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38 FLRA No. 62

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF VETERANS AFFAIRS

MEDICAL CENTER

ALLEN PARK, MICHIGAN

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 933

(Union)

0-AR-1848

DECISION

November 30, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Patrick A. McDonald 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 Union filed a grievance claiming that the Agency violated the parties' collective bargaining agreement when it refused to pay a GS-3 File Clerk, who was temporarily assigned to the position of Acting Supervisory File Clerk, at the GS-6 Supervisory File Clerk pay rate for the period of time that she performed the higher-graded duties. The Arbitrator sustained the grievance and directed the Agency to pay the grievant the difference in wages that she would have received if she had been paid at the GS-6 pay level while acting as supervisor, with interest, and also awarded reasonable attorney fees. The Arbitrator retained jurisdiction over implementation of the award.

For the reasons stated below, we conclude that the portion of the Arbitrator's award directing the Agency to pay attorney fees is deficient. Accordingly, we will modify that portion of the award. We deny the Agency's remaining exceptions.

II. Preliminary Issue

The Union asserts that the Agency's exceptions should be dismissed because they were not filed timely. We find that the exceptions were timely filed. Exceptions to an arbitration award must be filed within 30 days of the date of service of the award. 5 C.F.R. § 2425.1(b). There is no dispute that the award was served by mail on the parties on December 11, 1989. Accordingly, under sections 2429.21 and 2429.22 of the Authority's Rules and Regulations, 5 days are added to the 30-day time period for filing exceptions. Further, the last day of the period so computed is to be included unless it is a Saturday, Sunday, or a Federal legal holiday, in which case the period shall run until the end of the next day which is neither a Saturday, Sunday, or a Federal legal holiday. 5 C.F.R. § 2429.21. To be timely, therefore, exceptions had to be filed with the Authority by January 16, 1990. The Agency's exceptions were filed on January 16, 1990, and as such, are timely. See U.S. Department of the Army, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 1102, 1102-03 (1990) (agency's exceptions that were filed January 16, 1990 to an arbitration award that was served by mail on the parties on December 11, 1989 were timely filed).

III. Background

The grievant was hired by the Agency as a GS-3 File Clerk in 1982, and remained in that position and at that grade level through August 1987. In August 1987, the supervisor of the file unit where the grievant was employed resigned without notice. The supervisory position was classified at the GS-6 level. The Agency requested the grievant to function as the Acting File Unit Supervisor "while a qualified replacement was sought for the vacant position[.]" Award at 3.

The grievant served as Acting Supervisor for 49 days, from August 5, 1987, through October 12, 1987. The grievant was not compensated at a higher rate of pay during the time she functioned as Acting Supervisor, but continued to receive her GS-3 level rate of pay. The Agency recognized the grievant's contributions as Acting Supervisor with a $200 merit award. Id. at 6. The grievant also received an Agency Medical Administration Service Productivity Award. Id. at 5-6. The grievant was subsequently replaced by the candidate chosen through the selection process to fill the file unit supervisor vacancy.

A grievance was filed over the Agency's failure to pay the grievant at the GS-6 pay level for the period of time that she functioned as Acting Supervisor. The grievance asserted that the Agency violated the provision of the parties' master agreement covering details and temporary promotions and requested that the grievant be compensated for the difference between her GS-3 pay level and the GS-6 pay level. The grievance was unresolved and subsequently submitted to arbitration.

IV. Arbitrator's Award

The Arbitrator determined that the issue before him was "[d]id the [Agency], through its actions in this case, violate Article 16 of the Master Agreement between the parties when it failed to pay the grievant for 49 work days in which she acted as Supervisor of the Hospital's File Unit?" Id. at 13. Article 16, Section 2 of the master agreement provides:

Employees detailed to a higher grade position for a period of more than 10 consecutive work days must be temporarily promoted. The temporary promotion should be initiated at the earliest date it is known by management that the detail is expected to exceed 10 consecutive work days.

Exceptions at Attachment 3; Attachment to Opposition. See Award at 8.^(*)

The Arbitrator first considered the Agency's assertion that because the grievant was not assigned the full range of responsibilities of a GS-6 File Room Supervisor, "she was not detailed as a GS-06 Supervisor and did not qualify for that pay rate." Id. at 14. The Arbitrator found that while the grievant did not perform the full range of duties of the supervisory position, she "performed the vast majority of the duties[.]" Id. at 15. The Arbitrator noted that Article 16, section 1 of the parties' master agreement, which defines the term "detail," "merely speaks in terms of employees being 'detailed to a higher grade position'" but "does not specify that all duties and responsibilities must be performed by a person performing a temporary assignment or detail." Id. at 15-16 (emphasis in original). The Arbitrator concluded that "it is clear that the grievant performed the duties of acting Supervisor and that [the Agency's contentions to the contrary] must fail." Id. at 16.

Next, the Arbitrator considered the Agency's assertion that Federal Personnel Manual (FPM) chapter 300, subchapter 6, which sets forth time and grade restrictions for promotions, prevented it from temporarily promoting the grievant to the GS-6 level. Specifically, the Agency argued that it was barred from temporarily promoting the grievant by subsection 6-2.a.(3), which provides that "[w]hen there is no position at the next lower grade in the normal line of promotion to the position to be filled, candidates must have at least one year of service in positions no more than two grades lower than the position to be filled." The Agency asserted that the grievant "was not eligible for a promotion" to the GS-6 level because she was at the GS-3 level and "such an action would necessitate an advancement of three grades." Id. at 13. The Agency contended that the FPM provisions concerning time and grade restrictions applied to both temporary and permanent promotions. Id. at 12-13.

The Union argued that the Agency was "estopped from asserting that the time and grade restrictions [apply] because it knew of these restrictions when it placed the grievant into the Supervisor's position but failed to inform her that she would [not] be paid at the higher rate[.]" Id. at 17. Further, the Union asserted that "the time and grade restrictions of [s]ubchapter 6 of the [FPM] apply to 'candidates for advancement[;]'" however, "the grievant was not a candidate for advancement when she was detailed to be the File Unit Supervisor." Id.

The Arbitrator found that the language of Article 16, section 2 was "clear and unambiguous and, ordinarily, would govern the exact situation in which the grievant found herself . . . when she was detailed to be File Unit Supervisor for a period of 49 workdays." Id. at 18. However, the Arbitrator stated that the Agency correctly pointed out that FPM chapter 300, subchapter 6 contains guidelines that would appear to be in conflict with Article 16, section 2." Id. The Arbitrator noted that the introduction to subchapter 6 states that "'[t]his subchapter implements [the] time[-in-]grade restrictions of Part 300, subpart F[,] of [t]itle 5, Code of Federal Regulations, which apply to the competitive service.'" Id. (citing FPM chapter 300, subchapter 6-1.a.). The Arbitrator further noted that subchapter 6-1.a. also states that "'[p]romotion programs for employees in the competitive service do not permit excessively rapid promotions even for positions not subject to the [G]eneral [S]chedule.'" Id.

The Arbitrator determined that the rationale underlying subchapter 6 did not apply in this case because "the grievant . . . was not a candidate for advancement to the Unit Supervisor's position." Id. at 19. The Arbitrator found, among other things, that the grievant: (1) was sought out by the Agency to temporarily fill the position for a 49-day period until a permanent replacement could be found; (2) was not a candidate for advancement and did not apply for the supervisory position; and (3) was returned to her regular duties at the end of her temporary assignment. The Arbitrator ruled that subchapter 6 was not controlling over Article 16. He stated that "[t]he language of subchapter 6 is ambiguous in relationship to Article 16, and, more important, would not appear to be applicable to the unique circumstances in the grievant's case." Id. (footnote omitted).

The Arbitrator determined that "under the circumstances presented in this case, the [Agency] would be estopped from raising the defense of subchapter 6 of the [FPM] concerning time and grade restrictions." Id. at 19-20. Further, the Arbitrator stated that "even if not estopped from raising this point, I do find that subchapter 6 is sufficiently ambiguous in relationship to Article 16 of the Master Agreement, which has clear and unambiguous language, to act as an adequate defense in this grievance." Id. at 20. The Arbitrator concluded that "subchapter 6, by its introductory terms, [was] not . . . applicable to temporary situations such as that governing the grievant who was not a candidate for advancement at the time of her detail to the acting Supervisors [sic] position." Id.

Accordingly, the Arbitrator made the following award:

The grievance is sustained. The [Agency], by not paying the grievant at the GS-06 level for 49 days in this case violated Article 16, Section 2 of the Master Agreement between the parties. As a result, the [Agency] is ordered to pay the grievant $595.84 which was the amount stipulated to be in controversy in this case.

Pursuant to [the Back Pay Act, 5 U.S.C. § 5596], the [Agency] is also ordered to pay interest in accord with the Code and reasonable attorney fees.

Id.

V. First Exception

A. Positions of the Parties

1. Agency

The Agency disputes the Arbitrator's rejection of its argument that the grievant had to meet time-in-grade requirements in order to be eligible for promotion to Acting Supervisor, and contends that the Arbitrator's award is contrary to civil service regulations because the grievant was not qualified for promotion to the GS-6 level. The Agency cites FPM chapter 300, subchapter 6, and its implementing regulations and argues that subchapter 6 did apply in this case.

The Agency argues that "the Authority consistently holds that in order for an employee to be properly promoted consistent with governing laws and regulation, whether temporarily or permanently, the employee must meet at the time of the promotion, all statutory and regulatory requirements governing promotions, including minimum qualifications for the position to which the employee is promoted." Exceptions at 4-5 (emphasis in original). The Agency argues that "time-in-grade requirements are among those minimum qualifications standards that the [Authority] holds must be met before an employee may receive even a temporary promotion." Id. The Agency does not address the Arbitrator's determination that "under the circumstances presented in this case, the [Agency is] estopped from raising the defense of subchapter 6 of the [FPM] concerning time and grade restrictions." Award at 19-20.

2. Union

The Union contends that the Agency's exception is without merit because "[t]he Arbitrator held that the Agency waived the time-in-grade restrictions as a bar to paying [the grievant] the [GS-6] supervisory rate and was estopped from asserting them as a defense." Opposition at 6. The Union asserts that the Arbitrator's holding is binding on the Agency because "[i]n its exceptions, the Agency does not appeal this holding." Id. Further, the Union asserts that "[e]ven if the Agency has appealed the Arbitrator's holding of waiver and estoppel, it would not be entitled to a reversal of the Arbitrator's decision, for the Arbitrator's finding of waiver is supported by the evidence and well grounded in law." Id. at 7.

In support of its contention, the Union argues that because the Agency was aware of time-in-grade restrictions, but nonetheless requested the grievant to assume the duties of Acting Supervisor without informing her prior to or during the time she assumed the position of Acting Supervisor that she would not be compensated at the higher GS-6 supervisory pay rate, the Arbitrator's holding "is factually well-supported by the evidence." Id. at 8. Further, the Union contends that FPM chapter 300, subchapter 6-6 provides that waivers of time-in-grade restrictions may be authorized without regard to the restrictions of the law "'in individual cases of meritorious nature, in order to avoid undue hardship or inequity.'" Id. The Union states that the Office of Personnel Management (OPM) has delegated the waiver of time-in-grade requirements to the Veterans Administration by Federal Personnel Manual (FPM) Letter 300-34 and, therefore, "the Arbitrator's holding is legally well-supported [because] the Agency had the authority to waive any applicable restrictions." Id.

The Union notes that FPM Letter 300-34, § 3 lists two circumstances when time-in-grade restrictions should be waived: (1) undue hardship to the Agency if the undue hardship involves "'serious difficulty in accomplishing needed work [as a result of] circumstances beyond the organization's control [and are] uncorrectable through actions such as redistribution of work or retraining of employees that would not require accelerated promotions[]'" and (2) "'inequity to an employee' where the inequity results from 'undue hardship to the agency.'" Id. at 9. The Union argues that the first waiver test is met because "[t]he File Room supervisor's sudden departure was beyond the Agency's control and created an emergency situation which required immediate solution and could not await any employee's retraining or the redistribution of work among other supervisors." Id. The Union also argues that the second waiver test is met because "[t]he inequity resulting to [the grievant] from the Agency's undue hardship is palpable" because the grievant was deprived of "pay at the rate deemed by the Agency and the government's salary schedule to be the proper compensation for the position." Id.

The Union asserts that "the Arbitrator properly found that the time-in-grade restrictions do not apply in the unique circumstances presented in this case." Id. at 10. The Union notes "that the [grievant] was not a competitive candidate for placement in the supervisory position" but "was pressed into serving as a supervisor" and that "the Agency knew she would return to her regular duties once a permanent replacement was hired[.]" Id. at 10-11. The Union contends that the Arbitrator's ruling that the time-in-grade restrictions do not apply in this short-term emergency is a reasonable one and should be upheld by the Authority.

B. Analysis and Conclusions

We find that the Agency's exception provides no basis on which to find that the award is deficient. As noted above, the Arbitrator found, among other things, that: (1) the supervisor of the file unit in which the grievant was employed resigned without notice; (2) the Agency requested the grievant to temporarily fill the supervisory position for a 49-day period until a permanent replacement could be found; (3) the grievant was not a candidate for advancement and did not apply for the supervisory position; and (4) the grievant was returned to her regular duties at the end of her temporary assignment.

FPM chapter 300, subchapter 6-6 (Inst. 287, July 21, 1982) provides that waivers of time-in-grade restrictions may be authorized without regard to the restrictions of the law "in individual cases of meritorious nature, in order to avoid undue hardship or inequity." According to FPM Chapter 300, subchapter 6-6, such waivers may be authorized by the Office of Personnel Management (OPM) upon request by an agency or may be granted by an agency pursuant to an agency's delegation agreement with OPM. In FPM Letter 300-34 (Sept. 15, 1988), OPM removed the requirement that agencies establish certain delegation agreements before they may exercise certain personnel authorities, including waiver of time-in-grade requirements. In the FPM Letter, OPM authorized all agencies to approve, among other things, waiver of time-in-grade requirements to avoid undue hardship or inequity. FPM Letter 300-34, § 3 states, in part, that (1) "[u]ndue hardship must involve serious difficulty in accomplishing needed work [as a result of] circumstances . . . beyond the organization's control [and must be] uncorrectable through actions such as redistribution of work or retraining of employees that would not require accelerated promotions"; and (2) "[u]ndue inequity must result from circumstances (e.g. undue hardship to the agency . . . ) that require employees to be assigned work at a higher grade[.]"

In determining that, "under the circumstances presented in this case, the [Agency is] estopped from raising the defense of subchapter 6 of the [FPM] concerning time and grade restrictions[,]" the Arbitrator effectively found that the Agency waived the time-in-grade requirement in this particular case. Award at 19-20. In our view, based on the determinations made by the Arbitrator, his finding that the time-in-grade requirement was waived in the circumstances of this case is consistent with the FPM. Accordingly, noting that the Agency does not claim either that it lacks the authority to waive the time-in-grade requirement or that waiver in these circumstances is inconsistent with the FPM, we find that the Agency has not demonstrated that the award is deficient in this regard.

VI. Second Exception

A. Positions of the Parties

1. Agency

The Agency argues that the Arbitrator's award of $595.84 to the grievant for the amount she would have received for a temporary promotion from a GS-3 to a GS-6 is deficient because it is contrary to the Back Pay Act. The Agency asserts that the Arbitrator's award finding that the Agency violated the parties' agreement concerning temporary promotions "conflicts with government-wide regulations requiring employees to serve minimum time-in-grade requirements before being promoted, even on a temporary basis." Exceptions at 6-7. The Agency maintains that "[b]ecause the [g]rievant's temporary promotion would . . . be governed by time-in-grade requirements set forth in government-wide regulations, she would be prohibited by these regulations from receiving a GS-6 salary." Id. at 7. Therefore, the Agency concludes that "[a]ny award of back pay, interest, and attorneys fees based on the Agency's denial of such a promotion would, therefore, be erroneous, as there can be no determination that the denial was an unwarranted or unjustified personnel action when paying the [g]rievant at the GS-6 rate would have been contrary to regulation." Id.

2. Union

The Union contends that the Arbitrator properly awarded lost wages, attorney fees and interest based on his finding that the Agency violated Article 16, Section 2 of the parties' agreement. The Union asserts that the Arbitrator's award "is proper under the Back Pay Act, 5 U.S.C. § 5596" because the grievant "was deprived of her rightful wage in violation of the Master Agreement." Id. at 16. The Union concludes that "[w]here an agency breaches an agreement and the union successfully challenges this breach," attorney fees and interest on the monetary award may be awarded under the Back Pay Act. Id.

B. Analysis and Conclusions

1. The Grievant is Entitled to Backpay

In order for an award of backpay to be authorized by the Back Pay Act, the arbitrator must find that an agency personnel action was unjustified or unwarranted, that the action directly resulted in the withdrawal or reduction of the grievant's pay, allowances or differentials, and that but for the action, the grievant otherwise would not have suffered the withdrawal or reduction. See National Association of Government Employees, Local R2-98 and Department of the Army, Watervliet Arsenal, Watervliet, New York, 29 FLRA 1303 (1987). An agency's violation of a collective bargaining agreement constitutes an unjustified or unwarranted personnel action for purpose of the Back Pay Act. See Department of Health and Human Services, Health Care Financing Administration, Region IV, Atlanta, Georgia and National Treasury Employees Union, Chapter 210, 21 FLRA 910, 913 (1986).

In this case, the Arbitrator found that the grievant was entitled to a temporary promotion under Article 16, Section 2 of the parties' negotiated agreement. The Authority has consistently held to be negotiable, and enforceable in arbitration, agreement provisions which permit employees to receive temporary promotions when they are assigned to perform the duties of higher-graded positions. See, for example, American Federation of Government Employees, Local 987 and U.S. Department of the Air Force, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 37 FLRA 386 (1990); U.S. Department of the Air Force, Warner Robins Air Force Logistics Center, Robins Air Force Base, Georgia and American Federation of Government Employees, Local 987, 37 FLRA 155 (1990). Although the Agency disagrees with the Arbitrator's interpretation of Article 16, Section 2, disagreement with an arbitrator's interpretation of a collective bargaining agreement provides no basis for finding an award deficient. See Commander, Griffiss Air Force Base and Local 2612, American Federation of Government Employees, AFL-CIO, 31 FLRA 1187 (1988).

We find that the Agency has failed to establish that the Arbitrator's award, based on his interpretation of the temporary promotion procedures of the parties' collective bargaining agreement, is inconsistent with the Back Pay Act. We conclude that: (1) the grievant was subjected to an unwarranted personnel action (the failure to temporarily promote and pay her for performing higher-graded duties); (2) the action directly resulted in the reduction of her pay; and (3) but for the action, the grievant otherwise would not have suffered the reduction in pay. See generally Brown v. Secretary of the Army, No. 89-5371 (D.C. Cir. Nov. 9, 1990). Accordingly, we will deny the Agency's exception to this portion of the award.

2. The Grievant is Entitled to Interest

The inclusion of interest on backpay is consistent with a December 22, 1987 amendment to the Back Pay Act, 5 U.S.C. § 5596(b), contained in the Continuing Appropriations Act of 1988, Pub. L. No. 100-202, 1988 U.S. Code Cong. & Admin. News (101 Stat.) 1329-1, 1329-428--1329-429, which states in pertinent part:

Sec. 623. Interest on Back Pay For Federal Employees.--(a) In General.--Section 5596(b) of title 5, United States Code is amended--

. . . .

(b) Effective Date.--

(1) Generally.--Except as provided in paragraph (2), the amendments made by subsection (a) shall take effect on the date of the enactment of this Act, and shall apply with respect to any employee found, in a final judgment entered or a final decision otherwise rendered on or after such date, to have been the subject of an unjustified or unwarranted personnel action, the correction of which entitles such employee to an amount under section 5596(b)(1)(A)(i) of title 5, United States Code.

As our decision is dated after the effective date of the amendment to the Back Pay Act, the Arbitrator's award of interest on backpay is covered by the amendment to the Back Pay Act and the Agency's exception to that portion of the award must be denied. See Allen Park Veterans Administration Medical Center and American Federation of Government Employees, Local 933, 34 FLRA 1091, 1101-02 (1990).

3. The Award of Attorney Fees Is Deficient

The Authority has repeatedly held that an award of attorney fees under the Back Pay Act requires a fully articulated, reasoned decision setting forth the specific findings supporting the determination on each pertinent statutory requirement. For example, Health Care Financing Administration, Department of Health and Human Services and American Federation of Government Employees, Local 1923, 35 FLRA 274, 290 (1990); Overseas Education Association and Department of Defense Dependents Schools, 29 FLRA 240, 245 (1987) (DODDS); Local 1749, American Federation of Government Employees and Commander, 47FTW, Laughlin Air Force Base, Texas, 24 FLRA 117, 118-19 (1986) (Laughlin AFB). Moreover, in National Association of Air Traffic Specialists and Federal Aviation Administration, Washington Flight Service Station, 21 FLRA 169, 173 (1986), the Authority explicitly stated that in future cases, an award granting attorney fees without the required support will be found to be deficient and will be set aside or modified as appropriate. Accord DODDS, 29 FLRA at 245; Laughlin AFB, 24 FLRA at 119.

In this case, the Arbitrator's award of attorney fees is not supported by a fully articulated, reasoned decision setting forth the specific findings supporting the determination on each pertinent statutory requirement. Accordingly, we conclude that the award of fees is contrary to the Back Pay Act, and we modify the award to strike the provision of attorney fees.

VII. Decision

The Arbitrator's award is modified to strike the portion of his award pertaining to attorney fees. The Agency's exceptions to the remainder of the award are denied.

APPENDIX

ARTICLE 16

DETAILS AND TEMPORARY PROMOTION

Section 1

A. A detail is the temporary assignment of an employee to a different position for a specified period of time with the employee returning to his regular duties at the end of the detail. Details are intended only for meeting temporary needs of the Agency's work requirements, when necessary services cannot be obtained by other desirable or practicable means.

B. Details of one week or more shall be recorded and maintained in the Official Personnel Folder.

C. Details shall be rotated equitably among those employees who have been determined by management to have the capacity and requisite skills for assuming the responsibilities of the assignment unless competitive procedures are used.

Section 2

A. Employees detailed to a higher grade position for a period of more than 10 consecutive work days must be temporarily promoted. The temporary promotion should be initiated at the earliest date it is known by management that the detail is expected to exceed 10 consecutive work days.

B. Temporary promotions in excess of 120 calendar days shall be filled through competitive procedures. Temporary promotions of less than 120 days shall be rotated equitably among those employees who have been determined by management to have the capacity and requisite skills for assuming the responsibilities of the assignment unless competitive procedures are used.

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

*/ The full text of Article 16 is found in the Appendix to this decision.

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