42:0252(20)AR - - Treasury, IRS, Los Angeles District and NTEU - - 1991 FLRAdec AR - - v42 p252



[ v42 p252 ]
42:0252(20)AR
The decision of the Authority follows:


42 FLRA No. 20

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE TREASURY

INTERNAL REVENUE SERVICE

LOS ANGELES DISTRICT

(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION

(Union)

0-AR-2041

DECISION

September 20, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Herbert Oestreich 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 ruled that the Agency violated a settlement agreement with the Union by failing to promote the grievant from GS-3 to GS-4 following a classification audit. As a remedy, the Arbitrator ordered that the grievant be given a retroactive promotion with backpay to the GS-4 position. He also ruled that the Agency and the Union could agree to restructure the position and assign the grievant other duties as long as such agreement was satisfactory to the grievant and the grievant retained a GS-4 rating.

For the following reasons, we will deny the Agency's exceptions.

II. Background and Arbitrator's Award

In January 1988, the grievant was hired as a GS-3 clerk-typist in the personnel branch of the Agency's Los Angeles District. She was assigned duties as an incentive awards coordinator. Some time thereafter, the grievant informed the Union that she believed that the duties she was performing were of a higher grade than GS-3. The Union filed a grievance on the grievant's behalf alleging that she had been unfairly evaluated on her performance, that the Agency had transferred some of the grievant's duties to other employees, and that the grievant's duties warranted a higher classification rating. The Agency and the Union agreed to resolve the grievance with a settlement agreement which provided that the grievant's position would be evaluated by a desk audit to determine the proper classification. If the desk audit "showed that the duties indeed warranted a higher classification, steps would be taken to effect an upgrade." Award at 7.

Following the desk audit of the grievant's position, the Agency determined that the duties performed by the grievant should be classified as a GS-203-4 Awards Coordinator position and issued a new position description for that position. However, the Agency did not promote the grievant to the GS-4 position. Instead, the Agency announced that the position was a new one for which employees could compete under a vacancy announcement dated June 23, 1989. The grievant filed a second grievance in which she alleged that she should not have to compete for the GS-4 position. The grievant also applied for the GS-4 position and, although she was the only applicant, she was not selected.

The GS-4 Awards Coordinator position was not filled. The grievant was given a temporary promotion to GS-4 for the period June 7 through August 8, 1989, during which she had performed the GS-4 Awards Coordinator duties. Subsequently, the Agency detailed the grievant for 4 months to perform GS-3 clerical duties in another office. The grievant eventually returned to the personnel branch but was assigned to GS-3 duties. The incentive awards duties that she had previously performed were assigned to another employee.

A grievance was filed and submitted to arbitration. The Arbitrator stated that the parties were unable to agree on the issues to be arbitrated and he framed the issues as follows:

(1) Did the Agency violate a settlement agreement between the parties when it failed to promote the Grievant to a higher-graded classification on a non-competitive basis as a result of a desk audit of her job? If so, what shall be the remedy?

(2) Did the Agency violate the Collective Bargaining Agreement or applicable regulation when it failed to promote the grievant on a competitive basis to a newly established awards coordinator position? If so, what shall be the remedy?

Id. at 2.

The Union contended before the Arbitrator that the Agency had violated the settlement agreement by refusing to promote the grievant after a desk audit showed that her position should be classified as a GS-4 Awards Coordinator position. The Union asserted that the grievant was entitled to the GS-4 position and that she should not have been forced to compete for it.

The Agency contended that it was prevented by law, regulation, and the parties' collective bargaining agreement from placing the grievant in the GS-4 position. The Agency denied that the grievant's position was upgraded as the result of a classification error or the accretion of duties. Rather, the Agency claimed that a new position was created and that the new position must be filled competitively. The Agency argued that although the settlement agreement provided that the grievant's GS-3 position would be given a desk audit, the agreement did not guarantee that the grievant would be promoted if the audit resulted in a new higher-graded position.

The Arbitrator found that the Agency clearly violated the settlement agreement with the Union when it refused to promote the grievant noncompetitively to the GS-4 Awards Coordinator position following the desk audit. He stated that there was "no question" that the intent of the settlement agreement "was to resolve the original grievance by automatically promoting the Grievant to a GS-4 classification, if the desk audit warranted it." Id. at 18. He noted that the desk audit was concerned with the duties that the grievant had been performing at the GS-3 grade level and that those same duties had also been performed by the grievant's predecessor in the position. He concluded that "[t]he resulting GS-4 grade, therefore, has to be regarded as a correction of a classification error." Id. at 19, emphasis omitted. He ruled that under the parties' agreement and Chapter 335 of the Federal Personnel Manual (FPM), the grievant was entitled to a noncompetitive promotion to correct the classification error.

The Arbitrator also addressed the Agency's failure to promote the grievant competitively to the GS-4 Awards Coordinator position. He ruled that the Agency violated the parties' agreement "when it, explicitly or implicitly, used the Grievant's allegedly deteriorating performance as a basis for denying her an upgrade to the GS-4 level awards coordinator position." Id. at 20. He noted that Article 12, Section 4(D) of the agreement requires that an employee must be advised each time an appraisal is used in a personnel action and further noted that the grievant received a rating of "Exceeds Fully Satisfactory" in a recent performance appraisal. Id. at 21. The Arbitrator found that the grievant was detailed from her position in the personnel branch because of "her performance in the awards coordinator job, her relationship with her immediate supervisor, and to create an opportunity [to] assign her award coordinator duties to other personnel in her unit[,]" which "amounted to a disciplinary personnel action." Id. He found that the grievant was not informed and counseled, as required by the agreement, that she was being reassigned because of unsatisfactory performance. Further, he ruled that if the grievant was reassigned because of incompetence, the Agency did not comply with the agreement provision requiring that employees be notified that they are no longer considered to be performing at an acceptable level of competence.

The Arbitrator rejected as "suspect" management's explanation that the GS-4 Awards Coordinator position was not filled because of a desire "to determine the impact of a newly negotiated awards program." Id. at 22. The Arbitrator queried whether management chose not to fill the position because it was "hoping for more than one applicant, and someone other than the Grievant?" Id. at 22-23.

The Arbitrator made the following award:

The Grievant was improperly denied promotion to a GS-4 level classification and continued employment in the Awards Coordinator position.

She shall be entitled to a retroactive upgrade to a GS-4 classification effective August 28, 1989. She shall be entitled to reimbursement of wages lost as a result of the Agency's failure to continue her in the GS-4 classification after August 26, 1990. As soon as feasible, but no later than 45 days from date of receipt of this award by the Agency, she shall be returned to the awards coordinator duties described in Position Description #0636N.

Nothing in this award shall preclude the Union and the Agency [from agreeing] to a restructuring of the Grievant's duties or assignment to a different position of unit, provided she remains in the GS-4 classification and the agreement is fully satisfactory to her.

The Arbitrator retains jurisdiction until all terms and conditions of this award are implemented.

Id. at 23.

III. Positions of the Parties

A. The Agency

The Agency asserts that the Arbitrator's award is deficient because the Arbitrator exceeded his authority by addressing an issue not presented by the parties and by ordering an improper remedy. The Agency also contends that the award is contrary to law, rule and regulation.

In its first exception, the Agency contends that the Arbitrator improperly framed and addressed the issue of the Agency's failure to promote the grievant competitively. The Agency contends that the parties had stipulated at the hearing that the competitive promotion was not a matter included in the grievance to be decided. The Agency refers to the transcript of the hearing before the Arbitrator and cites statements in which the parties agree that the announcement of the GS-4 Awards Coordinator position occurred after the grievance was filed and was not an issue before the Arbitrator. See Exceptions, Attachment B. The Agency asks that all portions of the Arbitrator's opinion and award that address the issue of the grievant's nonselection for a competitive promotion to the GS-4 Awards Coordinator position be reversed and stricken from the Arbitrator's decision.

In its second exception, the Agency asserts that the award violates management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency maintains that, in effect, the Arbitrator improperly ordered the Agency "to permanently retain the grievant in a GS-4 classified position and, even if the Agency wants to reassign her to another GS-4 position, the Agency must first secure the grievant's agreement." Id. at 7.

In its third exception, the Agency asserts that the Arbitrator's order that the grievant be promoted to the GS-4 Awards Coordinator position noncompetitively is contrary to law, rule and regulation. The Agency states that competitive promotion is required to higher-graded positions except in limited circumstances and that "[o]ne of those circumstances is where a position is upgraded without significant changes in duties or responsibilities due to the issuance of a new classification standard or the correction of a classification error." Exceptions at 7, citing FPM Chapter 335, subchapter 1, paragraph 1-5b; 5 C.F.R. § 335.103; and Internal Revenue Manual §§ 335.221-225. The Agency maintains, however, that the grievant's position was not upgraded. The Agency also asserts that there is no other exception under those regulations for promoting the grievant noncompetitively to GS-4.

The Agency recognizes that the parties intended in the settlement agreement that the grievant would receive the position "created or modified as a result of the agreement" but, as noted previously, denies that the grievant's position was upgraded. Id. at 8. Rather, the Agency contends that a new GS-203-4 Awards Coordinator position was created and asserts that that position was different from the grievant's existing GS-322-3 Clerk Typist position. Further, the Agency contends that the grievant's clerk typist position used a standard position description issued by the Agency's national office while the GS-203-4 Awards Coordinator position was a local position that had never before existed in the Los Angeles District. Therefore, the Agency argues, the Arbitrator based his award on a nonfact when he found that the grievant's position was upgraded to GS-4 and the Arbitrator had no authority to order the grievant promoted noncompetitively to the new position. The Agency also maintains that the Arbitrator is precluded by section 7121(c)(5) of the Statute from reviewing the classification decision that created a new GS-203-4 Awards Coordinator position in addition to the grievant's GS-322-3 Clerk Typist position.

B. The Union

The Union acknowledges that the parties stipulated that the grievance did not concern the matter of the grievant's not being selected for the GS-4 position on a competitive basis. However, the Union maintains that the Authority should not strike the Arbitrator's discussion of that matter from his opinion because the actual award and remedy concern the Agency's failure to promote the grievant in accordance with the settlement agreement and do not order that the grievant be promoted to the position competitively. The Union contends that the Arbitrator's discussion of the Agency's failure to promote the grievant competitively did nothing to affect the remedy, which was supported on the separate ground that the grievant should have been promoted noncompetitively because her position was upgraded.

In response to the Agency's second exception, the Union recognizes that the Arbitrator's order that the grievant's duties or position not be changed without her consent might be found to violate management's right to assign work under section 7106(a)(2)(B) of the Statute. However, the Union maintains that the circumstances of this case require such an order because of the likelihood that the Agency will fail to comply with the Arbitrator's order in the future. The Union points out that the Arbitrator had doubts about the Agency's motives in not filling the GS-4 position and in detailing the grievant out of her position and that those doubts justified the order that the grievant not be reassigned without her consent.

The Union disputes the Agency's contention that the Arbitrator made an erroneous finding that the grievant's position was upgraded. The Union maintains that the Agency is merely attempting to relitigate the Arbitrator's factual determination in that respect. The Union contends that it makes no difference whether the GS-4 position was established under a new position description rather than as an amendment to the grievant's GS-3 position description because Agency regulations require that a new position description be written any time there is a change in grade. The Union also asserts that the Arbitrator correctly found that the grievant was entitled to be promoted to GS-4 as an upgrade due to the Agency's classification error. The Union denies the Agency's contention that the Arbitrator made a classification determination in violation of section 7121(c)(5) of the Statute.

IV. Analysis and Conclusions

A. The Arbitrator Did Not Exceed His Authority

An arbitrator exceeds his or her authority when, for example, the arbitrator issues an affirmative order that exceeds the scope of the matter submitted to arbitration or awards relief to persons who did not file a grievance on their own behalf and did not have the union file a grievance for them. See U.S. Department of the Air Force, Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 41 FLRA 303, 305 (1991). The Agency has not shown that the Arbitrator's award in this case relates to matters that were not submitted to arbitration or encompasses persons who were not included in the grievance.

We note the parties' statements in the transcript of the arbitration hearing that the matter of a competitive promotion for the grievant was not to be an issue before the Arbitrator. However, we reject the Agency's contention that the Arbitrator's discussion of the failure to select the grievant for a competitive promotion to GS-4 should be stricken from the opinion portion of his decision. Particularly, we find that the Arbitrator made no award ordering the grievant's competitive promotion on the basis of that discussion. We conclude that the Arbitrator's discussion of the Agency's failure to give the grievant a competitive promotion is a part of his overall reasoning and conclusions leading to the finding that the grievant was entitled to a noncompetitive promotion under the terms of the settlement agreement. The Arbitrator did not render an award resolving the issue of a competitive promotion for the grievant and he did not grant as a remedy that the grievant receive a competitive promotion to GS-4. Compare U.S. Department of Veterans Administration, Medical Center, Houston, Texas and American Federation of Government Employees, Local 1633, 36 FLRA 122, 127-28 (1990) (Authority found that parties' stipulation precluded the arbitrator from addressing an issue relating to a reduction in force and modified the award to strike the remedy for that issue). Accordingly, the Agency has not demonstrated that the Arbitrator exceeded his authority and the first exception will be denied.

B. The Award Is Not Contrary to Section 7106(a)(2)(B) of the Statute

We conclude that the Agency has failed to demonstrate that the award is deficient on the basis that it interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency maintains that to the extent that the award makes any future changes in the grievant's duty assignments or position assignment subject to the approval of the grievant, that portion of the award requires the Agency, in effect, to negotiate with the Union over changes in the grievant's work assignments and makes any such changes subject to the grievant's approval and subject to her remaining at the GS-4 level. The Agency claims that the award would require that the grievant be permanently retained in a GS-4 position. We disagree with the Agency's contentions and find that the Agency has misconstrued that portion of the Arbitrator's award.

Rather, we interpret the third paragraph of the Arbitrator's award as a recognition by the Arbitrator that the parties may agree to implement the award in a different manner agreed upon by the parties and that such implementation should be allowed, provided that the grievant's rights under the award are protected. That portion of the award consists of guidance to the parties as to implementation of the award and does not provide a guarantee that the grievant would forever be able to control her work assignments. In our view, the Arbitrator is only advising the parties that they are free to comply with the award in any manner agreed upon as long as it is with the grievant's approval. The Arbitrator's award does not require that any future modifications in the grievant's work assignments have the grievant's approval. Consequently, that portion of the award does not interfere with the Agency's right to assign work under section 7106(a)(2)(A) and the Agency's exception provides no basis for finding the award deficient.

C. The Award Is Not Contrary to Law, Rule or Regulation and Is Not Based on a Nonfact

In its third exception, the Agency disputes the Arbitrator's finding that the GS-4 Awards Coordinator position established as the result of the desk audit of the grievant's position was an upgraded position into which the grievant could be promoted noncompetitively under the terms of the settlement agreement. The Agency contends that the GS-4 position was a new position and was not a position that could be filled noncompetitively under FPM Chapter 335, subchapter 1-5b. We reject the Agency's claim that the position could not be filled noncompetitively.

FPM Chapter 335, governing agency merit promotion plans, requires agencies to except certain actions from competitive procedures. One of the mandatory exceptions is: "A promotion resulting from the upgrading of a position without significant change in the duties and responsibilities due to issuance of a new classification standard or the correction of an initial classification error." FPM Chapter 335, subchapter 1-5b(1); see also Army Publications Distribution Center, 32 FLRA at 1018-19, citing American Federation of Government Employees v. FLRA, 803 F.2d 737, 740-41 (D.C. Cir. 1986).

In Army Publications Distribution Center, the Authority held that an agreement provision that would convert the FPM's mandatory exception to the application of competitive procedures into an option to allow the use of competitive procedures in those circumstances conflicted with FPM Chapter 335, 1-5b(1). The Authority cited Russell v. Department of the Navy, 6 M.S.P.R. 698, 710 (1981), in which the Merit Systems Protection Board (MSPB) held that classification decisions affect not only the position, but the incumbent of the position as well. The Authority concluded that agencies are required to promote, noncompetitively, the incumbent of a position which has been reclassified to a higher grade based upon issuance of a new classification standard and/or classification error. See 32 FLRA at 1019.

Consequently, we reject the Agency's argument that the grievant's position was not upgraded as a result of the desk audit of the duties that she was performing as a GS-3. The circumstances of this case come under the rule discussed by MSPB in Russell, that is, employees whose positions are reclassified to a higher grade due to issuance of a new classification standard or correction of classification error are entitled to a noncompetitive promotion to the higher grade. Here, there was no significant change in the duties performed by the grievant. Further, contrary to the Agency's contentions, the Arbitrator determined that there was a classification error when he stated that "the