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 provi