 30 days to review the package and intimat[ed] that this was not a good time." Id.
The Arbitrator found that the grievant sent her supervisor another e-mail approximately 30 days later concerning the status of her proficiency package because her one year anniversary was approaching. Upon receipt, the supervisor became upset and responded to the e-mail in an "irate and agitated manner." Id. at 4. The Arbitrator found that over a 2-day period, the supervisor refused to speak to the grievant, but later agreed to talk to her. According to the Arbitrator, the grievant again asked the supervisor to review her package but received no response. Later, by a December 4 e-mail, the grievant asked the supervisor for a [ v59 p821 ] meeting with a Union representative present, which occurred on December 7.
The Arbitrator found that as a result of the meeting, the supervisor agreed to review the grievant's core proficiency package. The Arbitrator found that on January 17, 2002, the supervisor returned the proficiency package to the grievant and "`slammed' it on her desk," pointing out that corrections needed to be made. Id. at 5. Thereafter, the grievant resubmitted the package to the supervisor and, because of delays in its review and approval, sent a memorandum dated February 8, 2002 to the Office Director setting forth problems with her supervisor. The Arbitrator found that the Director never responded. Subsequently, the supervisor met with the grievant and a new mentor and during this meeting "yelled and . . . berated" the grievant for deficiencies in her proficiency package. Id. The Arbitrator found that the grievant, with the guidance of her mentor, submitted the package to her supervisor on six occasions.
According to the Arbitrator, the grievant's mentor testified that "the proficiency process had been applied more harshly to the [g]rievant than to other employees," particularly under the subject supervisor. Id. at 6. In a June 10, 2002 e-mail to the supervisor, to which the supervisor did not respond, the grievant made a new request for promotion. In late June 2002, the Regional Director (RD) took over the review of the grievant's proficiency package. On July 3, 2002, it was determined the grievant met her core proficiencies and on July 23, 2002, the Union filed the instant grievance. On August 12, 2002, the grievant satisfied two core branch proficiencies and on that day the RD notified appropriate personnel that the grievant met the criteria for promotion to GS-9 Loan Analyst and requested that the paperwork be processed.
The July 23 grievance was denied and the matter was submitted to arbitration. As the parties were unable to agree on the issue, the Arbitrator framed the issue as follows:
Whether the Agency improperly withheld the Grievant's career-ladder promotion to the GS-9 Loan Analyst position until she successfully completed all requirements, including core proficiencies in two branches, thereby violating the CBA, law, rule or regulation and if so, what is the remedy?
Id. at 2 (footnote omitted).
Noting that two prior grievances were filed concerning the grievant's promotion, the Agency argued that only issues encompassed by the July 23 grievance should be considered by the Arbitrator. According to the Agency, the issue raised by the instant grievance was the June 10, 2002 request for promotion and the Agency's alleged failure to comply with Article 18 of the CBA by failing to inform the grievant within 30 days of the reasons for denying the promotion. [n2]
The Arbitrator found that the previous grievances "similarly alleg[ed] that the Agency failed to promote the [g]rievant to the GS-9 position . . . in violation of the CBA." Id. at 16. The Arbitrator found that those grievances were initially processed under the parties' Problem Resolution Procedure set forth in Article 42 of the CBA. He found in the circumstances of this case, "in agreement with the Agency, that only the instant grievance is before me for determination, the grievance filed July 23, 2002." Id. at 17. The Arbitrator further found, contrary to the Agency's argument, that the events occurring prior to the June 10, 2002 request for promotion were "admissible as relevant and material for background purposes" and were encompassed by the grievance. Id. In so finding, the Arbitrator determined that the Agency was on notice that it was faced with allegations concerning the supervisor's failure to provide the grievant with guidance on promotions.
The Arbitrator addressed whether the Agency treated the grievant disparately or otherwise blocked her promotion in violation of Article 18 of the CBA. The Arbitrator found that the record supported the Union's contentions that the Agency failed to fulfill its responsibility under Article 18 by failing to timely convey eligibility requirements for promotion, and allowing certain acts and conduct of the grievant's supervisor to delay her completion of the core proficiencies. The Arbitrator found that Article 18 requires the Agency to provide an employee entering a career ladder position a written statement concerning eligibility for promotion, including applicable time frames and criteria. He found that the Agency failed to provide the grievant with the form in a timely manner and that for months during the appraisal period, the supervisor "either ignored the [g]rievant's request to explain what was required for promotion or otherwise treated her with disdain." Id. at 19. The Arbitrator found that the supervisor asked that corrections be made on items that she had previously approved and that when the grievant's mentor advised the Regional Director that the supervisor was not dealing with the grievant in an appropriate fashion "was told, in turn, to mind her own business and to stay out of it." Id. at 20. [ v59 p822 ]
The Arbitrator found that it was not until late June 2002 that management took meaningful steps to assist the grievant and that when the RD became involved the grievant completed the proficiency package in about six weeks. The Arbitrator noted that through Article 18, the Agency acknowledged "`the importance of providing grade-building experience to employees [in a career ladder] who are performing at least at a Fully Successful [level], so [that] they can demonstrate their ability to perform at the next higher level.'" Id. (quoting Article 18, Section 18.02). The Arbitrator found that the Agency's acts and conduct toward the grievant only "belatedly comported with this principal." Id.
The Arbitrator found that "[i]n the total circumstances of this case, . . . had [the supervisor] properly instructed [the grievant] on the steps and criteria for a career ladder promotion, as required under Article 18, and had she not been so antagonistic toward [her], [the grievant] would have successfully completed the core proficiencies, including the two branches at or around her anniversary date of December 4, 2001." Id. at 20-21. However, because he found that the grievance was predicated on the grievant's request for promotion made on June 10, 2002, he determined that the grievant's promotion to the GS-9 position was retroactive to the first pay period beginning after June 10, 2002. In so concluding, the Arbitrator specifically found that "but for the [Agency's] failure to comply with Article 18 of the CBA, the [g]rievant would have successfully completed her proficiency package by June 10, 2002 and eligible for promotion at that time." Award at 21 n.8.
Accordingly, the Arbitrator sustained the grievance in part and denied it in part.
III. Positions of the Parties
A. Agency Exceptions
The Agency contends that the Arbitrator exceeded the scope of his authority by "basing his decision . . . on events that occurred between December 2000 and December 2001 [that] had already been adjudicated" in previous grievances. Exceptions at 3. The Agency contends that the previous grievances "included specific arguments alleging that Article 18 had been violated when the `[s]upervisor failed during the appraisal period to identify specific grade building assignments . . .' and that `the supervisor violated rules affecting conditions of employment . . . when she failed to provide a written statement concerning eligibility for promotion . . . ." Id. at 4 (quoting Agency Exhibits 5 and 6). The Agency asserts that the record demonstrates that events occurring between the date the grievant was hired and her initial request for promotion in September 2001 were all encompassed in the prior grievances. The Agency contends that management's alleged failure to respond to the grievant's request for promotion was also encompassed in the prior grievances.
According to the Agency, over its "repeated objections[,]" the Arbitrator received documents and testimony into the record as relevant and material for background purposes that were not encompassed in the instant grievance and that were raised in the prior grievances. [n3] The Agency contends that based on the Arbitrator's specific finding that only the July 23 grievance was properly before him for determination, the "time limits for filing grievances established in [Article 42, § 42.06(a) of] the CBA, limit the scope of this grievance to events occurring after June 10, 200." Id. at 5 (emphasis in original). The Agency asserts, therefore, that the Arbitrator's "reliance on testimony concerning events that were beyond the scope of the grievance . . . before him as the justification for awarding a retroactive promotion with back pay was inappropriate and exceeded the scope of his authority." Id. at 6. The Agency contends that by considering events raised in previous grievances, the Arbitrator "resolve[d] an issue not submitted to arbitration[.]" Id.
The Agency next asserts that the award is contrary to law. The Agency contends that although it negotiated Article 18 concerning career ladder positions, it did not relinquish its rights under § 7106(a)(2)(C) of the Statute to make selections for promotions. The Agency asserts that by the terms of Article 18 § 18.03(b) of the CBA, the Agency retained its rights under § 7106 of the Statute to determine eligibility for promotion. Referring to Article 18 § 18.03(b), the Agency contends that demonstration of ability and readiness for promotion is contingent on successful completion of the proficiency package. According to the Agency, notwithstanding the fact that the grievant did not complete the proficiency process until August 12, the Arbitrator ordered a retroactive promotion "`to the first pay period beginning after June 10, 2002.'" Id. at 3 (quoting award at 21.) The Agency contends that by doing so, the Arbitrator excessively interfered with management rights and the award is deficient as contrary to § 7106.
The Agency contends that the award is inconsistent with the Back Pay Act. According to the Agency, although the Arbitrator found that the Agency violated [ v59 p823 ] certain provisions of Article 18, the award of a retroactive promotion with back pay is inconsistent with the Back Pay Act because there was no causal connection between the violation and the remedy imposed. The Agency cites certain testimony and documents and argues that the record does not support the Arbitrator's conclusion that the contract violation delayed the grievant's eligibility for promotion. The Agency asserts that it "is not . . . disputing the [Arbitrator's] determination that the failure to provide the specific information in the [EP] form prior to April-June 2001" was a violation of Article 18. Id. at 8 (footnote omitted). However, according to the Agency, "[w]hile the Arbitrator's finding of an Article 18 violation is enough to establish an `unjustified or unwarranted personnel action' under the Back Pay Act, nothing in the [a]ward establishes or supports a finding that but for this technical violation of the CBA the grievant would have been eligible and qualified for promotion on or before June 10, 2002." Id. at 9. The Agency asserts that the Arbitrator made a specific finding that the grievant had not completed the requirements for promotion until August 12, 2002.
B. Union Opposition
The Union did not file an opposition.
IV. Analysis and Conclusions
A. The Arbitrator Did Not Exceed his Authority
The Agency contends that the Arbitrator exceeded the scope of his authority by basing his decision on events that had already been adjudicated in prior grievances. The Agency asserts that by considering such events the Arbitrator resolved an issue not submitted to arbitration.
An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. See United States Dep't of Defense, Army and Air Force Exch.Serv., 51 FLRA 1371, 1378 (1996). When the parties fail to stipulate the issues, the arbitrator may formulate them on the basis of the subject matter of the grievance. See United States Dep't of Def., Educ. Activity, Arlington, Va., 56 FLRA 887, 891 (2000) (DEA) (citations omitted). Such formulations are accorded substantial deference. Id. (Citation omitted).
In this case, the parties did not stipulate to the issues. In the absence of a stipulation, the Arbitrator framed the relevant issue as whether the Agency improperly withheld the grievant's career-ladder-promotion to the GS-9 Loan Analyst position until she successfully completed all requirements, including core proficiencies in two branches, thereby violating the CBA, law, rule or regulation and if so, what is the remedy. The Agency has failed to establish that the Arbitrator exceeded his authority by basing his decision on earlier events that were part of prior grievances. The Arbitrator's award -- ordering a retroactive promotion with back pay for the grievant based on the requirements of Article 18 of the CBA - is directly responsive and properly confined to the issue that he framed. See, e.g., AFGE, Local 987, 50 FLRA 160, 162 (1995) (AFGE, Local 987); United States Dep't of Agriculture, Food Safety & Inspection Serv., W. Region, 36 FLRA 393, 400 (1990).
Thus, the Arbitrator did not resolve any issues not submitted to arbitration. The Arbitrator expressly found, in agreement with the Agency, that "only the instant grievance [w]as before [him] for determination, the grievance filed on July 23, 2002." Award at 17. While the Arbitrator considered events that had been adjudicated in prior grievances, the Arbitrator did not resolve any issues not before him. Rather, the Arbitrator found such events were "admissible as relevant and material for background purposes" in interpreting the parties' CBA and resolving the issue that was properly before him. See, e.g., DEA, 56 FLRA at 891 (arbitrator considered the parties' past practice only in interpreting the parties' agreement).
Accordingly, the Agency has failed to establish that the Arbitrator exceeded the scope of his authority or resolved an issue not submitted to arbitration.
B. The Award Is Not Contrary to Section 7106(a)(2)(C) of the Statute
The Agency asserts that the award is contrary to § 7106(a)(2)(C) because the award, ordering a retroactive promotion to a Loan Analyst GS-9 position, affects its right to make selections for promotions.
The Authority's role in reviewing arbitration awards depends on the nature of the exceptions raised by the appealing party. See United States Customs Serv. v. FLRA, 43 F.3d 682, 686 (D.C. Cir. 1994). In NTEU, Chapter 24, 50 FLRA 330, 332 (1995), the Authority stated that if the arbitrator's decision is challenged, as it is here, on the ground that it is contrary to any law, rule, or regulation, the Authority will review the legal question de novo. In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of [ v59 p824 ] law. NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See NTEU, Chapter 50, 54 FLRA 250, 253 (1998).
In this case, the Arbitrator directed the Agency to retroactively promote the grievant to a career-ladder GS-9 Loan Analyst position. A career ladder promotion "`is the direct result of an agency's decision to select an employee and place the employee in a career-ladder position in the agency.'" United States Dep't of Housing and Urban Develop., 59 FLRA 243, 246 (2003) (quoting NAGE, Local R2-98, 29 FLRA 1303, 1310 (1987)) (HUD). The Authority has held that:
The [A]gency's selection of an employee and the placement of that employee in a career-ladder position also constitutes the agency's decision to promote that employee noncompetitively at appropriate stages in the employee's career up to the full performance level of the position once the requisite conditions have been met.
Id. (citation omitted). See United States Dep't of Health and Human Servs., Office of the Assistant Sec'y for Mgmt. & Budget, Office of Grant and Contract Fin. Mgmt., Div. of Audit Resolution, Washington, D.C., 51 FLRA 747, 750 (1996), reconsideration denied, 51 FLRA 982 (1996). Therefore, an arbitrator's enforcement of a career ladder provision in a CBA, when the grievant is in a career-ladder position and has fulfilled all the requirements of the career-ladder, does not affect management's right to select under § 7106(a)(2)(C) of the Statute. HUD, 59 FLRA at 247.
Here, the Arbitrator found that had the Agency instructed the grievant on the steps and criteria for a career-ladder promotion, as required under Article 18, and had the supervisor not been so antagonistic, the grievant would have successfully completed her proficiency package by June 10, 2002 and been promoted at that time, rather than August 12, 2002, when completion was actually achieved as a result of meaningful steps to comply with Article 18. Accordingly, as the award enforces the career-ladder provision in the parties' CBA, and as the factual findings conclude that the grievant would have successfully fulfilled all the requirements of the career-ladder by June 10, 2002 had the Agency complied with the CBA, the award does not affect the Agency's right to select under § 7106(a)(2)(C) of the Statute. Thus, there is no need to apply the two prong test for determining whether the award affects management's rights under § 7106(a) set forth in United States Dep't of the Treasury, Bureau of Engraving & Printing, Wash., D.C., 53 FLRA at 151-54. See, e.g., HUD, 59 FLRA at 247.
C. The Award Is Not Contrary to the Back Pay Act
As stated above, the Authority reviews questions of law raised by a party's contentions de novo. An award of a retroactive promotion with backpay is authorized under the Back Pay Act only when: (1) the aggrieved employees were affected by an unjustified and unwarranted personnel action; and (2) the personnel action resulted in a loss of pay by the employees because of a failure to be promoted. See United States Dep't of Health and Human Services, 54 FLRA 1210, 1218-19 (1998) (clarifying that a requirement that the pay loss would not have occurred "but for" the unwarranted action is not a separate, independent requirement of the Act, but merely amplifies the Act's causal connection requirement). A violation of a collective bargaining agreement constitutes an unjustified personnel action under the Act. See NFFE, Local 2030, 56 FLRA 667, 673 (2000).
In this case, the Arbitrator found that the grievant was employed in a career-ladder position and that had the supervisor properly instructed the grievant on the steps and criteria for a career-ladder promotion, as required under Article 18, and not been so antagonistic toward her, the grievant would have successfully completed the core proficiencies. The Arbitrator found that "but for the [Agency's] failure to comply with Article 18 of the CBA, the [g]rievant would have successfully completed her proficiency package by June 10, 2002 and [would have been] eligible for promotion at that time." Award at 21 n.8. The Arbitrator found, therefore, that the grievant was entitled to a retroactive promotion at the beginning of the first pay period following June 10, 2002.
Contrary to the Agency's assertion, the Arbitrator specifically found that but for the Agency's failure to comply with the career ladder provision of the parties' CBA-Article 18, the grievant would have completed her proficiency package by June 10, 2002 and would have been eligible for promotion at that time. Therefore, the Arbitrator's award of backpay is authorized under the Back Pay Act.
To the extent that the Agency asserts that the record does not support the Arbitrator's conclusion that the contract violation resulted in a delay of grievant's eligibility for promotion, this assertion is construed as nonfact exception and is addressed below. [ v59 p825 ]
D. The Award is Not Based on a Nonfact
To establish that an award is deficient as based on a nonfact, the appealing party must demonstrate that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See United States Dep't of the Air Force, Lowry Air Force Base, Denver, Co., 48 FLRA 589, 593 (1993). Moreover, the Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties disputed at arbitration. See United States Dep't of Health and Human Serv., Denver, Co., 56 FLRA 133, 135 (2000).
The Agency's assertion that the record does not support the Arbitrator's conclusion that the Agency's contract violation resulted in a delay of the grievant's eligibility for promotion because the grievant did not satisfy the requirements until August 12, 2002, provides no basis for finding the award deficient. This issue was disputed at the hearing. See Award at 13, 17, and 20-21. Therefore, the Agency has not established that the Arbitrator based his award on nonfacts, and we deny this exception.
The Agency's exceptions are denied.
Article 18 CAREER LADDER
Section 18.01 Career Ladder. A career ladder is a series of positions of levels of increasing difficulty in the same line of work through which an employee may progress from the entrance level . . . . An incumbent employee in a career ladder shall be provided, on request, copies of established higher graded position descriptions in that career ladder.
Section 18.02 The Employer recognizes the importance of providing grade-building experience to employees in a career ladder who are performing at least at a Fully Successful level, so that they can demonstrate their ability to perform at the next higher level. . . . .
Section 18.03 (a) When an employee enters on duty into a career ladder position, he/she will be provided a written statement concerning eligibility for promotion, including applicable time frames and the criteria contained in Section 18.04 of this Article.
(b) The Parties recognize that it is the responsibility of the Employer, alone, to determine the specific assignments or types of assignments, which an employee must successfully perform to demonstrate the ability and readiness for promotion to the next higher level. These assignments should be consistent with the grade level and work requirements of the position to which promotion is sought.
Section 18.04 Incumbent employees in career ladder positions below the full performance level will be promoted to the next higher grade when:
(a) The employee initially selected through merit procedures, or a valid exception or exclusion to merit procedures; [ v59 p826 ]
(b) The employee has met the necessary time-in-grade and qualifications requirements;
(c) The first line supervisor provides written certification that:
(1) The employee is performing at least at a Fully Successful level, has not received less than a "Fully Successful" rating on a critical element that is also critical to the performance at the next higher grade, and has demonstrated the ability and readiness to perform at the next higher level[.]
. . . .
Section 18.05 If an employee has completed time-in-grade and qualifications requirements for a career ladder position, and the supervisor has not initiated action under Section 18.04(c), the employee may request a determination from the supervisor as to whether the supervisor is prepared to recommend promotion. The supervisor will inform the employee within thirty (30) calendar days after the employee has requested a determination of the action he/she intends to take.
(a) If the determination is to recommend a promotion, the supervisor shall promptly initiate the written certification required in Section 18.04(c) of this Article.
(b) If the determination is not to recommend a promotion, the supervisor will promptly communicate to the employee the reasons for non-promotion. If the employee requests, the reasons will be provided in writing. The employee may thereafter request a redetermination from the supervisor at 4-month intervals.
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