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50 FLRA No. 58

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

PUBLIC HEALTH SERVICE

NAVAJO AREA INDIAN HEALTH SERVICE

(Agency)

and

LABORERS' INTERNATIONAL UNION OF NORTH AMERICA

NAVAJO NATION HEALTH CARE EMPLOYEES

LOCAL 1376

(Union)

0-AR-2565

_____

DECISION

May 9, 1995

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Thomas Angelo 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.⁽¹⁾

The Arbitrator sustained a grievance over the Agency's failure to pay an employee for performing higher-graded duties. The Agency contends that the award is deficient under section 7122(a) of the Statute because it is contrary to the Back Pay Act.

For the following reasons, we conclude that the Arbitrator's award is deficient and we set aside the award.

II. Background and Arbitrator's Award

The grievant is a GS-6 licensed practical nurse who was assigned to perform discharge planning duties. She filed a grievance claiming that the discharge planning duties constituted GS-9 or GS-11 work and that she was entitled under Article XV of the parties' collective bargaining agreement to receive pay at the GS-9 or GS-11 level.⁽²⁾ The matter was ultimately submitted to arbitration, where the Arbitrator determined that the issues concerned whether the grievant was entitled to be compensated on the basis of the highest level of duties performed at least 25% of the time and, if so, whether she should be compensated at the level of compensation for a discharge planner at a related Agency facility.

The Arbitrator rejected the Agency's claim that the grievance involved a classification determination and, therefore, was not arbitrable because the Arbitrator found that discharge planning duties had already been classified by the Agency at another Agency facility. The Arbitrator also found that the grievant was performing higher-graded discharge planning duties for more than 25% of the time on a regular and recurring basis. Accordingly, the Arbitrator concluded that, under the parties' agreement, the grievant was entitled to compensation at the higher grade level and sustained the grievance. The Arbitrator noted, but did not otherwise address, the Agency's argument that the grievant lacked the academic degrees needed to qualify for a temporary promotion to either the social worker/discharge planner position or a registered nurse position.

The Arbitrator issued an award remanding to the parties for resolution the question of the length of time that the employee performed the higher-graded duties. When the parties failed to resolve the question, the Arbitrator issued a second award, finding that the grievant should be paid at the level of the GS-9 social worker/discharge planner position and ordering that the grievant receive $11,839 in additional compensation that she would have received but for the Agency's unwarranted and unjustified personnel action.

III. Exceptions

The Agency contends that the award is deficient under section 7121(c)(5) of the Statute because it constitutes a classification determination with regard to the grievant's discharge planning duties. The Agency also contends that the award is contrary to the Back Pay Act. According to the Agency, because the grievant was not qualified for a temporary promotion to the GS-9 position, the Agency's failure to pay her at that level did not constitute an unjustified or unwarranted personnel action that warranted backpay under the Back Pay Act.

IV. Analysis and Conclusions

The Agency has not demonstrated that the Arbitrator's conclusion that the grievant performed the duties of a GS-9 position based on a position classified at that level at another facility constitutes a classification determination within the meaning of section 7121(c)(5) of the Statute. Consequently, the Agency's exception on that ground does not provide a basis for finding the award deficient. See U.S. Department of the Navy, Naval Aviation Depot, Marine Corps Air Station, Cherry Point, North Carolina and International Association of Machinists and Aerospace Workers, Local 2297, 42 FLRA 795, 802 (1991).

An arbitrator may properly award backpay under the Back Pay Act when the arbitrator determines that an agency has denied an employee a temporary promotion to which the employee was entitled under a collective bargaining agreement or applicable regulations for having performed the duties of a higher-graded position for an extended period of time. See U.S. Department of the Army, Headquarters Fort Dix, Fort Dix, New Jersey and American Federation of Government Employees, Local 1930, 49 FLRA 730 (1994) (Fort Dix). However, the employee must meet the minimum qualification requirements prescribed by the Office of Personnel Management (OPM) for the position to which the employee is to be promoted. 59 Fed. Reg. 67121-22 (Dec. 29, 1994). Minimum qualification requirements apply to both permanent and temporary promotions. Federal Correctional Institution, Petersburg, Virginia and American Federation of Government Employees, Appomattox Local 2052, 16 FLRA 600, 601 (1984).

It is undisputed, and the Arbitrator found, that the grievant did not possess an academic degree. Under the OPM Handbook X-118 qualification standards, an academic degree is a minimum qualification requirement for a GS-9 social worker/discharge planner position.⁽³⁾ Because the grievant was not qualified for the GS-9 position, the grievant could not be temporarily promoted to or compensated at the rate applicable to that position. See Fort Dix. Accordingly, the Agency's refusal to pay the grievant at the GS-9 level did not constitute an unjustified or unwarranted personnel action, within the meaning of the Back Pay Act and the Arbitrator's award of backpay to the grievant is deficient as contrary to that Act.⁽⁴⁾ See Fort Dix, 49 FLRA at 735-37 (award is deficient as contrary to the Back Pay Act because grievant did not possess qualifying experience and was not entitled to temporary promotion).

V. Decision

The Arbitrator's award is set aside.⁽⁵⁾

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Under sections 2425.1(c) and 2429.21(a) of the Authority's Rules and Regulations, an opposition to exceptions to an arbitrator's award must be filed with the Authority within 30 days of the date the exceptions are filed, with 5 days added for service by mail. The exceptions in this case were filed by mail on December 15, 1993, and, therefore, any timely opposition must have been filed no later than January 19, 1994. As the Union's opposition was filed on January 28, 1994, the Authority ordered the Union to show cause why its opposition should be considered. The Union failed to respond to the Authority's order. Accordingly, the opposition has not been considered. See U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Houston, Texas and American Federation of Government Employees, Council 215, 46 FLRA 529 n.1 (1992).

2. Article XV, Section 3 of the parties' agreement states:

The [Agency] agrees that [employees] will be compensated on the basis of the highest level duties performed at least 25% of the time, provided such duties will be performed on a regular and recurring basis.

Award at 7.

3. The OPM qualification standards, Handbook X-118, TS-1, July 1993, superseded the applicable portions of the Handbook included in the record. The minimum qualification of an undergraduate degree for the social worker or nurse positions was unchanged. See OPM Handbook X-118, TS-1, July 1993, at IV-A-21-22; IV-B-32; and IV-B-91. The standards do not provide for the substitution of experience for the basic education requirements for these positions.

4. Although not raised by the parties, we note that, in Hill Air Force Base, Utah and American Federation of Government Employees, Local No. 1592, 30 FLRA 6 (1987) (Hill AFB), the Authority reviewed exceptions to an award requiring the agency to waive a requirement concerning a minimum level of qualifying experience; the Authority modified the award to direct the agency to request a waiver of the experience qualification requirement from OPM. In contrast to Hill AFB, the Arbitrator in the case now before us did not address or require a waiver of the relevant qualification requirements. Moreover, the record provides no basis for concluding that the education qualification requirements in dispute in this case may be waived.

5. It is unclear whether, or to what extent, a remedy other than that ordered by the Arbitrator would be available to the grievant. However, no request has been made for a remand and no basis is apparent under Authority law for a remand in this case. Cf. U.S. Department of Veterans Affairs, Medical Center, Buffalo, New York and Service Employees International Union, Local 200-C, 37 FLRA 379 (1990) (where it was unclear from an arbitrator's award whether the grievant possessed the minimum qualifications for a position, the Authority remanded the award to the parties to seek clarification from the arbitrator). Accordingly, we leave for another case consideration of whether, where an award is deficient, a remand to an arbitrator for consideration of a different remedy would be appropriate.

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