49:0588(55)AR - - Navy, Norfolk Naval Shipyard, Portsmouth, Virginia and International Association of Professional and Technical Engineers, Local 1 - - 1994 FLRAdec AR - - v49 p588



[ v49 p588 ]
49:0588(55)AR
The decision of the Authority follows:


49 FLRA No. 55

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF THE NAVY

NORFOLK NAVAL SHIPYARD

PORTSMOUTH, VIRGINIA

(Agency)

and

INTERNATIONAL FEDERATION OF PROFESSIONAL AND

TECHNICAL ENGINEERS

LOCAL 1

(Union)

0-AR-2478

_____

DECISION

March 21, 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 Bernard H. Cantor 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. The Agency filed an opposition to the Union's exceptions.

The Agency conducted a reduction-in-force (RIF) in August 1991. Ten employees grieved the actions taken against them in the RIF. The Arbitrator sustained the grievances of seven employees. The Union excepts to that portion of the Arbitrator's award denying the grievances of the other three employees and to the remedy awarded by the Arbitrator to one of the successful grievants.

For the following reasons, we conclude that the Union has failed to establish that the Arbitrator's award is deficient. Accordingly, we will deny the Union's exceptions.

II. Background and Arbitrator's Award

The Agency decided that it would conduct a RIF in August 1991. On January 15, 1991, as part of its preparation for the RIF, the Agency notified employees of the contents of their personnel files and requested that employees submit any corrections by February 15, 1991. The Agency informed employees that incorrect information in their files could affect their rights in a RIF. The Agency requested that employees correct the information in their personnel files so that it could properly identify, under applicable RIF regulations: (1) the employee with the lowest retention standing in a particular competitive level; (2) the jobs into which a displaced employee was entitled to "bump"; and (3) the jobs into which a displaced employee might be entitled to be placed based on his or her prior work in that position. Award at 4.

After the RIF was implemented, the grievances of ten employees challenging the actions taken against them in the RIF were submitted by the Union to arbitration. As relevant to the exceptions in this case, the Arbitrator stated that the issues presented by the grievances concerned: (1) the correctness of employees' position descriptions; and (2) the proper identification of competitive levels and assignment rights.

As to the first issue, the Arbitrator found that the Agency maintained position descriptions that were sufficient to meet the requirements of the parties' agreement. The Arbitrator also found that the position descriptions maintained by the Agency were sufficient to meet the requirement of Federal Personnel Manual (FPM) Supplement 351-1, subchapter 3-3.a.(2) that actions during a RIF be based on employees' official position descriptions, rather than on employees' performance levels or personal qualifications.(1)

Concerning the second issue, the Arbitrator stated that, under applicable RIF regulations, competitive levels must include those positions that would allow employees to move from one position to another within a 90-day adjustment period.(2) The Arbitrator also stated that, as to competitive levels, the issue is the interchangeability between jobs and that the assignment of the proper level is a factual, not a subjective, determination.

As to the individual grievances, the Union claimed before the Arbitrator that the position descriptions of grievants Freeman and Johnson were inaccurate. In particular, the Union claimed that if the additional duties performed by those grievants had been included in their official position descriptions, the grievants would have been placed in different competitive levels and would not have been adversely affected by the RIF. The Arbitrator noted that Freeman had been part of an upward mobility program since 1982 and that, because she had performed more advanced work, her supervisor had requested that her position be reclassified. However, the Arbitrator found that, at the time of the RIF, Freeman had not been placed in a higher position and he concluded that the facts in her case did not provide a basis for relief.

As to grievant Johnson, the Arbitrator found that although she, like Freeman, performed duties which were outside of her position description, her job classification had not been changed. The Arbitrator found that the work which Johnson was doing was "roughly within the scope of her [p]osition [d]escription" and concluded that the facts in her case also did not provide a basis for relief. Award at 15.

The Arbitrator found that grievant Barnhill was "bumped" from his position when Freeman was released from her position.(3) Id. at 16. The Arbitrator also found that the Barnhill grievance in substance concerned the accuracy of Freeman's position description because the Union claimed that Barnhill would not have been "bumped" from his position by the RIF if Freeman's position description had been accurate and Freeman had been placed in a different competitive level. Id. The Arbitrator concluded that Barnhill's interest in the Freeman position description was "remote" and he denied Barnhill relief. Id.

According to the Arbitrator, grievant Hollier claimed that he had assignment rights into the Nuclear Mechanical Systems Inspector position. The Arbitrator found that the Nuclear Mechanical System Inspector position "required a present and immediate knowledge of nuclear techniques" and that Hollier "had not been in that area for a period of time" and was "now deficient in the training and knowledge necessary to handle" that job. Id. at 20. The Arbitrator concluded, on that basis, that no relief could be awarded Hollier with respect to the Nuclear Mechanical Systems Inspector position.

III. Positions of the Parties

A. Union's Exceptions

The Union contends that the Arbitrator's award is deficient under section 7122 of the Statute because it is inconsistent with 5 C.F.R. § 351.505 and FPM Supplement 352-1, A-1a to A-1(b)(5).(4) According to the Union, by finding that the position descriptions of Freeman and Johnson were sufficiently accurate for purposes of placing those grievants in the proper competitive level, the Arbitrator failed to require the Agency to comply with the requirements of 5 C.F.R. § 351.505 and FPM Supplement 351-1 that an accurate position description be used to determine employees' competitive level.

The Union argues that more than half of the work assigned to Freeman and Johnson was not included in their position descriptions. In particular, the Union notes that the Arbitrator found that the additional duties performed by Freeman were performed as part of an upward mobility program. The Union claims that Freeman was not in the upward mobility program at the time of the RIF and argues that, to the extent that the Arbitrator's award is based on the finding that she was in that program, the award is based on a nonfact. As to Johnson, the Union claims that the award is deficient because the Agency failed to maintain an accurate position description as required by applicable regulations. The Union claims that the Arbitrator's award as to grievant Barnhill is deficient because the award as to Johnson is deficient.

Finally, the Union contends that, in determining that grievant Hollier would be unable to fill the Nuclear Mechanical Systems Inspector position without undue interruption because he did not have a present and immediate knowledge of nuclear techniques, the Arbitrator applied a standard that was inconsistent with 5 C.F.R. § 351.702 and FPM Supplement 351-1, subchapter 2-1.v. According to the Union, the Arbitrator was only required to determine whether grievant Hollier would be able to perform the duties of that position within 90 days. The Union claims that the evidence presented demonstrated that persons without experience could be trained for the position in less than 90 days.

B. Agency's Opposition

The Agency claims that, although the Arbitrator noted inaccuracies in the position descriptions of Freeman and Johnson, the Arbitrator did not find that those inaccuracies affected the RIF actions involving those grievants. Rather, according to the Agency, the Arbitrator specifically noted that the duties performed by Johnson were roughly within the scope of her position description. In addition, the Agency claims that the Arbitrator applied the correct legal standard in resolving issues as to the grievants' position descriptions. The Agency argues that the Arbitrator correctly found that the RIF actions should be based on the grievants' official positions. The Agency also argues, citing Estrin v. Social Security Administration, 24 MSPR 303 (1984) (Estrin), that an agency is not obligated under 5 C.F.R. Part 351 to classify an employee's position properly before conducting a RIF.

As to the Union's contention that the award regarding Freeman was based on a nonfact, the Agency asserts that the Union has not shown that the Arbitrator's possible misstatement as to her status in the upward mobility program was the central fact underlying his award or that it played any role in his decision. Accordingly, the Agency contends that there is no basis for setting aside the award on the grounds that it was based on a nonfact.

As to the award concerning Hollier, the Agency claims that applicable regulations require that, for reassignment to a position during a RIF, an employee must be able to perform the work of that position without undue interruption or loss of productivity beyond that expected of any new, but fully qualified, employee. According to the Agency, the Arbitrator determined that a Nuclear Mechanical Systems Inspector position required present and immediate knowledge of nuclear techniques and that the grievant did not possess that knowledge. The Agency argues that the Arbitrator determined, based on the evidence, that the grievant was not entitled to assignment under the applicable regulations and maintains that the Union is merely arguing with the Arbitrator's conclusion on that point.

IV. Analysis and Conclusions

A. Government-wide Regulation

The Union contends that the Arbitrator's award as to Freeman and Johnson is deficient under section 7122 of the Statute because it is inconsistent with 5 C.F.R. § 351.505 and FPM Supplement 351-1, subpart A-1a to A-1b(5). The Union claims that the award as to Hollier is deficient because it is inconsistent with 5 C.F.R. § 351.702 and FPM Supplement 351-1, subchapter 2-1.v. For the following reasons, we find that the award is not deficient.

1. Freeman and Johnson (5)

We reject the Union's contention that the award is deficient because, contrary to 5 C.F.R. § 351.505 and FPM Supplement 351-1, subparts A-1a to A-1b(5), the Arbitrator did not find that the Agency failed to maintain accurate and current position descriptions for the grievants and that, as a result, the grievants were placed in the wrong competitive levels. Under applicable law and regulation, an employee's competitive level for purposes of determining that employee's rights in a RIF is based on the qualifications set forth in that employee's official position description, not on the employee's skills or abilities. See, for example, National Federation of Federal Employees, Local 273 and U.S. Department of the Army, Army Field Artillery Center, Fort Sill, Oklahoma, 47 FLRA 294 (1993); Estrin, 24 MSPR at 305, 307. Moreover, there is "no requirement under 5 C.F.R. Part 351 or the [FPM] that an agency properly classify an employee's position prior to conducting a RIF." Estrin at 305 (footnote omitted).

The Arbitrator determined that Freeman and Johnson were placed in their competitive levels based on their positions of record. Further, the Arbitrator specifically found that the work being performed by Johnson was within the scope of her position description. We find that the Union has not demonstrated that the Arbitrator's award is inconsistent with 5 C.F.R. § 351.505 and FPM Supplement 351-1, subparts A-1a to A-1b(5) on the ground that the Arbitrator failed to find that the Agency improperly determined the grievant's competitive level based on inaccurate position descriptions. In particular, the Union has not demonstrated that Freeman and Johnson were placed in an incorrect competitive level based on their positions of record or that the Agency was required to reclassify their positions before determining the competitive level of those positions. Consequently, we conclude that the Union has not established that the award is deficient as it pertains to Freeman and Johnson and we will deny the exception. See, for example, U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Falls Church, Virginia and American Federation of Government Employees, Local 3615, 48 FLRA 562, 565 (1993).

2. Hollier

The Union claims that the award is inconsistent with 5 C.F.R. § 351.702 and FPM Supplement 351-1, subchapter 2-1.v because the Arbitrator failed to find that Grievant Hollier could have performed the duties of a Nuclear Mechanical Systems Inspector without undue interruption within 90 days.

Under 5 C.F.R. § 351.403(a), in determining whether an employee may "bump" into another position during a RIF, an agency must determine whether the employee could perform the duties of that position without undue interruption. See, for example, National Treasury Employees Union and Department of Health and Human Services, Region IV, 11 FLRA 254, 257 (1983). The phrase "undue interruption" is defined in FPM Supplement 351-1, subchapter 2-1.v as "a degree of interruption that would prevent the completion of required work within the allowable limits of time and quality, taking into account the pressures of priorities, deadlines, and other demands." FPM Supplement 351-1, subchapter 2-1.v also states that the work of a position "probably would be unduly interrupted if an employee needed more than 90 days after the reduction in force to successfully perform the critical elements of [that] position."

By its terms, FPM Supplement 351-1, subchapter 2-1.v does not require an agency to determine that the work of a position would be unduly interrupted if an employee needed more than 90 days after a RIF to successfully perform the work of that position. Conversely, FPM Supplement 351-1, subchapter 2-1.v does not preclude an agency from determining that the work of a position would be unduly interrupted even if an employee needed less than 90 days to successfully perform the work of that position. Rather, as we interpret FPM Supplement 351-1, subchapter 2-1.v, an agency may determine, based on "the pressures of priorities, deadlines, and other demands," that replacing the incumbent of a position with a qualified employee would result in an undue interruption of the work of the position. See, for example, Laprade v. Department of Transportation, Maritime Administration, 27 M.S.P.R. 277, 283 (1985) (Board found that, given the highly technical and specialized nature of the position, a minimally qualified employee could not perform the duties and responsibilities of that position without undue interruption).

The Arbitrator found that the Nuclear Mechanical System Inspector position required immediate knowledge of nuclear techniques and that Hollier currently was deficient in the training and knowledge necessary to perform the work of that position. Based on that finding, the Arbitrator concluded that Hollier did not have assignment rights to the Nuclear Mechanical System Inspector position. The Union has not demonstrated that the Arbitrator's finding and conclusion is inconsistent with 5 C.F.R. § 351.702 and FPM Supplement 351-1, subchapter 2-1.v. Rather, the Union's exception constitutes mere disagreement with the Arbitrator's evaluation of the evidence, reasoning, and conclusions. Accordingly, we find that the Union's exception provides no basis for finding the award deficient and we will deny the exception.

B. Nonfact

We reject the Union's assertion that the Arbitrator's award as to grievant Freeman is based on a nonfact. 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. For example, U.S. Department of Defense, Dependents Schools, Mediterranean Region and Overseas Federation of Teachers, AFT, AFL-CIO, 47 FLRA 3, 9 (1993).

During his discussion of the duties performed by Freeman, the Arbitrator stated that Freeman was in an upward mobility program. The Agency does not dispute the Union's claim that, at the time the Agency assigned the grievant to a competitive level, the grievant was not in an upward mobility program. However, the Union has not demonstrated that the Arbitrator's finding as to the grievant's status in an upward mobility program constitutes the central fact underlying the award, or that but for that finding, the Arbitrator would have reached a different decision. In particular, the Union has not demonstrated that but for the Arbitrator's erroneous finding he would have concluded that Freeman was improperly placed in her competitive level. Therefore, the Union has not demonstrated that the award is based on a nonfact. Accordingly, the Union's exception provides no basis for finding the award deficient and we will deny the exception.

V. Decision

The Union's exceptions are denied.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. We note that although the FPM was abolished effective December 31, 1993, certain provisions were retained, including, as relevant to this case, FPM Supplement 351-1, subchapter 3-3.a.(2) and other provisions of that supplement relied on by the parties. See FPM Sunset Document, Chapter Summary Sheet at 54.

2. Positions in a competitive level are interchangeable so that employees moving from one position to another position may perform the critical elements of the new position "without any loss of productivity beyond that normally expected in the orientation of any new but fully qualified employee." 5 C.F.R. § 351.403(a).

3. The Arbitrator stated that Barnhill was "bumped" from his position by Freeman. However, the parties state that Barnhill was "bumped" by Johnson. See Exceptions at 4; Response at 2. We note that, regardless of which grievant "bumped" Barnhill, the issue before the Arbitrator was whether Barnhill would have been "bumped" if Freeman and Johnson properly had been placed in a different competitive level.