54:1190(104)AR - - Army Armament Research, Development and Engineering Center, Picatinny Arsenal, NJ and NFFE Local 1437 - - 1998 FLRAdec AR - - v54 p1190
[ v54 p1190 ]
The decision of the Authority follows:
54 FLRA No. 104
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE ARMY
ARMY ARMAMENT RESEARCH, DEVELOPMENT
AND ENGINEERING CENTER
PICATINNY ARESENAL, NEW JERSEY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
September 29, 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 John M. Stochaj 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 found that the Agency violated 5 C.F.R. § 351.403(a) when it established two separate competitive levels for electrical engineers in the Fuze and Mines Divisions. The Arbitrator ordered the two competitive levels to be abolished and combined into one single competitive level.
For the reasons explained below, we remand the case to the parties for resubmission to the Arbitrator, absent settlement, for further proceedings consistent with this decision.
II. Background and Arbitrator's Award
The Agency, in preparation for a reduction-in-force (RIF), established two competitive levels for the electrical engineers: Fuze Division Electrical Engineers (Fuze engineers); and Mines, Demolition and Precision Munitions (Mines engineers). All of the electrical engineers were in the same job series and grade. The Union grieved the Agency's formation of these two separate competitive levels. As pertinent here, the parties submitted the following issues for resolution by the Arbitrator: "[d]id the Employer violate 5 C.F.R. § 351.403(a)?[(1)] If so, what shall be the remedy?" Award at 1.
The Arbitrator found that the two position descriptions on which the Agency based the disputed competitive levels were "obviously" drawn at two different times, crediting testimony that the Fuze Division's position description was drawn "some  years ago" while the Mines Division position description was drawn "within the past year or two." Id. at 5. The Arbitrator concluded that it was "incomprehensible that a position description [would] remain the same for  years." Id. He found that the use of the 20-year-old position description was "clearly inadequate," as it would indicate "no changes in methods, technology, techniques and knowledge" during the 20-year period. Id. Accordingly, the Arbitrator stated that "[t]he only conclusion that can be drawn is that the Agency relied on obsolete data to determine the competitive levels." Id.
The Arbitrator noted that engineers from both divisions were assigned a single project to work in teams. Based on the testimony of Union witnesses, the Arbitrator determined that it was "virtually impossible for any member of the team to work in isolation." Id. The Arbitrator also noted Union testimony which claimed that "there would be some period of adjustment for engineers to move from Fuze to Mines or Mines to Fuze[.]" Id. at 3. In this connection, the Arbitrator pointed out that an Agency witness testified that the Fuze engineers are considered "experts" in fuze design and safety, and they have a minimum of 10 years of experience which "can not [sic] be gained in a reasonable time by someone with a limited background in fuzing." Id.
The Arbitrator thus concluded that after 10 years or more, the engineers assigned to team projects acquire an appreciation of the engineering problems in both the Fuze and Mines Divisions. Based on this conclusion, the Arbitrator determined that once this appreciation is acquired, "there is little doubt that [the engineers] can be assigned to either division without undue loss of productivity." Id. at 6. Consequently, the Arbitrator found that the record showed that the two divisions of electrical engineers were interchangeable. The Arbitrator then concluded that the Agency violated 5 C.F.R. § 351.403, and stated that the separate competitive levels for Fuze Division and Mines Division engineers are to be abolished and combined into one single competitive level.
III. Positions of the Parties
A. Agency's Exceptions
The Agency first contends that the Arbitrator's award is contrary to 5 C.F.R. § 351.403(a)(1). The Agency argues that, for positions to be placed in a single competitive level, it must be able to reassign the incumbent of one position to perform the duties of any other position in that competitive level, without any undue interruption. The Agency points out that "undue interruption" is defined in 5 C.F.R. § 351.203 as being "a degree of interruption that would prevent the completion of required work by the employee 90 days after the employee has been placed in a different position" as a result of a RIF. Exceptions at 4. In this regard, the Agency asserts that the Arbitrator's finding that the engineers acquire an understanding of the work of either division over a period of 10 years or more is contrary to section 351.403(a)(1). The Agency claims that 10 years is a longer period of time than the 90 days prescribed in 5 C.F.R. § 351.203.
The Agency also contends the award violates 5 C.F.R. § 351.403(a)(2) because competitive levels must be based on an employee's official position, not on the employee's individual qualifications. The Agency argues that the Fuze engineers' knowledge of the Mines Division work, and vice versa, is not a requirement of the engineer positions. Instead, the Agency states that it is obtained by the individual engineer over a 10-year period, and as such is related solely to the individual's personal qualifications and not the qualifications of the position.
Finally, the Agency contends that the award violates management's right to assign and select employees in accordance with section 7106(a)(2)(A) and (C) of the Statute. The Agency argues that the Arbitrator has abrogated the Agency's authority to determine that the engineers in one Division are not fully qualified to perform the duties of the engineers in the other Division. Further in this connection, the Agency argues that its reliance on 20-year-old job descriptions in determining competitive levels did not provide a reason for the Arbitrator to find the positions interchangeable and thereby abrogate management's reserved rights.
B. Union's Opposition
Addressing the Agency's 5 C.F.R. § 351.403(a)(1) exception, the Union explains that the Arbitrator mentioned the engineers' 10 years of experience by stating that, though interchangeability becomes "inevitable" after a length of time, "the interchangeability is not predicated on  years experience, it is predicated on the organization of the work." Opposition at 9-10. In other words, the Union argues, "[t]he team work is integral to the official position, not the individuals in the position[,]" and the decision is therefore in compliance with the regulations. Id. at 10. The Union also states that the Arbitrator based his decision on the "totality of the evidence[,]" and credited the Union's witnesses, when he determined that engineer positions in the Mines and Fuze Divisions were similar enough to make them interchangeable. Id. at 8-9. Thus, the Union contends that the Agency's arguments only represent an attempt to relitigate the facts of the case.
Regarding the Agency's section 351.403(a)(2) contention, the Union asserts that the Arbitrator based his decision on the official duties of the electrical engineers, and not on the qualification of individuals occupying those positions. In this vein, the Union explains that the Arbitrator properly turned to additional evidence about the engineer positions' duties, to supplement the position descriptions, in order to assess the Agency's competitive level determinations. Finally, the Union also rejects the Agency's claim that the Arbitrator's decision to combine the engineers' competitive levels infringes on a management right.
IV. Analysis and Conclusions
Section 7122(a)(1) of the Statute provides that an arbitration award will be found deficient if it conflicts with any law, rule, or regulation. As the exceptions involve the award's consistency with law and regulation, the questions of law raised by the Arbitrator's award and the party's exceptions must be reviewed 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)). 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.
The regulation that governs whether two positions may be placed in the same competitive level is 5 C.F.R. § 351.403. See, e.g., Tidewater Virginia Federal Employees, Metal Trades Council and U.S. Department of the Navy, Norfolk Naval Shipyard Portsmouth, Virginia, 53 FLRA 1149, 1158-59 (1998). Specifically, 5 C.F.R. § 351.403(a)(1) requires agencies to establish competitive levels that consist of all positions in a competitive area which are "similar enough in duties, qualification requirements, pay schedules, and working conditions so that an agency may reassign the incumbent of one position to any of the other positions in the level without undue interruption."
A review of the award demonstrates that the Arbitrator found that the engineer positions in the two divisions, Fuze and Mines, were interchangeable. Specifically, the Arbitrator found that the engineers worked in teams on projects, and that it was "virtually impossible" that any member of the team could work in isolation. Award at 5. The Arbitrator also found that after "some  years of experience" the engineers assigned to the projects "must acquire an appreciation of the engineering problems in all components[.]" Id. The Arbitrator stated that once this level of experience is acquired, "there is little doubt that [the engineers] can be assigned to either division without undue loss of productivity." Id. at 5-6.
In applying a standard of de novo review, it is necessary to assess whether the legal conclusions drawn by the arbitrator are consistent with the applicable standard of law, based upon the underlying factual findings. See Army Research, 53 FLRA at 1710. In this case, we are unable to determine on what basis the Arbitrator concluded that the Agency could reassign employees in one engineer Division to a position in the other engineer Division "without undue interruption," as required under 5 C.F.R. § 351.403(a)(1). In this connection, it is unclear how the Arbitrator intended to relate his conclusion, that over a 10-year period employees in one Division would "acquire an understanding of the engineering problems" encountered by employees in the other Division, to the regulatory requirement concerning undue interruption. If the Arbitrator viewed this 10-year period as the minimum period of time needed to attain interchangeability between the two engineer positions, then this holding would be inconsistent with the requirements of 5 C.F.R. § 351.403(a)(1). On the other hand, the Arbitrator's mention of the engineers' 10 years of experience may have been intended to be nothing more than a recitation of facts presented at the hearing. If the Arbitrator was simply noting facts, and not describing the engineers' 10 years of experience as the period required to attain the necessary knowledge for position interchangeability, then this finding would not be relevant to the requirements of 5 C.F.R. § 351.403(a) and would not be a basis, by itself, to find the award deficient.
We are also unable to determine whether the Arbitrator based his conclusion as to the ability to reassign without undue interruption on his finding that the engineers from the two Divisions work in teams. Specifically, it is unclear as to whether the Arbitrator intended his finding that the engineers worked in teams to mean that the "similar enough in duties" requirement in 5 C.F.R. § 351.403(a)(1) was satisfied. See, e.g., Holliday v. Department of the Army, 12 MSPR 358, 362 (1982) (the fact that employees in one group may have been able to perform the duties of employees in another group "does not establish their mutual interchangeability"). As a result, we are unable to determine whether the Arbitrator's findings on team work supported the legal conclusion that the positions were "similar enough in duties . . . so that an agency may reassign the incumbent of one position to any of the other positions in the level without undue interruption[,]" pursuant to 5 C.F.R. § 351.403(a)(1).
Where, as here, the Authority is unable to determine whether an arbitrator's award is deficient, the practice of the Authority is to remand the case to the parties for resubmission to the arbitrator, absent settlement, for a clarification of the basis of the award. See Federal Trade Commission, Headquarters, Washington, D.C. and American Federation of Government Employees, Local 2211, 53 FLRA 1782, 1787 (1998), citing U.S. Department of Defense Dependents Schools and Federal Education Association, 53 FLRA 249, 255 (1997).
Thus, on remand, absent settlement, the Arbitrator is instructed to clarify the award, applying the requirements of 5 C.F.R. § 351.403(a)(1) and (2). In particular, the Arbitrator must clarify whether, and to what extent, he relied on his finding, that the engineers acquire an understanding of the duties of both the Fuze and Mines divisions over a period of 10 years or more, to reach the legal conclusion that the Agency violated 5 C.F.R. § 351.403(a). Additionally, the Arbitrator must clarify the relationship between the fact that the engineers worked in teams, and his legal conclusion that the engineers' positions were interchangeable. Overall, as a result of the Arbitrator's clarifications, the Authority must be able to determine, whether, and why, the engineer positions in the Fuze and Mines divisions were similar enough in duties, so that a Fuze engineer could be reassigned the duties of a Mines engineer (or vice versa) without undue interruption under the regulations.
We remand the case to the parties for resubmission to the Arbitrator, absent settlement, for a clarification of the basis of the award.(2)
1. The text of 5 C.F.R. § 351.403(a) reads in pertinent part:
(a)(1) 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 an agency may reassign the incumbent of one position to any of the other positions in the level without undue interruption.
(2) Competitive level determinations are based on each employee's official position, not the employee's personal qualifications.
2. None of the Agency's other exceptions merit setting the award aside. Specifically, the Agency's claim that the award violates section 351.403(a)(2), because the Arbitrator's conclusion concerning 10 years of experience is personal to the employees occupying those positions, cannot be resolved at this time. As with the exception under section 351.403(a)(1), our uncertainty as to the Arbitrator's reliance on the engineers' 10 years of experience prevents us from deciding whether the award is consistent with the regulation.
Further, as to the Agency's section 7106(a) exception, we note that the two-prong test established in U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and National Treasury Employees Union, Chapter 201, 53 FLRA 146 (1997) (BEP) to address claims that an award affects a management right, would be satisfied if the Arbitrator, on remand, determined that the Agency violated 5 C.F.R. § 351.403(a). In that event, the Arbitrator would be enforcing an applicable law, 5 C.F.R. § 351.403(a), and a proper reconstruction in prong II wou