U.S. Department of Health and Human Services, Denver, Colorado (Agency) and National Treasury Employees Union, Chapter 235 (Union)

[ v56 p 133 ]

56 FLRA No. 15

U.S. DEPARTMENT OF HEALTH AND HUMAN
SERVICES, DENVER, COLORADO
(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION
CHAPTER 235
(Union)

0-AR-3215

_____

DECISION

March 3, 2000

_____

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

Decision by Member Segal for the Authority.

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator John P. DiFalco filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

      For the reasons that follow, we conclude that the Agency has not established 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 grievant, a GS-9 administrative officer, began to work as the Administrator of the Agency's Data Center "[e]ssentially" through a "job exchange" under Article 17 of the parties' collective bargaining agreement. [n1]  Award at 4. At that time -- when the Agency "reassigned" the grievant --the Agency "placed [the grievant] under a Management Analyst Position Description" at the GS-9 level. Id. at 5. The Union asserted that the grievant had actually been detailed to the position of Computer Specialist at the GS-11 or 12 level.

      A grievance was filed alleging that the Agency violated the parties' agreement by failing to provide the grievant a temporary promotion, and by subsequently removing the grievant from the Computer Specialist position. When the grievance was not resolved, it was submitted to arbitration where, as relevant here, the Arbitrator framed the issues as follows:

1.     Is the grievance properly before the Arbitrator?
2.     Did the Grievant perform Grade 11 or 12 Computer Specialist duties for two years without proper compensation, and if so, what is the remedy?
3.     Did the Agency commit a prohibited personnel practice when it relieved the Grievant of his duties as Administrator of the Data Center, and if so, what is the remedy?

Award at 2.

      The Arbitrator rejected the Agency's argument that the grievance concerned the grievant's classification, within the meaning of section 7121(c)(5) of the Statute. He found that the Union was "not complaining about classification, [it was] complaining about an individual not being properly compensated while on detail . . . ." Id. at 28. The Arbitrator also found that the grievant performed "100 percent of the duties of a GS-11 Computer Specialist, Occupational Code 334, during his entire tenure in the position of Data Center Administrator." Id. at 30. The Arbitrator concluded that the Agency violated the parties' agreement by failing to temporarily promote the grievant to the GS-11 position.

      In addition, the Arbitrator found that the Agency made a "take it or leave it" settlement offer to the grievant, and that the Agency removed the grievant from his position in retaliation for his rejection of the offer. Id. at 31. The Arbitrator rejected the Agency's explanation that the grievant was removed from his position because "the Union proposed that the [g]rievant would not continue to perform duties for free as a Computer Specialist[.]" Id. at 32. The Arbitrator found that the Union "had no interest in the [g]rievant being removed[.]" Id. The Arbitrator thus concluded that the Agency had engaged in a prohibited personnel practice under the collective bargaining agreement and 5 U.S.C. § 2302(b)(9) by reassigning the grievant in retaliation for "his attempt to pursue rights under the Collective Bargaining Agreement." Id.

      To remedy the Agency's failure to provide the grievant a temporary promotion under the parties' agreement, the Arbitrator ordered that the grievant be "afforded a temporary promotion to GS-11" for the time period from "April 1996 through April 1998." Id. at 36. [ v56 p134 ] To remedy the prohibited personnel practice, the Arbitrator ordered the "reassignment of the Grievant to the position of the Administrator of the Data Center, and payment of back pay and restoration of all benefits associated with the position of Computer Specialist, GS-334, GS-11" from "April 1998 to [the] present[.]" Id. The Arbitrator also ordered that the grievant "should continue in that position subject to all applicable requirements for performance, promotion and discipline[.]" Id.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency maintains that the Authority should set aside the award because it concerns a classification matter, "the grade level of duties assigned to and performed by a grievant." Exceptions at 2-3 (citing U.S. Department of Veterans Affairs, Medical Center, Buffalo, New York and Service Employees International Union, Local 200-C, 37 FLRA 379, 382 (1990) (VAMC, Buffalo)). The Agency contends that the "central concern of the grievance was whether [the] [g]rievant should be classified as a management analyst or a [C]omputer [S]pecialist." Id. at 3.

      Additionally, the Agency asserts that the Arbitrator's order that the Agency reinstate the grievant to the Computer Specialist position constitutes an impermissible permanent reclassification of the grievant and exceeds the Arbitrator's authority. The Agency also asserts that the Arbitrator erred in stating that the grievant had been "properly assigned" to the Computer Specialist position. Id. at 5. According to the Agency, if the grievant was properly assigned to that position, then "there would have been no need for the . . . grievance concerning a de facto detail" to perform those duties. Id.

      Finally, the Agency claims that the position "Administrator of the Data Center," to which the Arbitrator's award orders the grievant restored, does not exist. According to the Agency, the evidence presented by the Union concerned whether the grievant performed the duties of a Computer Specialist.

B.     Union's Opposition

      The Union argues that the award concerns whether the grievant was entitled to a temporary promotion for performing duties that were already classified at a grade level higher than the grievant's. The Union asserts that consistent with Authority precedent, enforcement of a collective bargaining agreement provision providing for the temporary promotion of a bargaining unit member who performs higher graded duties does not concern classification.

      The Union also asserts that the Arbitrator did not permanently reclassify the grievant. The Union maintains that there is nothing "permanent about this remedy, either stated or implied." Opposition at 18. According to the Union, the Agency could remove the grievant from the position for mission or performance-related reasons. Id. In addition, the Union contends that although the award ordered the grievant restored to the position of Administrator of the Data Center, this designation was merely descriptive of the grievant's position as a GS-11 Computer Specialist, the position to which the Arbitrator found the grievant had been temporarily promoted. According to the Union, this was not a central fact upon which the Arbitrator based his decision.

IV.     Analysis and Conclusions

A.     The award is not contrary to law.

      Section 7121(c)(5) 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 of grade or pay of an employee" are removed from the scope of the 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 [the Office of Personnel Management] 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 between two situations in assessing whether a grievance concerns the [ v56 p135 ] 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 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).

      The Arbitrator determined that the Union was "not complaining about classification, they are complaining about an individual not being properly compensated while on detail, and not being temporarily promoted as recognized and required by the Contract . . . ." [n2]  Award at 28. On review of existing Agency position descriptions, the Arbitrator found that the grievant had performed the established duties of the GS-11 Computer Specialist position. As the substance of the grievance, as found by the Arbitrator, concerned whether the grievant was entitled to a temporary promotion under the parties' agreement for performing previously-classified duties, 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, e.g., Social Security Administration, Office of Hearings and Appeals, Mobile, Alabama and American Federation of Government Employees, Local 3627, 55 FLRA 778, 779-80 (1999).

      The Agency also contends that the award is contrary to law because, in ordering that the grievant be restored to his previous position as a remedy for the Agency's prohibited personnel practice, the Arbitrator permanently reclassified the grievant's position. [n3]  However, the award does not require the Agency to reclassify the grievant's position or to keep the grievant in the Computer Specialist position -- or any other position -- permanently. The award expressly requires only that the Agency restore the grievant to the position from which he was improperly removed "subject to all applicable requirements for performance, promotion and discipline in accord with the law as if he had never been removed from the position." Award at 36-37. By its plain terms, the remedy permits the Agency to change the grievant's assignment in accordance with "applicable requirements," and nothing in the award suggests that the Arbitrator intended to limit the Agency in changing the grievant's future assignment, provided the Agency acts lawfully. [n4]  Id.

      Based on the foregoing, the Agency has not established that the award is contrary to law.

B.     The award is not based on a nonfact.

      To establish that an award is based on a nonfact, the appealing party must demonstrate that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. 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 (199