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42:0680(45)AR
The decision of the Authority follows:
42 FLRA No. 45
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 Hugh R. Catherwood 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 did not file an opposition to the Agency's exceptions.
An employee filed a grievance challenging the Agency's failure to promote him. The Arbitrator sustained the grievance and, as a remedy, ordered that the grievant be given a retroactive temporary promotion from wage grade (WG) 8 to WG-9 with backpay for the period from November 1985 to the date of the award. The Arbitrator also ordered that the Agency conduct classification audits of all positions similar to the grievant's position to determine the proper grade and pay for employees in those positions.
For the following reasons, we deny the Agency's exception that the Arbitrator exceeded his authority by finding that the grievance was timely filed and, thus, arbitrable. In response to the Agency's exception that the award of a retroactive promotion for more than 2 years is contrary to a Government-wide regulation, we will modify the award to require the Agency to request an exception to that regulation from the Office of Personnel Management (OPM). We also find, in agreement with the Agency, that the Arbitrator exceeded his authority by ordering the Agency to conduct desk audits of all positions similar to that of the grievant and to implement the findings of the desk audits as applicable to the employees assigned to those positions. We will set aside that portion of the award.
II. Background and Arbitrator's Award
The grievant was employed by the Agency as a testing equipment operator at the WG-5 level in 1984. The Agency informed him that he would be promoted to the journeyman level of WG-8 upon obtaining certification for magnetic parts inspection (Level 1 certification) and fluorescent parts inspection (Level 2 certification). The grievant was promoted to WG-8 on December 16, 1984, although he did not become fully certified at Level 2 until November 1, 1985.
"At some time in 1984 or 1985 a recruitment and training program for trades and crafts called VO-TECH was instituted, because of a heavy work load of inspections." Award at 2. Employees in VO-TECH began work at the WG-3 grade level and were given a target grade of WG-9 upon receiving Level 1 and Level 2 inspection certificates and becoming qualified as journeymen.
The grievant filed a grievance on August 30, 1989, in which he claimed entitlement to a promotion to the WG-9 grade level. The grievance was submitted to arbitration on the following issue:
Was the Agency's refusal to promote the grievant . . . from pay grade 8 to grade 9 in violation of any rules, regulations, statutes, or the Master Labor Agreement? If so, what is the remedy?
Id. at 1.
As a preliminary matter, the Arbitrator denied the Agency's claim that the grievance was not arbitrable because it was untimely filed. The Agency claimed that, under the agreement, the grievant was required to discuss the matter with his supervisor within 21 days of becoming aware of the alleged improper management action before filing a grievance. The Arbitrator noted the Union's argument that "the [g]rievant had several times before filing the [grievance] asked his first level supervisor for promotion and was merely awaiting a response." Id. The Arbitrator ruled that "to deprive the [g]rievant of his only right to be heard for so technical a point would not be just cause." Id.
The Arbitrator heard testimony supporting the grievant's claim that he had performed the same duties as employees in the VO-TECH program who had been promoted to WG-9 and that the grievant had trained some of the WG-9 VO-TECH employees. The Agency asserted that the grievant had been promoted to the target grade promised to him and that he had failed to be promoted competitively to WG-9 because he had not been ranked high enough on the lists of qualified candidates for vacant WG-9 positions. The Union maintained that it was unfair and improper to have employees doing the same work at different grades and that having junior employees train senior employees "was harmful to morale." Id. at 3. The Union also asserted that the WG-8 employees were entitled to backpay under the provision of the collective bargaining agreement that "requires that an employee assigned the 'grade-controlling duties of a higher graded position for 30 consecutive calendar days' shall receive the pay from the 31st day on of the higher graded position." Id.
The Arbitrator found that the Agency improperly assigned to employees in the VO-TECH program a higher target grade than assigned to employees already performing the same work. He stated that "an injustice was done to the [g]rievant by failing to reclassify his position to grade 9 and promote him to the higher level or, alternatively, to grant him a non-competitive promotion to the same target grade as the VO-TECH trainees." Id. at 4. The Arbitrator ruled that the grievant was entitled to backpay under the temporary promotion provision of the parties' agreement because the grievant "was doing 'grade controlling duties [of a higher graded position]' for more than 30 calendar days." Id. The Arbitrator also stated that the classification procedures contained in the parties' agreement should be followed and that "[a]fter the appropriate wage grade for all the journeyman Testing Equipment Operators is found, all the positions should be allocated to a single class and the rules for reclassification pay adjustments be applied." Id. at 5.
As his award, the Arbitrator sustained the grievance and ordered that:
1) The Grievant be made whole for his loss of WG 9 pay from November 1, 1985 to date;
2) That a classification audit be made of all the WG 5439 WG 8 and WG 9 journeyman Testing Equipment Operator positions and that the findings be implemented in accordance with Civil Service law and rules and Article 17 of the Master Labor Agreement.
Id.
III. First Exception
A. Position of the Agency
The Agency asserts that the Arbitrator's finding that the grievance is arbitrable does not draw its essence from the parties' collective bargaining agreement. The Agency points out that section 6.07a of the parties' agreement provides that an employee desiring to file a grievance "must first discuss the matter informally with his first level supervisor within twenty-one (21) calendar days of the date of the management action or occurrence giving rise to the grievance or reasonable awareness of such action or occurrence." Exceptions at 3-4. The Agency maintains that the grievant became eligible for promotion in May 1985 and did not file the grievance until August 1989. The Agency contends that the Arbitrator did not consider the requirements of the parties' agreement and that his finding that the grievance was timely filed is not a plausible interpretation of the agreement.
B. Analysis and Conclusions
We conclude that the Agency has failed to show that the award is deficient for failure to draw its essence from the parties' collective bargaining agreement. For an award to be found deficient because it fails to draw its essence from a collective bargaining agreement, the party making the allegation must demonstrate that the award: (1) cannot in any rational way be derived from the agreement; or (2) is so unfounded in reason and fact, and so unconnected with the wording and the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; or (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See U.S. Department of Transportation, Federal Aviation Administration, Springfield, Illinois and National Air Traffic Controllers Association, 39 FLRA 1036 (1991).
The Arbitrator's finding that the grievance was timely filed is not deficient under any of the above criteria. Contrary to the Agency's assertion, the Arbitrator did not ignore the parties' agreement. He responded to the arguments made concerning timeliness and credited the Union's argument that the grievant was awaiting a reply to one of his several requests for promotion before filing a grievance. The Agency is merely disagreeing with the Arbitrator's procedural ruling that the grievance was timely, which does not provide a basis for finding the award deficient. See National Treasury Employees Union and U.S. Department of Health and Human Services, Family Support Administration, 35 FLRA 501, 512 (1990) (an arbitrator's determination that a grievance was timely filed concerns a matter of procedural arbitrability and disagreement with that determination provides no basis for finding an award deficient).
IV. Second Exception
A. Position of the Agency
The Agency contends that the award of a temporary promotion with backpay for the grievant from November 1, 1985 until the date of the award in 1991 is contrary to 5 C.F.R. § 335.102(f)(1) and Federal Personnel Manual (FPM) chapter 335, subchapter 1-5, which limit temporary promotions to a definite period not to exceed 2 years. In support of this exception, the Agency cites Department of the Army, New Cumberland Army Depot and American Federation of Government Employees, Local 2004, 21 FLRA 968 (1986) (New Cumberland Army Depot).
B. Analysis and Conclusions
We agree with the Agency that 5 C.F.R. § 335.102(f)(1) and FPM chapter 335, subchapter 1-5 place an effective limit of 2 years on the duration of a temporary promotion. Further, as recognized by the Authority in New Cumberland Army Depot, an award by an arbitrator of a temporary promotion must be consistent with civil service law and regulation. 21 FLRA at 972. However, in New Cumberland Army Depot, the Authority recognized that agencies may temporarily promote an employee for more than 2 years with the formal approval of OPM obtained under 5 C.F.R. § 335.102(g) and FPM chapter 335, subchapter 1-5. In that case, the Authority modified the arbitrator's award to direct the activity to request OPM to authorize a temporary promotion for a period in excess of 2 years. 21 FLRA at 973-74.
We conclude that a modification such as the modification made to the arbitrator's award in New Cumberland Army Depot is appropriate in the circumstances of the present case. The Arbitrator found that the grievant was entitled to a retroactive temporary promotion under the parties' collective bargaining agreement for the time that he had performed WG-9 duties. That time was in excess of 2 years. Therefore, we will modify the Arbitrator's award to order the Agency to request authorization from OPM under 5 C.F.R. § 335.102(g) and FPM chapter 335, subchapter 1-5 to grant the grievant a temporary promotion for the period from November 1, 1987 to the date of the award.
V. Third Exception
A. Position of the Agency
The Agency contends that the Arbitrator exceeded his authority by addressing an issue not before him and by awarding relief to employees who did not file grievances. The Agency maintains that the only issue in this case concerned the grievant's nonselection for promotion to grade WG-9 and that the Arbitrator went beyond that issue when he ordered the Agency to conduct classification audits of all the WG-8 and WG-9 journeyman testing equipment operators and to implement the findings of those audits. The Agency also contends that the Arbitrator's ordering of classification audits and possible reclassification of employees is contrary to section 7106(a)(2)(C) of the Statute.
B. Analysis and Conclusions
We conclude that the second paragraph of the Arbitrator's award is deficient because the Arbitrator exceeded his authority. An arbitrator exceeds his or her authority when, for example, the arbitrator issues an affirmative order that exceeds the scope of the matter submitted to arbitration or awards relief to persons who did not file a grievance on their own behalf and did not have the union file a grievance for them. See U.S. Department of the Air Force, Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 41 FLRA 303, 305 (1991). The Arbitrator's award in this case relates to matters that were not submitted to arbitration and encompasses persons who were not included in the grievance.
The issue presented to the Arbitrator was agreed upon by the parties and concerned only whether the Agency had improperly refused to promote the grievant to grade WG-9. The stipulated issue did not refer to any other employees seeking relief and did not concern the accuracy of the classification of all journeyman testing equipment operators. Therefore, the Arbitrator had authority only to resolve the grievance of the grievant. He exceeded that authority when he ordered the Agency to conduct classification audits of all WG-8 and WG-9 journeyman testing equipment operator positions and to implement the results of those audits. See United States Army, Academy of Health Sciences, Fort Sam Houston, Texas and National Federation of Federal Employees, Local No. 28, 34 FLRA 598, 600 (1990) (arbitrator exceeded authority by directing the agency to rescind a form which applied to all employees, including employees who were not included in the grievance being arbitrated). Consequently, that portion of the award is deficient and will be struck from the award. In view of this decision, it is not necessary to address the Agency's contention that this portion of the award is contrary to section 7121(c)(5) of the Statute.
VI. Decision
The Agency's first exception is denied. The Arbitrator's award is modified to strike paragraph 2 and to substitute the following for paragraph 1:
The Grievant shall be made whole for his loss of WG-9 pay from November 1, 1985 to the date of the award. The Agency shall request that the Office of Personnel Management formally authorize the Agency to grant the grievant a retroactive temporary promotion with backpay from November 1, 1987 to date.
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