49:0110(16)AR - - VA Medical Center and Laborers' International Union of North America (LINUNA) , Rhode Island Laborers' District Council, Local Union 1056 - - 1994 FLRAdec AR - - v49 p110



[ v49 p110 ]
49:0110(16)AR
The decision of the Authority follows:


49 FLRA No. 16

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF VETERANS AFFAIRS

MEDICAL CENTER

PROVIDENCE, RHODE ISLAND

(Agency)

and

LABORERS' INTERNATIONAL UNION OF NORTH AMERICA

RHODE ISLAND LABORERS' DISTRICT COUNCIL

LOCAL UNION 1056

(Union)

0-AR-2508

_____

DECISION

February 18, 1994

_____

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 Thomas S. Hogan filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations.(1) The Agency filed an opposition to the Union's exceptions.

The Arbitrator found that a grievance was not arbitrable under the parties' collective bargaining agreement and section 7121(c)(5) of the Statute because it concerned the classification of a position. For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The grievant, a GS-9 Psychology Technician, is employed by the Agency at its Providence, Rhode Island Medical Center. The grievant is responsible for various "psychological testing function[s] . . . ." Award at 10. The dispute in this matter arose when the grievant claimed that she was assigned professional responsibilities that were not encompassed within her position description.(2) When the parties could not resolve the dispute, it was submitted to arbitration. There is no evidence that the parties stipulated the issues to be resolved by the Arbitrator.

At the arbitration hearing, the Agency argued that the grievance was not grievable or arbitrable under Article VIII, Section 1 of the parties' collective bargaining agreement and section 7121(c)(5) of the Statute because it concerned the classification of the grievant's position.(3) The Agency also argued that the grievance was not arbitrable because it directly interfered with management's rights under the agreement and the Statute and because it was untimely filed.

The Arbitrator found that in denying the grievance at the final step of the grievance procedure, management agreed not to assign duties to the grievant that were inappropriate to her job classification. As a result, the Arbitrator stated that "it would seem obvious that the grievance has been resolved." Id. at 15.

However, the Arbitrator further found that "assuming that the grievance has not been resolved . . . the heart of this grievance [is] job classification." Id. In reaching this result, the Arbitrator found that, at management's request, the grievant had performed duties outside of her position description for a number of years and that after the grievant received a doctoral degree in 1991, she was assigned duties "that were more appropriately performed by professional employees in the classification of GS[-]11, 12 or 13." Id. at 14. The Arbitrator also examined a memorandum, dated October 21, 1992, which was prepared by the grievant and submitted to the Agency in connection with the processing of the grievance. The Arbitrator found that in the memorandum the grievant requested various remedies, including a recommendation that her position be redescribed and "classified as a GS-11/12/13 professional staff position . . . ." Id. at 11. The Arbitrator further found, based on the memorandum, that the grievant "was seeking a reclassification based upon the nature of her duties which she had been performing since having obtained her [d]octoral [d]egree." Id. at 15.

Based on his findings, the Arbitrator determined that the grievant was seeking a reclassification of her position. Accordingly, the Arbitrator concluded that the grievance was neither grievable nor arbitrable under Article VIII, Section 1 of the parties' agreement and section 7121(c)(5) of the Statute.

III. First Exception

A. Positions of the Parties

The Union argues that the Arbitrator failed to apply the proper burden of proof on the issue of arbitrability. The Union asserts that, because the Agency raised this issue, it was incumbent on the Agency to prove that the grievance was not arbitrable. Instead, the Union claims, the Arbitrator placed the burden of proof on the grievant. The Union also argues that the Arbitrator never analyzed the provisions of the parties' agreement or the Statute on which he relied to find that the grievance was not arbitrable. Rather, the Union asserts that the "crux of the evidence" relied on was the grievant's October 21, 1992 memorandum, which was intended simply as an "offer of settlement." Exceptions at 7 (emphasis omitted).

The Agency argues that it carried the burden of proof and demonstrated that the grievance was not arbitrable. The Agency also argues that the Arbitrator properly examined the parties' agreement and applicable law in reaching his determination and that the Union is merely disagreeing with the Arbitrator's reasoning and conclusions.

B. Analysis and Conclusions

If a standard of proof is set forth in law, rule, regulation, or a collective bargaining agreement, an arbitrator's failure to apply the prescribed standard will constitute a basis for finding the award deficient as contrary to that law, rule, or regulation, or as failing to draw its essence from the agreement. See, for example, United States Customs Service and National Treasury Employees Union, 22 FLRA 607, 608-09 (1986). However, in the absence of a specified standard of proof, arbitrators have the authority to establish whatever standard they consider appropriate, and we will not find an award deficient based on a claim that the arbitrator applied an incorrect standard. See U.S. Department of Veterans Affairs, National Memorial Cemetery of the Pacific and International Association of Machinists and Aerospace Workers, Hawaii Federal Lodge 1998, 45 FLRA 1164, 1171 (1992). Moreover, unless otherwise provided, establishing the standard encompasses specifying which party has the burden of proof under the established standard. Id. at 1171.

In this case, the Union has not demonstrated that law, rule, regulation, or the parties' agreement required the Agency to bear the burden of proof on the issue of arbitrability. Therefore, in the absence of any established burden of proof, the Arbitrator was free to determine which party was required to prove that the grievance was either arbitrable or not arbitrable. While it is not clear from the award that the Arbitrator placed the burden of proof on the grievant, as the Union claims, nothing would prevent the Arbitrator from doing so in this case. Consequently, we find no merit to the Union's claim that the award is deficient because the Arbitrator improperly placed the burden of proof on the grievant. See U.S. Department of the Navy, Naval Aviation Depot, Norfolk, Virginia and International Association of Machinists and Aerospace Workers, Local 39, 36 FLRA 217, 222 (1990) (claim that arbitrator erroneously shifted the burden of proof from the agency to the union provided no basis for finding the award deficient).

In addition, we reject the Union's claim that the award is deficient because the Arbitrator relied solely on the grievant's October 21, 1992, memorandum to support his finding that the grievance was not arbitrable. Essentially, the Union contests the Arbitrator's use of that memorandum, and his findings based thereon, because, in the Union's view, the memorandum was merely an offer of settlement. The award reveals that the Arbitrator did not rely solely on the memorandum in resolving the grievance. Rather, he examined the parties' agreement and the Statute, as well as the memorandum, in reaching his conclusion. In our view, the Union's contention constitutes mere disagreement with the Arbitrator's evaluation of the evidence, and his reasoning and conclusions, and does not provide a basis for finding the award deficient. See American Federation of Government Employees, Local 2204 and U.S. Department of the Army, Fort Hamilton, New York, 46 FLRA 688, 691 (1992).

IV. Second Exception

A. Positions of the Parties

The Union argues that the award is deficient because the grievance related to a pattern of prohibited personnel practices by the Agency and, as such, was arbitrable. In this regard, the Union asserts that the Agency engaged in a "challengeable decision" that is covered under 5 U.S.C. § 2301,(4) because the Agency encouraged the grievant to obtain advanced training and then used that training to the grievant's disadvantage. Exceptions at 9. The Union maintains that the Agency required the grievant to perform the duties of a clinical psychologist, rather than simply the duties of a psychology technician, and that the grievant "has long been carrying the workload of a more highly compensated GS-11 or GS-12 or GS-13." Id. at 10.

The Union also argues that the Agency has engaged in conduct that "looks like retaliation" against the grievant for filing the grievance in this matter. Id. In support of this contention, the Union asserts that the grievant's supervisor changed the grievant's position description and suggested that she find work elsewhere. Also as a part of this exception, the Union argues that Federal Personnel Manual (FPM) chapter 511, subchapter 6-6, provides that the accuracy of an employee's position description is grievable and arbitrable.(5) The Agency refutes the Union's contentions that management engaged in a prohibited personnel practice under 5 U.S.C. § 2301 and that the grievance is arbitrable under FPM chapter 511, subchapter 6-6. As to the FPM, the Agency acknowledges that, under appropriate circumstances, employees may grieve the accuracy of position descriptions and the assignment of duties outside position descriptions. However, the Agency maintains that the grievance here went beyond the scope of the position description and involved job classification, a matter that is not grievable. The Agency also notes that, to the extent the grievant requested a restriction on the duties assigned to her, that request was granted. As to the claimed prohibited personnel practice and retaliation against the grievant, the Agency argues that the Union never presented these contentions in the early steps of the negotiated grievance procedure. Therefore, the Agency asserts that these contentions are untimely under the parties' agreement. The Agency also maintains that it did not violate 5 U.S.C. § 2301 or retaliate against the grievant.

B. Analysis and Conclusions

We find that the Union's contentions do not provide a basis for finding the award deficient.

First, we find that the Union's claim that the Agency retaliated against the grievant, as evidenced by its suggestion that the grievant seek work elsewhere, constitutes mere disagreement with the Arbitrator's ruling on the procedural arbitrability issue of whether the grievance was timely filed. In this connection, the Arbitrator stated that he would not consider the claim because it was not timely presented. Our denial of the Union's exception, which merely disagrees with the Arbitrator's determination of the procedural arbitrability of the grievance, is consistent with Authority precedent and with decisions of the Federal courts in private sector labor relations cases. See, for example, American Federation of Government Employees, Local 1915 and Wm. Jennings Bryan Dorn Veterans Hospital, Columbia, S.C., 32 FLRA 1223, 1225 (1988). See also John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 557 (1964) ("Once it is determined . . . that the parties are obligated to submit the subject matter of a dispute to arbitration, 'procedural' questions which grow out of the dispute and bear on its final disposition should be left to the arbitrator.").

We also reject the Union's claim the grievance was arbitrable because it related to a pattern of prohibited personnel practices. As we stated earlier, there is no evidence in the award that the parties stipulated the issues to be resolved by the Arbitrator. It is well established that in the absence of a stipulated issue, an arbitrator is accorded substantial deference in formulating the issues to be resolved. 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, 819 (1992). Although the Arbitrator did not articulate the precise issue before him, it is clear from a reading of the award that the Arbitrator found that the threshold issue to be decided was whether the grievance was arbitrable under section 7121(c)(5) of the Statute and the parties' agreement. Implicit in that finding is an additional finding that the issue concerning the commission of a prohibited personnel practice was not properly before the Arbitrator for resolution. In our view, the Union's exception constitutes disagreement with the Arbitrator's formulation of the issue, and his resolution of that issue, and provides no basis for finding the award deficient. Id. at 819-20. See also U.S. Department of the Air Force, Air Force Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 47 FLRA 667, 673 (1993) (union failed to establish that arbitrator's conclusion that promotion and backpay issues were not arbitrable because they involved a classification matter was deficient).

Finally, the Union's assertion that the grievance was arbitrable under the FPM also constitutes nothing more than disagreement with the Arbitrator's conclusion that the grievance pertained to a classification matter. Such assertion also does not provide a basis for finding the award deficient. Id.

V. Third Exception

A. Positions of the Parties

The Union argues that the Arbitrator failed to consider relevant Authority precedent and provisions of the Statute that "clearly favor the arbitrability of this dispute[.]" Exceptions at 11. In this regard, the Union argues that, because the parties' agreement contains a management rights clause that delegates to management the right to assign work, the grievance "is arbitrable and deserves to be heard on the merits." Id. In support, the Union cites Marine Corps Logistics Support Base, Pacific, Barstow, California and American Federation of Government Employees, AFL-CIO, Local 1482, 3 FLRA 397 (1980) (Marine Corps Logistics Support Base), for the proposition that nothing contained in the management rights provision of section 7106 of the Statute precludes an arbitrator from reaching the merits of a grievance where there is an allegation that management has violated a particular provision of a collective bargaining agreement. The Union also maintains that the Authority decisions relied on by the Agency at arbitration, which reach a different result, clearly involved classification appeals. In contrast, the Union reiterates its view that the dispute in this case concerns management's "assignment of major duties" that required the grievant "to perform work beyond that allowed by her classification or, better yet, her job description[.]" Exceptions at 14.

The Agency argues that the Union has misconstrued the applicability of Marine Corps Logistics Support Base because this case does not involve an alleged violation of a particular provision of the parties' agreement. Moreover, the Agency argues that the Arbitrator did not rely on section 7106 of the Statute to find the grievance nonarbitrable. The Agency argues that, rather, the Arbitrator found that the grievance involved job classification and, therefore, that it was not arbitrable under Article VIII, Section 1 of the parties' agreement and section 7121(c)(5) of the Statute.

B. Analysis and Conclusions

We construe the Union's exception that the Arbitrator failed to properly consider Authority precedent as a contention that the award is contrary to law. We conclude that the Union has failed to demonstrate that the award is deficient on this basis.

As noted, the parties did not stipulate the issues for resolution by the Arbitrator. Consequently, in the absence of a submission agreement, the Arbitrator had broad discretion to formulate the issues for resolution in this case. Significantly, the Arbitrator did not frame an issue concerning a claimed violation of the management rights provision of the parties' agreement. Therefore, we find that the Union's reliance on Marine Corps Logistics Support Base, for the proposition that the Arbitrator was obligated to address the merits of the grievance is misplaced.

Additionally, and contrary to the Union's assertion, we find that the Arbitrator's award is consistent with pertinent Authority precedent interpreting section 7121(c)(5) of the Statute. That section excludes from the coverage of a negotiated grievance procedure any grievance concerning the classification of any position which does not result in the reduction in grade or pay of an employee. The Authority has upheld a variety of awards in which arbitrators found that grievances were not arbitrable because they concerned, for example, the class and series into which positions should be placed or the grade level of duties assigned to and performed by employees. See, for example, U.S. Department of Defense, Defense Finance and Accounting Service, Indianapolis Center, Indianapolis, Indiana and American Federation of Government Employees, Local 1411, 48 FLRA 1124, 1128-29 (1993); Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, Local 1923, Baltimore, Maryland, 20 FLRA 694 (1985). In this case, as noted, the Arbitrator found that the grievance sought a reclassification of the grievant's position. Thus, the Union's contention that the Arbitrator failed to consider relevant Authority precedent constitutes mere disagreement with the findings and conclusions of the Arbitrator and does not provide a basis for finding the award deficient. See American Federation of Government Employees, National Council of Education Locals, Council 252, Local 2607 and U.S. Department of Education, 43 FLRA 820, 825 (1991).

VI. Fourth Exception

A. Positions of the Parties

The Union claims that the award is deficient because the Arbitrator "misconstrued the facts . . . ." Exceptions at 2.

The Agency argues that it is the Union, rather than the Arbitrator, that is misstating the facts. The Agency also asserts that the Union is merely disagreeing with the Arbitrator's findings and conclusions.

B. Analysis and Conclusions

We construe the Union's contention that the Arbitrator misconstrued the facts as an assertion that the award is based on nonfacts. To establish that an award is deficient on this basis, 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. For example, U.S. Department of the Air Force, Lowry Ai