U.S. Department of the Navy, Naval Undersea Warfare Center Division, Keyport, Washington and Bremerton Metal Trades Council (Authority decision, September 29, 1999)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority involving an arbitral award under 5 U.S.C. § 7122. Judicial review under 5 U.S.C. § 7123(a) generally does not extend to such an order unless the order involves an unfair labor practice under 5 U.S.C. § 7116. This decision resolves exceptions to an arbitration award and does not state that it involves an unfair labor practice.

Plain-English summary

A Navy hazardous waste handler sought a permanent promotion from WG-5 to WG-8. His department and division heads agreed to that promotion to settle the grievance, but personnel officials and the commander rejected it. An arbitrator enforced the settlement under an agreement allowing promotions for accreted duties and ordered promotion retroactive to July 7, 1996. The Authority found no irrational contract interpretation or excess of arbitral authority. It also held that the remedy reconstructed what management should have done under the agreement and did not violate the agency’s right to select or the cited promotion regulation. All agency exceptions were denied. Member Cabaniss dissented over whether the employee had been detailed or permanently reassigned and whether an accretion-of-duties promotion was supported.

Decision snapshot

• Authority: Arbitration review, management’s selection right, and 5 C.F.R. § 335.103(b)(4).
• Outcome: Agency exceptions denied; permanent WG-8 promotion retroactive to July 7, 1996 stands.
• Key point: The award enforced a grievance settlement under the accretion-of-duties agreement and reconstructed the required promotion.

Full text (FLRA public release)

[ v55 p884 ]

55 FLRA No. 149

U.S. DEPARTMENT OF THE NAVY

NAVAL UNDERSEA WARFARE CENTER

DIVI SION, KEYPORT, WASHINGTON

(Agency)

and

BREMERTON METAL TRADES COUNCIL

(Union)

0-AR-2982

_____

DECISION

September 29, 1999

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S.

Wasserman and Dale Cabaniss, Members. [n1]

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Gordon M. Byrholdt 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. The Union filed an opposition to the Agency's exceptions.

The Arbitrator ordered the Agency to permanently promote, retroactively, the grievant to a WG-8 hazardous waste handler position. We conclude that the Agency fails to establish that award is deficient. Accordingly, we deny the Agency's exceptions.

II. Background and Arbitrator's Award

In 1994, the grievant, a WG-5 electroplate helper was temporarily assigned to the position of hazardous waste handler, WG-5. During the period of 1994-1996, he worked mostly as a hazardous waste handler. In 1995, he filed a grievance claiming he was entitled to be permanently promoted to the position of hazardous waste handler, WG-8. The grievance was settled by granting the grievant a temporary promotion during that period. On July 7, 1996, the Agency "permanently reassigned" the grievant from another position to the position of hazardous waste handler, WG-5. Agency's Exceptions at 3. The grievant filed a second grievance disputing his status as a WG-5 and claiming an entitlement to a permanent promotion to WG-8.

The grievant's department and division heads offered to resolve the grievance by permanently promoting the grievant to hazardous waste handler, WG-8, effective July 7, 1996, and the grievant accepted the offer in resolution of his grievance. The department and division heads executed a Standard Form 52 (SF-52--Request for Personnel Action) requesting the grievant's promotion in implementation of the grievance resolution. The Agency's personnel office rejected the grievant's promotion, and the Agency's commander rejected the grievance resolution on the basis of the personnel office's rejection of the promotion. The parties submitted to arbitration the stipulated issue of whether the grievant was entitled under the parties' collective bargaining agreement to a permanent promotion to the position of hazardous waste handler, WG-8.

The Arbitrator sustained the grievance. He ruled that the grievant was entitled to a permanent promotion to WG-8, retroactive to July 7, 1996, as provided in the SF-52 executed in settlement of the grievance. The Arbitrator found that the grievance resolution was not an unauthorized act, but a resolution that should have been affirmed under the parties' collective bargaining agreement.

In ruling that the grievance resolution was required to have been upheld and that the grievant was entitled to have been permanently promoted, the Arbitrator relied on section d of a Memorandum of Understanding (MOU), which amended the parties' agreement. Section d of the MOU provides that "[n]on-competitive accretion of duties' promotions may be used, when appropriate, if the major duties of an employee's old position are absorbed into the new position and the former position is canceled." Award at 3. The Arbitrator credited testimony of a Union negotiator that the situation of the grievant "was just the sort of factual situation contemplated by theaccretion of duties' language contained in the [MOU]." Id. at 11. Finding that the grievant's position had accreted into the permanent position of hazardous waste handler, WG-8, the Arbitrator concluded that resolution of the grievance by permanently promoting the grievant to WG-8 was in accordance with generally understood principles of accretion of duties and section d of the MOU. Accordingly, the Arbitrator ordered the Agency to promote the grievant to the position of hazardous waste handler, WG-8, retroactive to July 7, 1996, as though this action had been accomplished pursuant to the grievance settlement. [ v55 p885 ]

In ordering the grievant permanently promoted, the Arbitrator rejected the Agency's claim that the grievant was only entitled to a temporary promotion because the grievant had cited section 1705c of the parties' collective bargaining agreement in his grievance and section 1705c deals only with temporary promotions. The Arbitrator ruled that technical rules of pleading have no place in arbitration and that because the Agency was on notice of the remedy sought by the grievant, the citation to section 1705c did not limit the relief available to the grievant.

III. Positions of the Parties

A. Agency's Exceptions

The Agency contends that the Arbitrator exceeded his authority and that the award fails to draw its essence from the parties' collective bargaining agreement and is contrary to section 7106(a)(2)(C) of the Statute and 5 C.F.R. § 335.103(b)(4).

The Agency argues that the award fails to draw its essence from the agreement because the Arbitrator disregarded the clear language of section 1705c. The Agency notes that section 2018 of the agreement prohibits an arbitrator from altering any agreement provisions. The Agency maintains that the Arbitrator disregarded section 1705c and altered the agreement by granting the grievant a permanent promotion when section 1705c plainly limits any entitlement to promotion to a temporary promotion. The Agency asserts that the MOU on which the Arbitrator relied does not support the award because the MOU only addresses methods of promotion, and not entitlements to promotion. The Agency also claims that the Arbitrator improperly relied on the SF-52, in disregard of the testimony by the grievant's division manager that he did not have the authority to grant a permanent promotion.

The Agency argues that the Arbitrator exceeded his authority by altering the agreement in violation of section 2018 of the agreement. The Agency asserts that the Arbitrator altered the agreement by ordering a permanent promotion under the MOU without evidence that the contractual conditions had been met.

The Agency argues that the award is contrary to management's right to select under section 7106(a)(2)(C) of the Statute and 5 C.F.R. § 335.103(b)(4). The Agency maintains that in order to be consistent with management's right, an arbitrator's order to promote a grievant must be based on a reconstruction of what management would have done if management had acted properly. The Agency claims that the Arbitrator's award is not based on a reconstruction and that the award is not supported by the MOU because the Arbitrator did not find that the contractual conditions had been met. The Agency further asserts that the award is not supported by general principles of accretion of duties because the grievant in this case was like the grievant in Warner Robins Air Logistics Center, Robins Air Force Base, Georgia and American Federation of Government Employees, Local 987, 10 FLRA 410 (1982) (Warner Robins), who was not entitled to a promotion to a reclassified position to which he had been detailed.

B. Union's Opposition

The Union contends that the Agency's exceptions provide no basis for finding the award deficient. The Union argues that the Agency fails to establish that the award does not draw its essence from the agreement or violates section 2018. The Union maintains that while section 1705c provides a specific remedy, it does not preclude the Arbitrator's remedy. The Union also asserts that the Arbitrator's crediting of testimony that the grievant's situation was just the sort of situation contemplated by the MOU sufficiently supports the Arbitrator's reliance on the MOU. As to management's right to select under section 7106(a)(2)(C) and 5 C.F.R. § 335.103(b)(4), the Union argues that the Arbitrator's remedy reflects reconstruction and is not deficient.

IV. Analysis and Conclusions

A. The Award Draws Its Essence from the Parties' Agreement

In order for an arbitrator's award to be found deficient as failing to draw its essence from the collective bargaining agreement, it must be established that the award: (1) is so unfounded in reason and fact and so unconnected with the wording and purpose of the collective bargaining agreement as to "manifest an infidelity to the obligation of the arbitrator"; or (2) does not represent a plausible interpretation of the agreement; or (3) cannot in any rational way be derived from the agreement or (4) evidences a manifest disregard of the agreement. See U.S. Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990).

The Agency contends that the award is deficient because the Arbitrator altered the agreement and disregarded section 1705c by granting the grievant a permanent promotion when section 1705c limits any promotion entitlement to a temporary promotion. However, as noted by the Union, although section 1705c entitles an employee to a temporary promotion in the specified circumstances, it does not prohibit a perma- [ v55 p886 ] nent promotion in other circumstances. Moreover, the Arbitrator specifically held that the available relief was not limited by the grievant's citation to section 1705c in his grievance, and the Agency does not challenge this procedural ruling of the Arbitrator. Consequently, it was not irrational, implausible, unfounded, or in disregard of section 1705c for the Arbitrator to find that the grievance settlement should have been upheld because a permanent promotion for an accretion of duties was in accordance with the terms of the MOU.

The Agency's arguments that the MOU only addresses methods of promotions and that the division manager testified that he did not believe that he had authority to grant a permanent promotion do not establish otherwise. The Agency's citation to Warner Robins also provides no basis for finding the award deficient. Unlike the grievant in Warner Robins, the grievant in this case was permanently assigned to the position that had the accreted duties. [n2] Accordingly, the Agency does not establish that the award fails to draw its essence from the parties' collective bargaining agreement, and we deny the Agency's exception.

B. The Arbitrator Did Not Exceed His Authority

Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority, or award relief to those not encompassed within the grievance. See American Federation of Government Employees, Local 1617 and U.S. Department of the Air Force, San Antonio Air Logistics Center, Kelly Air Force Base, Texas, 51 FLRA 1645, 1647 (1996).

The Agency has not established that the Arbitrator disregarded specific limitations on his authority. The stipulated issue concerned whether the grievant was entitled to a permanent promotion to a WG-8 position under the parties' agreement. The Arbitrator resolved this issue by interpreting and applying section d of the parties' MOU, which permits "non-competitive 'accretion of duties promotions.'" The Agency's exception is a reiteration of its disagreement with the Arbitrator's interpretation of the MOU and provides no basis for finding that the Arbitrator exceeded his authority. See American Federation of Government Employees, Local 1546 and U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Region West, 52 FLRA 94, 98 (1996) (exception attempting to recast the arbitrator's contract interpretation as an improper contract alteration provided no basis for finding that the arbitrator exceeded his authority). Accordingly, we deny the Agency's exception.

C. The Award is Not Contrary to Law or Regulation

When a party's exception challenges an arbitration award's consistency with law, we review the questions of law raised in the exception and the arbitrator's award de novo. See 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 (D.C. Cir. 1994)). In applying a standard of de novo review, we assess whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See [ v55 p887 ] National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, we defer to the arbitrator's underlying factual findings. See id.

1. The Award is Not Contrary to Section 7106(a)(2)(C) of the Statute

The Agency alleges that the remedy portion of the award violates its management rights under section 7106(a)(2)(C) of the Statute. The Authority's framework for resolving exceptions alleging that an award violates management rights under section 7106 of the Statute is set forth in U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and National Treasury Employees Union, Chapter 201, 53 FLRA 146, 151-54 (1997) (BEP). Under BEP, when we find that an award affects the exercise of a management right under section 7106(a), we apply a two-prong test to determine whether the award is deficient.

Under prong I of this framework, we examine whether the award provides a remedy for a violation of a contract provision that was negotiated pursuant to section 7106(b) of the Statute or, for rights under section 7106(a)(2) of the Statute, an applicable law, within the meaning of section 7106(a)(2). See 53 FLRA at 153. If the award does not provide such a remedy, we will find that the award is deficient. If it does, the award satisfies prong I of the framework, and we will address prong II.

Under prong II of BEP, we consider whether the arbitrator's remedy reflects a reconstruction of what management would have done if management had not violated the law or contractual provision at issue. See id. at 154. If the arbitrator's remedy does not reflect such a reconstruction, we will find that the award is deficient. If it does, the award satisfies prong II, and we will deny the exception.

The Authority has held that an award that orders an agency to promote a grievant retroactively into a specified position affects management's right to select under section 7106(a)(2)(C) of the Statute. See, e.g., U.S. Department of Defense, Departments of the Army and the Air Force, Alabama National Guard, Northport, Alabama and Alabama Association of Civilian Technicians, 55 FLRA 37, 41 (1999). Consequently, the Arbitrator's award affects management's right to select, and we must evaluate the award under the BEP framework.

With regard to prong I, there is no contention that the MOU provisions enforced by the Arbitrator were unenforceable. In this regard, the Agency focuses its arguments exclusively on reconstruction and only excepts to the Arbitrator's remedy. Accordingly, we find that the award satisfies prong I, and we address prong II. See id. (an award satisfied prong I when there was no contention that the contract provision enforced by the arbitrator was unenforceable, and the agency effectively conceded that the contract provision was negotiated pursuant to section 7106(b) by focusing its arguments on reconstruction and only excepting to the remedy portion of the award).

Under prong II, the question is whether the Arbitrator's remedy, which directs the Agency to promote the grievant retroactively, is a proper reconstruction of what the Agency would have done had the Agency not violated the parties' agreement. The Arbitrator ruled that the grievant was entitled to a permanent promotion as provided in the settlement of the grievance. He found that the grievance settlement was not an unauthorized act, but a resolution that the Agency was obligated to have affirmed under the parties' agreement. He determined that the resolution should have been implemented because it was in accordance with generally understood principles of accretion of duties and section d of the MOU. Consequently, the award satisfies prong II of the BEP analysis, and no basis is provided for finding the award contrary to section 7106(a)(2)(C) of the Statute. Accordingly, we deny the Agency's exception.

2. The Award is Not Contrary to 5 C.F.R. § 335.103(b)(4)

5 C.F.R. § 335.103(b)(4) provides, in pertinent part, that "[s]election procedures will provide for management's right to select or not select from among a group of best qualified candidates. They will also provide for management's right to select from other appropriate sources . . . ." The Office of Personnel Management (OPM) added this right to select to part 335, effective January 1, 1995. It previously had been set forth in Federal Personnel Manual (FPM) chapter 335 and had been provisionally retained when the FPM was abolished. See 59 Fed. Reg. 67,121 (1994).

In a number of advisory opinions concerning the proper interpretation of the right to select under the FPM, OPM advised the Authority that an arbitrator may properly order an employee to be selected for promotion when the arbitrator finds that the employee was affected by an improper agency action that directly resulted in the failure of the employee to be promoted. See, e.g., U.S. Department of Commerce, National Bureau of Standards, Washington, D.C. and AFGELocal 2186, Boulder, Colorado, 3 FLRA 615, 616 (1980). The Authority adhered to this interpretation in the resolution of exceptions claiming that an award was deficient [ v55 p888 ] under FPM chapter 335. See, e.g., American Federation of Government Employees, Local 1923, AFL-CIO and Health Care Financing Administration, Department of Health and Human Services, 33 FLRA 88, 94 (1988). As management's right to select was incorporated into part 335 without substantive change, in resolving exceptions under section 335.103(b)(4), we will continue to apply OPM's advice on the proper interpretation of this right.

Applying this interpretation, and consistent with our foregoing finding that the award reflected reconstruction of what management would have done if it had acted properly, we conclude that the award reflects a finding by the Arbitrator that the grievant was affected by an improper action of the Agency that directly resulted in his failure to be promoted. Accordingly, we find that the Agency fails to establish that the award is contrary to section 335.103(b)(4), and we deny the Agency's exception. [n3]

V. Decision

The Agency's exceptions are denied.

File 1: Authority's Decision in 55 FLRA No.
149

File 2: Opinion of Member Cabaniss

Footnote # 1 for
55 FLRA No. 149

• Authority's Decision

Member Cabaniss's dissenting opinion is set forth at the end of this decision.

Footnote # 2 for
55 FLRA No. 149

• Authority's Decision

In denying this exception, we find it clear, contrary to our dissenting colleague's view, that the grievant permanently encumbered the WG-5 hazardous waste handler position at all relevant times. In this connection, we note, first, the Arbitrator's statement that the grievant was identified for separation by a reduction-in-force from the position of WG-5 hazardous waste handler, a fact acknowledged by the dissent. See Award at 5; Dissent at 2. Under 5 C.F.R. part 351, employees can be separated by reduction-in- force only from their permanent position. Second, the Agency not only fails to dispute the Arbitrator's statement, but also expressly confirms it by asserting that the WG-5 hazardous waste handler position "remained encumbered by [the grievant] until his retirement . . . ." Exceptions at 2. Third, the Agency concedes three times that the grievant was permanently reassigned to the WG-5 hazardous waste handler position. See id. at 3 (Agency states that July 7, 1996 was the "date [the grievant] was permanently reassigned"; Agency states that the Arbitrator found that the grievant began performing at the WG-8 level "immediately upon being permanently assigned to the duties on July 7"; Agency asserts that the grievant was not entitled to a promotion "upon his reassignment to a WG-5 hazardous waste handler position"). Fourth, although the Agency refers to the grievant's "detail" to the WG-5 hazardous waste handler position, those references are specifically and expressly to time periods prior to the grievant's permanent reassignment to the position. See id. (Agency states that the grievant was detailed to the position "between March 1996 and July 7, 1996"; Agency states that the grievant was on detail to the position "prior to July 7, 1996"; Agency states that the grievant could not be promoted upon his reassignment to the position based on "knowledge and skills while on a detail to that position").

Our dissenting colleague argues that besides stating that the grievant encumbered the WG-5 hazardous waste handler position for reduction-in-force purposes, the Arbitrator stated that the grievant was "detailed" to the position rather than being permanently reassigned to the position. Although the Agency does not make this argument, she suggests that the Arbitrator made a specific factual finding of a detail, and not a reassignment, and that we are bound by that finding, despite the rest of the record to the contrary. In our view, the Arbitrator was merely using a term to describe the grievant's movement from one position to another and did not make a factual determination of what kind of personnel action occurred on July 7. We refuse to give such meaning to the description when nothing else in the record or the award supports that the Arbitrator used the term in a technical sense and as a resolution of a factual dispute between the parties. Moreover, the Arbitrator's use of the term "detail" cannot support granting the Agency's exception when the record otherwise confirms that the grievant permanently encumbered the WG-5 hazardous waste handler position, thereby specifically precluding the deficiency that our dissenting colleague would find.

Footnote # 3 for
55 FLRA No. 149

• Authority's Decision

In contrast to the dissent, we do not address whether the award is contrary to section 335.103(c)(3). Our dissenting colleague addresses the issue by construing the Agency's citation to Warner Robins as a contention that the award is contrary to section 335.103(c)(3). To us, this reads too much into the citation, particularly when the Agency has specifically claimed that the award is contrary to section 335.103(b)(4), but not (c)(3). The construction also ignores that the Agency's argument under Warner Robins is premised on "times prior to July 7, 1996[.]" Exceptions at 3. As the Arbitrator based his award on what occurred on July 7, not before, our dissenting colleague's construction is based on an argument that the Agency does not make.The dissent is further based on another argument that the Agency does not make.

The dissent would also find the award deficient because the Arbitrator found that there was an unencumbered WG-8 position to which the grievant could be "slotted." Dissent at 7. However, the Agency never addresses in its exceptions the Arbitrator's comment on the availability of an unencumbered WG-8 position. Although review is de novo, it is still a resolution of the exception, not an independent Authority evaluation of the award unrelated to the Agency's contentions.

Even if we were to consider the Arbitrator's comment on the availability of a WG-8 position, we see no basis for finding the award deficient. As the dissent asserts, the availability of a WG-8 position was irrelevant to whether an accretion of duties occurred. Thus, we do not understand how that comment supports a conclusion that the Arbitrator otherwise would not, and could not, have determined, as he specifically did, that the grievant's promotion was in accordance with generally understood principles of accretion of duties and section d of the MOU.

[ v55 p888 ]

Member Cabaniss, dissenting in part:

I write separately to state why I do not join the majority in its conclusion that the award is not contrary to law and regulation. More particularly, I write to express concern with the majority's decision to disregard the Arbitrator's four references in his award to his finding that the grievant was "detailed" to the position in question rather than being "permanently reassigned." Award at 7 and Majority Opinion at 2 (citing Agency's Exceptions at 3). While I believe we are bound by the arbitral finding that the grievant was "detailed" to the hazardous waste handler, WG-5 position, I believe that an equally plausible reading of the record is that the Arbitrator's findings are sufficiently ambiguous to require remand for clarification. However, there is not an adequately clear record to support the majority's holding.

While it is certainly true that the Agency uses the phrase "permanently reassigned" in its exceptions, in those exceptions the Agency also asserts that the grievant's only remedy is provided by section 1705c of the parties' collective bargaining agreement, a provision pertaining to temporary assignments (which is inconsistent with the employee being permanently reassigned, but consistent with being detailed), and when temporary promotions for such assignments can be granted. Exceptions at 1. It is the Arbitrator's determination of the facts that are to be relied on. In this regard, the "Authority accords deference to an arbitrator's factual findings because the parties have bargained for the facts to be found by an arbitrator chosen by them." American Federation of Government Employees, Local 2459 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Texarkana, Texas, 51 FLRA 1602, 1607-08 (1996); cf. United Paperworkers v. Misco, Inc., 484 U.S. 29, 37-38 (1987) ("'[b]ecause the parties have contracted to have disputes settled by an arbitrator chosen by them rather than by a judge, it is the arbitrator's view of the facts . . . that they have agreed to accept.'").

I would not, therefore, rely on an assertion to the contrary made by one of the parties, especially when that assertion, is, at best, inconsistent, with the party's position on the issue in dispute. Although I agree with the majority's conclusion that the Agency has not established that the "award fails to draw its essence from the parties' collective bargaining agreement," and, therefore, the Agency's essence exception provides no basis for overturning the award, I do not agree with the majority's view that the Arbitrator did not make a factual determination of what kind of personnel action occurred on July 7. [ v55 p889 ]

In this regard, the Arbitrator found that in 1994, the grievant, a WG-5, step 4, electroplate helper, was temporarily assigned to WG-5, step 4 hazardous waste handler position, and in 1995, he was temporarily promoted to the position as a WG-8, step 4. The Arbitrator further found that "[f]ollowing . . . [a] short break in his duties as a Hazardous Waste Handler [the grievant] was again detailed back to Hazardous Waste as a WG-5 on July 7, 1996." Award at 7 (emphasis added). The grievant "filed a grievance alleging his detail should have been as a Hazardous Waste Handler WG-8 and further that he was entitled to a permanent promotion to Hazardous Waste Handler WG-8." Id. (emphasis added). The Arbitrator determined that "[w]hen [the grievant] again grieved being detailed to work in Hazardous Waste at WG-5 . . . circumstances had changed significantly. There was now an unencumbered position to which [the] grievant could be slotted due to injury and retirement." Id. at 8 (emphasis added).

The Arbitrator found that the grievant's superior reviewed the grievance and concluded that a slot was available and that the grievant should be promoted to Hazardous Waste Handler, WG-8. A Standard Form 52 (SF-52--Request for Personnel Action) calling for the grievant's permanent promotion to hazardous waste handler, WG-8, step 4 was prepared and signed by the grievant's superior and department head. The SF-52 "called for the promotion to be effective July 7, 1996, [and] to compensate [the grievant] for the work already performed at WG-8 while on this latest temporary detail." Id. at 9 (emphasis added). Subsequently, the SF-52 was presented to and accepted by the grievant as resolution of the grievance. The SF-52 was sent to the personnel office where it was rejected.

According to the Arbitrator, in May 1997, the grievant was RIFed. The grievance over the permanent promotion had not been resolved when the RIF occurred, and was submitted to arbitration on the question of whether the grievant was entitled, under the parties' contract, to a permanent promotion to the position of hazardous waste handler, WG-8.

The Arbitrator concluded that the grievant was entitled to a permanent promotion to WG-8 as provided in the SF-52. Based on record testimony, the Arbitrator found that the grievant's circumstance was "just the sort of factual situation contemplated by the 'accretion of duties' language contained in [section d. of the MOU]." [n1] Id. at 11. The Arbitrator found that the grievant was qualified and that, in the interests of the Agency and its mission, he was assigned duties and responsibilities that resulted in his being "accreted into the permanent positon of WG-8 Hazardous Waste Handler." Id. at 13. According to the Arbitrator, the resolution of the grievance by the "promotion is in accordance with generally understood principles of the accretion of duties." Id.

The Arbitrator found that at the time of the grievance there was an "unencumbered position against which the [g]rievant could be slotted" and that the 1996 grievance resolution by the grievant's superiors should have been upheld. Id. Accordingly, the Arbitrator sustained the grievance and ordered the Agency to promote the grievant to the permanent position of Hazardous Waste Handler, WG-8.

The Authority reviews questions of law raised in a party's exceptions and an arbitrator's award de novo. See National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). When applying a de novo standard of review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. Id. at 1710. In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

Also, except with respect to a collective bargaining agreement that was in effect before the date a regulation was prescribed, a Government-wide regulation governs a matter in dispute to which it applies even if the same matter is covered by a collective bargaining agreement. U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186, 193 (1990). [n2]

Relying on Warner Robins Air Logistics Center, Robins Logistics Center, Robins Air Force Base, Georgia and American Federation of Government Employees, Local 987, 10 FLRA 410 (1982) (Warner Robins), the Agency asserts that the Arbitrator's finding that the grievant is entitled to an accretion of duties promotion is not consistent with the Authority's findings in that case. Because the Agency relies on Warner Robins, I construe the Agency's contention that the Arbitrator's finding that the promotion is in "accordance with generally understood principles of the accretion of duties" as a [ v55 p890 ] claim that the award is contrary to a Government-wide regulation, namely 5 C.F.R. § 335.103. Award at 13. The majority construes the Agency's Warner Robins argument to be focused solely on matters occurring before the July 7, 1996 personnel action at issue here: what the Agency alleges is that no accretion of duties could have taken place prior to July 7, 1996, (because the grievant was performing other duties), thereby precluding the immediate accretion of duties promotion entitlement as of July 7, 1996--the date the grievant was detailed to the position in question.

The holding in Warner Robins involved the reversal of an arbitration award granting a permanent promotion to a grievant. A key basis for overturning the award was that the grievant had been detailed to the position in question rather than being permanently assigned to it - hence my concern over the majority's disregard of the Arbitrator's finding that the grievant here was detailed to the position in question. Accordingly, I have little problem finding that a reference to Warner Robins brings into issue the question of the status of the personnel action that took place on July 7, 1996, given that it, too, involved a "detail."

In Warner Robins, a grievant claimed entitlement to a permanent, noncompetitive promotion to a position to which he had been detailed on the basis that the position had been upgraded without significant change in the duties and responsibilities due to the correction of a classification error. The Authority found that the arbitrator's award, which ordered the agency to permanently promote the grievant to the position, was contrary to the Federal Personnel Manual (FPM) chapter 335 because the grievant was not the incumbent of the position during the period that he was detailed to it. [n3]

Under FPM Chapter 335, an accretion of duties promotion was described as "[a] promotion resulting from an employee's position being classified at a higher grade because of additional duties and responsibilities." In Re Exceptions From Competitive Merit Plans (335 FPM § 1-5(c)(1)(b)), 9 M.S.P.R. 116, 117 (1981) (quoting 335 FPM § 1-5(c)(1)(b)). The exact wording is incorporated into 5 C.F.R. § 335.103(c)(3)(ii), which permits agencies to except from competitive procedures, "[a] promotion resulting from an employee's position being classified at a higher grade because of additional duties and responsibilities[.]" [n4] Thus, "[a]n accretion of duties promotion occurs when additional responsibilities have been assigned to the employee and the position is upgraded accordingly." Jones v. Dalton, Secretary, Department of the Navy, No. Civ. A. 95-0289 (July 24, 1996) (memorandum). See also, Matter of: Sanford M. Altschul-Backpay for Detail, Comp. Gen. No. B-192433 (Dec. 4, 1978) (unpublished) (Comptroller General stated that when a position undergoes an accretion of duties, i.e., some higher-level duties are assigned, not constituting a detail to a higher-graded position, the employee's proper remedy is to seek to have the classification of his position upgraded). As 5 C.F.R. § 335.103(c)(3)(ii) permits accretion of duties promotions, I treat the Agency's contention as a claim that the award is inconsistent with this section.

I think it is clear that the Arbitrator's finding and the Agency's comments regarding the status of the personnel action in question conflict, but I would find that we are bound by the Arbitrator's factual finding that the grievant was "detailed" to the WG-5 position. Award at 7 and 8. Consequently, the grievant could not receive a promotion based on an accretion of duties because he was not assigned to the WG-5 position. Alternatively, because of the conflict in the Arbitrator's finding and the Agency's comments, I would remand to the Arbitrator to clarify the nature of this personnel action.

Moreover, the Arbitrator's finding that there "was an unencumbered position" to which the grievant could be slotted further demonstrates that the promotion did not result from additional duties and responsibilities being added to the WG-5 position. Id. at 8 and 13. I [ v55 p891 ] also note that there has been no finding by the Arbitrator, express or implied, that the grievant's former position was canceled, a contractually required predicate to receiving an accretion of duties promotion. The Arbitrator's findings show only that the grievant's promotion was based on there being available an unencumbered WG-8 position and was not based on any changes to the WG-5 position. While the grievant may indeed have been performing WG-8 work, that could not entitle him to a permanent promotion absent a reclassification action and at best, would entitle him only to a temporary promotion, a point made by the Agency in its exceptions. See, e.g., Matter of David R. Barth and Charles H. Byrd, Comp. Gen, No. B-240239 (October 29, 1990).

In these circumstances, the Arbitrator's factual findings do not establish that an accretion of duties promotion occurred within the meaning of 5 C.F.R. § 335.103(c)(3)(ii). Accordingly, I would find that the award is inconsistent with 5 C.F.R. § 335.103(c)(3)(ii). [n5]

File 1: Authority's Decision in 55 FLRA No. 149

File 2: Opinion of Member Cabaniss

Footnote # 1 for
55 FLRA No. 149

• Opinion of Member Cabaniss

Section d. of the MOU provides as follows:

d. Non-competitive "accretion of duties" promotions may be used, when appropriate, if the major duties of an employee's old position are absorbed into the new position and the former position is canceled.

Footnote # 2 for
55 FLRA No. 149

• Opinion of Member Cabaniss

The Government-wide regulation involved in this case predated the collective bargaining agreement involved here.

Footnote # 3 for
55 FLRA No. 149

• Opinion of Member Cabaniss

Effective January 1, 1995, OPM adopted in 5 C.F.R. § 335.103 the requirements previously set forth in FPM chapter 335, which was abolished on December 31, 1994. See 59 Fed. Reg. 67,121-22 (1994). OPM also made "editorial clarifications, such as recognizing the longstanding practice of allowing . . . noncompetitive appointments of conversions." Id. at 67,121. Thus, 5 C.F.R.
§ 335 "insures that agency [merit promotion] program[] continue to operate under the same set of Governmentwide requirements." Id. See also National Air Traffic Controllers Association, MEBA/NMU and U.S. Department of Transportation, Federal Aviation Administration, 51 FLRA 192, 194 n.2 (1995).

Footnote # 4 for
55 FLRA No. 149

• Opinion of Member Cabaniss

5 C.F.R. § 335.103 provides, in pertinent part, as follows:

§ 335.103 Agency promotion programs.

. . . .

(b) Merit promotion requirements.

. . . .

(c) Covered personnel actions--

. . . .

(3) Discretionary actions. Agencies may at their discretion except the following actions from competitive procedures of this section:

. . . .

(ii) A promotion resulting from an employee's position being classified at a higher grade because of additional duties and responsibilities[.]

Footnote # 5 for
55 FLRA No. 149

• Opinion of Member Cabaniss

In light of this conclusion, I would find it unnecessary to address the Agency's contentions that the award is deficient under section 7106(a)(2)(C) and 5 C.F.R. § 335.103(b)(4).