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FILE: @ 3-191266 OATE: June 12, 1976

MATTER OF: Roy F. Ross and Everett A. Squire--Arbitration Award of Temporary Promotionsfor Higher Level Duties

DIGEST: Arbitrator awarded backpay to two employeesbased on provision in negotiated agreementrequiring a temporary promotion when anemployee is assigned to higher grade positionfor 30 or more consecutive work days. Awardmay be implemented since arbitrator reasonablyconcluded that agency violated agreementin assigning higher grade duties to grievantsfor over 30 days. Award is consistent withprior GAO decisions and does not conflictwith rule against retroactive entitlementsfor classification errors.

This action involves a request by the Pederal LaborRelations Council, dated February 7, 1978, for an advancedecision as to the legality of implementing the backpayaward of an arbitrator in the matter of Internal,"RevenueService, Tackdonville District and-Natioina Treasury

Epoes union, Florida Joint Council (Russell A. Smith,Arbitrator), FLRC No. 77A-97. The arbitrator found thatthe agency (IRS) had violated its collective bargainingagreement with the union (NTEU) in failing to temporarilypromote the two grievants during their assignments tohigher grade duties, and he awarded them backpay as aremedy. This case is before the Federal Labor RelationsCouncil as a result of a petition for review filed bythe agency alleging that the award violates applicablelaws and regulations.

BACKGROUND

The background of this case, as presented in thearbitrator's award and opinion dated July 21, 1977, isas follows. The grievants, Roy F. Ross and Everett A.Squire, were employed as Revenue Officers, grade GS-9,by the Internal Revenue Service Jacksonville District,and were assigned to the Collection Division in the IRSoffice in St. Petersburg, Florida. The principal dutiesof a Revenue Officer in the Collection Division are toarrange for the collection of delinquent taxes and tosecure delinquent returns. Each case is assigned a

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nunerir indicator supplied by the IRS computer on thebasis o2 selected objective criteria. Pura-3nt to the"Case Assignment Guide for Revenue Officers" oi the IRSManual, the numeric level assigned indicates the predictedgrade level of the case and is the primary considerationin the assignment of cases for field contact. NumericLevel I cases meet the predicted work requirementsof grade GS-12; Level 2 cases meet such raauirementsof grade GS-l1; and Level 3 cases are for lower grades.The general objective is that Level 1 and 2 cases areto be assigned to Revenue Officers in grades GS-12 andGS-ll to the maximum extent feasible, but they may beassigned as developmental work to lower graded officersto enable them to gain experience in higher grade work.Such developmental work normally should be no more than25 percent of their work. Finally, group managers areauthorized to review the cases and make changes in thenumeric level indicators.

On or about November 24, 1975, there was a generalreallocation of case assignments to Revenue Officersin the St. Petersburg office. As a result of that action,Messrs. Ross and Squire filed grievances in late January,1976, requesting temporary promotions to grade GS-l1for the period from November 24, 1975, to January 26,1976, in the case of Mr. Ross and from December 9, 1975,to January 26, 1976, in the case of Mr. Squire. Thegrievants also requested permanent promotions to gradeGS-il, but it appears that they later withdrew thatrequest.

The grievants sought these temporary promotionsunder the provisions of Article 3 (Details), Section 1,of the Multi-District Agreement between InternalRevenue Service and National Treasury Employees Union,on the ground that more than 50 percent of their caseload and completed work had been classified Level 2(GS-l1) work for a period of more than 30 working days.Almost immediately after the two grievances were filed,the aqency conducted a review of the grievants' caseinventories in order to evaluate the grievances. Thereview was conducted on January 29, 1976, by two managementofficials and a union representative. They concluded

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that only a small portion of the cases then assignedto Messrs. Ross and Squire actually belonged in Level 2 and,therefore, that the prior assignment of Level 2 cases tothem did not constitute a detail to a higher grade position.They did not, however, change the coded level of the casesto Level 3 or reassign the cases to other officers at thattime. Then, on March 1, 1976, there was another reshufflingof assignments and the bulk of thea Level 2 cases assignedto the grievants were transferred to Revenue Officers ofgrade GS-ll classification.

The Acting District Director of IRS denied the grievanceson the ground that Messrs. Ross and Squire were not assignedor detailed to a position of a higher grade since no vacantposition of a higher qrade existed, and therefore, there wasno violation of Article 8, Section 1, and no basis for therelief requested.

ARBITRATOR's OPINION AND AWARD

The arbitrator first adetesse' the issue of whether thegrievants did in fact perform grade GS-ll work during theperiods claimed. The standard he applied is whether the higherlevel duties assigned are greater that. normally expected of"developmental" work and have been performed at least atthe minimum range of skill and responsibility expected.

He found that, on November 24, 1975, each grievant wasassigned to preponderance ofrcases that were coded Level 2 andthus presumably,,involved grade GS-il work. Mr. Squire received75 cases, of which 62 (84 percent) were coded at Level 2.Mr. Ross received 26 cases, of which 22 (85 percent) wereLevel 2. After November 24, 1975, Mr. Squire testified thata preponderance of his work was on Level 2 cases and thatin the next weeks he closed 36 cases, of which 30 wereLevel 2. Mr. Ross testified that, between November 24, 1975and January 28, 1976, he received 92 more cases,.of which 58(62 percent? were Level 2, and an additional 42 cases bytransfer, of which 33 were coded Level 2. He closed 33, ofwhich 21 were Level 2.

This data was not challenged by the IRS nor was thereany evidence submitted that, prior to the file review of

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January 29,' 1976, the agency revised the level of anyassigned case or questioned the job performance of grievants.As to the Januaty 29 review, the arbitrator noted that itdid not focus on the cases closed after November 24 and priorto the filing of the grievances and should not be givenretroactive effect as an evaluation of the work performedprior to January 29.

On the basis of the foregoing analysis, the arbitratorfound that the grievants had performed a substantial amountof grade GS-ll level work during the period November 24,1975 to January 29, 1976, such as to warrant a findingthat they had been assigned to grade GS-li work for thatperiod within the meaning of Article 8, Section 1, assumingits applicability. He further foutnd that the proportionof such higher level work far exceeded the normal maximum of25 percent properly assignable for "developmental" purposes.After January 29, he found that the grievants did notperform a significant amount of qrade GS-li work.

The araitrator then turned to the issue of whetherArticle 8, Section 1, of the agreement applies to the factsof this case. It reads as follows:

"The Employer agrees that an emplsyee who isassigned to a position of higher grade forthirty (30) consecutive work days or more willbe temporarily promoted and receive the rateof pay for the position to which he is temporarilypromoted. The Employer further agrees to refrainfrom rotating assignments of employees to avoidcompensation at the higher level."

The arbitrator concluded that this provision applied to thegrievance on the basis of an analysis. of the nature ofwork performed, without regard to whether there had beena formal assionment or detail of the employee to-thehigher graded position or whether a vacancy existed inthe higher graded position, provided that the job dutiesassigned at the higher level were of a quantity or magnitudebeyond that normally expected of "developmental" workassignments and were performed at the minimum level ofskill and responsibility properly expected. In so holding,

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he rejected the agency's contention that Article 9, Section 1,applies only when an employee has been detailed toa position for which there is a funded vacancy.

The arbitrator also rejected the agency's contentionthat the grievances involving Messrs. Ross and Squiremust be considered under Article 9, Section 2, of theagreement dealing with Evaluations of Performance. Thatsection provides, in prtinent part, as follows:

"* * *Where it has been administratively determinedthat an employee has performed:

1. higher graded duties for 50% ormore of the previous 12 month period,

2. in a manner which fully meets theperformance requirements or the highergraded duties,

such performance will be recognized by a SpecialAchievement Award.t * *"

The arbitrator stated that Article 9, Section 2, canbe read as dealing with a situation where, over a long-termperiod, the employee intermittently performs hiqher gradedduties aggregating 50 percent or more of his time, whileArticle 8, Section 1, can be read as dealing with a situationwhere the employee for a shorter period of time (butat least 30 consecutive days) performs such duti.- asa significant portion of his total work load.

The arbitrator also rejected the agency's contentionthat the grievant's complaint involves a classificationerror,for which a statutory appeal procedure exists.He fCund that, since the complaint dealt with the temporaryassignment of higher graded work which was normally assignedto someone in an established grade GS-ll Revenue Officerposition, the Civil Service Commission (CSC) classificationappeals procedure would not be available. Finally, heruled that backpay was not precluded by rulings of theSupreme Court or the Comptroller General;

Therefore, the arbitrator sustained the grievances andawarded the grievants backpay based upon the pay differentialbetween grades GS-9 and CS-ll for the applicable periods.

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On appeal to the Federal Li.:,r Relations Council,the agency contends that the arbitrator's award isinconsistent with and in violation of the classificationrequirements of the CSC since the arbitrator ignoredthe position classification standards promulgated bythe CSC for the Internal Revenue Officer Series, GS-1169-O,and substituted the aqency's 'case assiqnment guide'in determi' aq whether the grievants had actuallyperformed zaigher level duties. The acency also arguesthat the issue is essentially a classification question,that is, whether the duties which t'aL grievants wereassigned should have been classified at the grade GS-11level. Thus, the agency concludes: (1) that the awardmay not be implemented since the issue involvesclassification appeals which are subject to a statutoryappeals procedure and are, therefore, outside the scopeof arbitration; (2) that backpay may not be awarded forclassification errors; and (3) that the decisions ofour Office concerning extended details are not applicable.

The union contends that the arbitrator's findingthat the greivants performed grade GS-il work is a findingof fact which is not reviewable by the Council and is nototherwise in contravention of CSC classification standards.The union also argues that the classification appealsprocedure is inappropriate in this case since the grievantsdo not seek to have their positions reclassified butrather seek only hiaher pay for temporarily assumingthe duties of a higher graded position. Finally, theunion states that the award of backpay is appropriate underdecisions of our Office since there has been a violation of acollective bargaining agreement.

DISCUSSION

Because of the Comptroller General's authority over theexpenditures of appropriated funds (31 U.S.C. SS 74, 82d,),the Federal Labor Relations Council has requested our decisionas to whether the arbitrator's award violates applicable law.In decidina the issue, we fully agree wiih the Council's viewthat courts and agencies authorized to review an arbitrationaward must be reluctant to interfere with it. At the sametime, we must carry out our statutory duty to make sure thatFederal funds are spent only in accordance with the laws

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passed by the Congress. Accordingly, our duty is to determinewhither the award made by the arbitrator is consistent withapplicable laws, regulations, and Comptroller General decisionsso that it may be validly implemented through the expenditureof appropriated funds for backpay.

We have held that the violation of a mandatory provisionin a negotiated agreement, whether by an act of omission orcommission, which causes an employee to lose pay, allowances,or differentials is as much an unjustified or unwarrantedpersonnel action as is an improper suspension, furloughwithout pay, demotion or reduction in pay, provided theprovision was properly included in the agreement. SeeAnnette Smith, et al., 56 Comp. Gen. 732 (1977) and decisionscited therein. The Back Pay Act, 5 U.S.C. 5 5596 (1976),and the implementing Civil Service Commission regulationscontained in 5 C.F.R. Part 550, Subpart H, are the appropriateauthorities for compensating employees for such violationsof a negotiated agreement assuming there is a findingthat the denial or loss of pay or allowances is a resultof and would not have occurred but for the unjustifiedor unwarranted personnel action. Smith, supra. See also5 C.F.R. S 550.803(a), as amended March 275,1977, 42Fed. Req. 16125.

In ruling upon the legality of appropriated fundexpenditures incident to arbitration awards, we generallywill not rule upon any exceptions to the arbitrator'saward relating to the facts, and thus, in the presentcase, we shall limit our consideration to the legalityof implementing the award based on the facts as foundby the arbitrator that the grievants had performed asubstantial amount of grade GS-ll work during tne periodin question.

In the case before us, the IRS, in effect, maintainsthat the arbitrator misinterpreted Article 8, Settion 1,of the agreement. The agency's view is that the sectionapplies only to detailsto higher grade positions and notto the assignment of higher level duties. Thus, accordingto the agency, the section does not apply to the instantcase because the grievants were not "detailed" to vacant,budgeted positions within the meaning of the Federal PersonnelManual, but were merely assigned higher graded duties.

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The arbitrator carefully considered the IPS argumentson this issue. He posed the Question and answered it asfollows (Opinion, p. 24):

'In view of the conclusions reached abo'e, itis necessary to determine whether Article B,'Section 1,applies to a fact situation such as that posed in theinstant cases. The material interpretative questionis whether it has application on the basis alone of ananalysis of the nature of the work performed during aconsecutive 30-day period, without regard to whetherthere has been a formal assignment or 'detailing' ofthe employee to the higher GS grade and whether ornot there exists a 'vacancy' in the GS 11 position.In my judgment, although the question is net freefrom doubt, a proper interpretation is that it hasapplication in the former circumstance provided theemployee's performance of job duties of the highergrade level is such as to meet the standards outlinedin the analysis in Part Iof this Opinion, i.e.,where the job duties assigned are of a quantity ormagnitude beyond that normally ex:pjcted of'developmental' work assignments and have beenperformed at least at the minimum level of skilland responsibility properly to be expected."

He, therefore, determined that Article 8, Section 1, ofthe agreement anplied to the grievances before him basedon the nature of the work performed, without regard towhether there had been a formal assianment or detailto the higher grade or whether there was a vacancy inthe higher grade position. He stated (Opinion, p. 27)that "[i]f the proper performance of higher graded workof significant amounts constitutes, in effect, an'assignment' of the employee to the classification towhich such work is normally assigned, then it followsthat there was a temporary assignment to a 'position',namely that of the classification. The GS-l RevenueOfficer classification obviously is a 'position'."

In our consideration of an arbitration award, we willgive great weight to the arbitrator's interpretation of thecollective bargaining agreement. If it represents a

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reasonable interpretation of the negotiated agreementunder the circumstances of the cas', we will accept thearbitrator's interpretation, even if more than oneinterpretation could be made or we might have interpretedthe agreement differently in the first instance.

In the present case, the negotiated agreement clearlycould be interpreted to apply only to formal detailsto vacant higher level positions, as the IRS has interpretedit. But the agreement must be looked at in the context ofthe facts of the case. Here, the difference between thegrades of Revenue Officers in based in large part onthe level of difficulty of the cases assigned. As statedabove, the IRS has established a system of coded numericlevels for case assignments equated to grade levels,as well as a procedure for revising the coded level ifnecessary. Under such a system it seems clear that assigningall or substantially all higher grade work to a RevenueOfficer would be tantamount to a detail to the highergrade position. The arbitrator found that 84 percent and85 percent, respectively, of the cases assigned to thegrievants on November 24, 1975, were higher grade work.

We note that in the last sentence of Article 8, Section 1,the agency has agreed "to refrain from rotating assignmentsof employees to avoid compensation at the higher level." Wethink it is reasonable to interpret Article 8, Section 1, asalso applying to prohibit the agency from assigning a significantamount of higher level cases to a Reveniue Officer for 30days or more to avoid compensation at the higher level.In our opinion, therefore, the arbitrator's interpretationof the collective bargaining agreement between IRS and NTEUis reasonable and proper and we will accept it for purposesof determing whether his award is valid.

We have considered the objections to the award raisedby IRS and have concluded that the award does not violatelaw or regulation for the reasons set forth below.

The award is consistent with prior decisions of this Office.We have upheld prior awards of retroactive temporary promotionswith backpay based on the assignment of higher level duties toemployees. Thus, in Annette Smith, 56 Como. Gen. 732 (S-183903,June 22, 1977), the arbitrator had found that, in addition

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to periods'of formal details, the agency had on numerousoccasions assigned custodial emplo ees to perform highergrade duties for extended periods without officiallyrecording such details. We upheld the award of backpayfor both periods based on our Turner-Caldwell decisions,55 Comp. Gen. 539 (1975) and 56 Comp. Gen. 427 (1977),which permitted backpay for details of more than 120 days tohigher grade positions.

Although our Turner-Caldwell decisions are based on the120 day period for details to higher grades specified in theFederal Personnel Manual, they do not preclude retroactivepromotions for shorter periods when specified in agencyregulations or in negotiated agreements. In Kenneth Fenrer-B-183937, June 23, 1977, where nondiscretionary agencyregulations provided for temporary promotions for detailsof more than 60 days to higher grade positions, we held thatthe agency had a mandatory duty to promote an employee beginningon the 61st-day of such a detail. See also Burrell MoLris,56 Comp. Gen. 786 (B-187509, July 11, 1977), where we heldthat an 8-day detail of a prevailing rate employee to performthe duties of a higher level General Schedule position was aviolation of a collective bargaining agreement provision. Weconcluded that the violation constituted an unwarrantedpersonnel action which entitled the employee to correctiveaction under the Back Pay Act.

Accordingly, in tne present case, the 30-day periodspecified in Article 8, Section 1, of the agreement is notprecluded by Turner-Caldwell. Since the Federal PersonnelManual (ChapterE300, U T1-4W e permits an agency to provide fortemporary promotions for brief periods of service, an agencymay enter into a collective bargainina agreement making suchpromotions mandatory for periods of less than 120 days.

Another decision of this Office involved facts very similarto those involved in the present grievance of Rdss and Squire.In 8-181173, November 13, 1974, two grade GS-5 voucherexaminers, who normally worked on travel vouchers, wererequested to process more difficult employee relocationvouchers because the office has accumulated a backlog ofthis work. The relocation vouchers were normally assigned tograde GS-6 voucher examiners. After a period of traininq they

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spent five-and a half months processing the relocationvouchers beforr they were returned to their regular duties.The employees filed a grievance, thruugh their union,under a negotiated agreement provision requiring temporarypromotions for details to higher grade positions cf 60days or more. Even though there had been no formal detail,the arbitrator found that the two employees har teen "detailed"to a temporary assignment of performing higher level dutiesand that the agency had violated the agreement by failingto compensate them as "temporarily promote"' to grade GS-6during the five-and-a-half-month period. We upheld thieaward on the ground that the aqency's failure to temporarilypromote in violation of the agreement was an un)iustifledpersonnel action under the Back Pay Act which entitlesthe employees to bachpay. See also 54 Comp. Gen. 263(1974).

This case does not involve the situation of a detailto a positipn which has not been establihed or classified.See Willie W. Cunninqham, 55 Comp. Gen. 1362 (1976). Itis clear in the recorrT-efore us that the po ;itien ofRevenue Officer, grade GS-l, is an established andclassified position with position classification scandareswhich describe the nature and complexity 9f assignmentsas presenting a wider range of problems than thoseencountered at the grade GS-9 level.

The agency has not denied the existence of anestablished grade GS-Il position, but it argues therewere no vacant, funded positions at grade GS-l to whichthe grievants could be assigned. s.e are unawers of anyrequirement that a position be vacant in order for anemployee to be detailed to that position, and ws wculdpoint out that the definitibn of a detail as set forthin the FPM Manual, Chapter 300, Subchapter 8, states thata position is not filled by a detail since the employeecontinues to he the incumbent of the position fr-om whichhe is detailed.

Finally, the aqency contends that the grievance actuallyinvolves a classification appeal which is outside the scopeof arbitration and that the award violates classificationrequirements of the CSC. Classification appeals to theCivil Service Commission are subject to the procedures

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set forth in 5 U.S.C. S 5112 (1976) and 5 C.F.R. Part 511,Subpart F (1977). These Provisions establish the rightof an employee to have his current position reviewed andclassified based upon those duties officially assigned tothe employee at the time the appeal is filed. However, webelieve that grievances or claims concerning temporaryassignments of higher level duties or details do notinvolve improper classification and are not cognizableunder the classification appeal procedure. The rule againstretroactive entitlements to backpay for classificationerrors was reaffirmed by the United States Supreme Courtin United States v. Testan, 424 U.S. 392 (1976), but itis our view that the Testan case is limited to improperclassification and does not affect entitlement to temporarypromotions for improper details. See Reconsiderationof Turner-Caldwell, supra. Moreover, we do not agreewith IRS that the arbitrator disregarded the CSC's classi-fication standards. It appears to us that he followedthe agency's own practices implementing the classificationstandards by assigning numerical levels to the cases assignedto Revenue Officers, representing the predicted degree ofdiffi'ulty of each case.

This decision is not intended to change the generalrule that the mcee accretion of duties in a position doesnot entitle the occupant to a promotion. We simply holdthat where there is a mandatory provision requiringtemporary promotion tor assignments to higher levelpositions and where the fact-finder has determined thatthe assignment of higher level work is of such magnitudeas to be equivalent to a "details to the established higherlevel position ., award of a retroactive temporarypromotion wit .ackpay may be proper depending upon thecircumstances of the case.

CONCLUSION

We believe the arbitrator's interpretation of the contractand his award are reasonable and consistent with law, regulations,and prior decisions of our Office. Accordingly, we concludethat the arbitrator's award is valid and may be implemented.

Actinu Comptrolle Generalof the United States

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