U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

Department of the Army, Headquarters, III Corps and Fort Hood and American Federation of Government Employees, Local 1920, 0-AR-3252 (56 FLRA 544 (2000)), March 6, 2001, 56 FLRA No. 200.

The Authority set aside one portion of an award requiring the agency to compensate the grievant at a supervisory rate because the arbitrator failed to identify a non-discretionary policy set forth either in the agreement or elsewhere mandating temporary promotions for performing higher-graded duties. The other portion, requiring that the grievant be reassigned to her former position, is also set aside because such reassignment is moot because the grievant is no longer employed by the agency.

This case involves a grievance claiming that the agency violated Article 39 of the agreement by failing to notify the union that it had reassigned the grievant, a GS-12 Military Test Plans Analyst, to higher-graded supervisory duties and requesting that the grievant be paid for performing higher-level duties and be reassigned to her former position. (Article 39 dealt with assignment of work/details and provided, among other things, that a detail to a higher-graded position for more than 120 calendar days would be made under competitive procedures, and that all details of more than 30 days would be documented. It did not, however, mandate temporary promotions for details to higher-graded positions.)

The arbitrator, finding that the grievant was not claiming that she be permanently classified as a GS-13 supervisory position, rejected the agency's claim that the grievance was nonarbitrable because it dealt with the classification of a position. On the merits of the grievance, he found, among other things, that the agency had "violated Article 39 . . . by requiring or allowing the grievant to perform supervisory duties that were not been assigned to her or were not in her job description and that 'she is entitled to be compensated for the performance of those duties.'" As his award, the arbitrator sustained the grievance.

The agency filed exceptions, claiming that the award wasn't arbitrable because it dealt with the accuracy of the grievant's classification and that the award was ambiguous because the arbitrator hadn't identified any particular remedy. Although FLRA, in 56 FLRA No. 85, rejected the former claim, it agreed that the award needed to be clarified. After discussing the requirements for temporary promotions, particularly the need "to identify the source of the nondiscretionary policy warranting the temporary promotion of the grievant," the Authority remanded the case to the parties for resubmission to the arbitrator "for an explanation by the Arbitrator of the requirements and basis of the award."

The arbitrator's award on remand, in its entirety, reads as follows:

While the Union did not request a remedy during the hearing, it is the intent of the Arbitrator that the [g]rievant be made whole as follows: 1) Reassign [the grievant] to her original position with the proper paperwork; and 2) pay [the grievant] for the period of time she performed higher [-] grade duties.

The agency excepted to this award, arguing that the arbitrator did not identify any nondiscretionary policies requiring that the grievant be paid at a higher rate for performing supervisory duties, and contending that the portion of the clarified award requiring that the grievant be reassigned to her old position is moot because the grievant was no longer employed by the agency.

The union noted that Article 39 pertained to details to higher-graded duties, and contended that a violation of a contractual provision is an unjustified or unwarranted personnel action under the Back Pay Act and OPM regulations. It did not address the agency's contention that the portion of the award directing reassignment is moot.

The Authority quoted from its earlier decision, where it described the Back Pay Act's requirements for backpay for performing the duties of a higher-graded position, and said the following:

[W]e made clear to the parties and the Arbitrator that in order for any award of backpay to the grievant at the supervisory rate to be consistent with the Back Pay Act, it would have to be based on a non-discretionary policy, set forth in a collective bargaining agreement provision or other authority, mandating a temporary promotion for performing higher-graded duties. The Arbitrator did not identify, or base his award on, any such non-discretionary policy. Consequently, the award requiring the Agency to compensate the grievant at the supervisory rate is contrary to the Back Pay Act and, in that respect, is deficient. We will set aside that portion of the award.

In a footnote it also set aside that portion of the award requiring that the grievant be reassigned to her former position because the grievant was no longer employed by the agency.