[ v55 p695 ]
55 FLRA No. 125
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R4-45
(Union)
and
U.S. DEPARTMENT OF DEFENSE
DEFENSE COMMISSARY AGENCY
FORT LEE, VIRGINIA
(Agency)
_____
0-AR-3114
DECISION
July 31, 1999
_____
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. [n1]
Decision by Member Wasserman for the Authority.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator James J. Sherman filed by the Union, and cross-exceptions 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 Regulations. Each party also filed an opposition to the other's exceptions or cross-exceptions.
The Arbitrator found that the Agency passed over certain bargaining unit employees for temporary assignments in violation of the parties' collective bargaining agreement ("Agreement"). Nevertheless, the Arbitrator held that it was beyond his authority to grant the Union's requested remedies of temporary promotions, backpay, and training.
For the reasons that follow, we grant in part and deny in part the Union's exceptions, modify the award by remanding to the parties the issue of a remedy, and deny the Agency's cross-exceptions.
II. Background and Arbitrator's Award
A. Facts Giving Rise to this Grievance
The Union represents a group of employees classified as "Sales Store Checkers." Award at 6. Between October 1996 and December 1997, the Agency assigned three Sales Store Checkers to perform work in higher-graded positions. By letter dated October 11, 1997, the Union filed a grievance on behalf of Sales Store Checkers who did not receive the higher-graded assignments. The grievance alleged that the Agency violated Article 31 of the parties' agreement "by not properly selecting individuals for details or temporary promotions to cash clerk or management support clerk positions." Id. at 2. When the grievance was not resolved, it was submitted to arbitration.
B. Arbitrator's Award
The Arbitrator noted that the Union's grievance concerned "fair consideration for details, temporary promotion[s] and training." Award at 1. The Arbitrator framed the issues before him as follows:
(1) Whether the Issue [grievance] is arbitrable.
(2) Whether the Agency violated the Grievants' rights. If so, what is the proper remedy?
Id.
At the outset, the Arbitrator rejected the Agency's argument that the grievance was based upon a nonarbitrable claim of race discrimination. [n2] In this regard, the Arbitrator found that the Agency had not raised the issue of arbitrability before or in its final response to the grievance, as required by Article 43, Section 8 of the parties' agreement, [n3] and therefore had waived the right to raise an arbitrability defense. The Arbitrator also found that "the grievance did not charge racial discrimination[,]" but was instead based upon an alleged viola- [ v55 p696 ] tion of the parties' agreement. Id. at 4. Consequently, the Arbitrator ruled that the grievance was arbitrable.
In addition, the Arbitrator rejected the Agency's contention that the Union was "deliberately vague about who was complaining about whom and what actions were allegedly in violation of the labor agreement." Id. at 5. On this point, the Arbitrator stated that the Union's complaint could not have included specific allegations because management had failed to meet its contractual obligation to document personnel changes. The Arbitrator found that if the Agency had met this obligation, "the grievance would have been more specific and the grievance meeting may have been more enlightening and productive." Id. According to the Arbitrator, it was not until the hearing that names of employees became available, specific duties were described, and dates were clarified. Due to the lack of documentation, the Arbitrator stated that he had to determine "a most probable set of facts" based upon witness testimony and incomplete records. Id. at 6. Based upon the evidence, the Arbitrator found that the Agency had detailed three employees to higher-graded positions for over one year, and that these assignments eventually became permanent. He also found that one of the employees was moved from part-time to full-time without following proper procedures.
The Arbitrator determined that the Agency violated the "specific language in Article 31 . . . in a wholesale fashion." Id. at 7. In particular, the Arbitrator stated that Article 31 "recognizes the right of all employees to fair and equitable treatment with respect to details and temporary assignments[,]" and highlighted the following sections of Article 31 that had been violated by the Agency: (1) Section 4 "requires [m]anagement to record even brief details" and place this information in the employee's work folder, and "if the detail is over 30 days, it must be recorded on a Standard Form 52"; (2) Section 5 "states that consideration for details will be based upon seniority"; and (3) Section 6 "states that an employee, detailed for over [thirty] days will be promoted to that position." Id. [n4] The Arbitrator concluded that the grievants "never had a chance to be promoted" in the same manner as the other three employees, and that "if Management had made all assignment decision[s] in a proper manner," then "some of the grievants" would have received compensation consistent with higher-graded duties. Id. at 7-8.
In terms of a remedy, the Union claimed that the grievants had a right to receive temporary promotions, backpay, retroactive credit for higher-graded work, and training consistent with higher-graded work. The Arbitrator determined, however, that he could not order the Agency to compensate the grievants because: (1) he could not "direct the Agency to compensate anyone for work they did not perform"; (2) he could not direct the Agency to falsify records by crediting the grievants for work that they did not perform; and (3) "it would be improper, and indeed wasteful" to order training for grievants without a "valid expectation that there will be a vacancy in whatever positions they may aspire to." Id. at 8.
In closing, the Arbitrator sustained the grievance "with respect to the rights allegedly violated" and "declare[d] the Agency the loser in this arbitration[,]" but stated that "all remedies requested in the grievance must be rejected because they call for actions that are beyond my authority." Id. at 9. The Arbitrator also held in abeyance the Union's request for attorney fees pending the parties' submission of post-hearing briefs.
III. Positions of the Parties
A. Union's Exceptions
The Union contends that the Arbitrator was "incorrect as a matter of law" in concluding that he could not grant the grievants' requested relief of temporary promotions, backpay, and training. Exceptions at 1, 3.
First, the Union argues that the Arbitrator "erroneously believed he was restricted from awarding compensation for work not performed." Id. at 3. According to the Union, the Back Pay Act ("Act"), 5 U.S.C. § 5596, entitles a grievant to backpay "if she has been subjected to an unwarranted personnel action . . . which resulted in the loss or reduction of her pay [ ] but for which she would not have suffered the reduction in pay." Id. The Union concludes that, under Authority precedent, the grievants are entitled to temporary promotions and backpay. In support, the Union cites U.S. Department of Veterans Affairs Medical Center, Allen Park, Michigan and American Federation of Government Employees, Local 933, 38 FLRA 688 (1990), and U.S. Department of the Army, Fort Polk, Louisiana and National Association of Government Employees, Local R5-168, 44 FLRA 1548 (1992).
Second, the Union argues that the Arbitrator should have enforced Article 24, Section 1 of the parties' agreement as an appropriate arrangement which requires the Agency to provide "fair and equitable con- [ v55 p697 ] sideration for training." Id. at 4. [n5] The Union cites Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309 (1990), in order to demonstrate that the Authority will enforce such arrangements. Accordingly, the Union requests that the Authority order the Agency to provide the grievants with training comparable to that received by the three employees who were promoted.
B. Agency's Opposition
The Agency states that "no specific details, temporary promotions, or training were identified by the grievants." Exceptions and Opposition at 5. In this connection, the Agency argues that the Arbitrator could not have ordered the Union's requested relief "without having a factual basis to rely on." Id. at 6. Therefore, the Agency contends that the Authority should deny the Union's exceptions. In addition, the Agency alleges that, without a basis for backpay, attorney fees are not warranted.
C. Agency's Cross-Exceptions
First, the Agency argues that the award is deficient as contrary to law because the Arbitrator did not have jurisdiction to hear the case. Specifically the Agency argues that "the arbitrator in this case should have determined the discrimination claim . . . was excluded from the negotiated grievance procedure" because "Article 43, Sect. 3, of the CBA specifically excludes complaints of discrimination from the grievance procedure." Exceptions and Opposition at 3.
Second, the Agency argues that the Arbitrator relied on three nonfacts in rendering his decision. The first nonfact argument is that the Arbitrator's findings are incorrect because "no details or temporary promotions really occurred." Id. at 4. In support, the Agency asserts that there is no evidence that any detail or temporary promotion occurred. The second nonfact argument is that the Arbitrator misconstrued the parties' agreement to require the Agency to assign employees in a "fair and equitable" manner. In this regard, the Agency states that Article 31, Section 3 of the parties' agreement requires employees to be selected for assignments in a "fair and impartial" manner. Id. at 4. The Agency concludes that, "[h]ad the Arbitrator applied the ["fair and impartial"] requirement, he would not have felt compelled to find the grievants had a right to equitable distribution of detail assignments." Id. The third nonfact argument concerns the Arbitrator's finding that the Agency did not follow proper procedures in moving one of the higher-graded employees from part-time to full-time. On this point, the Agency claims that "[a] conversion from part-time to full-time is not a promotion[,]" and "[n]o evidence was presented by the [U]nion to show any violation of normal conversion procedures." Id. In sum, the Agency argues that the award is deficient because the result would have been different had the award not been based on nonfacts.
Third, the Agency contends that the Arbitrator was biased in favor of the Union. As proof, the Agency claims that the Arbitrator: exhibited a "total lack of coherent and logical reasoning" that favored the Union; relied on nonfacts; accepted the grievant's testimony in the absence of evidence, thereby implying that the Agency's witnesses were lying; stated that testimony was possibly tainted by pre-trial preparation; and "reversed his entire opinion" in favor of the Union concerning whether race discrimination was at issue. Id. at 5.
D. Union's Opposition
First, the Union claims, based upon Authority precedent, that the Agency's disagreement with the Arbitrator's credibility findings and factual findings does not show that the award is deficient. In addition, the Union disagrees with the Agency's position that moving an employee from part-time to full-time is not a promotion. In support, the Union cites U.S. Department of Defense, Defense Commissary Agency, Fort Lee, Virginia and National Association of Government Employees, Local R4-45, 53 FLRA 1626 (1998).
Second, the Union asserts that, as stated by the Arbitrator, the grievance did not present a claim of race discrimination.
Third, the Union contends that the Agency has not shown that the Arbitrator was biased in favor of the Union. [ v55 p698 ]
IV. Analysis and Conclusions
A. Standard of Review
The Authority's role in reviewing arbitration awards depends on the nature of the exceptions raised by the appealing party. See U.S. Customs Service v. FLRA, 43 F.3d 682, 686 (D.C. Cir. 1994). In National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995), the Authority stated that if the arbitrator's decision is challenged, as it is here, on the ground that it is contrary to any law, rule, or regulation, the Authority will review the legal question de novo. In applying a standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See, e.g., U.S. Department of Health and Human Services and National Treasury Employees Union, 54 FLRA 1210 (1998) (DHHS).
B. The Grievants Are Entitled To Temporary Promotions and Backpay Pursuant To The Back Pay Act
Under the Act, 5 U.S.C. § 5596(b)(1)(A)(i), an award of backpay is authorized only when an arbitrator finds that: (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; and (2) the personnel action resulted in the withdrawal or reduction of the employee's pay, allowances or differentials. See DHHS, 54 FLRA at 1218. A violation of a collective bargaining agreement constitutes an unjustified or unwarranted personnel action under the Act. See U.S. Department of Defense, Department of Defense Dependents Schools and Federal Education Association, 54 FLRA 773, 785 (1998). In this case, the Arbitrator made sufficient findings to support an order of temporary promotions and backpay, consistent with the Act.
The Arbitrator determined that the Agency violated Article 31 of the parties' agreement by failing to keep proper records of details and, essentially, failing to give fair treatment to employees with respect to selections for detail assignments. This finding satisfies the Act's requirement of an unjustified or unwarranted personnel action. In addition, the Arbitrator expressly found that "if Management had made all assignment decision[s] in a proper manner," then "some of the grievants" would have received compensation consistent with higher graded duties. Award at 8. This finding demonstrates, as required by the Act, that the grievants were affected by a violation of the agreement that "resulted in" lost employee benefits, within the meaning of the Act. See DHHS, 54 FLRA at 1219 (explaining that the Act's "resulted in" requirement is met upon demonstration of a causal relationship between an agency's unjustified personnel action and lost pay, allowances, or differentials). In such circumstances, the Arbitrator's findings support an award of backpay.
The Arbitrator, however, did not order a backpay remedy. Instead, he held that backpay would exceed his authority because he could not order the grievants to be compensated for work that they did not perform. Based upon the record, we find that the Arbitrator erred in making this legal conclusion. As relevant here, the Act does not require affected employees to have performed higher-graded work in order to be eligible for compensation. See, e.g., Air Force Flight Test Center, Edwards Air Force Base, California and American Federation of Government Employees, Local 3854, AFL-CIO, 55 FLRA 116, 124-125 (1999) (Chair Segal, concurring) (unilateral elimination of noncompetitive promotions constituted unwarranted personnel action that was appropriately remedied by retroactive promotions and backpay); U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Sheridan, Oregon and American Federation of Government Employees, Local 3979, 55 FLRA 28 (1998) (FCI Sheridan) (backpay remedy was justified for employees wrongfully denied the opportunity to work overtime); Cf. 54 Comp. Gen. 1071, 1074 (1975) ("an unjustified personnel action may involve acts of omission as well as commission, whether such acts involve a failure to promote in [a] timely fashion or a failure to afford an opportunity for overtime work . . . ").
Similarly, the Act does not require an arbitrator to identify specific employees in order to support a backpay remedy. FCI Sheridan, 55 FLRA at 29; See also Federal Employees Metal Trades Council, Local 831 and U.S. Department of the Navy, Long Beach Naval Shipyard, Long Beach, California, 39 FLRA 1456, 1459 (1991) (when an arbitrator has found the specific circumstances giving rise to an entitlement to backpay, there is no requirement in the Act or its implementing regulations for the arbitrator to identify the specific employees entitled to backpay as a result of the unwarranted action). In this case, the Agency's failure to comply with its obligation to maintain records of temporary assignments and details made it difficult for the Arbitrator to determine the degree of loss experienced by the grievants. Nonetheless, the scarcity of documentation did not prevent the Arbitrator from identifying the specific circumstances under which employees are entitled to backpay under the Act. Accordingly, the [ v55 p699 ] employees who were affected by the Agency's unwarranted action are entitled to backpay.
Although entitlement to a backpay remedy has been established in this case, the Arbitrator's findings suggest that such entitlement does not attach to all of the employees who are a party to the grievance. In these circumstances, we remand to the parties for settlement or resubmission to the Arbitrator the issue of compensation, to resolve which employees are entitled to temporary promotions and backpay. See FCI Sheridan, 55 FLRA at 29 (affirming award remanding to parties issue of which individual employees are entitled to compensation under the Act). This will permit the parties to resolve the dispute on their own and, absent such resolution, will require the Arbitrator to decide the issue. On remand, we direct the parties to attempt to resolve, within 60 days or some other time frame agreed upon by the parties, the issue of which group of employees is entitled to temporary promotions and backpay. Absent settlement, the issue will be submitted to the Arbitrator.
C. The Award Draws Its Essence From The Agreement
1. The Award Draws Its Essence From Article 24, Section 1 of The Agreement
According to the Union, the Arbitrator should have ordered the Agency to provide the grievants with training pursuant to Article 24, Section 1 of the parties' agreement. We construe this as an argument that the award fails to draw its essence from the collective bargaining agreement.
In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential standard of review that Federal courts use in reviewing arbitration awards in the private sector. See 5 U.S.C. § 7122(a)(2); American Federation of Government Employees, Council 220 and Social Security Administration, Baltimore, Maryland, 54 FLRA 156, 159 (1998). Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the collective bargaining agreement when the appealing party establishes 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 purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990). The Authority and the courts defer to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. at 576.
Although the Arbitrator did not specifically address Article 24 in his award, he refused to grant the Union's request for training based upon his belief that such an order would "be improper, and indeed wasteful" when he had "no valid expectation that there will be a vacancy in whatever positions [the grievants] may aspire to." Id. at 8. Consequently, the Arbitrator stated that an award of training would exceed his authority. In pertinent part, Article 24, Section 1 provides that an employee's request for training "shall be taken [into] consideration by the [Agency] in identifying training needs." Nothing in this section requires the Agency to provide training to employees. Accordingly, the Union has not demonstrated that the Arbitrator's interpretation of Article 24 is implausible, irrational, or unconnected to the wording of the agreement. See OSHA, 34 FLRA at 575-76. Under these circumstances, the award does not fail to draw its essence from the agreement. We deny the exception.
2. The Award Draws Its Essence From Article 43, Section 3 of the Agreement
The Agency states that the award "is in violation of the law, by not finding the grievance excluded from the grievance procedure." Exceptions and Opposition at 2. As the basis of the Agency's contention is a claim that the Arbitrator erroneously interpreted the parties' agreement, we construe the Agency's contention as a claim that the award fails to draw its essence from the agreement. In this respect, the Agency argues that "the arbitrator in this case should have determined the discrimination claim . . . was excluded from the negotiated grievance procedure" because "Article 43, Sect.3, of the CBA specifically excludes complaints of discrimination from the grievance procedure." Id. at 3. We construe this argument as a claim that the Arbitrator's determination on substantive arbitrability fails to draw its essence from the parties' agreement. See, e.g., U.S. Department of the Interior, U.S. Geological Survey, National Mapping Division, Mapping Applications Center and National Federation of Federal Employees, Local 1309, 55 FLRA 30, 32 (1998); American Federation of Government Employees, Local 1399 and U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Region West, 54 FLRA 1143, 1151 (1998).
The Arbitrator interpreted and applied the collective bargaining agreement in concluding that the subject [ v55 p700 ] of the grievance was arbitrable. He based this conclusion, in part, upon his finding that "the grievance did not charge racial discrimination[.]" Award at 4. Rather, the Arbitrator determined that the grievance was based upon a contractual dispute and was therefore arbitrable under the terms of the agreement. The Agency has not demonstrated that such an interpretation of the agreement disregards the agreement or is implausible, irrational, or unfounded.
D. The Award Is Not Based Upon Nonfacts
The Agency contends that the Arbitrator relied on three nonfacts in rendering his decision. To establish that an award is based on a nonfact, the excepting party must demonstrate that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Government Employees, Local 1497, 48 FLRA 589, 593 (1993) (Lowry Air Force Base). However, the Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties disputed at arbitration. Id. at 594 (citing National Post Office Mailhandlers v. U.S. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)).
First, the Agency alleges that no facts support the Arbitrator's finding that the Agency temporarily promoted three employees. In this connection, the Arbitrator found that the Agency's records were "sometimes non-existent, sometimes obviously altered and often challenged as inaccurate." Award at 6-7. Nevertheless, the Arbitrator found that three employees were detailed to higher graded positions, without proper documentation. Moreover, the parties clearly disputed before the Arbitrator whether the Agency had temporarily promoted any employee. Accordingly, the Agency has not shown that the award is deficient on this ground. See, e.g., U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and National Treasury Employees Union, Chapter 201, 53 FLRA 222, 233 (1997).
Second, the Agency alleges that the Arbitrator incorrectly construed Article 31 of the parties' agreement to require the Agency to assign employees in a fair and equitable manner, when the language of Article 31, Section 6 of the agreement requires the Agency to select employees for assignments in a "fair and impartial" manner. [n6] The Agency contends that, had the Arbitrator applied the proper standard, "he would have not felt compelled to find the grievants had a right to equitable distribution of detail assignments." Exceptions and Opposition at 4. An assertion that an arbitrator incorrectly interpreted the parties' collective bargaining agreement is not a basis for a nonfact exception. See U.S. Department of Defense Dependents Schools, Arlington, Virginia and Overseas Education Association, 52 FLRA 3, 10-11 (1996). Accordingly, the award is not deficient on this ground.
Third, the Agency contests the Arbitrator's finding that it converted one of three higher-graded employees from part-time to full-time without following proper procedures. As relevant to this argument, the Arbitrator connected the conversion of the above-referenced employee to full-time status with the fact that the employee was also improperly detailed. The nature of the improper details was disputed at arbitration, and therefore cannot serve as the basis for setting aside the award under a nonfact analysis. Lowry Air Force Base, 48 FLRA at 594. In addition, the Agency relies on an absence of facts to support its exception. See U.S. Department of Justice, Federal Bureau of Prisons, United States Penitentiary, Leavenworth, Kansas and American Federation of Government Employees, Council of Prisons, Local 919, 53 FLRA 29, 40 (1997) (the absence of facts is no basis for a nonfact exception). Consequently, the Agency's exception does not demonstrate that any fact relied upon by the Arbitrator is clearly erroneous, but for which a different result would have been reached.
Based upon the foregoing, we deny the Agency's nonfact exception. [n7]
E. The Arbitrator Was Not Biased And Did Not Fail To Conduct A Fair Hearing
The Agency's contention that the Arbitrator was biased can also be construed as a claim that the Arbitrator failed to conduct a fair hearing. We analyze this contention on both grounds.
To demonstrate that an award is deficient because of bias on the part of an arbitrator, it must be shown that [ v55 p701 ] the award was procured by improper means, that there was partiality or corruption on the part of the arbitrator, or that the arbitrator engaged in misconduct that prejudiced the rights of the party. See, e.g., U.S. Department of Veterans Affairs Medical Center, North Chicago, Illinois and American Federation of Government Employees, Local 2107, 52 FLRA 387, 398 (1996).
The Agency's exception essentially summarizes its arguments against the award and reasserts them as evidence of the Arbitrator's bias. Without more, these arguments are merely a bare assertion that the Arbitrator was biased. Accordingly, the award is not deficient on this ground.
With regard to the assertion that the Arbitrator failed to conduct a fair hearing, the Authority will find an award deficient when an arbitrator refuses to hear or consider pertinent and material evidence, or conducts the proceeding in a manner that prejudices a party so as to affect the fairness of the proceeding as a whole. See American Federation of Government Employees, Local 1668 and U.S. Department of the Air Force, Elmendorf Air Force Base, Anchorage, Alaska, 50 FLRA 124, 126 (1995). The fact that an arbitrator conducted a hearing in a manner a party finds objectionable does not support a contention that the arbitrator denied that party a fair hearing. See Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620, 629-30 (1988).
In this case, there is nothing in the record demonstrating that the Arbitrator acted improperly so as to deny the Agency a fair hearing. Accordingly, we deny the exception.
V. Decision
For the foregoing reasons, we modify the award by remanding the issue of a remedy to the parties who, absent settlement, will submit the issue to the Arbitrator. We deny the other exceptions and cross-exceptions.
APPENDIX
ARTICLE 31
DETAILS AND TEMPORARY PROMOTIONS
Section 1. A detail is a temporary assignment of an employee to a position or duties other than that employee's permanent position. A detail may be at an equal, higher or lower grade level than the employee's permanent position. Upon completion of the detail, the employee returns to his/her permanent position.
Section 2. Details will be made for brief periods to meet the particular needs of the situation requiring the temporary service of an employee. The duration of details will conform to the time limits established by regulations.
Section 3. Selections of employees for detail assignments will be made in a fair and impartial manner, based on operational needs and the availability of qualified employees. The EMPLOYER will inform employees of detail assignments, the reasons for the assignment, the duties to be performed, the estimated duration, and will document the assignment.
Section 4. Details will be recorded as follows:
a. Details in excess of thirty (30) days will be documented on a Standard Form 52, which is to be filed in the employee's Official Personal Folder, and will be entered in the employee's work folder maintained by the supervisor.
b. Details of thirty (30) days or less will be entered in the employee's work folder maintained by the supervisor.
c. Upon request, the employee will be provided a copy of the documentation.
Section 5. Consideration for details will first be made from qualified and available volunteers who possess the requisite skills. Selection will be made in seniority order when there are more volunteers than needed. In the absence of sufficient volunteers, selection will be made in inverse seniority of available and qualified employees who possess the requisite skills.
Section 6. Employees detailed to higher graded positions will be temporarily promoted (if otherwise eligible and qualified) on the 31st day, if the detail exceeds 30 days, and the detail was not taken at the employees written request. Competitive procedures will be followed when required by law or regulation, or when the EMPLOYER determines such procedures are warranted. [ v55 p702 ]
Opinion of Member Cabaniss, dissenting in part:
I respectfully dissent from my colleagues' decision to require the parties to resubmit this case (and presumably cases we remand in the future) to the Arbitrator by a specific deadline. To my knowledge, this is the first time we have imposed such a requirement, and I do not understand how we propose to enforce it. Moreover, I am not aware of any evidence that would suggest a need for us to further interject ourselves into the arbitration process in this manner.
Footnote # 1 for 55 FLRA No. 125
The opinion of Member Cabaniss, dissenting in part, appears at the end of this decision.
Footnote # 2 for 55 FLRA No. 125
Article 43, Section 3 of the parties' Agreement excludes claims of discrimination from the grievance procedure. As relevant here, this provision states:
Section 3. The following matters are not grievable under this grievance procedure:
. . . .
(i) complaints of discrimination
. . . .
Footnote # 3 for 55 FLRA No. 125
In pertinent part, Article 43, Section 8 requires that an allegation that the grievance is not arbitrable or grievable "shall be submitted in writing to the arbitrator prior to the presentation of the underlying grievance[.]" See Agency's Exceptions and Opposition, Attachment 6 at page 2.
Footnote # 4 for 55 FLRA No. 125
Specifically, Article 31, Section 6 requires the Agency to "temporarily promote[ ]" employees who are detailed for over 30 days to higher-graded positions. See Agency's Exceptions and Opposition, Attachment 7 at page 1.
Footnote # 5 for 55 FLRA No. 125
Article 24, "Training and Employee Development," Section 1, states:
The EMPLOYER is responsible for ensuring employees receive sufficient training for performing the duties of their job. Employees may inform their supervisors of any training needs they feel relates to their work assignments. Such information shall be taken in consideration by the EMPLOYER in identifying training needs. When an employee is required to obtain job related training, that training will be provided at no cost to the employee. Employees will receive fair and equitable consideration for training consistent with the operational needs of the employer.
See attachment to Union's Exceptions at page 1 (emphasis in original).
Footnote # 6 for 55 FLRA No. 125
Specifically, the Agency excepts to the Arbitrator's statement that "[t]he collective agreement (Article 31) recognizes the right of all employees to fair and equitable treatment with respect to details and temporary assignments." Award at 7.
Footnote # 7 for 55 FLRA No. 125
To the extent that the Agency bases its argument that the award is contrary to law on the contention that the Arbitrator failed to recognize that, as a factual matter, the grievance involved a claim of discrimination, we construe that contention as a claim that the award is based on a nonfact. The matter of whether or not the grievance involved a claim of discrimination was disputed below. Therefore, based upon the standard set forth above, we find that the Agency has failed to establish that the award is based on a nonfact.