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57 FLRA No. 96
U.S. Dept. of the Interior, Bureau of Indian Affairs, Wapato Irrigation Project, Wapato, Washington and Indian Educators Federation, AFT, AFL-CIO (Kienast, Arbitrator), 0-AR-3379 (Decided September 28, 2001)
The Arbitrator issued an initial award in which he ruled that the Agency violated the parties' collective bargaining agreement when it failed to pay the grievant at a higher rate of pay while he was assigned the duties of irrigation system manager. In reaching his decision, the Arbitrator found insufficient guidance in the record to determine the appropriate remedy. As a result, he ordered the parties to negotiate an appropriate remedy, but retained jurisdiction for the purpose of determining a remedy if the parties were unable to agree. The Agency filed exceptions to the award, which the Authority dismissed as interlocutory. Following submissions by the parties on an appropriate remedy, the Arbitrator issued a final award providing compensation to the grievant for the Agency's violation of the collective bargaining agreement. The Authority concluded that the Arbitrator's award was deficient and set it aside.
The Authority found that the award was contrary to law. The Authority noted that as a general rule, an employee is entitled only to the salary of the position to which the employee is appointed. An exception to this general rule exists, permitting compensation for the temporary performance of the duties of a higher graded position, based on an agency regulation, or when the parties to a collective bargaining agreement agree to make temporary promotions mandatory for details to higher graded positions, thereby establishing a nondiscretionary agency policy which would provide a basis for backpay. Here, the Arbitrator found that the Agency violated the agreement by permanently assigning the grievant to perform the duties of the irrigation system manager while also filling his old position, and that such action was inconsistent with the spirit and intent of the Merit Promotion Plan as required in Section 10.1 of the parties' agreement. However, the Authority noted that section 10.1 did not address whether employees may receive temporary promotions when they are assigned to perform the duties of higher-graded positions of the agreement. Thus, section 10.1 did not contain a nondiscretionary agency policy which would provide a basis for backpay. The Authority found that in these circumstances, where the Arbitrator did not identify, or base his award on, any nondiscretionary policy providing a basis for the retroactive temporary promotion with backpay, the award was deficient as contrary to law.