21:0413(56)AR - AFGE, Local 3258 and HUD -- 1986 FLRAdec AR



[ v21 p413 ]
21:0413(56)AR
The decision of the Authority follows:


 21 FLRA No. 56
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 3258
 Union
 
 and
 
 U.S. DEPARTMENT OF HOUSING AND 
 URBAN DEVELOPMENT
 Agency
 
                                            Case No. 0-AR-1026
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Albert J. Hoban filed by the Agency under section 7122(a) of
 the Federal Service Labor-Management Relations Statute and part 2425 of
 the Authority's Rules and Regulations.
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    The grievant, a GS-9 support service specialist claimed that he
 should have received a noncompetitive, career ladder promotion to GS-11.
  His position had previously been graded GS-11 and was identified as one
 with promotion potential to GS-11, subject to further classification
 review.  However, when funds for the Agency were reduced, the grievant
 was assigned a number of duties of lower-graded positions that had been
 eliminated, duties that were not within his position description.  When
 the grievant was eligible for a career promotion to GS-11, his
 supervisor forwarded a recommendation that he be promoted to the
 Personnel Office for review.  When no action was taken on the
 recommendation after almost five months, the grievance in this matter
 was filed.  The supervisor's recommendation eventually was disapproved
 based upon the findings of a classification desk audit that the grievant
 was working most of the time on duties at or below the GS-9 level.  The
 Agency argued before the Arbitrator that the grievance was not
 arbitrable because it involved the classification of the grievant's
 position and, further, that even if the grievance was arbitrable, the
 grievant was not entitled to a promotion because two conditions for
 promotion had not been met, i.e., that the employee must demonstrate the
 ability to perform at the next higher level and that there must be
 enough work at the higher level.
 
    The Arbitrator acknowledged that he had no jurisdiction over a
 classification matter but found that the dispute was arbitrable because
 the essence of the grievance was that the Agency violated the parties'
 collective bargaining agreement when it changed the grievant's duties
 and prevented him from demonstrating that he could perform
 satisfactorily at the GS-11 level.  The Arbitrator found that under
 Section 13 of the parties' agreement an employee such as the grievant in
 a career ladder position with potential for a higher grade was entitled
 to a chance to demonstrate ability to perform at the higher grade.  As
 his award, the Arbitrator provided as follows:
 
          1.  The grievance is arbitrable.
 
          2.  The grievant's present classification is correct.
 
          3.  The Agency violated the rights of the grievant as a career
       employee by assigning him to duties which were not in his position
       description and altering the balance between higher and lower
       rated duties causing a reduction in his opportunities to
       demonstrate his ability to perform at the GS-11 level.
 
          4.  The Agency must comply with the letter and intent of the
       collective bargaining agreement, particularly Section 13, by
       restoring as near as practical, the balance of higher and lower
       rated duties which the grievant performed (previously);  or in
       some other way provide him with the same opportunities he then had
       to demonstrate that he is able to satisfactorily perform at the
       GS-11 level.
 
                           III.  FIRST EXCEPTION
 
                              A.  Contentions
 
    In its first exception, the Agency contends that the award is
 contrary to section 7121(c)(5) of the Statute which precludes grievances
 concerning the classification of any position that does not result in
 the reduction in grade or pay of an employee.  The Agency argues that
 this dispute concerns the classification of the grievant's position and,
 therefore, is not grievable or arbitrable.
 
                       B.  Analysis and Conclusions
 
    The Authority has held that a grievance and an award which pertain to
 whether a grievant is entitled to a noncompetitive promotion do not
 concern the classification of any position within the meaning of section
 7121(c)(5).  See, e.g., U.S. Army Missile Command and American
 Federation of Government Employees, Local 1858, 15 FLRA 286 (1984).  The
 Authority finds that the grievance and award in this case pertain to
 whether the grievant was entitled to a noncompetitive promotion and do
 not directly concern the classification of his position.  In that
 regard, and particularly in view of the Arbitrator's acknowledgement
 that he was without jurisdiction to consider classification matters, the
 Authority finds that the Arbitrator's statement in paragraph 2 of his
 award that "(t)he grievant's present classification is correct(,)"
 constitutes nothing more than a recognition of the fact that the desk
 audit had determined that based upon the duties assigned and performed
 the grievant's position was properly classified at GS-9.  The Authority
 concludes that the Agency has failed to establish that the award is
 deficient as alleged.  Accordingly, this exception must be denied.
 
                           IV.  SECOND EXCEPTION
 
                              A.  Contentions
 
    In its second exception, the Agency contends that the award
 interferes with management's right to assign work under section
 7106(a)(2)(B) of the Statute.
 
                        B.  Analysis and Conclusion
 
    The Authority has repeatedly recognized that the plain language of
 section 7106 provides that "nothing" in the Statute shall "affect the
 authority" of an agency to exercise the rights enumerated in that
 section.  E.g., American Federation of Government Employees, AFL-CIO,
 Local 1968 and Department of Transportation, Saint Lawrence Seaway
 Development Corporation, Massena, New York, 5 FLRA 70, 79 (1981), aff'd
 sub nom.  AFGE Local 1968 v. FLRA, 691 F.2d 565 (D.C. Cir. 1982), cert.
 denied, 461 U.S. 926 (1983).  Therefore, the Authority has consistently
 held that an arbitration award may not interpret or enforce a collective
 bargaining agreement so as to improperly deny an agency the authority to
 exercise its rights under section 7106 or result in the substitution of
 the arbitrator's judgment for that of the agency in the exercise of
 those rights.  Id.; National Treasury Employees Union and U.S. Customs
 Service, 17 FLRA No. 12 (1985);  U.S. Customs Service, Laredo, Texas and
 Chapter 145, National Treasury Employees Union, 17 FLRA No. 17 (1985).
 Section 7106(a)(2)(B) of the Statute, in particular, reserves to
 management officials the authority to assign work.  In this case, to the
 extent that the Arbitrator restricts the assignment of duties to the
 grievant or directs the Agency to restore the mix of higher and
 lower-rated duties which the grievant had previously performed, the
 Arbitrator substituted his judgment for that of management as to the
 duties to be assigned to the grievant.  Therefore, the Authority finds
 that to that extent the award is deficient as contrary to management's
 right to assign work pursuant to section 7106(a)(2)(B).
 
                               V.  DECISION
 
    Accordingly, based on the above reasons, the Arbitrator's award is
 modified by striking paragraphs 3 and 4 and substituting the following:
 
          3.  The Agency violated the rights of the grievant as a career
       employee by causing a reduction in his opportunities to
       demonstrate his ability to perform at the GS-11 level.
 
          4.  The Agency must comply with the letter and intent of the
       collective bargaining agreement, particularly Section 13, by
       providing him with opportunities to demonstrate his ability to
       perform satisfactorily at the GS-11 level.
 
    Issued, Washington, D.C., April 22, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Mem