52:0710(69)AR - - HHS, Region X, Seattle, WA and NTEU - - 1996 FLRAdec AR - - v52 p710



[ v52 p710 ]
52:0710(69)AR
The decision of the Authority follows:


52 FLRA No. 69

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

REGION X, SEATTLE, WASHINGTON

(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION

(Union)

0-AR-2840

_____

DECISION

December 19, 1996

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator M. Zane Lumbley, 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 Regulations. The Union filed an opposition to the Agency's exceptions.

The Arbitrator awarded backpay with interest to remedy a grievance alleging that the Agency violated the parties' collective bargaining agreement by detailing two grievants to higher-graded positions, and failing to temporarily promote them to the higher grades.

For the following reasons, we conclude that the award is not deficient under section 7122(a) of the Statute. Accordingly, we deny the Agency's exceptions.

II. Background and Arbitrator's Award

The Union filed a grievance claiming that the grievants had performed GS-13 duties since 1988 while being paid at the GS-12 level. The grievance requested, inter alia, that the grievants be promoted immediately to the GS-13 level and that they be provided backpay retroactive to 1988. The grievance was denied at Step I on the grounds that it concerned a classification matter, a subject excluded from the grievance procedure by Article 58, Section 3(E) of the agreement.(1) The grievants later filed a "reconstituted" grievance under Article 58, Section 5(G) of the agreement.(2) Here, the grievants raised the additional allegation that the Agency violated Article 18 ("Details"), Sections 1(A) and (D) of the agreement by detailing them to perform higher-graded duties without temporarily promoting them.(3)

The grievance was denied at all levels on the grounds that it was non-arbitrable. While the grievance was being processed, a classification audit was performed on the grievants' positions. As a result of the audit, the grievants were promoted to the GS-13 level in September 1993. Ultimately, the grievance was submitted to arbitration on the following issues: (1) whether the grievance was timely (4); (2) whether the grievance concerned a position classification matter; (3) whether the Agency violated Article 18 of the Agreement by detailing the grievants to higher-graded positions for a period in excess of 30 consecutive days without temporarily promoting them; and (4) what was the appropriate remedy.

The Arbitrator found that, because the alleged violation was "continuing in nature," the grievance was timely filed, even though it was not filed within 15 days of the date the grievants first became aware of the violation. Award at 14. In addition, the Arbitrator found that the dispute did not concern a classification matter. Rather, the Arbitrator opined, the grievance concerned the Agency's alleged failure to temporarily promote the grievants and to pay them in accord with such temporary promotion during periods when they had been detailed to higher-graded positions.

Next, the Arbitrator found that the Agency violated Article 18 of the agreement by detailing the grievants to higher-graded positions for more than 30 consecutive days without temporarily promoting them. The Arbitrator found that the grievants had performed GS-13 level duties beginning as early as July of 1989 and continuing until they received permanent promotions. In making this determination, the Arbitrator construed Article 18, Section 1 of the agreement to mean that no formal assignment for a specified duration was necessary to effectuate a detail, deferring in this regard to another arbitrator's opinion in a prior case involving these same parties and the same issues.(5) The Arbitrator opined that application of the doctrine of issue preclusion prevented the Agency from challenging the issue of whether a formal assignment for a specified duration was necessary to effectuate a detail.

Based on the foregoing, the Arbitrator sustained the grievance. As a remedy the Arbitrator found that the grievants were entitled to retroactive, temporary promotions to the GS-13 level, as required by Article 18, Section 1 of the agreement.(6)

IV. Positions of the Parties

A. Agency's Exceptions

The Agency takes exception to the Arbitrator's award on four grounds. First, the Agency asserts that the Arbitrator incorrectly found that, because the violation was "continuing in nature," the grievance was timely filed. The Agency contends that, in making that finding, the Arbitrator did not properly apply Article 58, Section 6 of the agreement. Second, the Agency contends that the award is contrary to section 7121(c)(5) of the Statute because the grievance concerns the question of whether the grievants' positions were accurately classified.

Third, the Agency contends that the award fails to draw its essence from the parties' agreement. In particular, the Agency argues that the award violates Article 18, Section 1, of the agreement because the Agency did not detail the grievants to higher-graded positions. Moreover, the Agency asserts that the Arbitrator incorrectly applied the doctrine of issue preclusion in deferring to the Anvari award, insofar as it held that no formal assignment for a specified duration was necessary to effectuate a detail. Finally, the Agency contends that, even if the grievance was timely filed, the award should be modified to exclude backpay for any period prior to 15 days before the filing of the reconstituted grievance. According to the Agency, the Arbitrator's ruling to the contrary fails to draw its essence from the agreement.

B. Union's Opposition

The Union contends that the Agency's exception to the Arbitrator's determination that the grievance was timely filed is a challenge to the Arbitrator's procedural arbitrability determination and, on that basis, should be denied. Further, the Union asserts that the Arbitrator did not classify the duties performed by the grievants. According to the Union, the Arbitrator simply determined, as an evidentiary matter, the duties that were assigned to and performed by the grievants, and evaluated those duties based on existing position descriptions. In addition, the Union maintains that the Arbitrator correctly held that no assignment for a specified period of time was necessary to create a detail, and that the Arbitrator's application of the issue preclusion doctrine was appropriate in this case. Finally, the Union contends that the Agency's exception to the period of time encompassed by the backpay award is a reiteration of the challenge to the Arbitrator's procedural arbitrability determination.

V. Analysis and Conclusions

A. The Arbitrator's Timeliness Determination is not Deficient

Awards resolving questions of procedural arbitrability are subject to challenge only on grounds other than those that directly challenge the determination of procedural arbitrability itself. U.S. Department of the Treasury, United States Mint, Philadelphia, Pennsylvania and Fraternal Order of Police, Lodge F1-PA, 51 FLRA 1683, 1685 (1996). Such grounds include bias on the part of the arbitrator or a showing that the arbitrator exceeded his authority. Id. The Agency's contention that the grievance was untimely filed constitutes a challenge to the Arbitrator's determination on the procedural arbitrability of the grievance. As such, it does not provide a basis for finding the award deficient under section 7122(a)(2) of the Statute.

B. The Award is not Contrary to Section 7121(c)(5) of the Statute

As the Agency's exception challenges the award's consistency with law, the Authority must review the questions of law raised by the Arbitrator's award and the Agency's exceptions de novo. E.g., U.S. Department of Justice, Federal Bureau of Prisons, Atlanta, Georgia and American Federation of Government Employees, Council of Prisons Local 1145, 51 FLRA 1422, 1424 (1996) (Local 1145).

Section 7121(c)(5) of the Statute removes from the scope of negotiated grievance procedures and, thereby, bars an arbitrator from resolving, any grievance concerning the classification of a position that does not result in the reduction in grade or pay of an employee. E.g., id. The Authority has construed the term "classification" in section 7121(c)(5) to have the same meaning in 5 C.F.R. §511.101(c), which defines the term as "the analysis and identification of a position and placing it in a class under the position-classification plan established by OPM under chapter 51 of title 5 . . ." Id. (quoting 5 C.F.R. § 511.101(c)). Consistent with this construction, where an arbitrator determines that a grievant is entitled to a temporary or other noncompetitive promotion based on previously-classified duties, the award has been held not to concern a classification matter. U.S. Department of the Air Force, Air Education and Training Command, Randolph Air Force Base, San Antonio, Texas and American Federation of Government Employees, Local 1840, 49 FLRA 1387, 1389 (1994).

The Arbitrator examined the GS-13 and the GS-12 duties, as previously established and classified by the desk audit, and concluded that a position classification was unnecessary to determine whether the grievants were performing the duties of the already established, higher-graded positions. In these circumstances, we conclude that the issue resolved by the Arbitrator was whether the grievants were entitled to temporary promotions for performing the duties of the GS-13 position and not whether the grievant's positions were properly classified. Therefore, the award is not contrary to section 7121(c)(5) of the Statute. See U.S. Department of the Army, Fort Polk, Louisiana and National Association of Government Employees, Local R5-168, 44 FLRA 1548 (1992).

C. The Award that the Agency Violated the Agreement by Failing to Temporarily Promote the Grievants is not Deficient

Article 18, Section 1 of the agreement requires the Agency to temporarily promote employees when it is expected that they will be detailed to a higher-graded position for a period in excess of 30 consecutive days. The Arbitrator found that the grievants' performance of the higher-graded duties was tantamount to the Agency having detailed the grievants to the GS-13 position. The Arbitrator's interpretation of the agreement as requiring temporary promotions of the grievants is not inconsistent with any plain wording of the agreement, and the Agency has not established that the Arbitrator's interpretation and application of the agreement is unfounded, implausible, or irrational. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-77 (1990).

The Agency also has not established that the Arbitrator erred in deferring to the Anvari award insofar as it holds that there is no requirement of an assignment of specified duration in order for the assignment to amount to a detail. In American Federation of Government Employees, Local 2459, and United States Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Texarkana, Texas, 51 FLRA 1602, 1606 (1996) (Prisons), we concluded, for reasons fully stated therein, that the arbitrator's determination that a grievance was not arbitrable because it raised the same issue as resolved in an earlier award, would be accorded the same deference as arbitrators' determinations of procedural arbitrability. Unlike Prisons, the Arbitrator in this case did not rule that the grievance was not arbitrable. However, the effect of the Arbitrator's finding that the previous arbitration between the parties precluded the Agency from relitigating the issue of whether a formal assignment for a specified duration was necessary to effectuate a detail is essentially the same as concluding that, in part, the grievance is not arbitrable. That is, in both situations the arbitrators refused to address the respective issues on their merits. Thus, we conclude that the holding in Prisons applies here and, according the same deference accorded an arbitrator's procedural arbitrability determination, the Arbitrator's decision to apply issue preclusion is not deficient.

D. The Award of Backpay does not Fail to Draw its Essence from the Parties' Agreement

The Arbitrator concluded that the backpay award should commence from July 1989. The Arbitrator explained that although the grievance was not filed within 15 days of the commencement of the performance of the higher-graded duties, application of the continuing violation principle "tolled" the filing period as long as the continuation of the assignments in question proceeded uninterrupted. The Arbitrator's conclusion that the violation was continuing in nature and that the 15-day filing period was tolled is not unfounded, implausible, or irrational. Therefore, the Agency has not demonstrated that the award of backpay commencing from July 1989 fails to draw its essence from the parties' agreement.

VI. Decision

The Agency's exceptions are denied.




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

1. This provision provides that the negotiated grievance procedure does not apply to the classification of any position which does not result in the reduction in grade or pay of an employee.

2. The reconstituted grievance provision provides that when the Employer alleges an issue is non-grievable or non-arbitrable, the grievant will have five workdays to reconstitute the grievance if he/she wishes. Upon reconstitution, the grievance will be resubmitted at the level at which the issue was raised, and proceed as a normal grievance. The Employer reserves the right to challenge grievability.

3. In pertinent part, this provision provides:

Section 1

A. The Employer agrees that where it is expected that an employee will be detailed to a higher graded unit position for a period in excess of 30 consecutive days, the employee will be temporarily promoted to that position effective with the beginning of the first full pay period after serving a full pay period of the detail, providing the employee meets the appropriate qualification standards and other legal and regulatory requirements, such as time in grade.

. . . .

D. A detail is the temporary assignment of an employee to a different position for a specified period, with the employee returning to his/her regular duties at the end of the detail.

Award at 2-3.

4. Article 58, Section 6(A) of the agreement provides, in pertinent part, that "[a] grievance must be initiated within fifteen (15) workdays after the occurrence out of which the grievance arose, or fifteen (15) workdays after the date the aggrieved became aware or should have become aware of the occurrence giving rise to the grievance." Award at 4.