37:0379(24)AR - - Veterans Affairs, Medical Center, Buffalo, NY and SEIU Local 200-C - - 1990 FLRAdec AR - - v37 p379
[ v37 p379 ]
The decision of the Authority follows:
37 FLRA No. 24
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF VETERANS AFFAIRS
BUFFALO, NEW YORK
SERVICE EMPLOYEES INTERNATIONAL UNION
September 20, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Mary M. Helenbrook filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exceptions.
The Arbitrator found that the grievant, a GS-4 pharmacy program clerk, performed the duties of a GS-5 secretary/stenographer position between April 25 and August 4, 1988, and, therefore, was entitled to receive a temporary promotion and backpay for that period.
For the following reasons, we conclude that the Arbitrator's award is ambiguous as to whether the grievant was qualified for the GS-5 position. Accordingly, we will remand the award to the parties for the purpose of requesting the Arbitrator to clarify the matter.
II. Background and Arbitrator's Award
The grievant is a GS-4 pharmacy program clerk. On April 25, 1988, the grievant was moved from her work area at the back of the pharmacy to a vacant secretary's desk at the front of the pharmacy. The grievant remained at the secretary's desk until August 4. The secretary's position remained vacant during the time the grievant performed her duties at the secretary's desk.
The Union filed a grievance on November 28, 1988, alleging that the Agency violated Article XXVI, Section 4, of the parties' collective bargaining agreement by detailing the grievant from her GS-4 program clerk position to a GS-5 secretary/stenographer position. The Union requested that the grievant be compensated at the GS-5 rate for the duties she performed between April 25 and August 4, 1988.
In her award, the Arbitrator noted the following pertinent sections of the parties' collective bargaining agreement:
Article XXVI. Promotions and Demotions
Section 4. An employee detailed to a higher rated position or to a position at a higher representative rate shall be temporarily promoted if the period involved exceeds 30 consecutive calendar days during any calendar year; but in no event shall an employee be detailed for a period that exceeds 30 days in any calendar year without being compensated for the higher graded position. . . .
Article XXIII. Detailing
The Employer and Union recognize the necessity for meeting manpower needs occasioned by the absence of regular assigned employees, increased work loads, resignations, etc., by detailing employees for short periods, usually on a day-to-day basis.
Definition: For the purpose of this article, detailing is defined as requiring an employee for the purposes indicated above to perform duties the same or similar to those regularly assigned, usually at a different location from where he normally performs his assigned duties.
Award at 2.
As relevant here, the Arbitrator framed the issue as follows: "Was the grievant . . . detailed out of her classification from a GS-4 to a GS-5?" Award at 8.
The Arbitrator concluded that "[a]ll the necessary elements of a detailing situation are met in the instant case." Id. The Arbitrator found that during the time the secretary position was vacant, other employees, including pharmacists and technicians, performed duties in addition to their regular duties. The Arbitrator stated that "[s]urely, if other personnel, such as pharmacists and technicians, were doing extra duty, then the grievant must also have been." Id.
The Arbitrator also found that many of the duties of the GS-4 program clerk position and the GS-5 secretary position overlap, and that the grievant's presence at the secretary's desk necessitated performance of many secretarial duties. In particular, the Arbitrator noted that, after the grievant moved to the secretary's desk, the grievant was designated as Unit Timekeeper, which is a secretarial function. Finally, the Arbitrator found that another employee, who performed temporary secretarial duties similar to those performed by the grievant, was considered to be a secretary by the Agency.
The Arbitrator acknowledged that the Agency had not formally detailed the grievant to the secretarial position, and that there was no "evidence to show that [the grievant] was fully qualified to handle the complete secretarial job function." Id. at 10. However, the Arbitrator concluded that the grievant undertook a sufficient degree of the secretarial work load between April 25 and August 4, 1988, "to justify the GS-5 ranking and compensation." Id.
III. Agency's Exceptions
The Agency excepts to the Arbitrator's award on three bases. The Agency contends first that "[t]he Arbitrator's award is contrary to law in directing that the grievant be retroactively temporarily promoted with back pay to a position for which she did not meet minimum qualification requirements." Agency's Exceptions at 2. The Agency maintains that employees are required to meet minimum qualification requirements for positions to which they are promoted temporarily.
As its second exception, the Agency contends that "[t]he [Arbitrator's] award in this case is unsupported by the evidence adduced at the hearing." Id. at 3. The Agency also argues that the Arbitrator's award "ignores the clear language of the agreement defining detailing as requiring the grievant in this case to perform the same or similar duties to those regularly assigned to the GS-5 position of Secretary/Stenographer." Id. at 5. The Agency asserts that the Arbitrator's "own analysis of the evidence results in findings not that the grievant was performing duties the same or similar to a GS-5 Secretary/Stenographer, but that she was specifically not performing all of those duties." Id.
Finally, the Agency contends that the Arbitrator's award "constitutes an effective determination of classification of the grievant's position for the period at issue, and thereby is contrary to law as violative of the provisions of 5 USC 7121(c)(5)." Id. The Agency contends that "the Arbitrator's determination is not based upon a factual finding of whether the grievant did or did not perform the duties of the GS-5 position during the period at issue, but is rather based upon the Arbitrator's judgement of the 'degree of job responsibility involved.'" Id. The Agency requests that the award "be stricken on grounds that the Arbitrator exceeded her authority in undertaking to determine the classification of the grievant's position, which is a non-grievable issue" under section 7121(c)(5) of the Statute. Id. at 6.
IV. Union's Opposition
The Union asserts that the record does not establish that the grievant "failed to meet minimum qualification requirements for the GS-5 position." Union's Opposition at 1. The Union states that the issue was not addressed at the hearing and that the Arbitrator's award does not indicate that the grievant either did or did not meet the minimum qualification requirements. The Union also asserts that the Agency's second exception, that the Arbitrator's award is not supported by the evidence produced at the hearing, constitutes nothing more than the Agency's disagreement with the Arbitrator's finding that the grievant was performing the duties of the GS-5 position.
Finally, the Union asserts that the Arbitrator's award did not constitute a classification determination. The Union argues that the GS-5 position had already been classified by the Agency and that the Arbitrator simply characterized the distinctions between the GS-4 and GS-5 positions to determine which was performed b