First, we must determine whether the award is contrary to § 7121(c)(5) of the Federal Service         Labor-Management Relations Statute^[1] (the Statute) because the Arbitrator erred in finding that the grievance involved a temporary promotion, rather than the classification of the grievant’s position. Because the Agency has not established that the grievance concerns the classification of the grievant’s position, the answer is no.

 

The grievant, a GS-11 information-technology specialist (specialist), began performing GS-12 work after assuming the duties of several GS-12 specialists who had been promoted. After the grievant provided a detailed accounting of the GS-12‑level work that she was performing to her first-level supervisor, the first‑level supervisor informed the grievant’s second-level supervisor that the Agency should “obvious[ly]” promote the grievant.^[2]  The second-level supervisor denied the promotion and responded that, if the first‑level supervisor had been assigning GS-11 specialists GS-12 level work, the practice “must stop now.”^[3] 

The Union filed a grievance alleging that the Agency had violated Article 12 of the parties’ agreement by failing to properly compensate the grievant for her performance of higher-graded duties. Article 12 of the parties’ agreement provides, in pertinent part, that “a [GS] employee who performs the grade‑controlling duties of a higher-graded position for at least 25% of his time     . . . shall be temporarily promoted.”^[4] The parties did not resolve the grievance and submitted it to arbitration.

                Before turning to the merits of the case, the Arbitrator first considered the Agency’s contention that the grievance was not arbitrable because the Union sought a reclassification of the grievant’s position from GS-11 to GS-12 and that “[s]uch reclassification is barred by” § 7121 of the Statute.^[5] The Arbitrator rejected the Agency’s contention, finding that the Union had “made clear . . . through establishment of its burden of proof and the requested remedy . . . that it was not seeking a re[]classification, only compensation, for duties performed at a higher level.”^[6]

 

 

The Arbitrator concluded that the grievant’s supervisors knowingly assigned the grievant GS-12 level work.^[8] The Arbitrator also found that they acknowledged that the grievant satisfied the requirements for a temporary promotion under the parties’ agreement.^[9]  When fashioning the remedy, the Arbitrator explained that the Agency’s failure to “finish the task of quantif[ying]” the grievant’s duties limited his award, and he awarded the grievant 120‑days’ pay at the GS-12 rate in effect at the time that she filed her grievance.^[10]

 

 

 

 

The Agency argues that the award is contrary to § 7121(c)(5) because the grievance concerns the classification of the grievant’s position.^[11] When an exception involves an award’s consistency with law, the Authority reviews any question of law raised by the exception and the award de novo.^[12] In applying the standard of de novo review, the Authority assesses whether an arbitrator’s legal conclusions are consistent with the applicable standard of law.^[13] In making that assessment, the Authority defers to the arbitrator’s underlying factual findings.^[14]

 

Under § 7121(c)(5), arbitrators lack jurisdiction to determine “the classification of any position which does not result in the reduction in grade or pay of an employee.”^[15] Where the essential nature of a grievance concerns the grade level of the duties assigned to and performed by the grievant in his or her permanent position, the grievance concerns the classification of a position within the meaning of § 7121(c)(5).^[16] However, “where the substance of the grievance concerns whether the grievant is entitled to a temporary promotion under a collective[-]bargaining agreement by reason of having performed the established duties of a higher-graded position, the Authority has long held that the grievance does not concern the classification of a position within the meaning of § 7121(c)(5).”^[17]

 

The Agency has not established that the grievance concerns the classification of a position rather than a temporary promotion. The Arbitrator found that “the Union made clear . . . through establishment of its burden of proof and the requested remedy . . . that it was not seeking a re‑classification,” but only a retroactive temporary promotion of the grievant.^[18] Consistent with this, in its opposition, the Union argues that the Arbitrator correctly awarded the grievant a temporary promotion.^[19] 

 

Further, it is undisputed that the duties allegedly performed by the grievant were the duties of a position other than her own. Specifically, the Arbitrator found that the grievant performed duties previously assigned to GS-12 specialists in her office.^[20] 

 

By contrast, the Arbitrator did not “consider whether the grievant[] should have been permanently promoted.”^[21]  Nor did the Arbitrator “evaluate the grade level of the duties permanently assigned to and performed by the grievant[] to determine the appropriate classification of [her] position” – some of the hallmarks of a classification action.^[22]

 

The Agency’s reliance on USDA, Food & Consumer Service, Dallas, Texas (USDA)^[23] is misplaced. In that case, the GS-11 grievant did not take on the duties of specific higher‑graded employees, as here. Instead, she was assigned higher-graded work by her GS‑12 team leader who proposed and executed “a division of duties in which he would assign ‘GS-12[-] level work’ to the grievant.”^[24] Moreover, after the grievant in USDA requested a promotion, the agency ordered a desk audit to determine the level of work that she was performing. The Authority held in USDA that “[s]uch actions are consistent with attempts to determine the proper grade level to assign to the duties being performed . . . which constitutes a classification matter within the meaning of § 7121(c)(5).”^[25] Here, by contrast, the Agency did not undertake a desk audit of the grievant’s position, nor did the grievant request that it do so. ^[26]  Accordingly, the Agency has not established that the grievance concerns the classification of a position, rather than a temporary promotion, and we deny the Agency’s contrary‑to‑law exception.

 

                The Agency further argues that the award fails to draw its essence from Article 12, Section 2(A) of the parties’ agreement.^[27] 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.^[28] Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the parties’ 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 purposes of the collective bargaining 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.^[29] The Authority and the courts defer to arbitrators in this context “because it is the arbitrator’s construction of the agreement for which the parties have bargained.”^[30]

 

                The Agency argues that the award fails to draw its essence from Article 12 of the parties’ agreement because the Arbitrator found that the grievant was promoted without first determining that she was detailed, as required by the parties’ agreement. Article 12, Section 2(A) of the parties’ agreement provides that “[e]mployees detailed to a higher[‑]grade position for a period of more than ten (10) consecutive work days must be temporarily promoted.”^[31] Therefore, the Agency argues, “an employee cannot be found to be temporarily promoted without first finding [that] the employee was detailed.”^[32]

 

                Contrary to the Agency’s position, Article 12 of the parties’ agreement does not condition temporary promotions on first receiving details. In U.S. Department of VA, Medical Center, Washington, District of Columbia (VA),^[33] we analyzed the same argument stemming from the same nationwide-master-agreement language at issue here. In VA, we held that Article 12, Section 2(A) “does not condition temporary promotions upon formal details.”^[34] Thus, consistent with VA, nothing in Article 12 prohibited the Arbitrator from finding that the grievant was entitled to a temporary promotion, despite the Agency’s failure to formally detail her.^[35] In light of Authority precedent, we find the Agency’s argument unpersuasive.

 

 

The Agency argues, in addition, that the award fails to draw its essence from the parties’ agreement, and that the temporary promotion remedy was erroneous, because the time the grievant spent performing higher‑graded work lacked quantification, as required by Article 12.^[36] Article 12, Section 2(A) of the parties’ agreement provides only that “[GS] employee[s] who perform[] the grade‑controlling duties of a higher-graded position for at least 25% of [their] time . . . shall be temporarily promoted.”^[37] 

 

Here, the Arbitrator found that the requirements for a temporary promotion under Article 12, Section 2(A) of the parties’ agreement were satisfied. Analyzing the case based on “the Union’s theory” – that the grievant met Article 12, Section 2(A)’s 25% requirement – the Arbitrator focused on the actions of the grievant’s supervisors.^[38] Specifically, the Arbitrator found that the grievant’s supervisors “lent credence” to the Union’s claims that the grievant met the requirements of Article 12, Section 2(A) “by considering [promotion] as the remedy for what [the Agency] acknowledged had been occurring.”^[39] Read in context, we interpret the Arbitrator’s award as finding that what “had been occurring” – which the Agency considered remedying with a promotion – was the grievant’s performance of higher-graded duties for at least 25% of her time. The award therefore includes factual findings sufficient to support the award’s remedy.

 

The dissent erroneously finds that the sentence from the award cited above “appears in the portion of the award discussing the qualification of the grievant’s duties – not the quantification of them.”^[40] The dissent ignores the Arbitrator’s immediately preceding sentence, which, as discussed above, analyzes the case based on the Union’s theory – that “employee[s] who perform[] the grade‑controlling duties of a higher-graded position for at least 25% of [their] time . . . shall be . . . promoted.”^[41]  Therefore, it is clear that quantification of the grievant’s duties was central to the Arbitrator’s analysis.

 

Moreover, in the balance of the award, the Arbitrator rejected the Agency’s claims that the grievant never performed higher-graded duties, or a sufficiently high percentage of those duties, to be entitled to a temporary promotion. The Arbitrator determined, in this connection, that the Agency bore the burden of “quantifying” the grievant’s duties, including the 25% requirement set forth in Article 12, Section 2(A) of the parties’ agreement. “The burden . . . was on at least two supervisors to have kept track of their subordinate; not the other way around. Unfortunately, those supervisors did not finish the task of quantification.”^[42] Because the Agency failed to carry its burden, the Arbitrator rejected the Agency’s claims.

 

 

considers appropriate unless a specific allocation is required.^[43] Therefore, the Agency and the dissent do not provide a basis for finding that the Arbitrator’s chosen allocation is deficient.^[44] 

 

 

 

 

To establish that an award is 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. ^[46] Disagreement with an arbitrator’s evaluation of evidence, including the determination of the weight to be given such evidence, provides no basis for finding the award deficient.^[47] 

 

                The Agency argues that the award is based on nonfacts in two respects.^[48] The Agency’s first nonfact exception is that the Arbitrator:  (1) erred in attributing more weight to a supervisor’s e-mails than her oral testimony; (2) discredited three Agency witnesses without making a credibility determination; and (3) improperly bolstered the grievant’s testimony.^[49] In short, the Agency disagrees with the Arbitrator’s evaluation of the evidence, including his determination of the weight to be given such evidence.^[50] Such disagreements with an arbitrator’s evaluation of evidence do not provide a basis for finding that an award is based on nonfacts.^[51] Therefore, we deny the Agency’s first nonfact exception.

 

                The Agency’s second nonfact exception is that the Arbitrator did not determine whether “[the grievant] performed . . . GS-12 duties for more than 25% of the time.”^[52] This argument relies on the same essence arguments discussed above. As we have rejected the Agency’s essence exceptions, we also reject the Agency’s related nonfact exception.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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