54:1416(123)AR - - Nuclear Regulatory Commission and NTEU Chapter 208 - - 1998 FLRAdec AR - - v54 p1416



[ v54 p1416 ]
54:1416(123)AR
The decision of the Authority follows:


54 FLRA No. 123

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. NUCLEAR REGULATORY COMMISSION

(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 208

(Union)

0-AR-2939

_____

DECISION

October 30, 1998

_____

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

I. Statement of the Case

This matter is before the Authority on cross-exceptions to an award of Arbitrator Daniel M. Winograd, 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. The Agency and the Union also filed oppositions to the exceptions.

The Arbitrator denied one employee's grievance, finding that it raised an issue of classification that was not arbitrable. The Arbitrator sustained a second employee's grievance challenging the Agency's failure to temporarily promote that grievant.

For the following reasons, we conclude that the Union's exceptions do not establish that the award concerning the first grievant is deficient under section 7122(a) of the Statute. We conclude also that the Agency's exceptions do not demonstrate that the award as to the second grievant is deficient. We deny both parties' exceptions.

II. Background and the Arbitrator's Award

The two grievants, Grievant I and Grievant II, are GG-840-13 (Grade 13) reactor inspectors. Each separately filed a grievance, claiming that they were assigned and had performed the duties of GG-840-14 (Grade 14) reactor inspectors but continued to be paid at Grade 13 rates. As relief, the grievants sought back pay. After the grievances were filed, the Agency conducted a classification audit of each grievant's position. The audit determined that each grievant was properly classified at Grade 13. When the grievances were not resolved, each grievant invoked arbitration, and the grievances were consolidated for hearing.

The Arbitrator described reactor inspector duties at Grade 13 and Grade 14, and determined that the "essential difference" between the grades is "the level and degree of responsibility, initiative, and supervision afforded to or exercised by the inspector." Award at 35-36. The Grade 14 job description, the Arbitrator found, "applies to all types of inspection procedures, rather than being specific" to an inspection type. Id. at 35.

The Arbitrator held that Grievant I's grievance was not arbitrable. Finding that Grievant I is an expert in motor operated valve (MOV) safety and inspections, the Arbitrator noted that no MOV inspections were taking place before Grievant I joined the division. He determined that, although the reactor inspector position at both grades pre-existed Grievant I's arrival, "the specific content of his job -- MOV inspections -- did not." Id. at 36. The Arbitrator found that Grievant I was assigned the duty of creating the procedures and protocols for his position. The Arbitrator concluded that, until the time when Grievant I created these procedures and protocols, the grade at which Grievant I was performing could not be ascertained. In this situation, the Arbitrator concluded that the classification of Grievant I's position could not be disturbed.

The Arbitrator held that Grievant II's grievance was arbitrable and that Grievant II was entitled to a temporary promotion for performing previously classified duties. The Arbitrator determined that Grievant II specialized in "fire protection inspections and safety." Id. at 6-7. The Arbitrator found that all of the inspector duties performed by Grievant II previously had been performed by Grade 14 inspectors. The Arbitrator noted that some of the duties previously assigned to Grade 14 inspectors (Appendix A and R inspections) had not been performed for several years by any employees. However, according to the Arbitrator, even if the erosion of those duties resulted in a misclassification of the Grade 14 position, the Agency did not reclassify it. The Arbitrator concluded that, when Grievant II "began performing the duties of the previous job occupants, the job content was classified as fitting into the [Grade] 14 position description, and [Grievant II] was assigned to all aspects of the then existing job." Id. at 37. Accordingly, the Arbitrator concluded that, by failing to temporarily promote Grievant II, the Agency violated section 24.1.1. of the parties' agreement.(2) To remedy the violation, the Arbitrator awarded Grievant II back pay "from February 2, 1992, to the date he ceases performing the [Grade] 14 duties (or receives a permanent appointment to the position.)" Id. at 40.

III. Position of the Parties

A. Grievant I

1. Union's Exceptions

The Union asserts that the Arbitrator's finding that Grievant I's grievance is not arbitrable is contrary to Authority precedent. The Union asserts that this grievance concerned the Agency's temporary de facto detailing of Grievant I to a higher-grade position, and not the Agency's classification of his position. The Union asserts that an agency cannot transform a grievance over temporary detailing into a classification dispute by instituting a classification audit.(3) The Union also asserts that the parties' stipulations at the arbitration hearing that the position had been previously classified is evidence that Grievant I's grievance did not concern a classification dispute. The Union asserts that the Arbitrator ignored those stipulations, and "employed a method of analysis" that was contrary to law.(4) Union's Exceptions at 10.

2. Agency's Opposition

The Agency asserts that the Arbitrator correctly applied Authority law in finding, as to Grievant I, that classification matters are not grievable or arbitrable. The Agency argues that the Union's exception disagrees with the Arbitrator's findings of fact and, as such, does not justify overruling the Arbitrator.

3. Union's Motion to Strike Agency's Opposition

The Union argues that portions of the Agency's opposition should be struck because they extend beyond the scope of the Union's exceptions, which referred only to Grievant I, and assert new arguments as to Grievant II. Unless special circumstances exist, the Union argues, the sections of the Agency's memorandum that refer to Grievant II are supplementary submissions to the Agency's original exceptions, which are not permitted under the Authority's regulations.

4. Agency's Opposition to Motion to Strike

The Agency argues that the Motion to Strike should be denied. The Agency argues that the scope of its opposition to the Union's exceptions does not exceed the scope of the Union's exceptions. The Agency asserts that the Arbitrator's award with respect to each grievant is not severable and, thus, the Agency was not limited in its opposition to addressing only those issues relating to Grievant I.

B. Grievant II

1. Agency's Exceptions

The Agency excepts to the Arbitrator's ruling that the grievance filed by Grievant II is arbitrable. The Agency asserts that Authority precedent requires a finding that the grievance concerns a classification matter.(5)

The Agency claims that the Arbitrator rendered a classification decision that "substantive[ly] interfere[s] with the Agency's authority to determine the duties and responsibilities of positions at the grade 14 level" which is contrary to law. Agency's Exceptions at 5. The Agency also asserts that the Arbitrator effectively, and improperly, determined that Grievant II should be classified at Grade 14 even though he had not performed Appendix A and R inspections. According to the Agency, performing these inspections is "the primary difference" between the Grade 13 and Grade 14 positions. Id. at 4.

Finally, the Agency argues that, even if the Arbitrator's award is not contrary to law as it relates to the time period before the classification audit, the award is contrary to law as it relates to the time period after the audit occurred. Id. at 6. The Agency asserts that the Arbitrator's award cannot affect the time period following the classification audit because an arbitrator is not "authorized to second-guess the classifier by finding that those duties are at the Grade 14 level." Id.

2. Union's Opposition

The Union argues as to Grievant II that the Arbitrator correctly concluded that his grievance did not concern a classification issue, and that Grievant II performed duties properly classified at Grade 14. The Union also argues that the Arbitrator's remedy as to Grievant II is appropriate.

IV. Analysis and Conclusions

A. Union's Motion to Strike Is Granted

Applying section 2425.1 of the Authority's regulations, the Authority has held that, "[a]lthough each party may file an opposition [to a party's exceptions], it is well established that a party may not raise additional exceptions in its opposition." Indian Educators Federation, New Mexico Federation of Teachers and U.S. Department of the Interior, Bureau of Indian Affairs Albuquerque and Navajo Areas, 53 FLRA 696, 703 (1997) (Indian Educators) (citing General Services Administration and American Federation of Government Employees, Council 236, 45 FLRA 1226, 1231 (1992). Additional filings require permission. Indian Educators, 53 FLRA at 703.

A review of the disputed sections of the Agency's opposition demonstrates that they raise new arguments and exceptions to the Arbitrator's award. Moreover, contrary to the Agency's claim, the portions of the award and the parties' arguments relating to the two grievants are clearly severable.

The Agency did not seek permission to file additional exceptions. Therefore, in accordance with Indian Educators, the Union's motion to strike is granted. The disputed sections of the Agency's Opposition brief have not been considered in resolving these exceptions.

B. The Award As to Grievant I and Grievant II Is Not Contrary to Law

The Union's and the Agency's exceptions challenge the award's consistency with section 7121(c)(5) of the Statute. As such, the Authority reviews the questions of law raised by the award and the parties' 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). In applying the standard of de novo review, the Authority assesses whether the 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.

Section 7121(c)(5) of the Statute excludes from the scope of grievance and arbitration procedures any grievance concerning the classification of "any position which does not result in the reduction in grade or pay of an employee." This provision "bars" an arbitrator from resolving such grievances. 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) (Prisons) (citing Quarantine, 50 FLRA at 1215; American Federation of Government Employees, Local 2025 and U.S. Department of the Air Force, Ninth Reconnaissance Wing, Beale Air Force Base, California, 50 FLRA 39, 42 (1994)). In applying this section of the Statute, the Authority has defined the term "classification" consistent with its definition in 5 C.F.R. § 511.101(c). U.S. Department of the Army, Fort Polk, Louisiana and National Association of Government Employees, Local R5-168, 44 FLRA 1548, 1552 (1992). Section 511.101(c) defines "classification" 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, United States Code." Consistent with this definition, the Authority has long-held that grievances concerning temporary promotions based on the performance of previously-classified duties do not raise classification issues within the meaning of section 7121(c)(5). See, e.g., id.

1. The Award as to Grievant I is Not Contrary to Law

The Arbitrator specifically found, as a factual matter, that "the specific content" of Grievant I's job "did not pre-exist his assignment." Award at 36. That is, the Arbitrator found that Grievant I's duties -- comprising the position he held -- had not previously been classified.(6) Indeed, consistent with the Arbitrator's factual finding that Grievant I's duties were not being performed at the time he was hired, those duties could not have been previously classified. As such, the Union's reliance on Corpus Christi and Quarantine is misplaced. In Corpus Christi, the Authority distinguished between grievances seeking temporary and permanent promotions. However, the Authority did not hold that all grievances seeking temporary promotions are arbitrable, and did not address a situation, such as exists in this case, where the duties forming the basis for a requested temporary promotion have not previously been classified. In Quarantine, the Authority held that, because the agency did not deny that a previously-classified, higher-graded position existed in the agency, there was no basis on which to conclude that the dispute involved a classification issue even though the higher-graded position did not exist at the grievant's work location. Id. at 1215-16. (Citing U.S. Department of Agriculture, Forest Service and National Federation of Federal Employees, Local 450, 35 FLRA 542, 549-50 (1990)). In this case, by contrast, the Arbitrator determined, and the Union does not dispute, that the duties performed by Grievant I were new and had not previously been classified anywhere.(7)

Consistent with the foregoing, and based on the Arbitrator's findings of fact, to which we defer, we conclude that the Arbitrator's determination that Grievant I's grievance involved a classification matter is not contrary to law.

2. The Award as to Grievant II Is Not Contrary to Law

The Arbitrator determined that Grievant II performed "all aspects" of the position that was previously classified at Grade 14. Award at 37. The Agency offers no support for its assertion that the previous classification depended solely on whether Appendix A or R inspections were performed. In addition, the cases cited by the Agency, Local 547 and Corpus Christi, both concerned grievances where the grievants sought promotions based on classification of their permanent positions and, thus, are inapplicable.

The Agency argues in the alternative that the award is contrary to law insofar as it provides backpay for the time period following completion of the February 13, 1996, classification audit. The record does not disclose whether the classification audit resulted in a classification of Grievant II's position.(8) Although the Arbitrator states that "appropriate action was not taken to reclassify the position," id. at 37, it is not clear whether his finding is limited to an earlier period of time. If the Agency did classify his job subsequent to the audit, then Grievant II would not be entitled to backpay after the date of the classification. Cf. U.S. Department of the Air Force, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia and American Federation of Government Employees, Local 987, 52 FLRA 938, 941 (1997) (the Authority denied exceptions based on a classification audit that had been conducted after the grievance was filed because the audit did not alter the substance of the temporary promotion grievance for the time period before the audit). We trust that, in implementing the award as to Grievant II, the parties will be able to resolve the issue whether the audit resulted in a classification of Grievant II's position. If they are not able to do so, then the matter should be submitted to arbitration.

V. Decision

The Agency's and the Union's exceptions are denied.

Dissenting Opinion of Member Wasserman:

Contrary to the majority, I find that the grievance of Grievant I is arbitrable. Like my colleagues, I defer to the Arbitrator's findings of fact. However, I think that he was wrong as a matter of law in finding the grievance not to be arbitrable.

As noted by the majority, we review de novo the question raised by the Union's exception of whether the grievance of Grievant I is barred by section 7121(c)(5) of the Statute. In evaluating this question, I have found it helpful to review the numerous Authority cases dealing with claims for temporary promotions.

Early on, the Authority followed the established precedent of the Federal Labor Relations Council and the Comptroller General. The Authority confirmed that a collective bargaining agreement provision, which obligates an agency to temporarily promote an employee who has temporarily performed the duties of a higher-graded position, is enforceable consistent with law. This determination was made despite the general rule that employees are only entitled to the salary of the position to which they were appointed. See, e.g., U.S. Department of the Navy, Naval Aviation Depot, Marine Corps Air Station, Cherry Point, North Carolina and International Association of Machinists and Aerospace Workers, Local 2297, 42 FLRA 795, 802 (1991) (citing McPeak and Dabney, 69 Comp. Gen. 140, 141 (1989)) (Naval Aviation Depot); U.S. Department of the Air Force, Warner Robbins Air Force Logistics Center, Robins Air Force Base, Georgia and American Federation of Government Employees, Local 987, 37 FLRA 155, 158-59 (1990); U.S. Department of Justice, Immigration and Naturalization Service and National Immigration and Naturalization Service Council, American Federation of Government Employees, Local 2805, 15 FLRA 862, 863 (1984).

The Authority also confirmed that a grievance, which merely claimed an entitlement to a temporary promotion under such a collective bargaining agreement provision, does not concern the classification of any position. As was recognized in Naval Aviation Depot,

[t]he Authority has uniformly and repeatedly held that grievances over whether a Grievant was entitled under a collective bargaining agreement to have been compensated at a higher rate of pay by reason of having temporarily performed the duties of a higher-graded position do not concern the classification of any position within the meaning of section 7121(c)(5).

42 FLRA at 801; accord U.S. Department of the Army, Fort Polk, Louisiana and national Association of Government Employees, local R5-168, 44 FLRA 1548, 1552 (1992) (Ft. Polk). The Authority stated that it views the meaning of "classification" under section 7121(c)(5) in the context of 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, United States Code." Applying this definition, the Authority easily distinguished classification from what occurs in grievances where an employee claims a temporary promotion for having temporarily performed the duties of another position of a higher grade.

The Authority noted that the grievance in Naval Aviation Depot did not claim that the grievant's position should be reclassified because he performed the duties of a higher-graded position and that the Arbitrator did not reclassify the grievant's job at a higher grade. The Authority observed that instead, the grievant, a WG-8, merely requested compensation at the higher rates of pay for the time during which he performed the duties of WG-9, WG-10, and WG-11 positions. The Authority further observed that the Arbitrator merely interpreted the position descriptions and duties of those positions as previously established and classified by management and resolved whether the grievant was entitled to compensation at a higher rate of pay when the grievant performed the duties of those higher-graded positions. In rejecting the claim that this grievance was barred by section 7121, the Authority stated that it "has refused to find that such a grievance concerns the classification of any position within the meaning of section 7121(c)(5) of the Statute." Id. at 802 (and cases cited in the decision); accord Ft. Polk, 44 FLRA at 1552.

I believe that the Authority in this case should continue its uniform approach and refuse to find that such a grievance concerns the classification of a position within the meaning of section 7121(c)(5). As recognized by the Arbitrator, there were two "generic" position descriptions in this case. Award at 35. He stated that the

GG-14 description applies to all types of inspection procedures, rather than being specific to MOV inspections, fire safety inspections or other types of inspections. The essential difference between the GG-13 and the GG-14 positions lies in the level and degree of responsibility, initiative, and supervision afforded to or exercised by the inspector, and not in the nature of the inspection involved in the inspector's job assignment.

Id. Thus, the Arbitrator was faced with precisely the same issue as the arbitrator in Naval Aviation Depot. He was asked merely to interpret the position descriptions and duties of the GG-13 and GG-14 reactor inspector positions as previously established and classified by management and determine whether Grievant I performed any duties of the GG-14 position that entitled him to a temporary promotion.

To be sure, the existence of previously established and classified positions is crucial for such grievances not to be barred by section 7121(c)(5). The Authority has specifically ruled that when the temporary promotion is sought to a position that has not been established and classified by management, the grievance is barred by section 7121. See e.g., Service Employees International Union, Local 200 and Veterans Administration Medical Center, 10 FLRA 49, 50 (1982) (VAMC); U.S. Army Aviation Center, Fort Rucker, Alabama and Wiregrass Metal Trades Council, AFL-CIO, 6 FLRA 209, 211-12 (1981) (Fort Rucker). But in this case, the positions pre-existed the assumption of the MOV inspections by Grievant I, and the assignment of that type of inspection to Grievant I did not result in the establishment and classification of a new position or in any reclassification of existing positions. Consequently, VAMC and Ft. Rucker cannot provide the basis for abandoning the Authority's uniform refusal to find that such a grievance concerns classification.

In short, the question presented to the Arbitrator was typical of the routine temporary promotion case: did Grievant I perform work of such a level as to warrant a temporary promotion? The position evaluation specialist evaluated Grievant I's work to determine whether he was performing duties at the GG-13 or the GG-14 level, nothing more. She conducted that same evaluation for Grievant II. The Arbitrator made no finding that the specialist established or classified a new position for either grievant. However, as to Grievant I, the Arbitrator found that the grievance concerned classification, and as to Grievant II, he found that the grievance did not concern classification. To the extent the Arbitrator based his differing legal conclusions on the fact that MOV inspections were new, I believe that he misapprehended the significance of the already existing, generic GG-13 and GG-14 reactor inspector positions and the determination of the position evaluation specialist. Moreover, the Arbitrator incorrectly stated that he could not independently evaluate Grievant I's duties, even if he thought the specialist's determination was erroneous. The testimony of the position evaluation specialist was simply evidence for the Arbitrator to consider in his evaluation of the duties performed by the grievant. The Arbitrator's treatment of the specialist's review as a dispositive classification action which rendered the matter nonarbitrable ignored the Authority's uniform precedent to the contrary.

Accordingly, I dissent from the decision to deny the Union's exception. I would find that the grievance is arbitrable and remand the issue of Grievant I's entitlement to a temporary promotion to the parties for resubmission to the Arbitrator to determine whether as alleged, Grievant I performed sufficient duties of the established, classified position of GG-14 reactor inspector to warrant a temporary promotion.




FOOTNOTES:
 

1. Member Wasserman's dissenting opinion is set forth at the end of this decision.

2. Section 24.1.1, according to the Arbitrator, "requires that the Agency grant temporary promotions to employees who are assigned higher rated duties for more than two pay period." Award at 38.

3. The Union cites U.S. Department of Agriculture, Animal and Plant Health Inspection Services Plant Protection and Quarantine and National Association of Agriculture Employees, 51 FLRA 1210 (1996) (Quarantine).

4. The Union cites American Federation of Government Employees Local 2142 and U.S. Department of the Army, Corpus Christi Army Depot, Corpus Christi Texas, 51 FLRA 1140 (1996) (Corpus Christi).

5. The Agency cites Veterans Administration Medical Center, Tampa, Florida and American Federation of Government Employees, Local 547, 19 FLRA 1177 (1985) (Local 547); and Corpus Christi.

6. Although this case may present "the same issue" as Naval Aviation Depot, Dissenting Opinion at 10, it does not present the same facts. Our colleague bases his conclusion on finding that Grievant I's position "pre-existed." Id. at 11. This factual determination is, in our view, contrary to that reached by the Arbitrator, who found that "[w]hile the Reactor Inspector position pre-existed [Grievant I's] arrival, the specific content of [Grievant I's] job -- MOV inspections -- did not pre-exist his assignment . . . ." Award at 36.

7. The fact that Grievant I's duties did not exist at the time the Grade 13 and 14 positions were classified persuades us that it is not relevant that those position descriptions are "generic." Whether or not they are generic, the fact remains that, consistent with the Arbitrator's finding, whether the duties comprising Grievant I's position were appropriately classified at the Grade 13 or 14 level "could not be determined" until after Grievant I developed the "actual procedures and protocols" applicable to those duties. Award at 36.

8. As relevant here, applicable regulations provide that an agency classification action is effective on "the date an official with properly delegated authority approves (certifies) the proposed classification." 5 C.F.R. § 511.701(a)(I). Although the Agency asserts, and the Union does not dispute, that the auditor "examined the specific duties being performed by [Grievant II] and determined the g