46:1625(148)AR - - Navy, Naval Facilities Engineering Command, Western Division, San Bruno, CA and NFFE, Local 2096 - - 1993 FLRAdec AR - - v46 p1625

[ v46 p1625 ]
The decision of the Authority follows:

46 FLRA No. 148











LOCAL 2096





February 26, 1993


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 Fredric N. Richman filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. The Agency did not file an opposition to the Union's exceptions.

The Arbitrator found that a grievance filed by the Union concerned a classification matter and was not arbitrable. For the reasons set forth below, we conclude that the Union fails to establish that the award is deficient. Therefore, we will deny the exceptions.

II. Background and Arbitrator's Award

The Union filed a grievance claiming that the position descriptions held by two employees, denominated "PD 11," inaccurately described their major duties and responsibilities. Both employees are classified as Procurement Clerk (Typing), GS-1106-5. As a result of the grievance, the Agency found that PD 11 was inaccurate and assigned "PD 985" to the positions held by the two employees. During the second step of the grievance procedure, the Agency found no basis on which to modify PD 985. Nonetheless, the Agency requested that a classification specialist conduct a desk audit of the employees' positions. On the basis of the audit, a new position description, PD 3910, was prepared to accurately reflect the employees' major duties and responsibilities. The Agency official at the third step of the grievance procedure found that PD 3910 was an accurate description of the duties performed and denied the grievance.

Subsequently, the Union invoked arbitration. The Arbitrator framed the issues as follows: (1) whether the grievance was arbitrable; (2) if arbitrable, whether the Agency violated the parties' collective bargaining agreement; and (3) if there was a violation, what would be an appropriate remedy.

Initially, the Arbitrator noted that a formal hearing in the matter was deemed unnecessary by the parties who, instead, maintained that "the matter could be handled by brief." Award at 4. Therefore, to resolve the grievance, written statements of position and documentary evidence were submitted to the Arbitrator. The Arbitrator also stated that "there is no evidence proffered by the [employees] that the position description as established by the [Agency] is incorrect or inappropriate." Id. In fact, while noting the change in position descriptions, the Arbitrator found that neither the employees' classifications nor their rates of pay were changed. The Arbitrator indicated that the employees continued to be classified as Procurement Clerk (Typing), GS-1106-5 and that "there is no question of pay differential involved." Id. at 2. In addition, in discussing the Agency official who denied the grievance at the third step, the Arbitrator found that the official "is a subject matter expert in the procurement/construction field and is very familiar with the work performed by the [g]rievants." Id. at 3.

Based on the evidence submitted, the Arbitrator determined that the grievance was not arbitrable. He found that despite the grievants' claims that they were performing duties at a different grade level, both 5 C.F.R. Part 511 and the parties' agreement provide that issues such as that presented in this case involve classification matters and are appropriately appealed to the Office of Personnel Management (OPM). In this connection, the Arbitrator noted that the two employees had filed such a classification appeal. Consequently, the Arbitrator determined that he lacked the authority "to make any grade level determination or reclassification pursuant to [F]ederal statute." Id. at 4.

III. Union's Exceptions

The Union requests that the Authority either reverse the Arbitrator's award or remand the case for resubmission to a different arbitrator. The Union claims that the Arbitrator's decision was arbitrary and capricious, was based solely on evidence provided by the Agency and is, therefore, "a reversible error." Exceptions at 1.

First, the Union contests the Arbitrator's statement that the Union submitted no evidence. The Union maintains that the Arbitrator ignored the evidence submitted by the Union and failed to respond to its request to submit additional information after the Agency allegedly filed its submission with the Arbitrator in an untimely manner.

Next, the Union argues that it did not file a classification appeal with respect to PD 11. While acknowledging that such an appeal had been filed with respect to PD 3910, the Union claims that it was advised to do so in order to obtain an accurate position description. The Union states that the classification appeal "was put on hold" by OPM "pending the [A]rbitrator making our position description accurate." Id. at 2.

The Union further acknowledges that a classification appeal would have been appropriate had the employees performed the work contained in PD 11 and asserted that the position should be a higher-graded position. However, the Union argues that the employees were detailed to higher level duties that were not contained in any of the three position descriptions that had been issued to the employees. The Union argues, in this regard, that this case is "a duplicate of" Social Security Administration and American Federation of Government Employees, Local 1923, 20 FLRA 684 (1985) (Social Security Administration), in which an arbitrator ordered backpay for employees for the duration of a detail to higher-graded duties. Award at 2. The Union also claims that this case is similar to U.S. Department of Agriculture, Forest Service and National Federation of Federal Employees, Local 450, 35 FLRA 542 (1990), and Department of the Army, New Cumberland Army Depot and American Federation of Government Employees, Local 2004, 21 FLRA 968 (1986).

Finally, the Union asserts that the Arbitrator's characterization of the Agency's third-step official as a subject matter expert "is ludicrous." Exceptions at 2. The Union provides its own explanation as to the nature of that official's duties and discusses the documentation that was relied on in the third-step response.

In sum, the Union claims that "the grievants were detailed to higher level duties without benefit of personnel actions and without benefit of proper pay for [those] duties." Id. at 3. The Union requests that the Authority review the record, resolve the issue in the Union's favor based on the evidence, and deny the Arbitrator pay for his services.

IV. Analysis and Conclusions

We will find an award deficient when it is contrary to law, rule, or regulation, or on other grounds similar to those applied by Federal courts in private sector labor relations cases. For the following reasons, we conclude that the Union has failed to establish that the award is deficient.

First, the Union disputes certain evidentiary findings made by the Arbitrator, including statements regarding the qualifications of the Agency's third-step grievance official. We find no merit to the Union's exception. The Union is essentially disagreeing with the Arbitrator's evaluation of the evidence, including the weight that should be accorded such evidence. Such an exception provides no basis for finding the award deficient. See, for example, American Federation of Government Employees, Local 2204 and U.S. Department of the Army, Fort Hamilton, New York, 46 FLRA 688, 691 (1992). The Union's additional contention that the Arbitrator failed to respond to the Union's request to submit additional information also does not warrant a finding that the award is deficient. The Union is simply disagreeing with the Arbitrator's determination that no further information was necessary to resolve the issues raised.

Next, the Union disputes the Arbitrator's finding that the Union filed a classification appeal with OPM with respect to PD 11, rather than PD 3910. We construe the Union's argument as a contention that the award is based on a nonfact. In order to establish that an award is based on a nonfact, the party making the allegation must demonstrate that the central fact underlying the award is clearly erroneous but for which a different result would have been reached by the arbitrator. See, for example, U.S. Department of the Navy, Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 41 FLRA 535, 539 (1991).

The Union has not demonstrated that the Arbitrator's award is based on a central fact that is clearly erroneous but for which a different result would have been reached. First, it is not clear to us that the Arbitrator found that the classification appeal related to PD 11. Second, even if he had made such a finding, and that finding was clearly erroneous, the Union has not established that the finding was central to the award. Thus, the Arbitrator found that the grievance was not arbitrable because it involved a classification appeal. Clearly, it is immaterial whether the classification appeal filed with OPM related to PD 11 or to PD 3910. In our view, the Union's exception as to this matter is an attempt to relitigate the merits of the grievance and does not demonstrate that the award is deficient. See, for example, American Federation of Government Employees, AFL-CIO, Local 3615 and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, 44 FLRA 806, 817 (1992).

Finally, the Union maintains that while a classification appeal would have been appropriate under certain circumstances, the issue here involves employees who were detailed to higher level duties and is similar to cases in which employees were awarded backpay for higher-graded duties performed while on detail. In our view, the Union is essentially disagreeing with the Arbitrator's formulation of the issue that was presented for arbitration as well as his reasoning and conclusions. There is no indication in the record before us that the parties stipulated the issue to be resolved by the Arbitrator. In the absence of a stipulation as to the issue to be resolved, an arbitrator's formulation of the issue is accorded substantial deference. See, for example, U.S. Department of the Navy, Naval Aviation Depot, Norfolk, Virginia and International Association of Machinists and Aerospace Workers, Local 39, 36 FLRA 217, 221-22 (1990). In this case, the first issue formulated by the Arbitrator was whether the grievance was arbitrable. The Arbitrator's award finding that the grievance was not arbitrable because it in