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47 FLRA No. 98

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 476

(Union)

0-AR-2386

_____

DECISION

June 30, 1993

_____

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 Ira F. Jaffe 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 Union filed an opposition to the Agency's exceptions.

The grievance alleged that the Agency improperly failed to give the grievant a career ladder promotion above the GS-9 level. The Arbitrator sustained the grievance in relevant part and directed the Agency to grant the grievant a retroactive promotion to the GS-11 level and backpay with interest. The Arbitrator also awarded the Union attorney fees and arbitration expenses.

For the following reasons, we conclude that the Agency's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the Agency's exceptions. We will also deny the Agency's request that the award of attorney fees to the Union be set aside. The Union's request that the Authority direct the Agency to pay attorney fees and costs for the processing of this appeal is not properly before us and will be dismissed. 

II. Background and Arbitrator's Award

On June 7, 1987, the grievant was appointed to the position of Previous Participation Analyst (PPA) trainee in the Participation and Compliance Division at the GS-5 level. A PPA's "duties are concerned with preliminary determinations concerning threshold ability to do business with the Agency." Exceptions at 6. The position for which the grievant was selected was an upward mobility position which had a maximum career ladder promotion potential to the GS-12 level. On December 20, 1987, the grievant was promoted to the GS-7 level.

By memorandum dated July 18, 1988, the Agency notified the Union that the Participation and Compliance Division was being restructured as a result of the computerization and decentralization of the previous participation review process. The memorandum stated that the Division would no longer be divided into two branches and that the employees in the Division would be supervised by a Director and a Deputy Director. Several GS-11 and GS-12 employees were affected by the restructuring, and the GS-11 positions were abolished and the GS-12 positions were restructured. The memorandum further stated:

One bargaining unit employee, a GS-7 Previous Participation Analyst [the grievant], who is in the upward mobility program with potential to GS-12, will not be affected at this time. However, we anticipate that the duties of this position will be revised to include compliance duties as she progresses in the career ladder to the GS-12 level.

Award at 5-6. Although the Union bargained regarding the restructuring, there was no discussion regarding the grievant's situation inasmuch as "the Union accepted the representation regarding her status which was contained in the July 18th memorandum." Id. at 6.

Effective January 1, 1989, the grievant was promoted in the career ladder to the GS-9 level in the PPA position. The SF-52 underlying the grievant's promotion to the GS-9 level stated the maximum grade potential of the career ladder position as GS-12 and referenced the original vacancy announcement under which the grievant was selected for the PPA position.

The grievant expected to receive a career ladder promotion to GS-11 in January 1990, but did not receive the promotion. On April 18, 1990, the grievant wrote a letter to the Director of Personnel in which she included a proposed job description that she had drafted based on her actual duties and asked whether it would merit GS-11 pay. The Agency did not respond. On December 13, 1990, the grievant again wrote to the Personnel Office, referenced her earlier letter, and asked whether she could "obtain [her] GS[-]11." Id. at 7.

On January 28, 1991, a Supervisory Personnel Management Specialist sent the grievant a memorandum stating that she viewed the grievant's letter of December 13, 1990, as a request for a reclassification to the GS-11 level and that such requests could be made only by the Administrative Office. The memorandum also stated that the Supervisory Personnel Management Specialist had advised the grievant of this policy by telephone in April 1990.

On July 30, 1991, the grievant filed a grievance seeking retroactive promotions to the GS-11 and GS-12 levels, effective in January 1990 and January 1991, respectively, and appropriate backpay, interest, and attorney fees under the Back Pay Act and the parties' collective bargaining agreement.

In its responses to the grievance, the Agency asserted that although the promotion potential for the grievant's position was the GS-12 level when the grievant was selected for the PPA position, the full performance level was reduced to the GS-9 level due to organizational changes and the grievant had been made aware of this fact several years earlier. The Agency contended, therefore, that the grievance was untimely. The Agency also contended that the grievance was not grievable because there was no work available for the grievant above the GS-9 level and the question of whether higher-level work exists is a classification matter that is not grievable through the negotiated grievance procedure. However, after denying the grievance as untimely and nongrievable, the Agency representative further stated in the Agency's October 4, 1991, Step III grievance response:

Nevertheless, in reviewing the merits of this case, I feel it is possible to restructure the work of the office to provide promotional opportunities to you in the compliance area. My plan for restructuring the work will involve adding compliance duties to your currently assigned duties. Implementing this process will require establishing and reassigning you to a new position description which incorporates both the [PPA] and compliance functions. We will take the necessary steps to implement this process within 60 days.

Id. at 5. The Union then submitted the grievance to arbitration.

As an initial matter, the Arbitrator determined that the grievance was timely filed. The Arbitrator then discussed whether there was sufficient work above the GS-9 level to support the grievant's claimed career ladder promotions. The Arbitrator found that:

1) the [g]rievant works independently and primarily in a support role for the work of the Senior Participation and Compliance Specialist and the Deputy Director; 2) much of the former GS-11 and GS-12 PPA work no longer exists; [and] 3) there remains additional GS-12 and GS-13 level compliance work as well as GS-12 and GS-13 level PPA work . . . .

Id. at 16. The Arbitrator concluded that:

there was sufficient compliance work at the higher grade levels available such that, when combined with the [g]rievant's participation duties, there can be no finding of insufficient higher level work to support the [g]rievant's non-competitive career ladder promotion to the GS-11 and GS-12 levels.

Id. at 28.

The Arbitrator rejected the Agency's contention that the question of the availability of higher-graded work was a classification matter that was not grievable under section 7121(c)(5) of the Statute and Article 22, Section 22.05 of the parties' agreement.⁽²⁾ The Arbitrator also rejected as without support the Agency's claim that only a classifier could determine whether there is sufficient higher-graded work to support the granting of a career ladder promotion pursuant to the parties' agreement.

The Arbitrator concluded that the Agency violated Articles 4 and 13 of the parties' agreement when it failed to promote the grievant from the GS-9 level to the GS-11 level in January 1990 according to the career ladder. The Arbitrator noted that there was no dispute in this case regarding the grievant's ability to perform satisfactorily at the GS-11 level, her qualifications, or her time-in-grade. Rather, according to the Arbitrator, the "only issue concerned 'the availability of enough work at the next higher grade.'" Id. at 27.

The Arbitrator stated that, "[i]n the ordinary case, the Agency's focus exclusively upon the adequacy of GS-11 level and GS-12 level participation work might well be persuasive." Id. The Arbitrator noted that the Agency's reorganization and accompanying computerization "clearly impacted upon the analysis work required of PPAs at the GS-11 and GS-12 levels." Id. However, the Arbitrator found that there were "several reasons why in this case that is not the end of the inquiry." Id.

First, the Arbitrator stated that the Agency had "made a promise" to the Union in July 1988 that the grievant's career ladder would not be adversely affected by the reorganization and that any impact caused by the loss of some of the GS-11 and GS-12 level PPA work would be compensated for by the addition of appropriate level compliance work assignments so that the grievant could continue to receive career ladder promotions to the GS-12 level. Id. The Arbitrator found that the Union relied on that promise and declined to bargain over the effect of the reorganization on the grievant. The Arbitrator further found that having obtained a benefit from its promise and having established the grievant's working conditions, the Agency could not unilaterally alter or abrogate that promise.

Additionally, as noted above, the Arbitrator concluded that there was sufficient compliance work at the higher grade levels available so that, when the compliance work was "combined with the grievant's participation duties, there could be no finding of insufficient higher[-]level work to support the grievant's non-competitive career ladder promotion to the GS-11 and GS-12 levels." Id. at 28. Moreover, the Arbitrator found that:

the reason for the Agency's changed position relative to the assignment of compliance work to the [g]rievant and retention of her original career ladder time table was due in large measure to: 1) the need to have the [g]rievant's current PPA duties completed and the Agency's perceived inability to backfill her position if she were to be promoted to the GS-11 level; and 2) unspecified budgetary constraints. Neither of these reasons constitutes a valid reason contractually to deny the [g]rievant her career ladder promotion. Moreover, nothing would have precluded the Agency from continuing to assign the [g]rievant significant portions of her former [PPA] work in addition to having her perform new, higher[-]graded participation and compliance work.

Id.

In sum, the Arbitrator found that the Agency's failure to have promoted the grievant in January 1990 to a GS-11 position violated Articles 4 and 13 of the parties' agreement and the Agency's July 1988 promise to assign the grievant a combination of higher-graded participation and compliance work sufficient to support her receipt of career ladder promotions to the GS-11 and GS-12 levels.

Accordingly, the Arbitrator found that the grievant had fulfilled all the necessary requirements for the career ladder promotion and that, but for the Agency's unwarranted personnel action in withholding the grievant's career ladder promotion, she would have begun to receive GS-11 pay as of the first pay period following January 1, 1990. The Arbitrator awarded the grievant a promotion at that level retroactive to that time, with backpay, including interest, in accordance with the Back Pay Act. However, the Arbitrator did not sustain the grievant's claim for promotion to GS-12. The Arbitrator stated that without a record of performance, he was unable to determine whether the grievant's performance as a GS-11 would demonstrate the ability to satisfactorily perform work at the GS-12 level. The Arbitrator also directed the Agency to pay all arbitration fees and expenses and awarded the Union "[r]easonable attorney's fees." Id. at 34.

III. Positions of the Parties

A. The Agency's Exceptions

The Agency asserts that the Arbitrator's award requires the Agency to "assign the grievant new duties not part of her Previous Participation Analyst position, create a new GS-11 Participation and Compliance Specialist position, and to reassign and retroactively promote the grievant into that new job." Exceptions at 3. The Agency excepts to the award on the grounds that: (1) it is contrary to law because it finds that a classification issue is grievable and arbitrable; (2) it interferes with management's right to assign work under section 7106 of the Statute; (3) it does not draw its essence from the parties' agreement; and (4) the Arbitrator exceeded his authority by deciding issues which were not before him.

The Agency maintains that section 7121(c)(5) of the Statute precludes a negotiated grievance procedure from considering the classification of any position which does not result in the reduction in grade or pay of an employee. The Agency contends that, in this case, the grievant was not subjected to any reduction of grade or pay, and that her non-competitive promotion potential to the GS-12 level was not reduced. The Agency also notes that the grievance sought a career ladder promotion as a remedy, and a "crucial fact" in this case is that there are no GS-11 or GS-12 PPA positions remaining in the grievant's organization, because the PPA career ladder beyond the GS-9 level "was abolished as a result of the aforementioned reorganization." Id. at 4. The Agency argues that the Arbitrator ignored established precedent and found the issue in this case arbitrable in violation of section 7121(c)(5) of the Statute.

The Agency also asserts that the Arbitrator exceeded his authority by deciding an issue which was not before him. According to the Agency, the Arbitrator improperly went beyond the scope of the grievance, which concerned the issue of the promotion potential of the PPA career ladder, when he ruled that the Agency should have assigned the grievant higher-graded compliance duties, which are not part of the grievant's career ladder position and are "substantively distinct from previous participation duties." Id. at 6. The Agency contends that the Arbitrator's remedy directs the Agency to create for the grievant a new Participation and Compliance Analyst position which requires new compliance duties to be assigned to the grievant, and that the Arbitrator "erroneously equates this remedy with that of ordering [that] the grievant be granted a career ladder promotion." Id. The Agency also contends that the remedy fashioned by the Arbitrator interferes with management's right to assign work and fails to draw its essence from the parties' agreement because it prescribes the assignment of particular duties to the grievant.

Further, the Agency disputes the Arbitrator's reliance on his findings that the Agency promised in July 1988 to assign the grievant compliance duties in the future and that the Agency could not have altered its intent without prior notice to and bargaining with the Union. The Agency contends that "what duties outside of her existing career ladder management may have intended at one time to assign the grievant has nothing to do with the terms and conditions of [the] [p]arties' agreement relating to career ladder promotions." Id. at 8. In this respect, the Agency asserts that the Arbitrator exceeded his authority and decided an issue that was not before him. Additionally, the Agency asserts that "notice to and bargaining with the [U]nion over the impact and implementation of management's decision not to assign compliance duties to the grievant could not have resulted in management binding itself to assign compliance duties to the grievant [because] [s]uch an agreement would constitute an abrogation of its [s]ection 7106 right to assign work." Id.

Accordingly, the Agency requests that the Authority set aside the award in its entirety. The Agency also asserts that inasmuch as the Arbitrator rendered an award of attorney fees to the Union because it was the prevailing party in this case, the award of attorney fees must also be set aside if the Authority grants the Agency's exceptions.

B. The Union's Opposition

The Union contends that the Agency's assertion that the grievance covered a classification matter is not supported by the facts. Further, the Union asserts that the award does not interfere with management's right to assign work. The Union contends that the Agency's exception in this regard fails to recognize that the parties' collective bargaining agreement contains procedures for determining career ladder promotions. According to the Union, the parties' agreement provides that the Agency's failure to assign work to an employee would not be the basis for the denial of a career ladder promotion. The Union maintains that the Arbitrator found that sufficient GS-11 level work exists which could be assigned to the grievant. Additionally, the Union argues that the Agency has not shown that those portions of the award regarding attorney fees and arbitration expenses are deficient. Finally, the Union seeks the award of attorney fees and costs for the processing of this appeal.

IV. Analysis and Conclusions

A. The Grievance Is Arbitrable

Section 7121(c)(5) of the Statute provides that any grievance concerning "the classification of any position which does not result in the reduction in grade or pay of an employee" must be excluded from a negotiated grievance procedure under the Statute. Classification of a position is defined in 5 C.F.R. § 511.101(c) as "the analysis and identification of a position and placing it in a class under the position-classification plan established by OPM [Office of Personnel Management] under chapter 51 of title 5, United States Code." The facts of this case show that the grievance did not concern the classification of a position. Rather, the grievance concerned the grievant's delay in receiving a career ladder promotion. Accordingly, the proscription provided in section 7121(c)(5) of the Statute is not applicable and the Arbitrator correctly determined that the grievance in this case was arbitrable.

B. Right to Assign Work

We conclude that the Agency fails to establish that the award interferes with its right to assign work under section 7106(a) of the Statute by requiring the assignment of compliance duties to the grievant to support the grievant's promotion to the GS-11 level. The parties' collective bargaining agreement provision on career ladders provides that sufficient higher-graded work must be available before a career ladder promotion may occur. The Arbitrator found that in its July 1988 memorandum to the Union, the Agency promised to assign compliance work to the grievant to supplement the work available for the grievant in her career ladder and enable her to progress through the career ladder. The Arbitrator also found, based on the record, that sufficient higher-graded compliance and PPA work was available that could be assigned to the grievant, as promised by the Agency, and that the grievant had fulfilled all other requirements for the career ladder promotion. The Arbitrator's finding that sufficient higher-graded work was available that could be assigned to the grievant does not directly interfere with management's right to assign work under section 7106(a) of the Statute. See, for example, U.S. Department of the Air Force, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 42 FLRA 1342 (1991) (arbitrator enforced oral promise to promote grievant in existing career ladder). Therefore, this exception does not provide a basis for finding the award deficient.

C. Essence

We conclude that the award does not fail to draw its essence from the agreement.

The Authority has stated that in order to find an award deficient because it fails to draw its essence from a collective bargaining agreement, the party making such an allegation must demonstrate 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 purpose of the agreement as to manifest an infidelity to the arbitrator's obligation; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See, for example, American Federation of Government Employees, Council 236 and General Services Administration, 47 FLRA 576, 580 (1993) (GSA). The Agency has not demonstrated that the award fails to draw its essence from the agreement under any of these tests.

The Agency contends that the remedy fashioned by the Arbitrator fails to draw its essence from the parties' agreement because it prescribes the assignment of particular duties to the grievant. As noted above, the parties' agreement provides that sufficient work must be available at the next higher grade level before a career ladder promotion may be made. We also noted that it was the Agency's decision, in its July 1988 memorandum, to include compliance work in the grievant's duties to enable the grievant to fulfill her career ladder potential. Further, as noted above, the Arbitrator found that sufficient higher-graded work was available, as promised by the Agency, and that the grievant had fulfilled all other requirements for the career ladder promotion. We find nothing in the Arbitrator's award, or in his interpretation and application of relevant provisions of the parties' agreement, which is irrational, implausible, or in manifest disregard of the agreement. Accordingly, the Agency has not demonstrated that the award fails to draw its essence from the agreement. Therefore, this exception does not provide a basis for finding the award deficient. See U.S. Department of the Treasury, United States Customs Service and National Treasury Employees Union, 46 FLRA 1433, 1442 (1993), petition for review filed No. 93-1388, (D.C. Cir. June 16, 1993).

D. The Arbitrator Did Not Exceed His Authority

An arbitrator exceeds his or her authority when, among other things, the arbitrator resolves an issue not 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, or decides an issue not included in the issue stipulated by the parties. See, for example, GSA, 47 FLRA at 582; Bremerton Metal Trades Council and U.S. Department of the Navy, Puget Sound Naval Shipyard, Bremerton, Washington, 47 FLRA 406, 408 (1993). The Agency has not established, and it is not otherwise apparent to us, that the Arbitrator exceeded his authority when he interpreted the parties' agreement and sustained the grievance. The Arbitrator did not resolve an issue not submitted to him, or award relief to anyone other than the grievant. The Arbitrator did not decide an issue inconsistent with any stipulation by the parties. Accordingly, in our view, the Agency has failed to demonstrate that the Arbitrator exceeded his authority. It is well established that arbitrators have broad authority to fashion a remedy for a violation of a collective bargaining agreement. We find that the award is directly responsive to the issue before the Arbitrator. Therefore, the Arbitrator acted within his authority in resolving this issue. See, for example, American Federation of Government Employees, Local 916 and U.S. Department of the Air Force, Oklahoma City Air Logistics Command, Tinker Air Force Base, Oklahoma, 46 FLRA 1316, 1319-20 (1993).

We find that the Union's exception constitutes mere disagreement with the Arbitrator's interpretation and application of the agreement. Such disagreement is not a ground for finding an award deficient. See, for example, American Federation of Government Employees, National Immigration and Naturalization Service Council, Local 2012 and U.S. Immigration and Naturalization Service, Eastern Region, 45 FLRA 329, 334 (1992).

E. Award of Attorney Fees

The Agency requests that the Authority set aside the Arbitrator's award, including the award of attorney fees that the Arbitrator had awarded to the Union as the prevailing party. The Agency contends that if its exceptions are granted, the Union would no longer be the prevailing party and, therefore, an award of attorney fees would not be warranted.

We have found that the Agency's exceptions to the Arbitrator's award provide no grounds to set aside the Arbitrator's award. Accordingly, the Union remains the prevailing party and, as the Agency has raised no other grounds to set aside the award of attorney fees, the Union is entitled to the attorney fees provided in the Arbitrator's award. See American Federation of Government Employees, Local 12 and U.S. Department of Labor, Washington, D.C., 38 FLRA 1240, 1249-50 (1990). The Agency's request that the award of attorney fees to the Union be set aside will be denied.

F. Union's Request for Attorney Fees and Costs

The Union has requested the Authority to direct the Agency to pay attorney fees and costs for the processing of this appeal.

Under the Back Pay Act, 5 U.S.C. § 5596, a request for attorney fees related to an unjustified or unwarranted personnel action "may be presented only to the appropriate authority that corrected or directed the correction of the unjustified or unwarranted personnel action." U.S. Department of Agriculture, Animal and Plant Health Inspection Service and National Association of Agriculture Employees, 35 FLRA 998, 1004 (1990) (quoting 5 C.F.R. § 550.807(a)). Here, the Arbitrator is the appropriate authority that resolved the grievance and, consequently, is the appropriate authority to resolve the Union's request. See U.S. Department of the Army, White Sands Missile Range, White Sands Missile Range, New Mexico and National Federation of Federal Employees, Local 2049, 38 FLRA 1532, 1538-39 (1991).

Accordingly, the Union's request is not properly before us and will be dismissed. 

V. Decision

The Agency's exceptions are denied. The Agency's request that the award of attorney fees to the Union be set aside is denied. The Union's request that the Authority direct the Agency to pay attorney fees and costs related to its opposition to the Agency's exceptions is dismissed.

APPENDIX

Section 7121(c)(5) of the Statute states:

§ 7121. Grievance procedures

(c) The preceding subsections of this section shall not apply with respect to any grievance concerning--

(5) the classification of any position which does not result in the reduction in grade or pay of an employee.

Article 13, Section 13.14 of the parties' 1983 agreement provided that:

Career Ladder Promotion

Management will make prompt determinations regarding career-ladder promotions of their employees. A career ladder promotion is dependent on:

(1) The employee's demonstration of the ability to perform the duties of the next higher grade to the satisfaction of his/her supervisor. A copy of the promotion criteria will be given to an employee as he/she enters each level of a career ladder.

(2) The availability of enough work at the next higher grade.

(3) Meeting the minimum qualifications and time-in-grade requirements.

Article 4, Section 4.05 of the parties' 1983 agreement provided that:

Performance of Duties

Employees shall perform all lawful duties assigned by appropriate [m]anagement officials, and the successful performance of these duties shall not be the reason for delay or denial of a within-grade increase, or career ladder promotion or for an act of reprisal against an employee.

"With the exception of renumbering (Section 4.05 became Section 4.04 and Section 13.14 became Section 13.13), these two provisions were carried over verbatim into the parties' current (1990) agreement." Award at 2.

Article 22, Section 22.05(5) of the parties' agreement excludes from the negotiated grievance procedure:

The classification of any position which does not result in the reduction in grade or pay of an employee.

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

1. On June 14, 1993, the Agency filed a supplemental submission providing additional citations for inclusion with its exceptions. We find no circumstances warranting our consideration of this unsolicited supplemental submission. See U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, 47 FLRA No. 78, slip op. at 10 n.2 (1993).

2. Section 7121(c)(5) of the Statute and relevant provisions of the parties' collective bargaining agreement are set forth in the Appendix to this decision.

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