Council of District Office Locals, American Federation of Government Employees, San Francisco Region, AFL-CIO (Union) and Office of Program Operations, Field Operations, Social Security Administration, San Francisco Region (Activity) (Authority decision, May 29, 1981)

Final FLRA decision. This order concerns exceptions to an arbitration award under 5 U.S.C. § 7122. Under 5 U.S.C. § 7123(a)(1), such orders are generally excluded from judicial review unless they involve an unfair labor practice under 5 U.S.C. § 7116; this decision does not state that it involves one.

Plain-English summary

A Social Security employee moved into a career ladder job at the same grade even though she was qualified for the next grade. The arbitrator found an established practice of placing selectees at their highest qualified grade and granted relief. The Authority rejected the agency’s exceptions, including its Back Pay Act objection, and sustained the award.

Decision snapshot

• Authority: 5 U.S.C. § 5596, 5 U.S.C. § 7122(a).
• Outcome: Agency exceptions denied; higher grade placement award upheld.
• Key point: An established promotion practice could support the award despite silence in the written agreement.

Full text (FLRA public release)

[ v05 p759 ]

05:0759(100)AR

The decision of the Authority follows:

5 FLRA No. 100

COUNCIL OF DISTRICT OFFICE LOCALS,
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, SAN FRANCISCO REGION,
AFL-CIO
Union

and

OFFICE OF PROGRAM OPERATIONS,
FIELD OPERATIONS, SOCIAL
SECURITY ADMINISTRATION,
SAN FRANCISCO REGION
Activity

Case No. 0-AR-123

DECISION

THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
ARBITRATOR DAVID A. CONCEPCION FILED BY THE AGENCY UNDER SECTION 7122(A)
OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
7122(A)).

ACCORDING TO THE ARBITRATOR'S AWARD, THE DISPUTE IN THIS MATTER AROSE
WHEN THE GRIEVANT, A CLAIMS DEVELOPMENT CLERK, GS-4, IN THE ACTIVITY'S
SANTA ROSA DISTRICT OFFICE, APPLIED FOR AND WAS APPOINTED TO A DATA
REVIEW TECHNICIAN POSITION AT THE GS-4 LEVEL. THE DATA REVIEW
TECHNICIAN POSITION IS A CAREER LADDER POSITION WITH A PAY RANGE FROM
GS-4 TO GS-10. THE POSITION WAS POSTED FOR GRADES GS-4 THROUGH GS-7.
THE PROMOTION CERTIFICATE SHOWED THAT THE GRIEVANT WAS CERTIFIED AS
QUALIFIED AT BOTH THE GS-4 AND GS-5 LEVELS FOR THE DATA REVIEW
TECHNICIAN POSITION.

SUBSEQUENT TO HER SELECTION FOR THE NEW POSITION, THE EMPLOYEE FILED
A GRIEVANCE CHALLENGING THE ACTIVITY'S FAILURE TO APPOINT HER TO THE
DATA REVIEW TECHNICIAN POSITION AT THE HIGHEST GRADE LEVEL (GS-5) FOR
WHICH SHE WAS QUALIFIED. THE THRUST OF THE GRIEVANCE WAS THAT THE
ACTIVITY HAD ABRIDGED A PAST PRACTICE WHEREBY A PROMOTED EMPLOYEE IS
ALWAYS PLACED AT THE HIGHEST GRADE LEVEL FOR WHICH HE OR SHE IS
QUALIFIED.

THE ARBITRATOR FIRST OBSERVED THAT BOTH THE COLLECTIVE BARGAINING
AGREEMENT BETWEEN THE PARTIES AND THE AGENCY'S MERIT PROMOTION PLAN ARE
SILENT ON THE ISSUE OF WHETHER A PERSON PROMOTED IS TO RECEIVE A GRADE
INCREASE. OBSERVING THAT AN INCREASE IN GRADE CONCOMITANT WITH A
PROMOTION CAN BE VIEWED AS AN EMPLOYEE BENEFIT RELATING TO THE
PROMOTIONAL PROCESS, THE ARBITRATOR FRAMED THE KEY TEST UPON WHICH HIS
DETERMINATION WOULD TURN IN THE FOLLOWING MANNER:

(I)T MUST BE SHOWN THAT MANAGEMENT BY ITS ACTION HAS SO CONSISTENTLY
ACTED IN A CERTAIN

MANNER AS TO HAVE CREATED A BENEFIT, THROUGH PAST PRACTICE, AND THAT
THE BENEFIT HAS ATTAINED

A STATUS EQUAL TO THE PROVISIONS WHICH HAVE BEEN NEGOTIATED.

APPLYING THIS TEST, THE ARBITRATOR CONCLUDED:

THE FACTS SUPPORT THE (UNION'S) CONTENTION THAT PROMOTING TO THE
HIGHEST GRADE LEVEL TO

WHICH A SELECTEE IS QUALIFIED IS AN ESTABLISHED PAST PRACTICE. THE
PRACTICE INVOLVES A MAJOR

CONDITION OF EMPLOYMENT, IT WAS ESTABLISHED UNILATERALLY AND
ADMINISTERED UNILATERALLY BY

MANAGEMENT, IT WAS THE SUBJECT OF CONSULTATION AND NEGOTIATION, IT
WAS CONSISTENTLY FOLLOWED

OVER A FIVE YEAR PERIOD INVOLVING FIFTY TO ONE-HUNDRED PROMOTIONAL
ACTIONS, IT WAS A SPECIFIC

PRACTICE; AND BOTH MANAGEMENT AND THE WORK FORCE ACCEPTED IT AS
ESTABLISHED AND RELIED UPON

THAT BELIEF NOT ONLY IN THE SEEKING OF PROMOTION BUT IN ADVISING ON
PROMOTION. HAVING FOUND THAT THE PAST PRACTICE ADVOCATED BY THE UNION
DID EXIST, THE ARBITRATOR SUSTAINED THE GRIEVANCE.

IN FORMULATING A REMEDY, THE ARBITRATOR CONCLUDED THAT FOR PURPOSES
OF THE BACK PAY ACT /1/ AN ESTABLISHED PAST PRACTICE SUCH AS THE ONE HE
FOUND TO EXIST IN THIS CASE IS JUST AS MUCH A PART OF THE COLLECTIVE
BARGAINING AGREEMENT AS ITS ACTUAL WRITTEN PROVISIONS. THUS, IN
SUMMARY, HE HELD THAT THE BENEFIT AT ISSUE (I.E., THE RIGHT WHEN
PROMOTED TO BE PLACED AT THE HIGHEST GRADE LEVEL FOR WHICH ONE IS
QUALIFIED), ALTHOUGH AN UNWRITTEN POLICY, IS STILL AN INTEGRAL PART OF
THE PARTIES' AGREEMENT AND AS SUCH CONSTITUTES A "NON-DISCRETIONARY
OBLIGATION" WHICH THE ACTIVITY FAILED TO MEET. ACCORDINGLY, THE
ARBITRATOR FOUND THAT AN AWARD OF BACKPAY IS PROPER AND DIRECTED THAT
THE ACTIVITY PROMOTE THE GRIEVANT TO THE GS-5 DATA REVIEW TECHNICIAN
POSITION RETROACTIVE TO SEPTEMBER 9, 1979.

THE AGENCY FILED AN EXCEPTION TO THE ARBITRATOR'S AWARD UNDER SECTION
7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE /2/
AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR PART
2425). THE UNION FILED AN OPPOSITION.

THE AGENCY ASSERTS THAT THE ARBITRATOR'S AWARD OF BACKPAY AND A
RETROACTIVE PROMOTION IS NOT SANCTIONED BY THE BACK PAY ACT AND IS
THEREFORE CONTRARY TO LAW AND MUST BE VACATED PURSUANT TO SECTION
7122(A)OF THE STATUTE. THE KEY TO THAT ASSERTION IS THE AGENCY'S CLAIM
THAT THE GRIEVANT WAS NOT AFFECTED BY AN "UNJUSTIFIED OR UNWARRANTED
PERSONNEL ACTION" AS CONTEMPLATED BY THE BACK PAY ACT. /3/ CITING
VARIOUS DECISIONS OF THE COMPTROLLER GENERAL OF THE UNITED STATES, THE
AGENCY CONTENDS THAT IN ORDER FOR AN "UNJUSTIFIED OR UNWARRANTED
PERSONNEL ACTION" TO HAVE TAKEN PLACE IN THIS CASE IT MUST HAVE BEEN
DETERMINED THAT IN NOT PLACING THE GRIEVANT IN THE HIGHEST GRADE LEVEL
IN THE CAREER LADDER FOR WHICH SHE WAS QUALIFIED, THE ACTIVITY ABRIDGED
A NON-DISCRETIONARY POLICY AS ESTABLISHED BY THE RELEVANT PROVISIONS OF
THE PARTIES' COLLECTIVE BARGAINING AGREEMENT. THE AGENCY ARGUES THAT
BECAUSE THE COLLECTIVE BARGAINING AGREEMENT CONTAINS NO EXPLICIT
LANGUAGE WHICH WOULD REQUIRE THAT THE GRIEVANT BE PLACED AT THE GS-5
LEVEL, THE AGREEMENT CANNOT BE SAID TO INCORPORATE A NON-DISCRETIONARY
POLICY TO THAT EFFECT.

THE AUTHORITY FINDS THAT THE AGENCY HAS FAILED TO DEMONSTRATE THAT
THE ARBITRATOR'S AWARD, ORDERING THE GRIEVANT RETROACTIVELY PROMOTED
WITH BACKPAY, IS INCONSISTENT WITH THE BACK PAY ACT. IT IS WELL
ESTABLISHED THAT AN ARBITRATOR MAY AWARD A RETROACTIVE PROMOTION WITH
BACKPAY TO AN AGGRIEVED EMPLOYEE WHEN THE ARBITRATOR FINDS THAT THE
AGENCY VIOLATED ITS COLLECTIVE BARGAINING AGREEMENT AND THAT THE
VIOLATION RESULTED IN THE DENIAL OF A PROMOTION TO THE AGGRIEVED
EMPLOYEE THAT THE EMPLOYEE WOULD OTHERWISE HAVE RECEIVED. /4/ IN HIS
AWARD HEREIN, THE ARBITRATOR SPECIFICALLY FOUND THAT THE AGENCY HAD
VIOLATED AN ESTABLISHED PAST PRACTICE WHEN IT FAILED TO PLACE THE
GRIEVANT AT THE HIGHEST GRADE LEVEL FOR WHICH SHE WAS QUALIFIED, AND THE
AUTHORITY HAS PREVIOUSLY HELD THAT "(I)T IS WELL ESTABLISHED THAT 'THE
PRACTICES OF THE INDUSTRY AND THE SHOP-- (ARE) EQUALLY A PART OF THE
COLLECTIVE BARGAINING AGREEMENT ALTHOUGH NOT EXPRESSED IN IT.'"
LETTERKENNY ARMY DEPOT AND NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 1429, 5 FLRA NO. 35(1981), CITING STEELWORKERS V. WARRIOR AND GULF
NAVIGATION CO., 363 U.S. 574, 582(1960). ACCORDINGLY, THE AGENCY'S
RELIANCE UPON THE ABSENCE OF SPECIFIC CONTRACT LANGUAGE IS MISPLACED.
IT IS CLEAR THAT THE ARBITRATOR'S AWARD IN THIS CASE MEETS THE
REQUIREMENTS OF THE BACK PAY ACT FOR A FINDING UNDER A COLLECTIVE
BARGAINING AGREEMENT OF AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION.
ACCORDINGLY, THE AGENCY'S EXCEPTION PROVIDES NO BASIS FOR FINDING THE
AWARD DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION 2425.3 OF THE
AUTHORITY'S RULES AND REGULATIONS. /5/

FOR THE FOREGOING REASONS AND PURSUANT TO SECTION 2425.4 OF THE
AUTHORITY'S RULES AND REGULATIONS, THE ARBITRATOR'S AWARD IS SUSTAINED.

ISSUED, WASHINGTON, D.C., MAY 29, 1981

RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ 5 U.S.C. 5596 (SUPP. III 1979).

/2/ 5 U.S.C. 7122(A) PROVIDES:

(A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
AUTHORITY AN EXCEPTION

TO ANY ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION (OTHER THAN AN
AWARD RELATING TO A

MATTER DESCRIBED IN SECTION 7121(F) OF THIS TITLE). IF UPON REVIEW
THE AUTHORITY FINDS THAT

THE AWARD IS DEFICIENT--

(1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION; OR

(2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
PRIVATE SECTOR

LABOR-MANAGEMENT RELATIONS;

THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
CONCERNING THE AWARD AS IT

CONSIDERS NECESSARY, CONSISTENT WITH APPLICABLE LAWS, RULES, OR
REGULATIONS.

/3/ 5 U.S.C 5596 (SUPP. III 1979) PROVIDES IN PART AS FOLLOWS:

(B)(1) AN EMPLOYEE OF AN AGENCY WHO, ON THE BASIS OF A TIMELY APPEAL
OR AN ADMINISTRATIVE

DETERMINATION (INCLUDING A DECISION RELATING TO AN UNFAIR LABOR
PRACTICE OR A GRIEVANCE) IS

FOUND BY APPROPRIATE AUTHORITY UNDER APPLICABLE LAW, RULE,
REGULATION, OR COLLECTIVE

BARGAINING AGREEMENT, TO HAVE BEEN AFFECTED BY AN UNJUSTIFIED OR
UNWARRANTED PERSONNEL ACTION

WHICH HAS RESULTED IN THE WITHDRAWAL OR REDUCTION OF ALL OR PART OF
THE PAY, ALLOWANCES, OR

DIFFERENTIALS OF THE EMPLOYEE--

(A) IS ENTITLED, ON CORRECTION OF THE PERSONNEL ACTION, TO RECEIVE
FOR THE PERIOD FOR WHICH

THE PERSONNEL ACTION WAS IN EFFECT--

(I) AN AMOUNT EQUAL TO ALL OR ANY PART OF THE PAY, ALLOWANCES, OR
DIFFERENTIALS, AS

APPLICABLE WHICH THE EMPLOYEE NORMALLY WOULD HAVE EARNED OR RECEIVED
DURING THE PERIOD IF THE

PERSONNEL ACTION HAD NOT OCCURRED, LESS ANY AMOUNTS EARNED BY THE
EMPLOYEE THROUGH OTHER

EMPLOYMENT DURING THAT PERIOD(.)

/4/ VETERANS ADMINISTRATION HOSPITAL AND AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LODGE 2201, 4 FLRA NO. 57(1980); AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2814 AND FEDERAL RAILROAD
ADMINISTRATION, DEPARTMENT OF TRANSPORTATION, 3 FLRA NO. 21(1980).

/5/ THE AUTHORITY NOTES THAT, IN THE CIRCUMSTANCES OF THIS CASE,
MANAGEMENT COULD HAVE DECIDED TO FILL THE POSITION AT THE LOWEST GRADE
LEVEL BY POSTING THE ENTRY JOB ONLY AT THAT LEVEL OR BY SELECTING AN
APPLICANT WHO WAS CERTIFIED AS QUALIFIED ONLY AT THE LOWEST GRADE LEVEL.
IN THIS REGARD, AS STATED BY THE ARBITRATOR IN HIS AWARD AT PAGE 11:

(T)HE (ACTIVITY) IS NOT NECESSARILY IMPEDED BY THE (PAST) PRACTICE
FROM MEETING ITS OBJECTIVE OF FILLING A POSITION AT THE LOWEST GRADE LEVEL IN
ALL CASES . . . IF THE EMPLOYEE IS CERTIFIED ONLY AT GS-4, THE (ACTIVITY) HAS NO
OBLIGATION TO PLACE THAT EMPLOYEE AT A HIGHER LEVEL.