54:1099(94)AR - - AFGE Local 1592 and Air Force, Hill AFB, UT - - 1998 FLRAdec AR - - v54 p1099



[ v54 p1099 ]
54:1099(94)AR
The decision of the Authority follows:


54 FLRA No. 94

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1592

(Union)

and

U.S. DEPARTMENT OF THE AIR FORCE

HILL AIR FORCE BASE, UTAH

(Agency)

0-AR-2959

_____

DECISION

September 8, 1998

_____

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

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Donald H. Wollett filed by the Union and the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. Each party filed an opposition to the other party's exceptions.

The Arbitrator found that the grievant was placed in an improper competitive level in connection with a reduction-in-force (RIF), because the Agency did not take into account the grievant's actual duties as a full-time union representative in 100% official time status under the parties' Master Labor Agreement (parties' agreement). However, the Arbitrator denied the grievant a remedy.

For the reasons set forth below, we conclude that the award is deficient because it is contrary to applicable regulations. Accordingly, we set it aside.

II. Background and Arbitrator's Award

A. Statement of Facts

The grievant is a sheet metal worker who has worked at Hill Air Force Base (Hill AFB) for approximately 13 years. As authorized by section 4.13 of the parties' agreement, the grievant was one of four 100% official time representatives at Hill AFB.(1)

In late 1995, various sheet metal mechanics were subject to a RIF and the grievant was placed in the same competitive level as those sheet metal workers at his grade and in his work area. As the RIF separation date drew near, the Agency gave the employees the option to convert to temporary status. The grievant, however, declined to convert to temporary status, because temporary employees are not part of the bargaining unit and are not covered by the parties' agreement.

In early 1996, the employees who converted to temporary appointments were restored to permanent appointments without a break-in-service. The grievant was rehired in March of 1996, to a position at the same series and grade from which he had been separated. However, the grievant, as a result of his break-in-service, suffered the following losses: (1) sick leave and annual leave he would have accrued during the period of his separation; (2) reduction in his "bank" of severance pay, because he was forced to draw severance pay during his separation; and (3) his status as Union President and full-time representative.

B. Arbitrator's Award

As relevant here, the parties submitted two issues for the Arbitrator's determination: whether proper procedures were followed in implementing the RIF and, if not, what would be the appropriate remedy.

With regard to the first issue, the Arbitrator found that the Agency erred by placing the grievant, a full-time union representative, in the same competitive level as other sheet metal workers. The Arbitrator determined that, by making a contractual commitment to have the Union appoint four 100% official time representatives under section 4.13 of the parties' agreement, the Agency effectively agreed to take into account the status and functions of those employees as full-time representatives when determining their respective competitive levels. In support of his conclusions, the Arbitrator cited to American Federation of Government Employees, AFL-CIO, Council of Locals No. 214 v. FLRA, 798 F.2d 1525, 1529 (D.C. Cir. 1986) (AFGE, Council 214), for the proposition that an official time provision in a parties' agreement may permissibly interfere with an agency's right to layoff employees under section 7106(a)(2)(A). Consequently, the Arbitrator determined that the parties' agreement prohibited the Agency from ignoring the fact that "a union representative's job is encumbered by a 100 percent grant of 'official time.'" Award at 11.

The Arbitrator therefore concluded that the grievant's union experience should have been taken into account when the Agency considered his 'bump' opportunities during the RIF. Specifically, the Arbitrator stated that the Agency "must, in determining the employee's competitive level, take into account the multiplicity of functions that [a union representative] performs not only on behalf of the members of the bargaining unit but also on behalf of the Agency." Id.

With regard to the second issue, however, the Arbitrator concluded that a remedy was not appropriate, because the grievant's harm was "self-inflicted." Id.

III. Positions of the Parties

A. Agency's Exceptions

The Agency takes exception to the Arbitrator's finding that the grievant was placed in an improper competitive level. The Agency argues that the Arbitrator's award is deficient because it violates 5 C.F.R. § 351.403(a)(2), which provides that the determination of an employee's competitive level must be based on the employee's official position and not the employee's personal qualifications.(2) As the grievant's official position is 'sheet metal worker' in the Aircraft Directorate, Aircraft Operations Division, the Agency claims that the grievant's competitive level was correctly determined.

The Agency also argues that the award is contrary to its right to layoff employees under section 7106(a)(2)(A) of the Statute. The Agency claims that even if it had negotiated a provision which gave special status to union representatives, that provision would have been unenforceable because it would violate section 7106(a)(2)(A) of the Statute. Agency's Exceptions at 6, citing Federal Union of Scientists and Engineers, National Association of Government Employees, Local R1-144 and U.S. Department of Navy, Naval Underwater Systems Center, 23 FLRA 804 (1986).

B. Union's Opposition

The Union argues that the Arbitrator properly determined that the grievant was placed into an incorrect competitive level. The Union claims that the Agency is merely contesting the Arbitrator's findings of fact, which provides no basis for the Authority to set aside an arbitrator's award. The Union contends that it was legitimate for the Arbitrator to question whether the grievant belonged in the same competitive level as other sheet metal workers.

The Union also asserts that Merit Systems Protection Board (MSPB) case law holds that the Arbitrator was compelled to consider the grievant's actual duties in determining his competitive level. Moreover, the Union maintains that the Arbitrator did not determine the grievant's proper competitive level, but simply established that the grievant's substantive rights had been violated by placing him in an improper competitive level.

Finally, the Union argues that the Arbitrator's interpretation of the parties' "official time" agreement provision is not contrary to section 7106(a) of the Statute. Specifically, the Union states that the D.C. Circuit has held "this exact contract provision may interfere with the Agency's section 7106(a) rights and still be lawful." Union's Opposition at 6, citing AFGE, Council 214. Thus, the Union argues that the "official time" provision of the parties' agreement provides an "independent basis for sustaining the Union's grievance." Id. at 5.

C. Union's Exceptions

The Union excepts to the Arbitrator's failure to award a remedy. The Union contends that the Arbitrator erred as a matter of law by not awarding a remedy to the grievant, once the Arbitrator determined that the grievant was placed in an improper competitive level. The Union argues that the Arbitrator was required to apply the same legal rules and principles as the MSPB in RIF cases and failed to do so by not reversing the RIF action in the grievant's case.

D. Agency's Opposition

The Agency maintains that it correctly determined the grievant's competitive level and that the grievant is not entitled to any remedy. However, the Agency also claims that the Arbitrator properly determined that the grievant's harm was self-inflicted.

IV. Analysis and Conclusions

In circumstances where a party's exceptions involve the award's consistency with law, we review the questions of law raised by the party's exceptions and the Arbitrator's award de novo. U.S. Department of the Interior, Bureau of Indian Affairs, Navajo Area Office and National Federation of Federal Employees, BIA Council, 53 FLRA 984, 992 (1997) (BIA Council), petition for review dismissed, Begay v. Department of the Interior, 145 F.3d 1313 (Fed. Cir. 1998) (citing National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995)). In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998) (Army Research). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id. For the reasons that follow, we find that the award is contrary to 5 C.F.R. § 351.403(a)(2).(3) Accordingly, we set it aside.

5 C.F.R. § 351.403(a)(2) requires that competitive level determinations be based on each employee's "official position, not the employee's personal qualifications." Though the term "position" is not defined in the regulation, section 351.403(a)(1) refers to "positions in a competitive area which are in the same grade (or occupational level) and classification series[.]" This incorporates by reference the Classification Act, which defines the term "position" as "the work, consisting of the duties and responsibilities, assignable to [the] employee[.]" 5 U.S.C. § 5102(a)(3). Sections 5106 and 5107 of the Classification Act also require positions to be classified in series in accordance with OPM standards. Applying the statutory definition, it is clear that the term "official position" refers to properly classified government work, not to union official duties. Thus, the grievant's "official position" would be the job embodied in his position description. Here, as the grievant's "official position" was sheet metal worker, the determination of the grievant's competitive level had to be based on that position, and not on the grievant's status as a union representative.

Additionally, the Authority and the MSPB have consistently held that competitive levels are to be established with reference to an employee's official duties as set out in his or her position description.(4) The Authority has applied this principle in cases where an employee's competitive level is in dispute. See, e.g., Metal Trades Council, Portsmouth, 53 FLRA at 1158 (the qualifications set forth in the official position description, not the qualifications of an employee, determine the composition of the competitive level); U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia and International Federation of Professional and Technical Engineers, Local 1, 49 FLRA 588, 593 (1994) (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 the employee's official position description, not the employee's skills or abilities).

The MSPB has observed a similar rule in reviewing agency determinations setting competitive levels. Specifically, the MSPB has held that when an employee is detailed to or acting in a position, his competitive level is determined by his permanent position, and not the one to which he is detailed or in which he is acting. See, e.g., Jicha v. Department of the Navy, 65 MSPR 73, 77 (1994) (the competitive level in which an employee is placed is determined by the duties and qualifications required of the incumbent, as set forth in the official position description); Griffin v. Department of the Navy, 64 MSPR 561, 563 (1994) (an employee's competitive level in a RIF is based on his official position of record). Here, the grievant was "acting" as one of the Union's full-time representatives in 100% official time status pursuant to section 4.13 of the parties' agreement (albeit for a number of years, in excess of what a detail would be). Nonetheless, the grievant's underlying position as sheet metal worker did not change. Therefore, as the Arbitrator did not rely on the grievant's official position, as embodied by his official position description, to determine the grievant's competitive level, the award is contrary to 5 C.F.R. § 351.403(a)(2).

In support of the Arbitrator's conclusions, the Union makes two contentions. First, relying on MSPB case law, the Union claims that the Arbitrator correctly found that the Agency could not rely solely on the grievant's official position description to determine his competitive level, but needed to consider the grievant's actual duties and qualifications. Second, the Union asserts that the parties' agreement prohibited the Agency from ignoring the grievant's 100% official time status, based on the holding of Smith v. Tennessee Valley Authority, 381 F. Supp. 888, 891 (M.D. Tenn. 1974) (Smith). However, the Union has misconstrued relevant MSPB precedent and relied on a federal court decision which is distinguishable from this case.

As to the first contention, the Union cites Disney v. Department of the Navy, 67 MSPR 563, 568 (1995) (Disney), in which the MSPB determined that additional evidence could be considered to determine an employee's competitive level. However, in Disney, the MSPB relied on Simonton v. Department of the Army, 62 MSPR 30 (1994), which made clear that additional evidence may be considered, "but only to the extent that such evidence is material and relevant to an understanding of the appropriate position descriptions, critical elements and performance standards." 62 MSPR at 36 (emphasis added). See also Pigford v. Department of the Interior, 75 MSPR 250, 254 (1997) ("[a]n administrative judge thus may allow testimony regarding the actual duties performed in the positions in question to the extent that it is relevant and material to an understanding of the appropriate position descriptions, critical elements and performance standards"). In short, the MSPB precedent does not allow the Agency to disregard the prescribed duties set out in the grievant's position description. Instead, and contrary to the Union's assertion, evidence regarding the grievant's actual duties is only permitted to clarify or modify the grievant's official position description.

As to the second contention, the Union cites Smith for the proposition that the parties' agreement prohibited the Agency from ignoring the grievant's 100% official time status when determining his competitive level. In Smith, the parties' agreement specifically provided that a union steward was to be placed in a separate competitive level from other employees in the same classification. 381 F. Supp. at 890 (excerpt provided by the court of section H-VIII of the parties' agreement stated "TVA considers the job steward in a separate competitive level from the other employees in the same classification").

Similarly, in Bess and Roberson v. Tennessee Valley Authority, 19 MSPR 428 (1984) (Bess), the MSPB also approved the TVA's establishment of a separate competitive le