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52 FLRA No. 28

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

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TIDEWATER VIRGINIA FEDERAL EMPLOYEES

METAL TRADES COUNCIL

(Union)

and

U.S. DEPARTMENT OF THE NAVY

NORFOLK NAVAL SHIPYARD

PORTSMOUTH, VIRGINIA

(Agency)

0-AR-2863

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DECISION

September 30, 1996

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Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator C. Allen Foster filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

The Arbitrator's award ordered the Agency to pay backpay to the grievant, a WG-8 electrician, for performing higher-grade WG-10 work in 1995. The Arbitrator denied the grievance for work performed in 1992-1994 as untimely.

For the following reasons, we conclude that the Union has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the Union's exception.

II. Background and Arbitrator's Award

The grievance claimed that the grievant had been performing the duties of a WG-10 high voltage electrician since 1992, even though he was classified as a WG-8 high voltage electrician. He contended that he "would have already been promoted but for the procrastination of management." Award at 10. To attempt to settle the grievance, the Agency gave the grievant retroactive 120-day temporary promotions for each year from 1992 to 1995, and a 1-year temporary promotion for 1996. However, the grievance remained unresolved and was submitted to arbitration.

The Arbitrator did not state the issue before him. He ruled that the grievance was untimely filed for work performed in 1992-1994, and dismissed that portion of the grievance. The Arbitrator found that the grievance was timely filed for work performed during 1995.

The Arbitrator found that under Article 9, Section 4.a. of the parties' agreement, details and temporary promotions to higher-grade work are limited to 120 days.⁽¹⁾ The Arbitrator further found that the Agency had continued to assign WG-10 work to the grievant and that he had worked "out of classification" part of 1995. Id. at 14. As his award, the Arbitrator granted the grievant backpay for the period which he had worked outside of his classification in 1995 for which he had not already received compensation. The Arbitrator also determined that he was without authority to order the grievant promoted, and denied that portion of the grievance.

III. Exception

A. Union's Contention

The Union contends that the award does not draw its essence from the parties' agreement because the Arbitrator viewed the grievance as contesting a "'nonselection from among a group of properly ranked and certified candidates'[.]" Exception at 1, quoting Award at 11. According to the Union, although the Arbitrator relied on Article 9, Section 4.a. of the parties' agreement, he also had authority under 5 C.F.R. § 335.103 to order the Agency to promote the grievant.⁽²⁾ The Union contends that the award should be set aside and the grievant should be promoted.

B. Agency's Opposition

According to the Agency, the Union's exception is based on the argument that the grievant is entitled to a promotion. However, the Agency argues that the Union has not identified any provision in the parties' agreement or any applicable law, rule, or regulation which would require that the grievant be promoted.

IV. Analysis and Conclusions

We reject the Union's contention that by failing to order the grievant promoted, the award does not draw its essence from the parties' agreement. There is nothing in the record indicating that any provision of the parties' agreement mandates the promotion of the grievant. Moreover, contrary to the Union's contention, the Arbitrator did not base his determination that the grievance should be denied on a finding that the grievance contested a nonselection from among a group of properly ranked and certified candidates. Rather, the Arbitrator denied the grievance based on the record before him and his interpretation of the parties' agreement. In this case, there is nothing implausible, unfounded, or irrational in the Arbitrator's findings. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-76 (1990). Accordingly, the Union has not demonstrated that the award fails to draw its essence from the parties' agreement.

We construe the Union's reliance on 5 C.F.R. § 335.103 as a contention that the award is inconsistent with that regulation. In circumstances where a party's exceptions involve an award's consistency with law, we must review the questions of law raised by the Arbitrator's award and the party's exceptions de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). Nothing in the regulation relied on by the Union mandates the grievant's promotion. Accordingly, we conclude that the award is not inconsistent with the regulation.

V. Decision

The Union's exception is denied.

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

1. Article 9, Section 4.a. of the parties' agreement states:

No employee may be temporarily promoted or detailed to higher level positions in excess of 120 calendar days in a 12-month period dating from the first day of the first temporary promotion or detail unless he was selected from a properly issued completed promotion certificate.

Id. at 5.

2. 5 C.F.R. § 335.103 sets forth the requirements of an agency merit promotion plan.

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