52:1378(130)AR - - NFFE Local 1827 and DOD, Defense Mapping Agency, Aerospace Center, St. Louis, MI - - 1997 FLRAdec AR - - v52 p1378



[ v52 p1378 ]
52:1378(130)AR
The decision of the Authority follows:


52 FLRA No. 130

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 1827

(Union)

and

U.S. DEPARTMENT OF DEFENSE

DEFENSE MAPPING AGENCY

AEROSPACE CENTER

ST. LOUIS, MISSOURI

(Agency)

0-AR-2773

_____

DECISION

April 30, 1997

_____

Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Thomas J. Erbs 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 Regulations. The Agency filed an opposition to the Union's exceptions.

The Arbitrator denied a grievance seeking backpay for the Agency's alleged delay in the reclassification of the grievants' positions. We conclude that the Union has failed to establish that the award is deficient. Accordingly, we deny the exceptions.

II. Background and Arbitrator's Award

The seven grievants occupied GS-5 cartographic clerk positions that were assigned to the Mapping and Charting Department, Product Services Division Acquisition and Service Branch. In July 1993, upon the grievants' request, the Agency conducted a position audit of the positions they occupied. The results of that audit established that the GS-5 cartographic clerk positions qualified for reclassification as GS-6 library technician positions. After eleven months had elapsed, the Union became aware of the results of the position audit, and filed a grievance seeking to force the reclassification of the seven positions and backpay. The Union alleged, among other things, that the Agency violated DMA Instruction 1414.1, which pertains to position reclassifications, and Article 34 of the parties' collective bargaining agreement, which pertains to employee details and temporary promotions, by failing to reclassify the grievants' positions. The Union also alleged that the Agency's conduct resulted in de facto temporary promotions of the grievants. While the grievance was pending, the Agency "prospectively" reclassified the grievants' positions to GS-6 library technician positions, effective September 1994. Award at 8. However, the Agency denied the Union's request for backpay on the ground that backpay is not available as a remedy for a classification grievance. When the grievance was not resolved, it was submitted to arbitration.

By agreement of the parties, a bifurcated arbitration process was established to resolve the dispute and the Arbitrator issued two awards. In a preliminary award, the Arbitrator ruled that the grievance was arbitrable, and, in this connection, stated the following:

It may well be that the Union's case on the merits will end up confirming the Employer's claim that the Union has really sought reclassification from the outset and only argued a temporary promotion as a subterfuge to claim back pay in a situation in which it is not warranted. Or it may be that the Union has enough evidence, beyond what has been presented, to carry its burden of proof that it is a bona fide temporary promotion issue as to the back pay.

Exceptions, Enclosure 5 at 16. The parties did not file exceptions to the finding of arbitrability.

In the second award, the Arbitrator noted that the parties had not submitted the issues for arbitration, and framed the issue before him as follows:

Are the Grievants entitled to back pay for the period from July 1993 to September 1994 under the facts and circumstances of the instant case? And if so, what is the appropriate remedy?

Award at 16-17.

The Arbitrator stated that the "Union must establish that a de facto temporary promotion occurred on facts apart from its proof establishing the Grievants' right to permanent reclassification." Id. at 19. The Arbitrator posited that if he were a judge, rather than an arbitrator, the Agency's admission that employees deserved a promotion, along with proof that the employees had in fact performed work that justified a promotion, might give rise to an equitable remedy. He pointed out that, in contrast, his authority as an arbitrator derives solely from "the contractual and statutory scheme[.]" Id. at 18.

The Arbitrator cited testimony by the grievants at the arbitration hearing disputing the grade level of the duties that had been assigned to their GS-5 cartographic clerk positions and requesting backpay for an alleged delay in the reclassification of those positions. He found, based on that testimony, that the grievance sought the reclassification of the grievants' positions, and that the record testimony failed to establish "all elements of a temporary promotion." Id. at 19. He stated that the "temporary promotion theory" on which the Union relied was "nothing more than a claim of retroactive reclassification by another name." Id. Thus, he concluded that the grievance concerned a classification matter that was precluded by section 7121(c)(5) of the Statute and that he was "without authority to award the relief sought." Id. at 20. Accordingly, he denied the grievance.

III. Positions of the Parties

A. Union's Contentions

The Union contends that the Arbitrator was precluded from addressing the classification issue by his determination in the preliminary award that the grievance concerned only a temporary promotion matter. The Union adds that the classification issue was rendered moot because the Agency reclassified the grievants' positions while the grievance was pending. In support, the Union cites U.S. Department of the Army, Fort Polk, Louisiana and National Association of Government Employees, Local R5-168, 44 FLRA 1548 (1992) and U.S. Department of the Air Force, Warner Robins Air Force Logistics Center, Robins Air Force Base, Georgia and American Federation of Government Employees, Local 987, 37 FLRA 155 (1990).

Further, the Union contends that the grievants were seeking, under Agency regulation DMA Instruction 1407.1, backpay for a temporary promotion and that the Arbitrator erred, in violation of that regulation, by concluding that the grievance concerned a classification matter within the meaning of section 7121(c)(5) of the Statute. The Union asserts that DMA Instruction 1407.1 prohibits the Agency from assigning "higher graded" work prior to the temporary promotion of an employee.(1) Exceptions at 7-8, 12. According to the Union, the Arbitrator erred in stating that the Union has the burden to demonstrate that the grievants received de facto temporary promotions on facts that are different from those that would establish the grievants' right to reclassification of their positions. The Union adds that the Arbitrator's statements relating to judicial proceedings improperly required the Union to establish proof of an admission by the Agency that the grievants had performed higher-graded duties and proof that those promoted had been performing the same work prior to promotion.

Furthermore, the Union contends that the Arbitrator's finding that the grievance sought the reclassification of the grievants' positions was based on testimony by the grievants that was "not material." Id. at 9. The Union asserts that other testimony by the grievants and the wording of the grievance established that the grievance concerned a temporary promotion matter.

B. Agency's Opposition

The Agency maintains that the Arbitrator was not precluded from addressing the classification issue by his arbitrability determination or because that issue became moot. The Agency states that "[t]here is no shared nucleus of facts" between a temporary promotion action and a reclassification action. Opposition at 17. Further, the Agency contends that the Arbitrator did not err in concluding that the grievance concerned a classification matter. In addition, the Agency asserts that the Union's reliance on DMA Instruction 1407.1 is misplaced. The Agency argues that this regulation, and the parties' collective bargaining agreement, provide for a temporary promotion only when an employee is detailed to a different position.

IV. Analysis and Conclusions

A. The Arbitrator Did Not Exceed His Authority by Addressing an Issue Not Submitted to Arbitration or an Issue That Was Moot

We construe the Union's claim that the award is deficient because the Arbitrator was precluded from addressing the classification issue as a contention that the Arbitrator exceeded his authority.

Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority or award relief to those not encompassed within the grievance. American Federation of Government Employees, Local 1617 and U.S. Department of the Air Force, San Antonio Air Logistics Center, Kelly Air Force Base, Texas, 51 FLRA 1645, 1647 (1996). It is well established that, in the absence of a stipulated issue, an arbitrator's formulation of the issues is accorded substantial deference. See American Federation of Government Employees, Local 916 and Defense Distribution Depot, Oklahoma City, Oklahoma, 50 FLRA 244, 246-47 (1995) (Defense Distribution Depot).

The Union has failed to establish that the Arbitrator addressed an issue not before him when he concluded that the grievance concerned a classification matter. There is no evidence to support the Union's claim that the Arbitrator found in his arbitrability determination that the grievance concerned solely a temporary promotion matter. Indeed, he expressly stated that the case on the merits might "end up confirming the Employer's claim that the Union has really sought reclassification from the outset and only argued a temporary promotion as a subterfuge to claim back pay in a situation in which it is not warranted." Exceptions, Enclosure 5 at 16.

We also reject the Union's contention that the reclassification of the grievants' positions while the grievance was pending rendered the classification issue moot and, therefore, that the issue was not before the Arbitrator. As the reclassification of the grievants' positions was prospective in nature, there is no basis on which to conclude that it affected whether the grievants were entitled to retroactive temporary promotions. Moreover, the Agency disputed the grievants' entitlement to backpay on the ground that it was not available as a remedy for a grievance involving classification. Thus, in order to determine whether the grievants were entitled to backpay, the Arbitrator was required to resolve whether the grievance concerned the classification of their positions within the meaning of section 7121(c)(5) of the Statute. Therefore, the Arbitrator did not exceed his authority by considering the classification issue. E.g., Defense Distribution Depot, 50 FLRA at 247 (Authority rejected exception that the arbitrator exceeded his authority by addressing an issue that had been rendered moot). In this regard, we note that the Authority decisions on which the Union relies are not applicable to this case as they do not address an arbitrator's authority or the mootness of an issue raised in a grievance. Accordingly, we deny this exception.

B. The Award Is Not Contrary to Agency Regulations

Section 7122(a)(1) of the Statute provides that an arbitration award will be found deficient if it conflicts with any rule or regulation. For purposes of 7122(a)(1), the Authority has defined rule or regulation to include both Government-wide and governing agency rules and regulations. U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186, 195 (1990). In circumstances where a party's exceptions involve an award's consistency with law, rule, or regulation, we must review the questions of law raised by the arbitrator's award and the party's exceptions de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)).

The Union's assertion that DMA Instruction 1407.1 prohibits the Agency from assigning higher-graded work prior to a temporary promotion is misplaced. The portion of the regulation relied on by the Union does not compel a temporary promotion when an employee is assigned higher-graded duties. See note 1, supra. Instead, it concerns the requisite notice for employees when they are assigned such duties. Further, DMA Instruction 1407.1-1 makes it clear that DMA Instruction 1407.1 applies only when an employee is detailed to a "different" position.(2)    As found by the Arbitrator, the grievants disputed the grade level of the duties that had been assigned to the GS-5 cartographic clerk positions that they already occupied. Thus, we conclude that the Union's exception does not provide a basis for finding the award deficient under section 7122(a)(1) of the Statute, as inconsistent with an agency regulation. Accordingly, we deny this exception.

C. The Arbitrator Did Not Impose an Improper Burden of Proof on the Union

We reject the Union's contention that the award is deficient on the ground that the Arbitrator erred in stating that the Union had the burden to demonstrate that the grievants received de facto temporary promotions on facts that were different from those that would have established the grievants' right to reclassification of their positions. 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 law, rule, regulation, or as failing to draw its essence from the agreement. American Federation of Government Employees, Local 2250 and U.S. Department of Veterans Affairs, Medical Center, Muskogee, Oklahoma, 52 FLRA 320, 323-24 (1996). However, in the absence of a specified standard of proof, arbitrators have the authority to establish whatever standard they consider appropriate, and the Authority will not find an award deficient because a party claims that an incorrect standard was used. Id. at 324. Moreover, unless otherwise provided, establishing the standard encompasses specifying which party has the burden of proof under the established standard. Id.

In this case, the Union has failed to demonstrate that the Arbitrator was required to apply a prescribed standard. Therefore, in the absence of any established burden of proof, there is no basis to conclude that the Arbitrator erred by stating that the burden was on the Union to prove that the grievants had received de facto temporary promotions. Furthermore, insofar as the Arbitrator's statements could be read to concern the Union's burden of proof in judicial proceedings, those statements were clearly dicta and could not provide a basis on which to find the award deficient. E.g., American Federation of Government Employees, Local 1668 and U.S. Department of the Air Force, Elmendorf Air Force Base, Anchorage, Alaska, 51 FLRA 714, 719 (1995) (comments or dicta are statements separate from the award and exceptions thereto provide no basis for finding an award deficient). Accordingly, we deny this exception.

D. The Arbitrator Did Not Err in His Evaluation of the Evidence

The Union claims that the Arbitrator disregarded certain testimony that supported its position and drew conclusions that do not comport with the evidence. However, disagreement with an arbitrator's evaluation