Social Security Administration, Office of Hearings and Appeals, Mobile, Alabama and American Federation of Government Employees, Local 3627

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55 FLRA No. 131

SOCIAL SECURITY ADMINISTRATION
OFFICE OF HEARINGS AND APPEALS
MOBILE, ALABAMA
(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3627
(Union)

0-AR-3120

_____

DECISION

August 31, 1999

_____

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

Decision by Chair Segal for the Authority.

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator H. Ellsworth Steele 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 grievants were constructively detailed to higher-graded positions and awarded them retroactive temporary promotions and back pay. For the following reasons, we conclude that the Agency has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the Agency's exceptions.

II.     Background and Arbitrator's Award

      The grievants were GS-12 Attorney-Advisors in the Social Security Administration Office of Hearings and Appeals. They claimed that they were assigned the higher-graded duties of GS-13 Senior Attorneys for a 1-year period and should have been paid at the GS-13 rate. The parties agreed that the grievants must have spent at least 25 percent of their time performing higher-graded work to be eligible for a temporary promotion under the parties' collective bargaining agreement.

      The Arbitrator framed the issue to be resolved as follows: "Were the GS-12 Attorney-Advisor [g]rievants constructively detailed to the position of GS-13 Senior Attorney . . . ? If so, should one or both [g]rievants be retroactively temporarily promoted to the GS-13 position . . . ?" Award at 1.

      The Arbitrator held that the Agency violated Article 26, Section 16 of the parties' agreement. [n1]  He found that the grievants, who drafted decisions that were reviewed by a supervisory attorney, should have been temporarily promoted, because they had spent at least 25 percent of their time performing higher-graded duties.

      The Arbitrator stated that the Agency took the position that the "authority to independently issue" decisions is the element that raises a position from GS-12 to GS-13. Id. at 11. The Arbitrator found that the grievants' supervisors, who are required to sign decisions made by GS-12 employees, made only stylistic changes to the grievants' work, and that the supervisors gave the decisions prepared by the grievants only "pro forma review." Id. The Arbitrator found that the grievants "did all the preparatory work needed to make an appropriate decision, went through the mental process of reaching a decision and wrote it out for the supervising official to approve and sign." Id. In addition, the Arbitrator credited undisputed testimony of the grievants that they had spent 25 percent to 35 percent of their work time on the higher-graded duties. As the Arbitrator determined that the grievants were constructively detailed to higher-graded positions, he awarded them retroactive temporary promotions and back pay.

III.     Positions of the Parties

A.     Agency

      The Agency argues that the Arbitrator's award is based on a nonfact. In particular, the Agency contends that the Arbitrator made an error in finding that the grievants performed GS-13 work.

      The Agency also asserts that the award is contrary to section 7121(c)(5) of the Statute, which excludes the classification of any position that does not result in the reduction in grade or pay of an employee from negotiated grievance procedures. Further, the Agency claims that the award is contrary to 5 C.F.R. Part 511 because [ v55 p779 ] the grievance properly constitutes an appeal of the classification of a position and, therefore, is excluded from the negotiated grievance procedure.

      Additionally, the Agency argues that the award fails to draw its essence from the parties' agreement because Article 24 of the agreement excludes the classification of a position from the negotiated grievance procedure.

B.     Union

      The Union claims that the award is not based on a nonfact. According to the Union, the Arbitrator framed the issue and made findings of fact based upon his evaluation of all the evidence and testimony, which led him to conclude that the grievants were performing the higher-graded work described in the GS-13 position description.

      The Union asserts that the Agency's argument that the award is contrary to 5 C.F.R Part 511 must be rejected because it was not raised before the Arbitrator. The Union asserts that the parties' negotiated grievance procedure requires that an argument must be "raised in the final step of the grievance procedure before invocation and not in an [e]xception to an award." Opposition at 4.

      The Union also contends that the award does not fail to draw its essence from the parties' agreement. According to the Union, the Agency has provided no basis to find that the award was "irrational, unfounded, implausible or in manifest disregard of the contract." Id. at 3.

IV.     Analysis and Conclusions

A.     The award is not based on a nonfact.

      To establish that an award is based on a nonfact, the appealing party must show that the central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. 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). 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. U.S. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)).

      In this case, the Arbitrator found that the grievants performed GS-13 level work. Award at 12. The Agency disputes this factual determination. However, the record establishes that this matter was disputed before the Arbitrator. In fact, the entire grievance centered on the grade level of the duties performed by the grievants. As the Arbitrator's factual findings resolved a matter disputed by the parties, the Agency's exception provides no basis upon which to find the award deficient as based on a nonfact.

B.     The award is not contrary to law and regulation.

      Section 7122(a)(1) of the Statute provides that an arbitration award will be found deficient if it is contrary to any law, rule, or regulation. In reviewing arbitration awards for consistency with law, rule, or regulation, the Authority reviews the questions of law raised in a party's exceptions and the arbitrator's award de novo. See 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. See 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). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

      Under section 7121(c)(5) of the Statute, grievances concerning "the classification of any position which does not result in the reduction in grade or pay of an employee" are removed from the scope of negotiated grievance procedures. The Authority has construed the term "classification" in section 7121(c)(5) as involving "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." 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) (quoting 5 C.F.R. 511.101(c)); see also U.S. Department of the Army, Fort Polk, Louisiana and National Association of Government Employees, Local R5-168, 44 FLRA 1548, 1552 (1992).

      The Authority has distinguished two situations in assessing whether a grievance concerns the classification of a position. Where the substance of a grievance concerns the grade level of the duties assigned to, and performed by the grievant, the grievance concerns the classification of a position within the meaning of section 7121(c)(5) of the Statute. See Social Security Administration and American Federation of Government [ v55 p780 ] Employees, Local 1923, AFL-CIO, 31 FLRA 933, 936 (1988). However, where the substance of a grievance concerns whether the grievant is entitled to a temporary promotion by reason of having performed the established duties of a higher-graded position, the grievance does not concern the classification of a position within the meaning of section 7121(c)(5) of the Statute. See 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, 801-02 (1991).

      In this case, the Arbitrator determined that the grievance concerned a claim that the grievants had been assigned the duties of a higher-graded position and that the assignment constituted a "detail" to a higher-graded position. Award at 12. The grievants did not claim that their permanent GS-12 positions were improperly classified; the grievants asserted that they were assigned the duties of an already classified, higher-graded position and entitled to compensation for the performance of those duties under the terms of the parties' agreement. As the substance of the grievance before the Arbitrator concerned whether the grievants were entitled to a temporary promotion under the parties' agreement, we find that the award does not concern the classification of a position and, therefore, is not deficient as contrary to section 7121(c)(5) of the Statute. See U.S. Department of Housing and Urban Development, Louisiana State Office, New Orleans, Louisiana and American Federation of Government Employees, Local 3475, 53 FLRA 1611, 1616-17 (1998); U.S. Department of the Air Force, Warner Robins Air Force Logistics Center, Robins Air Force Base, Georgia and American Federation of Government Employees, Local 987, 37 FLRA 155, 159 (1990).

C.     The Agency's exception that the award conflicts with 5 C.F.R Part 511 is barred by section 2429.5 of the Authority's Regulations.

      The Union contends that the Agency's argument that the award is contrary to 5 C.F.R Part 511 must be rejected because it was not raised before the Arbitrator. Under section 2429.5 of the Authority's Regulations, the Authority will not consider issues that could have been, but were not, presented to the arbitrator. See, e.g., International Association of Fire Fighters, Local F-89 and U.S. Department of the Army, Headquarters, Fort Sam Houston, Fort Sam Houston, Texas, 50 FLRA 327, 328 (1995).

      Consistent with the Union's assertion, there is no indication in the record in this case that the Agency's argument regarding 5 C.F.R. Part 511, which sets forth the appropriate procedures to be followed in appealing the classification of a position, was raised before the Arbitrator. Accordingly, pursuant to Section 2429.5 of the Authority's Regulations, we do not consider this argument. See, e.g., American Federation of Government Employees, Local 2145 and U.S. Department of Veterans Affairs, Hunter Holmes McGuire Medical Center, Richmond, Virginia, 55 FLRA 366, 368 (1999).

D.     The award draws its essence from the collective bargaining agreement.

      In order for an award to be found deficient as failing to draw its essence from the collective bargaining agreement, it must be established that the award: (1) is so unfounded in reason and fact and so unconnected with the wording and purposes of the agreement as to manifest an infidelity to the obligation of the arbitrator; (2) does not represent a plausible interpretation of the agreement; (3) cannot in any rational way be derived from the agreement or (4) evidences a manifest disregard of the agreement. See U.S. Department of Defense, Dependents Schools and Overseas Education Association, 53 FLRA 196, 208 (1997), citing, United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-77 (1990).

      Article 24 of the parties' agreement is identical to section 7121(c)(5) of the Statute and excludes the classification of a position from grievance procedures. The Arbitrator determined that the agreement does not exclude from the grievance procedure claims, such as the grievance in this case, that an employee is entitled to a temporary promotion based on the assignment of higher-graded duties. As set forth in Section IV.B. above, the substance of the grievance does not concern the classification of a position within the meaning of section 7121(c)(5) of the Statute.

      The Agency has not asserted that Article 24 of the parties' agreement has a different meaning than section 7121(c)(5) of the Statute. Accordingly, the Agency has not demonstrated that the Arbitrator's interpretation of the parties' agreement, applying the same meaning to Article 24 as section 7121(c)(5) of the Statute, is unfounded, implausible, or irrational. As such, the award does not fail to draw its essence from Article 24 of the parties' agreement.

V.     Decision

      The Agency's exceptions are denied.

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