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

[ v55 p345 ]

55 FLRA No. 55

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1617
(Union)

and

U.S. DEPARTMENT OF THE AIR FORCE
SAN ANTONIO AIR LOGISTICS CENTER
KELLY AIR FORCE BASE, TEXAS
(Agency)

0-AR-3068

_____

DECISION

March 31, 1999

_____

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

Decision of Chair Segal for the Authority.

I. Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Carol Kyler 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 concluded that a grievance involving a temporary promotion was not arbitrable.

      For the reasons explained below, we find that the portion of the award finding that the grievance was not arbitrable because it pertained to a classification matter is deficient because it is contrary to section 7121(c)(5) of the Statute. Accordingly, we set this portion of the award aside. We are unable to determine whether the portion of the award finding the grievance not arbitrable because it pertains to a non-bargaining unit position is deficient. Therefore, we remand this portion of the award to the parties and, absent settlement, direct them to request the Arbitrator to render a decision on the merits of the grievance, if it is determined that the grievance was timely filed.

II. Background and Arbitrator's Award

      The grievant, who occupied the position of Workleader, was detailed to a "WL" position. The grievant filed a grievance alleging that, during the period of the detail, he performed higher-graded duties of a "WS" position and, as a result, was entitled to a temporary promotion under Article 13, section 13.01 of the parties' Master Labor Agreement (MLA). [n1]  When the grievance was not resolved, it was submitted to arbitration, where the Arbitrator framed the issues as follows:

1. Is the grievance arbitrable under the provisions of the MLA, the Statute, or FLRA case authority?
2. If the grievance is arbitrable, is it timely in accordance with Article 6, Section 6.07(a) of the MLA?

Award at 4.

      The Arbitrator determined that the grievance was not arbitrable for two reasons. First, the Arbitrator concluded that the grievance was not arbitrable because it concerned the classification of a position, within the meaning of section 7121(c)(5) of the Statute. [n2]  The Arbitrator determined that "the grievance concerns the grade level of the duties assigned to and performed by the grievant, specifically, Supervisor WS-3705-10, as opposed to whether or not the duties regularly assigned by management and performed by the Grievant were accurately reflected in his position description as a WL-3705-10." Id. at 5. The Arbitrator indicated that the Agency had previously classified the WS-3705-10 position as a supervisory position. Id. at 3. The Arbitrator concluded "the essence of the grievance" was "so integrally related to, and controlling of, the classification of the grievant's position, that it must be found to be a grievance `concerning . . . the classification of any position which does not result in the reduction in grade or pay of an employee' under 5 USC, Section 7121(c)(5) and, therefore, non-arbitrable." Id. at 4, 5 (quoting 5 U.S.C. § 7121(c)(5)). The Arbitrator relied on Veterans Administration Medical Center, Tampa, Florida [ v55 p346 ] and American Federation of Government Employees, Local 547, 19 FLRA 1177 (1985) (VA Tampa).

      Second, the Arbitrator concluded that the grievance was not arbitrable because, at the time he allegedly was aggrieved, the grievant was encumbering the "WL" position, which the Arbitrator found to be outside the bargaining unit. The Arbitrator stated that, consistent with paragraphs 12a and 33a of AFI 40.335, an Agency regulation, the grievant was not entitled to use the MLA to pursue the temporary promotion and the Agency was not required to temporarily promote the grievant because "the [g]rievant was a non-bargaining employee at the time he was allegedly, aggrieved[.]" [n3]  Id. at 4.

      Finally, finding that the grievance was not arbitrable, the Arbitrator determined that it was unnecessary to rule on whether the grievance was untimely filed under the parties' agreement.

III. Position of the Parties

A. Union's Exceptions

      The Union argues that the award is deficient because, as a bargaining unit employee, the grievant was entitled to challenge the Agency's failure to provide a temporary promotion through the MLA. The Union also argues that the Arbitrator was wrong in determining that the grievance was barred by section 7121(c)(5) of the Statute. The Union maintains that the Arbitrator failed to take into consideration that the Agency had previously classified the grievant's position. The Union requests that the Authority reverse the Arbitrator's decision and remand it for further proceedings.

B. Agency's Opposition

      The Agency asserts that no basis for review has been presented by the Union's exceptions. The Agency contends that the Union's exceptions focus only on the Arbitrator's conclusion that the grievance was not arbitrable under 5 U.S.C. § 7121(c) and fail to mention the additional basis supporting the Arbitrator's conclusion. In any event, the Agency argues that the Arbitrator properly concluded that the grievance was barred by section 7121(c) of the Statute because the essence of the grievance was that the duties performed by the grievant were misclassified and should have been classified at a higher grade. [n4] 

IV. Analysis and Conclusions

A. The grievance is not barred by section 7121(c)(5) of the Statute

      The Union asserts that the Arbitrator erred in concluding that the grievance was not arbitrable under section 7121(c)(5) of the Statute. As this exception challenges the award's consistency with law, the Authority reviews the exception and the 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)).

      Section 7121(c)(5) of the Statute removes from the scope of negotiated grievance procedures and, thereby, bars an arbitrator from resolving, any grievance concerning the classification of a position that does not result in reduction in grade or pay of an employee. 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) (Beale). The Authority has construed the term "classification" in section 7121(c)(5) to have the same meaning as in 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 . . . ." Id. (quoting 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) (Ft. Polk). Consistent with this construction, the Authority has long held that grievances concerning [ v55 p347 ] whether a grievant is entitled to a temporary promotion under a bargaining agreement by reason of having performed the duties of a higher-grade position do not concern the classification of a position, within the meaning of section 7121(c)(5). E.g., Beale, 50 FLRA at 42 (citing Ft. Polk).

      Here, the substance of the grievance concerned the grievant's entitlement to a temporary promotion based on the performance of WS-3705-10 duties. It is undisputed that the Agency had previously classified the WS-3705-10 position. Consequently, the grievance, which concerns a temporary promotion based on the performance of duties in a previously-classified position, does not raise a classification issue within the meaning of section 7121(c)(5). See, e.g., 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, 1425 (1996); U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine and National Association of Agriculture Employees, 51 FLRA 1210, 1215 (1996). In this regard, the Arbitrator's reliance on VA Tampa was misplaced. The grievance in VA Tampa concerned the proper classification of the grievant's permanent position. See also American Federation of Government Employees, Local 987 and U.S. Department of the Air Force, Air Force Logistics Command, Robins Air Force Base, Warner Robins, Georgia, 52 FLRA 212, 215 (1996) (substance of grievance concerned grade level of duties assigned to, and performed by, grievant in his permanent position and not whether he was entitled to a temporary promotion); American Federation of Government Employees, Local 2142 and U.S. Department of the Army, Corpus Christi Army Depot, Corpus Christi, Texas, 51 FLRA 1140, 1142 (1996) (same). By contrast, the issue here concerns the grievant's eligibility for a temporary promotion to a previously classified position based on the performance of higher-graded duties.

      As the grievance does not involve a classification matter, the Arbitrator's award to the contrary is deficient and must be set aside.

B. We are unable to determine whether the award is based on a nonfact

      The Union disputes the Arbitrator's conclusion that the grievant "was a non-bargaining employee at the time he was, allegedly, aggrieved[.]" Award at 4. We construe this argument as a claim that the award is based on a nonfact. See, e.g., Office and Professional Employees International Union, Local 268 and U.S. Department of Energy, Oak Ridge Operations, Oak Ridge, Tennessee, 54 FLRA 1154, 1158 (1998) (construing union's claim that grievant was properly assigned duties of position, where arbitrator found to the contrary, as raising a nonfact exception). 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). An award will not be found deficient based on an arbitrator's determination on any factual matters that the parties disputed below. Id. at 594 (citing Mailhandlers v. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)).

      In this case, the unit status of the "WL" position to which the grievant was detailed during the time he claimed entitlement to a temporary promotion was central to the Arbitrator's conclusion that the grievance was not arbitrable. However, we are unable to determine whether the Arbitrator's finding that the "WL" position was excluded from the bargaining unit is clearly erroneous, but for which the Arbitrator would have reached a different result. In its exceptions, the Union points to evidence showing that the "WL" position had previously been designated a bargaining unit position. In addition, we cannot ascertain from the record whether the parties disputed the bargaining unit status of the "WL" foreman position before the Arbitrator. While it is apparent from the parties' briefs to the Arbitrator that they disputed the grievant's status at the time he was allegedly aggrieved, it is unclear whether this dispute centered on the grievant's status in the "WL," rather than the "WS," position. Because we are unable to determine whether the award is deficient as based on a nonfact, we remand the case to the parties and, absent settlement, direct them to obtain clarification from the Arbitrator. See, e.g., U.S. Department of the Army, Army Natick Research, Development and Engineering Center, Natick, Massachusetts and National Association of Government Employees, Local R1-34, 44 FLRA 1251, 1254 (1992) (remand for resubmission to arbitrator is appropriate when the Authority is unable to determine whether the award is based on a nonfact).

      In remanding the award, the Arbitrator may apply any previously-made unit status determinations to decide whether the grievance was arbitrable. [n5]  However, [ v55 p348 ] in the absence of previously-made unit status determinations, and consistent with long-standing Authority precedent, the Arbitrator is not empowered to make an initial determination as to the grievant's bargaining-unit status. See, e.g., U.S. Small Business Administration and American Federation of Government Employees, Local 2532, AFL-CIO, 32 FLRA 847, 852-54 (1988) (SBA), reconsideration granted, 36 FLRA 155 (1990). See also U.S. Department of Veterans Affairs, Allen Park Veterans Administration Medical Center, Allen Park, Michigan and American Federation of Government Employees, Local 933, 40 FLRA 160, 172 (1991) (Allen Park). An arbitrator's authority is limited in this way, even if the question is raised as a collateral issue to a grievance otherwise properly brought under the collective bargaining agreement. See SBA, 32 FLRA at 852. Determinations of unit status are within the exclusive jurisdiction of the Authority under sections 7105(a)(2)(A) and 7112(a)(1) of the Statute. Id. at 853. If, on remand, it is necessary to resolve a dispute over the bargaining unit status of any of the positions involved in this case, then the means for resolving that question is through the filing of a clarification petition with the Authority. See 5 C.F.R. § 2422.1(b); Allen Park, 40 FLRA at 172.

      Resolving the issue as to whether, in view of the unit status of the positions involved in this case, the grievance is arbitrable requires an interpretation of the parties' MLA dealing with temporary promotions. To the extent provisions of AFI 40.335 are relevant, the parties are advised that under Authority case law, provisions of a collective bargaining agreement control over conflicting provisions of an agency's regulations. See, e.g., 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) (an agency's regulations govern the matter in dispute when no provisions of a collective bargaining agreement address the matter).

V. Decision

      The portion of the award finding that the grievance is not arbitrable under section 7121(c)(5) of the Statute is set aside. The case is remanded to the parties and, absent settlement, on resubmission to the Arbitrator, the Arbitrator is directed to clarify the award consistent with this decision. If upon remand, the Arbitrator determines the grievance is not excluded from the provisions of the MLA, and was timely filed, then she is directed to render a decision on the merits of the grievance.






Footnote # 1 for 55 FLRA No. 55

   Article 13, entitled "Temporary Promotion," section 13.01 of the MLA provides that:

When an employee is temporarily assigned to a higher graded position or the grade-controlling duties of a higher graded position for 30 consecutive calendar days, the employee shall be temporarily promoted into and receive the rate of pay of that position commencing on the 31st day. The employee must be qualified to fill the position on a permanent basis.

Agency Opposition, Exhibit 7 at 61.


Footnote # 2 for 55 FLRA No. 55

   Section 7121(c)(5) of the Statute provides that a negotiated grievance procedure may not cover grievances concerning "the classificat