47:1112(104)AR - - VA Medical Center, Muskogee, OK and AFGE Local 2250 - - 1993 FLRAdec AR - - v47 p1112
[ v47 p1112 ]
The decision of the Authority follows:
47 FLRA No. 104
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF VETERANS AFFAIRS
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
July 12, 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 Charles B. Overstreet 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 Union filed a grievance on behalf of three employees alleging that the Agency violated the parties' collective bargaining agreement when it failed to make a timely response to classification appeals in which the three employees claimed that their police officer positions should be raised in grade from GS-5 to GS-6. The Arbitrator sustained the grievance and awarded the grievants a retroactive increase in grade to GS-6 with backpay. We find that the award is deficient because the grievance concerned a classification matter over which the Arbitrator lacked jurisdiction under section 7121(c)(5) of the Statute. The award will be set aside.
II. Background and Arbitrator's Award
The grievants are police officers whose positions are graded at the GS-5 level. Although there are no police officer positions at the GS-6 level in the Agency, the grievants contended that the duties they performed warranted a GS-6 grade level and they requested the Agency to reclassify their positions at that level. When more than 60 days had elapsed with no action taken on their classification appeals, the Union filed a grievance on behalf of the grievants alleging that the Agency had violated Article 19, Section 5.C of the parties' collective bargaining agreement by failing to issue a decision within 60 days.(1) The grievance was not resolved and the matter was submitted to arbitration.
The Arbitrator noted that the parties were unable to agree on an issue and he set forth their respective positions. He stated that the Union framed the issue as:
Did the [Agency] violate [Article 19, Section 5] of the Agreement? If so, what is the proper remedy?
Award at 3. He stated that the Agency framed the issues as:
(1). Was a proper grievance filed in accordance with Article 13 [Grievance Procedure], Section 7 of the Agreement? If not, is the [g]rievance properly before the Arbitrator?
(2). Does the Arbitrator, contrary to law, [G]overnment-wide rules and regulations, have the authority to grant the relief sought? If not, the [g]rievance should be dismissed.
The Arbitrator noted that the parties had stipulated that the Agency had failed to respond to the grievants' classification appeal "within the contract requirement of 60 days . . . ." Id. at 10. He found that the grievance over the delay in processing the grievants' request for reclassification of their positions was properly before him and he denied the Agency's contention that he had no jurisdiction over the matter because the grievance concerned the classification of the grievants' positions. The Arbitrator found that the grievance in this case did not concern the assignment of higher-graded duties to the grievants because "there is only one established position of Police Officer and that is in grade GS-5." Id. at 14. He further found that the grievants "claim only that their existing job of Police Officer is improperly graded and that the [Agency] has not complied with the [a]greement." Id.
The Arbitrator heard testimony by the grievants concerning the duties that they performed. He considered "the Factor Evaluation System introduced into evidence by the Union" and he concluded that the grievants "clearly fall into the [numerical range for GS-6] . . . and are clearly performing the work of a GS-6." Id. at 15. The Arbitrator stated that he had "extensive experience, including teaching experience, in all types of job evaluation systems." Id. He determined that the work the grievants performed should be rated under the Factor Evaluation System at the GS-6 level. The Arbitrator also ruled that the Agency had violated Article 19, Section 5.C of the parties' agreement by failing to respond to the grievants' classification appeal within 60 days.
The Arbitrator next discussed his authority to award the grievants backpay pursuant to the Back Pay Act, 5 U.S.C. § 5596. He held that his finding that the Agency had violated the parties' agreement by failing to respond to the grievants' request for reclassification of their positions "constitutes the required finding that the [g]rievants have been affected by an unjustified or unwarranted personnel action of the Agency." Id. at 18. He concluded that "the Agency engaged in unjustified and unwarranted personnel 'inaction' which caused the [g]rievants to suffer financial harm." Id. at 19. He further found that but for the Agency's unjustified and unwarranted failure to comply with the agreement, the Agency would have classified the grievants as GS-6. As his award, the Arbitrator ordered the Agency to raise the grievants' grade level to GS-6 retroactive to August 2, 1992. He also awarded the grievants backpay with interest "beginning with the fo[u]rth pay period following August 2, 1992, the date [on which] the Agency should have rendered a decision." Id. at 20.
III. Section 7121(c)(5) of the Statute
A. Positions of the Parties
1. The Agency
The Agency contends, among other things, that the award is contrary to section 7121(c)(5) of the Statute because the Arbitrator considered and decided a classification issue over which he had no jurisdiction.(2) The Agency cites numerous decisions of the Authority holding that position classification decisions that do not result in a demotion or loss of pay are not grievable and arbitrable. The Agency states that in this case, "the Arbitrator has unabashedly reclassified [Agency] police positions from GS-5 to GS-6." Exceptions at 10. The Agency notes that the Arbitrator heard testimony from police officers concerning the duties they performed and compared those duties with the Agency's Factor Evaluation System. The Agency maintains that the Arbitrator determined that the grievants' GS-5 positions should be reclassified at the GS-6 level. The Agency asserts that the award concerns the classification of the grievants' positions and "clearly violates section 7121(c)(5), the cited cases, and [the collective bargaining agreement]." Id. at 11.
2. The Union
The Union denies that the Arbitrator's award is deficient and contends that the Agency is merely disagreeing with the Arbitrator's statement of the issue, which he framed in the absence of a stipulation of the issue by the parties. The Union asserts that the Arbitrator properly found that the grievants were entitled to an increase in grade to GS-6 with backpay as compensation for the Agency's unwarranted and unjustified personnel action in failing to render a decision on the grievants' classification appeal within the time limits negotiated in the parties' collective bargaining agreement.
The Union contends that the Agency had reclassified the grievants' positions to GS-6 as evidenced by testimony presented at the hearing. Referring to a memorandum from the former police chief, attached to the Agency's exceptions as Exhibit 5, the Union maintains that the Agency's personnel office "participated with the former Chief of Police in classifying the police officer positions to a grade GS-6 based on the duties the police officers were actually performing." Opposition at 3. The Union states that testimony by one of the grievants at the hearing "revealed that the Associate Medical Center Director directed and required that the police officer position description, which justified the GS-6 grade, be rewritten and modified at least two times in order to eliminate the higher grade[-]controlling duties." Id.
Finally, the Union contends that the Agency's exceptions provide no basis for finding the award deficient because they rely on new evidence that was not presented to the Arbitrator at the hearing. The Union contends that the hearing was held on November 4, 1992, and the Agency's final action on the grievants' classification appeal was not issued until November 22, 1992. The Union asserts that "[t]he final classification action would therefore be classified as either new evidence which was not introduced into evidence during the hearing or evidence which came into existence only since the arbitration hearing." Id. at 6.
B. Analysis and Conclusions
We conclude that the Arbitrator's award is deficient because the award concerns a classification matter that is not grievable and arbitrable under section 7121(c)(5) of the Statute. Section 7121(c)(5) provides that any grievance concerning "the classification of any position which does not result in the reduction in grade or pay of an employee" must be excluded from a negotiated grievance procedure under the Statute. As relevant here, classification of a position is defined as "the analysis and identification of a position and placing it in a class under the position-classification plan established by [the Office of Personnel Management] under chapter 51 of title 5, United States Code." 5 C.F.R. § 511.101(c). Where the substance of a grievance concerns the grade level of duties assigned to and performed by the grievant, the grievance concerns the classification of a position within the meaning of section 7121(c)(5) of the Statute. See, for example, U.S. Department of the Air Force, Scott Air Force Base, Illinois and National Association of Government Employees, Local R7-23, 38 FLRA 32, 36 (1990). Compare U.S. Department of the Army, Fort Polk, Louisiana and National Association of Government Employees, Local R5-168, 44 FLRA 1548, 1552 (1992) (arbitrator did not reclassify grievant's position in settling claim that she was entitled to retroactive temporary promotion).
The grievance in this case specifically concerned the grievants' claim before the Arbitrator that the Agency had unduly delayed responding to a request for reclassification of their positions and that their positions should be reclassified at a higher grade. In his award, in addition to finding that the Agency had violated the parties' agreement by its delay in responding to the grievants' classification appeal, the Arbitrator determined that the grievants' positions should be classified at the higher grade. The Arbitrator specifically examined the duties of the GS-5 police officer position