[ v42 p664 ]
42:0664(43)AR
The decision of the Authority follows:
42 FLRA No. 43
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Leon B. Applewhaite filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exceptions.
The grievant filed a grievance over the Agency's failure to grant her a career-ladder promotion to GS-11. The Arbitrator ruled that the grievant was entitled to have been promoted to GS-11 effective August 31, 1987. In a clarification of his award, he awarded her backpay from that date until the date on which she terminated her employment with the Agency.
We conclude that the Agency's exceptions were untimely filed insofar as they dispute the Arbitrator's original award, and we will dismiss the exceptions to that extent. We conclude that the exceptions were timely filed to the extent that they dispute the clarification of the award to award backpay to the grievant until the date on which she terminated her employment with the Agency. However, we find that the exceptions provide no basis for finding that aspect of the award deficient, and we will deny the exceptions.
II. Background and Arbitrator's Awards
On August 19, 1985, the grievant was appointed to the position of communications management specialist, GS-391, at the GS-7 grade level. The position was in a career ladder with a full-performance level of GS-12. On August 19, 1986, the grievant was granted a career-ladder promotion to GS-9. After she had served 1 year at GS-9, her supervisor made a delayed recommendation that she be granted a career-ladder promotion to GS-11. The recommendation was placed in abeyance pending a classification audit of the grievant's position.
On April 26, 1988, the findings of the classification audit were issued. The audit report found that the grievant's position was misclassified as to title, series, and grade. The audit report concluded that if no changes were made to the current tasks assigned to the grievant, the correct grade determination was GS-7 and a downgrade action would be necessary. The audit report advised that if some changes were made in the position, the position could potentially support a GS-9 grade level as a communications specialist, GS-393. The report stated that apparently no GS-11 position description was ever established or classified and that no GS-11 work was observed. The report further found that the GS-12 position description was misclassified and could support only a GS-9 level even if revisions were made. Accordingly, the audit report recommended that the GS-11 and GS-12 levels of the series be abolished.
On May 1, 1988, the Union filed a grievance over the Agency's failure to grant the grievant a career-ladder promotion to GS-11. As a result of the classification audit, the grievant was reassigned in August 1988 to the position of communications specialist, GS-393, at the GS-9 grade level. The grievance was not resolved and was submitted to arbitration.
Before the Arbitrator, the Agency argued that a career-ladder promotion cannot be granted after a classification audit results in the abolition of the career-ladder position. The Agency maintained that, consequently, the grievance was not grievable or arbitrable because it concerned a classification matter under section 7121(c)(5) of the Statute and Article 34 of the parties' collective bargaining agreement.
The Arbitrator rejected the Agency's argument that the grievance concerned a classification matter. He ruled that the grievance was arbitrable as a matter relating to a career-ladder promotion. The Arbitrator concluded that the grievant should have received a career-ladder promotion to GS-11 effective August 31, 1987. He found that the grievant satisfied the requirements for promotion and that the grievant's supervisor had recommended her for promotion before the classification audit. The Arbitrator recognized the legitimacy of the classification audit and its abolition of the original career ladder, but he ruled that it could not be used retroactively to deprive the grievant of the promotion to which she was entitled. Instead, he ruled that the audit applied to preclude the grievant's career-ladder promotion to GS-12 because a GS-12 position was no longer available.
Accordingly, on April 20, 1990, the Arbitrator issued the following award:
That the matter is grievable and arbitrable as a career ladder promotion.
That the Grievant . . . is entitled to career ladder promotion to GS-11 effective August 31, 1987.
That the career ladder position has been reclassified and is non-grievable and non-arbitrable as of April 26, 1988.
Award at 6.
According to the Agency, on March 24, 1990, the grievant terminated her employment with the Agency. Pursuant to the Arbitrator's award, the Agency, in June 1990, provided the grievant with backpay computed on the basis of the difference in salary between GS-9 and GS-11 for the period August 31, 1987, to April 26, 1988. The Union objected to the Agency's interpretation of the award. The Union claimed that the Arbitrator's reference to April 26, 1988, did not terminate the Agency's backpay obligation because the Arbitrator found that the grievant should have been promoted to GS-11 and would have been a GS-11 until she left the Agency's employment. As a result of the dispute, the Arbitrator issued a clarified award on August 2, 1990, reiterating the findings of his April 20 award and specifying the period for which the grievant was entitled to backpay. On August 6, the Arbitrator corrected the date on which the backpay award terminated. The award as clarified provided as follows:
That the Agency should have promoted the Grievant . . . permanently to the GS-11 level effective August 31, 1987.
That after April 26, 1988 there was no GS-12 position she could have been promoted to perform in her present classification series.
That the GS-12 position in her classification series had been abolished.
That she is entitled to be properly compensated as a GS-11 from August 31, 1987 until her service terminates from that position including pay increases and increments.
On September 5, 1990, the Agency filed exceptions to the award, as clarified.
III. Positions of the Parties
A. The Agency
As a threshold matter, the Agency contends that its exceptions concern only the award, as clarified, and that, consequently, they were timely filed. The Agency explains that it did not file exceptions to the initial award because it reasonably believed that the backpay entitlement of the grievant was from August 31, 1987, to April 26, 1988. The Agency maintains that it was not until the August 6, 1990 clarification that it became clear that the grievant's entitlement to backpay extended beyond April 26, 1988. The Agency asserts that its exceptions concerning such an extension were filed within 30 days of the August 6 clarification and that, therefore, they should be considered to have been timely filed.
In its exceptions, the Agency contends that the Arbitrator's award of a retroactive promotion and backpay subsequent to April 26, 1988, is contrary to the Back Pay Act, 5 U.S.C. § 5596, the Classification Act, 5 U.S.C. §§ 5101-5115, and management's right to assign work under section 7106(a)(2)(B) of the Statute, and is based on a nonfact.
The Agency argues that the award is contrary to the Back Pay Act because the Arbitrator failed to make the findings necessary for an award of backpay. The Agency claims that there was no finding of a causal connection because the Arbitrator made no finding that the Agency had violated any provision of the collective bargaining agreement. The Agency claims that, in particular, the Arbitrator did not find that the action taken for the period of time after April 26, 1988, was unjustified or unwarranted. The Agency also asserts that a retroactive promotion with backpay is not authorized for any period of time before a position is actually classified. Thus, the Agency argues that the award is deficient because the classification audit specifically found that there never was a position established or classified at the GS-11 grade level.
The Agency argues that the award is contrary to the Classification Act because in order to promote the grievant the Agency would first have to classify a GS-11 position, which the Arbitrator found was appropriately determined by the Agency not to be supportable under the classification standards. The Agency argues that for the same reasons, the award is contrary to management's right to assign work under section 7106(a)(2)(B). The Agency claims that after having found that the Agency legally determined that there was no work that could be performed at the GS-11 grade level, the Arbitrator could not order the grievant promoted to GS-11.
The Agency maintains that the award is based on the fact that a classified GS-11 position existed, and the Agency argues that this constitutes a nonfact. The Agency asserts that the award is deficient because although the Arbitrator found that the classification audit was legal and that the Agency rightfully abolished the career ladder on April 26, 1988, the award nevertheless requires promotion to a position that never existed.
B. The Union
The Union contends that the Agency's exceptions were untimely filed. The Union claims that the Arbitrator did not modify his award in the clarification of August 2 and 6. In the Union's view, the clarification served only to reaffirm the Arbitrator's prior ruling that the grievant was entitled to a promotion as of August 31, 1987, and was due compensation at this grade level from this date until the date on which she terminated her employment with the Agency. Therefore, the Union asserts that under established Authority precedent, the Agency's exceptions should be dismissed as untimely filed.
IV. Analysis and Conclusions
A. Timeliness of Exceptions
In his award dated April 20, 1990, the Arbitrator ruled that the grievant was entitled to have been granted a career-ladder promotion to GS-11 effective August 31, 1987. In his clarification award of August 2 and August 6, 1990, the Arbitrator clarified the April 20 award to state that the grievant was entitled to have been compensated as a GS-11 with pay increases and increments from August 31, 1987, until the date on which she terminated her employment with the Agency.
We have held that a clarification award does not operate to extend the time period for filing exceptions under section 7122 of the Statute. National Treasury Employees Union, Chapter 199 and U.S. Department of the Treasury, Bureau of the Public Debt, 35 FLRA 668, 671 (1990) (Bureau of the Public Debt). Only when an arbitrator's response to a clarification request gives rise to the deficiency alleged in the exception does the filing period for exceptions begin with the service of the arbitrator's response. Id. at 671. In this case, we conclude that the Agency's exceptions were untimely to the extent that they dispute the Arbitrator's ruling in the April 20 award that the grievant was entitled to have been promoted to GS-11 as of August 31, 1987. The alleged deficiencies pertaining to this ruling arose as a result of the April 20 award. In the clarification award, the Arbitrator merely reiterated this ruling from the April 20 award. Accordingly, the Agency's exceptions filed on September 5, 1990, insofar as they contend that this ruling is deficient, were untimely filed, and they are dismissed to that extent.
However, we conclude that the Agency's exceptions were timely filed to the extent that they dispute the Arbitrator's award of backpay after the classification audit report of April 26, 1988. We find that this alleged deficiency did not arise until the Arbitrator's clarification of August 6. We agree with the Agency that the period of the backpay award was not clearly specified as extending beyond April 26, 1988, until the August 6 clarification. Consequently, the time period for filing exceptions disputing the extension of the award of backpay beyond April 26, 1988, did not commence until service of the clarification award of August 6, and the Union's exceptions filed on September 5 were timely. See Bureau of the Public Debt, 35 FLRA at 672 (citing United States Department of the Interior, Bureau of Land Management, Eugene District Office and National Federation of Federal Employees, Local 1911, 6 FLRA 401, 403 n.2 (1981)). Accordingly, we will resolve on the merits the Agency's exceptions insofar as they contend that the award is deficient by extending the award of backpay to the grievant beyond April 26, 1988.
B. Merits of the Exceptions
We conclude that the Agency fails to establish that the award is deficient by ordering the grievant compensated at the GS-11 grade level with pay increases and increments from August 31, 1987, until the date on which the grievant terminated her employment with the Agency. We find that the Arbitrator's extension of the award of backpay beyond April 26, 1988, is fully consistent with the grievant's statutory entitlements under the Back Pay Act and that the Agency has misapprehended the effect of the classification audit report of April 26, 1988.
As we noted in U.S. Department of Housing and Urban Development Regional Office, Atlanta, Georgia and American Federation of Government Employees, Local 1568, 41 FLRA 520, 526 (1991), under 5 U.S.C. § 5596(b)(1)(A)(i), an employee who has suffered an unjustified or unwarranted personnel action that resulted in the denial of a career-ladder promotion is entitled on correction of that unwarranted denial of promotion to receive compensation for the period during which the unwarranted action was in effect. The compensation awarded should be an amount equal to the pay, allowances, and differentials that the employee normally would have earned or received during the period if the denial of promotion had not occurred. See also National Labor Relations Board Union, Local 19 and Office of the General Counsel, National Labor Relations Board, 7 FLRA 21 (1981).
In this case, the grievant was statutorily entitled to have received pay at the GS-11 grade level for the period during which the unwarranted action of the denial of her promotion to GS-11 was in effect. In our view, the period during which this unwarranted action was in effect was precisely as found by the Arbitrator: the period began on August 31, 1987, and ended on the date on which the grievant terminated her employment with the Agency. In the Arbitrator's April 20, 1991, award, as to which we have dismissed the exceptions, the Arbitrator ruled that the grievant should have been promoted as of August 31, 1987. Accordingly, under section 5596(b)(1)(A)(i), the grievant was entitled to have been compensated as a GS-11 beginning on August 31, 1987. Therefore, we find, contrary to the contentions of the Agency, that the April 26, 1988, audit report, which issued after the date on which the grievant was entitled to have been promoted, could not alone have affected the grade and pay level that the grievant would have attained on August 31, 1987.
Contrary to the arguments of the Agency that the classification audit operated on April 26, 1988, to affect the grievant at that time, the audit report expressly indicates that the grievant's grade level could be affected only by a separate and independent personnel action. Furthermore, Federal Personnel Manual (FPM) chapter 511, subchapter 7-2 advises that an agency position classification action takes effect on the date an agency official with delegated authority approves the pay system, title, series, and grade determination and that this date normally is the date the official revises the position description. In cases such as this one where the position is occupied, subchapter 7-2 expressly requires that "the classification action must be implemented by a subsequent personnel action, i.e., the issuance of a Notification of Personnel Action, SF 50 (or equivalent), within a reasonable period of time." Subchapter 7-2(b) specifically provides that for purposes of an employee's pay, "it is the effective date of the personnel action (SF 50) that appoints or assigns the employee to the reclassified position, and not the date of the classification action, that is determining." (Emphasis in original.) The Agency in its exceptions fails to argue, and in no manner establishes, what personnel action it would have taken against the grievant after April 26, 1988, as a result of the audit report and in what manner such personnel action would have affected the grievant's entitlement to GS-11 pay, and we will not speculate in order to find the award deficient. Accordingly, we conclude that there is no basis for finding that the award of backpay beyond April 26, 1988, is in any manner deficient because of the issuance of the classification audit report on that date.
Moreover, even if we were to assume that the Agency did, or would have, abolished the GS-11 position within a reasonable period of time after April 26, 1988, we still conclude that there is no basis for finding the award of backpay deficient. As we understand grade retention as set forth in 5 U.S.C. § 5362, the Agency's action in abolishing the GS-11 position and downgrading the position to a GS-9 or GS-7 would not have affected the GS-11 pay that the grievant would have attained on August 31, 1987. Grade retention under 5 U.S.C. § 5362 is for a period of 2 years. Therefore, because the grievant left the Agency less than 2 years after the classification audit, she would have retained her GS-11 grade until the date on which she terminated her employment with the Agency.
As explained by the court in Atwell v. MSPB, 670 F.2d 272, 275 (D.C. Cir. 1981), "the position classification determinations of an agency are the touchstones by which compensation, responsibility, and related personnel decisions are made. Thus, where the grade of a civil servant's position is lowered, reductions in pay and fringe benefits would ordinarily be the norm . . . ." However, the court noted the application of grade retention under 5 U.S.C. § 5362:
In recognition, however, of the fact that an employee whose position is reclassified may be harmed through no "fault" of his own, Congress, in structuring the civil service, mandated the provision of certain offsetting benefits where a position is lowered in grade. In most cases, the employee whose position is downgraded is entitled to retain for a two-year period the former grade of the position, and during this period the retained grade is used for the purpose of computing compensation and related fringe perquisites.
670 F.2d at 275-76. In short, "the employee whose position is downgraded never has his pay lowered as a net result of the reclassification, and retains his former grade for two years[.]" Id. at 276. More specifically, FPM chapter 536, subchapter 4-3 provides that employees entitled to grade retention are entitled to within-grade increases in the retained grade and comparability increases when their rate of basic pay is within the rate range of the retained grade.
In sum, we conclude that the Arbitrator's order that the grievant be compensated as a GS-11 with pay increases and increments is consistent with law and regulation and was unaffected by the classification audit of April 26, 1988. Accordingly, we will deny the Agency's exceptions to the extent that they contend that the award of backpay beyond April 26, 1988, was deficient.
V. Decision
The Agency's exceptions, insofar as they contend that the Arbitrator's original award was deficient, are dismissed as untimely filed. To the extent that the Agency's exceptions contend that the award of backpay after the classification audit report of April 26, 1988, was deficient, they are denied.
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