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

Department of the Army, Dugway Proving Ground, Dugway, Utah and National Association of Government Employees, Local R14-9, 0-AR-3245, June 1, 2001, 57 FLRA No. 48.

In a split decision (Chairman Cabaniss dissenting), the Authority turned down agency exceptions to an award in which the arbitrator found that the supervisor had violated a contract provision requiring the agency to treat all employees "fairly and equitably in all respects." The majority found the contract provision to be an enforceable "prophylactic" appropriate arrangement. In her dissent, Chairman Cabanisss said that she did not agree that "the extremely general language of Article 38, which requires only that the Agency treat employees 'fairly and equitably,' without reference to any particular Agency actions, can reasonably be construed as an appropriate arrangement under § 7106(b)(3) of the Statute."

When the administrative responsibilities of the health clinic were increased in 1994, the grievant, a GS-5 secretary, claimed that her duties increased and that she was performing the duties of a GS-6 secretary. When her supervisor, who agreed with her, raised the matter with the headquarters office, the latter refused to consider any reclassification or promotion because of an impending reorganization. Although her supervisor asked her to be patient and said that he would continue to attempt to get her promoted to GS-6, he was replaced by a new supervisor in 1996, who also promised the grievant that he'd get her position upgraded to GS-6. However, at the end of 1996 the grievant filed an EEO complaint which partly involved the conduct of her new supervisor. In 1997, she filed a grievance disputing her failure to be promoted to GS-6 and her 1997 performance appraisal and the matter was referred to arbitration.

With regard to the upgrading issue, the arbitrator found that the grievant's new supervisor had arbitrarily withheld from headquarters office a request to upgrade the grievant's position and had deceived her as to his actions. He ruled that these actions violated both Article 38 of the agreement, which provided that the agency would treat all employees fairly and equitably in all respects, as well as certain title 5 merit system principles. He found that the grievant had performed the duties of a GS-6 secretary beginning in May 1994 and that if headquarters had been presented with a request to upgrade the grievant's position, such a request would have been granted on or about June 15, 1996. As a remedy he ordered that the grievant be permanently promoted to the GS-6 with backpay from May 15, 1994, and with seniority in the GS-6 position from June 15, 1996.

With regard to the performance appraisal issue, the arbitrator found that the supervisor's 1997 appraisal of the grievant was in retaliation for her 1996 EEO complaint and that this also was in violation of Article 38 and merit system principles. Finding that there was sufficient record evidence to determine what rating the grievant would have received if her supervisor hadn't acted improperly, the arbitrator determined that she would have received an "excellence" rating for all (instead of just one of four) of her job elements, and a "1" overall, and ordered that her appraisal be changed accordingly.

The Authority, Chairman Cabaniss dissenting, turned down the agency's exceptions to the award. With regard to the raised performance rating, FLRA applied the BEP test and found Article 38 (requiring that employees be treated fairly and equitably in all respects) to be a "prophylactic" arrangement that doesn't "abrogate" management's rights to direct employees and assign work. (FLRA found it unnecessary to apply the merit system principles, but noted in a footnote, in agreement with the agency, that such principles aren't self-executing and cannot independently serve as the basis for an arbitration remedy.)

FLRA refused to consider the agency's claim that the case concerns the classification of the grievant's position within the meaning of § 7121(c)(5) because the agency never made this argument before the arbitrator. It rejected the agency's claim that 5 USC 5106(a) precludes an arbitrator from ordering an upgrade unless the arbitrator articulates a specific comparison of the duties performed by the grievant with the duties of a higher-graded position.

We find no support in the language of § 5106(a) for the evidentiary and articulation requirements asserted by the Agency. . . . Moreover, even if § 5106(a) were interpreted to require a particular level of support for a classification upgrade, neither the Agency nor our dissenting colleague establishes that the extensive evidence and testimony on which the Arbitrator relied is not sufficient support.

FLRA did, however, modify the date of backpay. Although the arbitrator found that the grievant would have been promoted effective 6/15/96 had the agency acted properly, he ordered the grievant promoted with backpay to 5/15/94, with no explanation for this date. FLRA accordingly modified the award to order the grievant promoted with backpay retroactive to June 15, 1996.

FLRA also rejected the agency's claim that the award affected its right to direct employees and assign work.

The Agency asserts an effect on assignment of work by arguing that the grievant's grade level compels the Agency to assign her GS-6 duties for "an undeterminable period of time." Exceptions at 13. However, nothing in the award precludes the Agency from prospectively determining the duties and responsibilities which the Agency has decided to assign to the grievant and her position and from taking whatever classification actions the Agency decides are necessary as a result of its determination on what duties are to be assigned.

In her dissent, Chairman Cabaniss said she did not agree "that the extremely general language of Article 38, which requires only that the Agency treat employees 'fairly and equitably,' without reference to any particular Agency actions, can reasonably be construed as an appropriate arrangement under § 7106(b)(3) of the Statute." She acknowledged that the contract language in one of the cases cited by the majority was essentially identical to Article 38, but "upon further consideration I no longer believe [56 FLRA No. 104] was correctly decided in that respect. . . . Since I do not believe that a contract provision as unspecific as Article 38 can constitute an appropriate arrangement under the Statute, I would find that Prong I of BEP was not satisfied in the instant case."

She also found that that portion of the award reclassifying the grievant's position violated 5 USC 5106(a). Although it was "extremely unfortunate that the Agency failed to object in a timely manner," once the arbitrator set about reclassifying the position, he "was required to accomplish his classification analysis in accordance with applicable law, in this case 5 U.S.C. § 5106(a)."

The issue of whether a contract provision requiring the agency to treat employees fairly and equitably without regard to any specific type of management action qualifies as an appropriate arrangement is probably going to be revisited in the future, along with the current abrogation test, after Member Wasserman is replaced.

Incidentally, 57 FLRA No. 55, reported above, involved a provision that reads as follows:

The parties agree that in the interest of maintaining a congenial work environment, both supervisors and employees will deal with each other in a professional manner and with courtesy, dignity and respect.

However, since FLRA there assumed, without deciding, that the award met the requirements of Prong I of the BEP test (but then set aside the directed reassignment because it failed to satisfy the reconstruction requirements of Prong II), there was no need for Chairman Cabaniss to there reiterate her view that such a nonspecific provision cannot qualify as an appropriate arrangement.