53:1149(91)AR - - Tidewater Virginia Federal Employees Metal Trades Council and Navy, Norfolk Naval Shipyard, Portsmouth, Virginia - - 1998 FLRAdec AR - - v53 p1149



[ v53 p1149 ]
53:1149(91)AR
The decision of the Authority follows:


53 FLRA No. 91

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

TIDEWATER VIRGINIA FEDERAL EMPLOYEES

METAL TRADES COUNCIL

(Union)

and

U.S. DEPARTMENT OF THE NAVY

NORFOLK NAVAL SHIPYARD

PORTSMOUTH, VIRGINIA

(Agency)

0-AR-2847

_____

DECISION

January 9, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.(1)

Decision by Chair Segal for the Authority.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrators Edwin H. Rayson, Robert W. Kilroy, and William M. Edgett 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 Arbitrators (the panel) denied a grievance challenging the Agency's application and use of reduction in force (RIF) procedures that resulted in the grievants' separation.(2) For the following reasons, we conclude that the Union has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.

II. Background and Arbitrators' Award

The grievants, Marine Machinery Mechanics assigned to the Norfolk Naval Shipyard (NNS) Mechanical Shop Group, were separated when the Agency conducted a RIF in October of 1993. NNS is a "component of the Naval Sea Systems Command" (NavSea) of the Department of the Navy. Award at 2.

Prior to 1991, the Marine Machinery Mechanics in the Mechanical Shop Group occupied two job descriptions:

JD 02588 Marine Machinery Mechanics WG-5334-10-0000
JD 02589 Marine Machine[ry] Mechanic[s] WG-5334-10-0000.

Id. at 5-6. The employees in JD 02588 performed duties in non-nuclear environments, and the employees in JD 02589 performed duties "on ship nuclear propulsion equipment and . . . interface items aboard nuclear vessels." Id. at 5. Employees in both positions (hereinafter the "0000 positions") completed apprenticeship programs or were certified by other education or experience. With respect to the employees in the 0000 positions identified by JD 02589, course requirements were attached to the position description but were not required prior to assignment. Additionally, there was no requirement that employees complete "a minimum amount of time utilizing nuclear skills" prior to assignment. Id.

In May 1990, NavSea issued guidelines for retaining critical nuclear production skills and mandated that each shipyard establish separate competitive levels for nuclear positions.(3) Thereafter, in January 1991, NNS created two additional position descriptions for Marine Machinery Mechanics in the Mechanical Shop Group:

JD 02966 Marine Machinery Mechanic WG-5334-10-PNUC
JD 02967 Marine Machinery Mechanic WG-5334-10-OREF

Id. at 6. Both positions (hereinafter the "PNUC/OREF positions") required NavSea training, experience, and certification prior to assignment. Rather than including the specific requirements in the position descriptions, NNS classifiers attached a "statement of difference" to the job descriptions outlining the NavSea training and job skill requirements for the PNUC/OREF positions.(4)

The training required for individuals in the PNUC/OREF positions consisted of more than 150 hours of course work and greater than 160 hours of on-the-job trade skills. Compliance with the course work and job skill training was tracked by supervisors. Individuals taking classes and attaining on-the-job skills were placed on a list until qualified for the PNUC/OREF positions. Employees not meeting the PNUC/OREF position qualifications remained in their 0000 positions, even if they had previously performed nuclear work.

In 1993, the Agency conducted a RIF. The grievants, employees in the 0000 positions, were released from their competitive level. Less tenured employees in the PNUC/OREF positions were retained because they occupied a separate competitive level from the employees in the 0000 positions.

The Union filed a grievance alleging that the grievants had been improperly separated because they were entitled to retreat to the PNUC/OREF positions under the parties' MOA and applicable regulations. The parties were unable to resolve their dispute and the matter was submitted to a panel for arbitration. In the absence of a stipulation by the parties, the panel framed the issues as follows:

1. As to all grievants[,] did the Agency fail to conduct the RIF in accordance with applicable statutes, rules and regulations, or, in violation of the M[emorandum] O[f] A[greement] [MOA] dated June 16, 1993?

2. If so, what is the remedy?

Id. at 22.

Before the panel, the Union claimed that the parties' MOA expressly gave employees in the 0000 positions rights to compete for retention with employees in the PNUC/OREF positions. The Union also argued that under 5 C.F.R. § 351 employees have assignment rights into "positions that are essentially identical." Id. at 21. According to the Union, the PNUC/OREF positions were essentially "shell" designations because any of the grievants could have performed the duties assigned to the PNUC/OREF positions. Id. at 21-22. In addition, the Union asserted that competition between the PNUC/OREF and 0000 positions would not cause undue interruption of the work processes.

The panel concluded that the grievants were properly separated during the RIF. The panel determined that the MOA "merely restate[d]" the existing RIF regulations and did not establish an intent to allow employees in the 0000 positions to compete for retention with employees in the PNUC/OREF positions. Id. at 24-25. The panel also found that "the essential difference in the jobs [was] nuclear training and certification." Id. at 26. In this connection, the panel concluded that the Union "failed to demonstrate [that] the positions [we]re so similar or identical as to be interchangeable without undue interruption." Id. at 25. Relying on U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia and International Federation of Professional and Technical Engineers, Local 1, 49 FLRA 588 (1994) (NNS, Virginia), the panel determined that "there [was] no evidence that any persons claiming assignment rights into the PNUC and OREF [positions] had the training and knowledge to perform [nuclear] work without undue interruption[.]" Award at 27.

As relevant here, the panel also rejected the Union's argument that the Merit Systems Protection Board's (MSPB) decision in Clark v. Department of the Navy, 64 M.S.P.R. 487 (1994) (Clark) was applicable to the facts of this case. Distinguishing Clark from the case before it, the panel stated that, "[a]s precedent in this matter, Clark[] fails," because there was "no evidence" that the grievants previously held the PNUC/OREF positions or "performed essentially identical duties or acquired nuclear skills in other positions." Award at 30-31. The panel also stated that unlike Clark, the Agency in this case did not concede that the grievants in the 0000 positions were qualified for the PNUC/OREF positions. Finally, the panel concluded that Clark could not be used as collateral estoppel against the Agency because the parties in this case were not parties to the Clark decision.

Based on the foregoing, the panel concluded that the Agency's actions were proper and denied the grievance.

III. Preliminary Matter

A. The Agency's Opposition Is Not Properly Before the Authority

The time limit for filing an opposition to exceptions to an arbitration award is 30 days after the date the exceptions are served on the opposing party. See 5 C.F.R. § 2425.1. The date of service is the date the opposition is deposited in the U.S. mail or are delivered in person. See 5 C.F.R. 2429.27(d). A 5-day extension is added to the 30-day time limit for filing the opposition if the exceptions are served by mail. See 5 C.F.R. §§ 2429.22, 2429.27(d). However, the time limit and extension are computed separately and, if either time period would expire on a Saturday, Sunday, or Federal legal holiday, then the period is deemed not to expire until the end of the next workday. See 5 C.F.R. § 2429.21(a). See also U.S. Department of Health and Human Services, Public Health Service, Navajo Area Indian Health Service, Window Rock, Arizona and Laborers' International Union of North America, Navajo Nation Health Care Employees, Local 1376, 52 FLRA 909, 912-913 (1997).

Here, the Union's statement of service establishes that the Agency was personally served with a copy of the exceptions on June 20, 1996. Therefore, applying the 30-day time limit, the Agency's opposition to the Union's exceptions had to be either postmarked by the U.S. Postal Service or received in person at the Authority no later than July 22, 1996 to be considered timely. The Agency's opposition was filed (postmarked) with the Authority on August 28, 1996.

By Order dated September 17, 1996, the Authority directed the Agency to show cause why its opposition should be considered. In its response, the Agency argues that the Authority should consider its opposition timely because the Union did not serve a signed copy of its exceptions on the Agency representative until August 12, 1996. The Union does not challenge the Agency's response.

For the following reasons, the Authority has not considered the Agency's opposition in reviewing the panel's award. First, although the Agency claims that it did not receive a signed copy of the exceptions until August 12, 1996, nothing in the Authority's Regulations requires a party to serve a signed copy of the exceptions on the other parties. Second, even assuming arguendo that the Union did not serve its exceptions on the Agency on June 20, 1996,(5) the Agency concedes that it knew that the Union had filed exceptions with the Authority and, in fact, received a copy of the Union's exceptions by fax no later than July 8, 1996. We note that the Authority's regulations require service to be made by certified mail or in person, see 5 C.F.R. § 2429.27(b); however, the Agency has not shown that it was prejudiced by the manner in which the Union served its exceptions. See, e.g., U.S. Army Transportation Center, Fort Eustis, Virginia and National Association of Government Employees, Local R4-6, 34 FLRA 860, 862 (1990). Therefore, applying the Authority's Regulations to July 8, 1996 as the date of service, the 30-day time limit for filing an opposition expired on August 7, 1996. Accordingly, the Agency's opposition, filed August 28, 1996, is untimely.

IV. The Union's Exceptions

The Union challenges the panel's award on three grounds. First, the Union claims that the panel's decision "failed to draw its essence from the unrebutted facts presented . . . in affidavits." Exceptions at 1. The Union contends that several of the grievants' affidavits "specifically stated that the[] grievants had all the necessary nuclear qualifications, training and had . . . worked . . . performing the same tasks as PNUC competitive level employees prior to being released in the reduction in force." Id.

Second, the Union argues that the panel's failure to find that the grievants were qualified for the PNUC/OREF positions demonstrates that the panel did not read the Union's brief or the grievants' affidavits. According to the Union, the panel's failure to read its brief and supporting affidavits "has the same effect as . . . refusing to hear any testimony from the grievants or not allowing the Union to present a case." Id. at 2.

Finally, the Union asserts that the panel "failed to apply controlling regulations of the [MSPB] case law in . . . reduction in force . . . cases." Id. at 1. The Union argues that, because the grievances were arbitrated in lieu of an MSPB appeal, the panel was "bound by the same rules, procedures and remedies that the MSPB would be bound by if the reduction in force cases were heard before the MSPB, including the established precedents of Board decisions under similar or identical circumstances." Id. Thus, the Union maintains that the panel was required under Clark to find that the PNUC/OREF designations were "shell" positions because they are essentially identical to the 0000 positions.

V. Analysis and Conclusions

A. The Panel's Award Is Not Based On Nonfacts

We construe the Union's claim that the panel's award "fail[s] to draw its essence from the unrebutted facts presented to them by individual grievants" as a claim that the award is based on nonfacts. Id.

To establish that an award is based on a nonfact, the appealing party 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. See U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993) (Lowry). However, the Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties disputed at arbitration. Id. at 594 (citing Mailhandlers v. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)).

The Union's challenge to the panel's finding that the grievants did not possess the necessary nuclear qualifications and training required for the PNUC/OREF classification does not constitute a nonfact. The Union is contesting the panel's determination of a factual matter that the parties disputed at arbitration, that is, whether the grievants were nuclear qualified under the PNUC/OREF job descriptions. Such challenges do not provide a basis for a conclusion that an award is deficient because it is based on a nonfact. See Lowry, 48 FLRA at 594. Because the Union has not established that the award is based on nonfacts, this exception provides no basis for finding the award deficient. Accordingly, we deny this exception.

B. The Panel Conducted a Fair Hearing

The Union alleges that the panel's failure to find that the grievants had the training and knowledge necessary to perform the duties of the PNUC/OREF positions demonstrates that the panel "did not read the Union's brief [and] . . . did not read the grievants' affidavits[.]" Exceptions at 2. According to the Union, "[t]his has the same [a]ffect as . . . refusing to hear any testimony [or] . . . allowing the Union to present a case. Id. We construe this allegation as a claim that the panel failed to conduct a fair hearing.

The Authority will find an award deficient when an arbitrator refuses to hear or consider pertinent and material evidence, or conducts the proceeding in a manner that prejudices a party so as to affect the fairness of the proceeding as a whole. See American Federation of Government Employees, Local 1668 and U.S. Department of the Air Force, Elmendorf Air Force Base, Anchorage, Alaska, 50 FLRA 124, 126 (1995). The fact that an arbitrator conducted a hearing in a manner a party finds objectionable does not support a contention that the arbitrator denied that party a fair hearing. See Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620, 629-30 (1988).

There is nothing in the record demonstrating that the panel acted improperly so as to deny the Union a fair hearing. Contrary to the Union's claims, the record reflects that the panel did consider the Union's brief and supporting affidavits. See Award at 1, 20-22. In fact, by agreement, the panel conducted the arbitration hearing by written submissions. See id. at 1. Therefore, the only means available to the panel to explain and evaluate the Union's position was for the panel to read and consider the Union's brief and supporting exhibits, including the grievants' affidavits. Because the Union has not demonstrated that the panel refused to consider evidence or conducted the hearing in a manner that prejudiced the grievants or affected the fairness of the proceedings, the Union has not established that the panel failed to conduct a fair hearing. Accordingly, we deny this exception.

C. The Panel's Award Is Not Contrary to Law

Although the Union alleges that the panel's award "failed to apply controlling regulations of the [MSPB] case law in . . . reduction in force . . . cases," the Union has not cited any regulation in support of its allegation. Exceptions at 1. However, the Union makes two claims with regard to the panel's award. First, the Union contends that the 0000 and the PNUC/OREF positions are similar enough that the grievants could perform the duties of the PNUC/OREF positions without undue interruption. Second, the Union argues that the grievants should have been permitted to retreat to the PNUC/OREF positions because the positions are essentially identical as determined by the MSPB in Clark.(6)

Based on our reading of the Union's exceptions, and the record as a whole, we construe this exception as a claim that the panel's award is contrary to law on grounds that: (1) the positions were improperly placed in separate competitive levels; and (2) the grievants were denied retreat rights to the PNUC/OREF positions. With regard to the former construction, the Union's exception constitutes a claim that the award is inconsistent with 5 C.F.R. § 351.403. With regard to the latter construction, the Union's exception constitutes a claim that the award is inconsistent with 5 C.F.R. § 351.701(c)(3).(7)

In circumstances where a union's exceptions involve the award's consistency with law, we review the questions of law raised by the union's exceptions and the Arbitrator's award 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)).

1. The Panel's Award Is Consistent With 5 C.F.R. § 351.403

Employees initially (during the first round of competition) compete within a competitive level for retention standing. National Federation of Federal Employees, Local 273 and U.S. Department of the Army, Army Field Artillery Center, Fort Sill, Oklahoma, 47 FLRA 294, 301 (1993) (Fort Sill). As set forth at supra n.3, a competitive level consists of positions in a competitive area that are "similar enough in duties, qualification requirements, pay schedules, and working conditions so that the incumbent of one position could successfully perform the critical elements of any other position upon entry into it, without any loss of productivity beyond that normally expected in the orientation of any new but fully qualified employee." The Authority has stated that:

An employee's ability to perform the duties of a specific position does not establish that the position is interchangeable with another position and belongs in the same competitive level with that position. Rather, the qualifications set forth in the official position description, not the qualifications of an employee, determine the composition of the competitive level.

Fort Sill, 47 FLRA at 301 (citing Estrin v. Social Security Administration, 24 M.S.P.R. 303 (1984)).

Applying the above to this case, it is necessary to compare the official position description for the 0000 positions with the official position description for the PNUC/OREF position to determine whether the qualifications for each position would allow the positions to be interchangeable. It is also necessary to determine whether the positions would be interchangeable without loss of productivity.

Consistent with our determination that the panel's findings are not deficient, see supra at 7-8, and applying those findings here, the statement of difference attached to the PNUC/OREF position descriptions supports the panel's conclusion that there are fundamental distinctions between the qualifications for the 0000 and PNUC/OREF positions. In particular, the statement of difference for the PNUC/OREF positions expressly requires that an employee be NavSea certified prior to placement. See Award at 7. NavSea certification, in turn, requires more than 158 hours of course work and more than 160 hours of on-the-job skills training. See id. at 9. In contrast, no formal training or certification is required for the 0000 positions prior to placement. See id. at 5. Although the Union argues that certain employees have completed nuclear course work and on-the-job training, the skills and abilities of individual employees are not relevant under this analysis. See Fort Sill, 47 FLRA at 301. In addition, the panel found that an employee who was not NavSea certified would be limited in assignments. See Award at 26. The record does not establish that the incumbent of a 0000 position could successfully perform the critical elements of the PNUC/OREF position without any loss of productivity beyond that normally expected of any new but fully qualified employee.

In these circumstances, we conclude that the 0000 positions and the PNUC/OREF positions are not similar enough in qualifications and duties such that the positions are interchangeable without loss of productivity within the meaning of 5 C.F.R. § 351.403(a). Therefore, the positions were properly placed in separate competitive levels consistent with 5 C.F.R § 351.403(a).

2. The Panel's Award Is Consistent with 5 C.F.R. § 351.701(c)(3)

Under 5 C.F.R. § 351.701(c)(3), an employee released from his or her competitive level during a RIF is entitled, during the second round of competition, to retreat to a position that, "[i]s the same position, or an essentially identical [position] previously held by the released employee[.]" A position is "essentially identical" to one previously held if "the two positions are enough alike that they would be placed in the same competitive level if they were in the same competitive area." Evans v. Department of the Navy, 64 M.S.P.R. 492, 495 (1994) (Evans). In addition, the employee "must be qualified" for the position for which retreat rights are asserted. See 5 C.F.R. § 351.701(a); see also 5 C.F.R. § 351.701(c)(3) (requiring that right of retreat be consistent with 5 C.F.R. § 351.701(a)).

Consistent with our conclusion above that the 0000 and the PNUC/OREF positions are not similar enough to be placed in the same competitive level, we find that the 0000 positions and the PNUC/OREF positions are not "essentially identical." See Evans, 64 M.S.P.R. at 495. However, even assuming arguendo that the 0000 positions and the PNUC/OREF positions are essentially identical, the grievants could not retreat to the PNUC/OREF positions unless they were qualified for the positions. See 5 C.F.R. § 351.701(a)(1) (1993). There is no dispute that NavSea certification is a qualification requirement for the PNUC/OREF positions. The panel found that none of the grievants were NavSea certified. Other than the Union's assertions that several grievants had been "nuclear qualified . . . had worked in the Nuclear Program . . . [or] had been [previously] designated . . . PNUC," the record does not disclose that any of the grievants were NavSea certified. Exceptions at 3; Attachments 6-32. Accordingly, the record does not show that the grievants were qualified for the PNUC/OREF positions.

Finally, the MSPB's decision in Clark does not demonstrate that the award is deficient. Although the dispute in Clark also related to PNUC positions, Clark is distinguishable for several reasons. First, Clark involved a dispute over pipefitter and machinist positions, not marine machinery mechanic positions as in this case. Compare Clark, 64 M.S.P.R. at 493-94, with Award at 5-6. Second, in Clark, the Agency conceded both that: (1) the appellants were fully qualified to fill the PNUC positions and had performed all of the duties assigned to the PNUC positions; and (2) there would be no undue interruption if the appellants were allowed to retreat to the PNUC positions. See Clark, 64 M.S.P.R. at 493-94. Here, the Agency does not concede, and the record does not establish, that the grievants were fully qualified for the positions, that the grievants previously held the PNUC/OREF positions, or that there would be no undue interruption if the grievants were allowed to retreat to the PNUC/OREF positions. Therefore, the panel's award is not deficient as inconsistent with Clark.

In these circumstances, the 0000 positions and the PNUC/OREF positions are not essentially identical within the meaning of 5 C.F.R. § 351.701(c)(3). Even assuming arguendo that the positions are essentially identical, there is no evidence demonstrating that the grievants were qualified for the PNUC/OREF positions as required under 5 C.F.R. § 351.701(a). Therefore, the grievants did not have retreat rights to the PNUC/OREF positions under 5 C.F.R. § 351.701(c)(3) and MSPB case law interpreting that provision.

Based on the foregoing, the Union has not established that the panel's award is inconsistent with either 5 C.F.R. § 351.403(a) or 5 C.F.R. § 351.701(c)(3) and MSPB case law interpreting that regulation. As such, we find that the panel's award is not deficient under section 7122(a) of the Statute, and we deny this exception.

VI. Decision

The exceptions are denied.




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

1. Member Cabaniss did not participate in this decision.

2. By agreement, the parties designated three arbitrators to serve as the arbitration panel to make a final decision and award in this case.

3. During a RIF, employees compete against each other in a competitive level for retention standing. See National Association of Government Employees, Local R3-10 and U.S. Department of Transportation, Federal Aviation Administration, 51 FLRA 1265, 1266 n.3 (1996). As relevant here, 5 C.F.R. § 351.403 (1993) entitled, "Competitive level," provides, in pertinent part:

Each agency shall establish competitive levels consisting of all positions in a competitive area which are in the same grade (or occupational level) and classification series and which are similar enough in duties, qualification requirements, pay schedules, and working conditions so that the incumbent of one position could successfully perform the critical elements of any other position upon entry into it, without any loss of productivity beyond that normally expected in the orientation of any new but fully qualified employee . . . .

4. Where an existing position description is used to create a new position, classifiers may use a "statement of difference" to document the distinctions between the existing position and the new position. Award at 6. The statement of difference is attached to the existing position description, thereby creating a new position description.

5. By Order dated July 10, 1996, the Authority determined that the Union had not complied with the Authority's Regulations concerning service of process on all parties, 5 C.F.R. § 2429.27(a) and (b). Although the Order directed the Union to file a statement of service showing service of process on the Agency's representative, it failed to require the Union to provide proof of service. See 5 C.F.R. § 2429.27(b) (proof of service consists of a return post office receipt or other written receipt executed by the party or person served). Therefore, the record does not contain any evidence of proof of service by the Union.

6. There is no dispute in this case that the Authority should apply MSPB case law in determining whether the award is deficient. Therefore, for purposes of this decision, and consistent with, among others, our recent decision in U.S. Department of the Interior, Bureau of Indian Affairs, Navajo Area Office and National Federation of Federal Employees, BIA Council, 53 FLRA 984 (1997), we examine and apply MSPB precedent.

7. Although we construe the Union's exception as a contention that the award is inconsistent with 5