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60 FLRA No. 39
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
August 23, 2004
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 Martin A. Soll 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 grievance, which alleged that the Agency failed to promote the grievant in a timely manner. The Arbitrator ordered the Agency to retroactively promote the grievant and make him whole for any pay and benefit losses. For the reasons set forth below, we deny the Agency's exceptions.
II. Background and Arbitrator's Award
The Agency and the Union negotiated a new pay system separate from the General Schedule Pay System (GS System). The new pay system, entitled the "PASS/Airways Facilities Pay Plan" (Pay Plan), became effective on July 2, 2000. [n2] The grievant, a GS-11 Professional Airways Systems Specialist, satisfied the requirements for a career ladder promotion to GS-12 in June. On June 22, the grievant's immediate supervisor at the Agency's Air Traffic Control Center in Jacksonville, Florida (the local office) "signed off, approved, confirmed, and endorsed" the grievant's promotion documentation. Award at 7. On June 26, the facility manager of the local office "signed off, confirmed, endorsed[,] and approved" the documentation, and, on June 27, forwarded it to the Agency's System Management Office (the system office). Id. The system office manager did not "discover" the documentation until July 6. Id. at 8. Upon discovering the documentation, the system office manager "signed" and forwarded it to the Agency's Southern Region Office (the regional office). Id. The regional office finalized the grievant's promotion on July 7.
As a result of the delay in the system office, the grievant was promoted under the Pay Plan, rather than the GS System, and received an 8 percent pay increase, instead of the 16 percent pay increase he would have received if he had been promoted under the GS System. The Union filed a grievance, which was unresolved and was submitted to arbitration, where the parties stipulated the issue to be whether the FAA placed the grievant at the correct grade level when converting him to the Pay Plan on July 2, 2000 and, if not, what is the appropriate remedy. See id. at 5.
The Arbitrator agreed with the Agency that, under Comptroller General precedent, "only those delays, errors or omissions which occur after the approval of the promotion by the `properly authorized official' will support a retroactive promotion." Award at 16 (citing Cahill, 58 Comp. Gen. 59 (1978) (Cahill)). However, the Arbitrator disagreed with the Agency's claim that the system office manager was the Agency official whose signature constituted "approv[al]" of the grievant's promotion. Id. In this connection, the Arbitrator determined that it was Agency "practice that confirmed, endorsed[,] and approved employee promotion requests [be] sent from the [local office] . . . to the [system office], whose management would promptly verify and sign off the promotion and then fax or overnight it to the [regional office]." Id. at 6-7. The Arbitrator also determined, in accordance with PRIB 21-2, an Agency regulation, that the grievant's immediate supervisor and the local office facility manager were the only Agency officials who "had the discretion to approve or disapprove the promotion by means of their written certification(s), [ v60 p166 ] approval(s)[,] and endorsement(s) . . . ." Id. at 17. The Arbitrator further determined that the system office manager had the authority only to "verify" that the grievant had successfully met the promotion requirements. Id. at 16. The Arbitrator concluded that, under Cahill, the grievant was entitled to a retroactive promotion because the errors in the Agency's system office occurred after the grievant's local office supervisors approved the promotion.
Alternatively, the Arbitrator found that the Agency violated Article 35, Section 4 (§ 4) of the parties' agreement. [n3] In this regard, the Arbitrator determined that, under § 4, the Agency was required to promote the grievant "`on the beginning of the first full pay period after the [grievant] me[t] regulatory and administrative requirements . . ., and [wa]s recommended for promotion by his/her supervisor.'" Id. at 19-20 (quoting § 4). The Arbitrator concluded that the Agency violated § 4 by failing to effect the grievant's promotion on July 2, the beginning of the first pay period after June 26, the date when the grievant met all of the promotion requirements. See id at 20.
Furthermore, the Arbitrator found that Article 35, Section 5 (§ 5) of the parties' agreement [n4] required the Agency to "`adjust' . . . denied benefits and pay resulting from the oversights and administrative errors of its management in accordance with applicable law and regulation." Id. at 21. He concluded that, under § 5, the grievant was "contractually entitled to have his promotion retroactively adjusted" because the Agency's delay in the system office resulted in the Agency's failure to timely promote the grievant. Id.
Based on the foregoing, the Arbitrator sustained the grievance and ordered the Agency to retroactively finalize the grievant's promotion such that it would be effective retroactive to July 2. The Arbitrator also ordered the Agency to make the grievant whole for all pay and benefits the grievant lost as a result of the Agency's improper action.
III. Positions of the Parties
A. Agency's Exceptions
The Agency claims that the award is contrary to management's rights to assign work and to direct employees under 5 U.S.C. § 7106(a)(2)(A) and (B). In this regard, the Agency contends that the award affects management's right to assign work because it requires the Agency to assign the duty of approving the grievant's promotion to the grievant's local office supervisors, when the parties' agreement and Agency regulations provide that the Human Resources Management Officer (HRMO) will approve and effect promotions. In addition, the Agency argues that Agency "rules and regulations" require that the grievant's promotion be approved by the HRMO, not the grievant's local office supervisors. Exceptions at 6.
B. Union's Opposition
The Union disputes that the award is contrary to management's rights to assign work and to direct employees. Specifically, the Union claims that the Arbitrator did not assign work to Agency officials. In addition, the Union disputes that the award is contrary to Agency rules and regulations. The Union maintains that the Agency "does not identify with specificity which Agency regulation it contends is inconsistent with the [A]rbitrator's decision[.]" Opposition at 13.
IV. Analysis and Conclusions
The Agency's claims that the award is contrary to management's rights under § 7106 and to Agency rules and regulations challenge the award's consistency with law. Accordingly, we review the questions of law raised by these assertions 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 the standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standards of law. See United States Dep't of Def., Dep'ts of the Army & the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id. [ v60 p167 ]
A. The award is not contrary to 5 U.S.C. § 7106(a)(2)(A) and (B).
When resolving an exception alleging that an award violates management's rights under § 7106 of the Statute, the Authority first determines whether the award affects a management right under § 7106(a). See United States Small Bus. Admin., 55 FLRA 179, 184 (1999). If it does, then the Authority applies the framework established in United States Dep't of the Treasury, Bureau of Engraving & Printing, Wash., D.C., 53 FLRA 146 (1997) (BEP). [n5] If the award does not affect a management right, then the Authority does not apply the BEP framework. See United States DOD, Marine Corps Logistics Base, Albany, Ga., 57 FLRA 275, 277-78 (2001).
The right to assign work under § 7106(a)(2)(B) of the Statute includes the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what positions the duties will be assigned. See United States Food & Drug Admin., Detroit Dist., 59 FLRA 679, 682 (2004). Here, the award does not assign any particular duties to any employees or positions and does not determine when any assigned work will be performed. The award merely finds that, consistent with Agency practice, the parties' agreement, and PRIB 21-2, the duties assigned to, and performed by, the grievant's local supervisors constituted "approv[al]" of the grievant's promotion, while the work assigned to, and performed by, other Agency officials constituted "verify[ing]" that all promotion requirements were met and "finaliz[ing]" the promotion. Award at 16, 7. Accordingly, the Agency has failed to establish that the award affects management's right to assign work.
Moreover, as the Agency provides no support for its claim that the award affects the Agency's right to direct employees, we find that the claim is a bare assertion, which provides no basis for finding the award deficient. See United States Dep't of Veterans Affairs, VA Reg'l Office, St. Petersburg, Fla., 58 FLRA 549, 552 n.3 (2003) (Member Pope concurring).
Based on the foregoing, the Agency has not demonstrated that the award affects management's right to assign work or to direct employees, and it is unnecessary to apply the two-prong test set forth in BEP. As such, we deny the exceptions.
B. The award is not contrary to Agency rules and regulations.
The Agency claims that the award is contrary to Agency "rules and regulations" because it gives full promotion approval to the grievant's local office supervisors, instead of the HRMO. Exceptions at 6. However, the Agency has not cited to any rule or regulation with which the award conflicts. As such, the Agency has not supported its claim that the award is deficient as contrary to Agency rules and regulations. [n6] See United States Dep't of the Air Force, San Antonio Air Logistics Ctr., Kelly Air Force Base, Tex., 51 FLRA 1624, 1628 (1996); AFGE, AFL-CIO, Local 916, 48 FLRA 336, 339 (1993). Accordingly, we deny the exception. [n7]
The Agency's exceptions are denied. [ v60 p168 ]
Concurring Opinion of Chairman Cabaniss:
I write separately to discuss the "properly authorized official" concept in examining when a promotion has been properly approved by the appropriate personnel such that only ministerial acts remain to effect the promotion. As noted in note 7 of the majority opinion, the approval of promotions for this organization is by the Human Resources Management Officer or his/her designee. As also noted by the majority opinion, in quoting the award, "only those delays, errors or omissions which occur after the approval of the promotion by the `properly authorized official' will support a retroactive promotion." Award at 16, (citing Cahill, 58 Comp. Gen. 59 (1978)). In the present case, the Arbitrator found that the grievant's immediate supervisor and the local office facility manager were the approving officials for the promotion action.
It is clear from the above that a critical issue in personnel management is the proper identification of the individual authorized to approve personnel actions. The authority to take final actions on matters pertaining to the "employment, direction, and general administration of personnel management" in an agency resides with the head of an agency, but per 5 U.S.C. § 302 that authority may be delegated to a subordinate official. The United States Office of Personnel Management has issued an operating manual entitled "The Guide to Processing Personnel Actions" (the Guide), which addresses the processing of personnel actions by agencies. Chapter 3, Subchapter 1, paragraph 1-4.b. of the Guide notes that under 5 U.S.C. § 302, "the head of an agency may delegate appointing authority to subordinates. Such delegations are generally made to the agency's director of personnel who then redelegates the authority to other members of the personnel staff, as necessary." That paragraph also notes that such delegations must be in writing. Paragraph 1-4.c. goes on to note that the appointing officer is "responsible for ensuring that each personnel action he or she approves meets all legal and regulatory requirements." That paragraph also goes on to note that the appointing officer is responsible for approving determinations made by staffing specialists, personnel assistants, and other personnel office staff, and that, in the case of promotions, for example, "the appointing officer ensures that the position to which the employee is assigned has been established and properly classified." As noted by Chapter 1, Subchapter 1, paragraph 1-3.a. of the Guide, and as is apparent from the above, an individual holding appointing authority is the individual who has the authority to approve personnel actions.
I conclude from the above that it would be highly unusual to find that an immediate supervisor of an employee or a local office facility manager would actually be found to possess the authority to review the work of the personnel office to ensure consistency with all legal and regulatory requirements, and thus be authorized as the appointing authority. However, it is not that apparent that these considerations were made a part of the record for the Arbitrator to consider, and the Agency presented no persuasive argument for setting aside the award on this point. Thus, I agree with the majority opinion.
Footnote # 1 for 60 FLRA No. 39 - Authority's Decision
Footnote # 2 for 60 FLRA No. 39 - Authority's Decision
Footnote # 3 for 60 FLRA No. 39 - Authority's Decision
Article 35, Section 4 provides that "[p]romotion of developmental employees shall be effective on the beginning of the first full pay period after the employee meets regulatory and administrative requirements, including job performance, and is recommended for promotion by his/her supervisor." Opposition, Attachment D at 36 (February 1992 Collective Bargaining Agreement).
Footnote # 4 for 60 FLRA No. 39 - Authority's Decision
Article 35, Section 5 states, in relevant part, "[w]hen it has been determined that, through administrative error or oversight, the employee is denied benefits or pay to which he/she is otherwise entitled, . . . adjustments of said benefits shall be made as quickly as possible, in accordance with applicable law and regulation." Opposition, Attachment D at 36 (February 1992 Collective Bargaining Agreement).
Footnote # 5 for 60 FLRA No. 39 - Authority's Decision
Under prong I of the BEP framework, the Authority examines whether an award provides a remedy for a violation of either an applicable law, within the meaning of § 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to § 7106(b) of the Statute. BEP, 53 FLRA at 153-54. Under prong II, the Authority considers whether the award reflects a reconstruction of what management would have done if management had not violated the law or contractual provision at issue. Id. at 154.
Footnote # 6 for 60 FLRA No. 39 - Authority's Decision
The Arbitrator based the award on his interpretation of § 4 and § 5 of the parties' agreement. Accordingly, the Agency's argument that the award is contrary to Agency rules and regulations, even if correct, would not establish that the award is deficient. See NAGE, Local R4-45, 55 FLRA 789, 794 (1999) (collective bargaining agreements, rather than agency-wide regulations govern the disposition of matters to which they both apply).
Footnote # 7 for 60 FLRA No. 39 - Authority's Decision
We note that, from review of the record, the Agency's argument is likely based on an Agency Human Resource Memorandum (Memo), which provides that a "promotion cannot take effect until the HRMO or his/her designee officially certifies that the action complies with appropriate laws and regulations." Exceptions, Attachment D (Joint Ex. 6 - AHR Memorandum). If it is, and assuming the Memo constitutes an Agency rule or regulation, then the Agency has failed to demonstrate that the award is contrary to the Memo. By its terms, the Memo permits certification of a promotion by the HRMO "or his/her designee[.]" Id. The Agency provides no basis to conclude that the grievant's local supervisors could not be designated to perform this duty. Accordingly, the Agency has not demonstrated that the award is contrary to the Memo.