American Federation of Government Employees, Local 2142 (Union) and United States, Department of the Army, Corpus Christi Army Depot (Agency)

[ v58 p692 ]

58 FLRA No. 167

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2142
(Union)

and

UNITED STATES
DEPARTMENT OF THE ARMY
CORPUS CHRISTI ARMY DEPOT
(Agency)

0-AR-3650

_____

DECISION

July 15, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Benjamin M. Shieber filed by the Union under § 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 Union also filed a supplemental submission that, for the reasons discussed below, we have not considered. [n1] 

      The Arbitrator dismissed the grievance, finding that the grievance was not arbitrable because it concerned a classification matter under § 7121(c)(5) of the Statute. For the reasons that follow, we find that the Union has failed to demonstrate that the award is deficient under § 7122(a) of the Statute. Accordingly, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      The grievant is a GS-11 Engineering Technician. As relevant here, the grievant's supervisors requested a noncompetitive merit promotion to a GS-12 because the grievant was performing additional duties and responsibilities. The grievant's supervisor drafted a new job description, and it was submitted to the Civil Personnel Advisory Center (CPAC) for review and approval. The CPAC denied the request because there was no GS-12 position in the applicable occupation series.

      The Union filed a grievance, which was submitted to arbitration. The Arbitrator framed the issues as (1) "Is the grievance arbitrable[;]" (2) "If [so], did the Agency violate the [p]arties' . . . [a]greement . . . by not promoting [the g]rievant[;]" and (3) "If [so], what should the remedy be?" Award at 2. In particular, the Arbitrator stated that the Union's contention was that the Agency violated a step of the promotion procedures contained in the parties' agreement by not submitting the grievant's request for a noncompetitive promotion to the Job Review Board. See id. at 7.

      The Arbitrator stated that grievances involving the classification of an employee's position where no reduction in grade or pay is involved are not arbitrable pursuant to 5 U.S.C. § 7121(c)(5). [n2]  The Arbitrator found that the highest grade available for the grievant's position is a GS-11 and that the grievance seeks to have the grievant's position reclassified at a higher level. The Arbitrator found that "[s]ince the essential nature of the grievance . . . concerns both the grade level to which [the g]rievant could receive a non-competitive `accretion of duties' promotion and the appropriate grade level for the duties assigned to and performed by [the g]rievant," the grievance concerned the classification of a position, within the meaning of § 7121(c)(5). Id. at 10. Accordingly, the Arbitrator concluded that the grievance was not arbitrable and he dismissed the grievance.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union disputes certain factual findings of the Arbitrator. In particular, the Union contends that the Arbitrator's finding that the highest grade level assigned to the grievant's position is a GS-11 is erroneous. In this regard, the Union asserts that it provided the Arbitrator with numerous examples of existing GS-12 Engineering Technician positions located in other components of the Agency. The Union also contends that the Arbitrator "ignored or did not recognize the evidence submitted by the Union." Exceptions at 6. In addition, the Union contends that it argued at the arbitration hearing that the Agency repeatedly violated the specific [ v58 p693 ] promotion procedures contained in the parties' agreement and that the Arbitrator erred in stating that the Union's contention concerned a violation of only one step of the promotion procedures.

      The Union further argues that the award is deficient because the Arbitrator failed to find that the Agency violated § 7114(b)(4) of the Statute. [n3]  In particular, the Union contends that the Arbitrator erroneously failed to find that the Agency's refusal to provide requested information to assist the Union in preparation for arbitration constituted an unfair labor practice pursuant to § 7114(b)(4).

      The Union further contends that "[t]he [A]rbitrator's decision directly violate[s §§ 7103(a)(8), 7103(a)(12) and 7116(a)(7) of the] Statute by committing an unfair labor practice by his failing to recognize an official collective bargaining agreement." [n4]  Id. at 4. In this regard, the Union contends that "the grievance is [arbitrable], since [the parties'] agreement is the procedure for classifying an employee at a higher grade." Id. at 7-8. The Union states that "[t]he purpose of the [parties'] agreement was to establish non-competitive promotion procedures and eliminate classification appeals[.]" Id. at 4.

B.      Agency's Opposition

      The Agency argues that the Arbitrator correctly found that the grievance is not arbitrable. The Agency further argues that the Union's remaining arguments provide no basis for overturning the Arbitrator's award. In this regard, the Agency notes that the Union's additional arguments address the merits of the case, which the Arbitrator did not reach.

IV.     Analysis and Conclusions

A.     Preliminary Matter

      The Authority has held that arbitration awards are not subject to review on the basis of evidence that comes into existence after the arbitration. See, e.g., AFGE Local 2004, 55 FLRA 6, 9 (1998); NAGE, Local R4-45, 53 FLRA 517, 519-20 (1997). This precedent is consistent with § 2429.5 of the Authority's Regulations, which provides, in pertinent part, that "[t]he Authority will not consider evidence offered by a party, or any issue, which was not presented in the proceedings before the . . . arbitrator. The Authority may, however, take official notice of such matters as would be proper." The Authority has generally taken official notice of documents that were not presented for the arbitrator's consideration when those documents have been of widespread application, and not applicable only to one agency. Compare United States Dep't of Veterans Affairs, Ralph H. Johnson Med. Ctr., Charleston, S.C., 56 FLRA 381, 384 (2000) (Authority took official notice of government-wide OPM classification standard because it was a public document), with Soc. Sec. Admin., 57 FLRA 530, 533-34 (2001) (Authority refused to take official notice of agency's National Promotion Plan because it applied only to the agency).

      In the instant case, the Union filed a supplemental submission asserting that after issuance of the award, the Agency classified a GS-12 technician position. According to the Union, the Agency's action demonstrates that the Agency could have created a GS-12 position for the grievant. The Union's submission includes a copy of the position description for the GS-12 position mentioned above.

      It is undisputed that the position description did not exist at the time of the hearing and, in contrast to a document of general application, the position description is an internal Agency document that applies only to the Agency. Consistent with Authority precedent, such evidence may not be introduced to refute material on the record before the Arbitrator and it is not appropriate for the Authority to consider the GS-12 position description or the Agency's arguments in its supplemental submission regarding the position description. See NAGE, Local R4-45, 53 FLRA at 520; Veterans Admin. Regional Office, 5 FLRA 463, 470-71 (1981). Accordingly, the Authority will not consider the Union's supplemental submission in reviewing the Arbitrator's award.

B.     The award is not based on a nonfact.

      We construe the Union's contention that the Arbitrator erred in finding that the highest grade level assigned to the grievant's position is a GS-11 as an argument that the award is based on a nonfact. To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator [ v58 p694 ] would have reached a different result. See, e.g., Soc. Sec. Admin., Chicago North Dist. Office, 56 FLRA 274, 278 (2000). The Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties had disputed at hearing. See id.

      The parties disputed the issue of the highest grade level for the grievant's position at the arbitration hearing. See Award at 8. Therefore, the Arbitrator's finding cannot now be challenged as a nonfact. See, e.g., United States Dep't of the Air Force, Warner Robins Air Logistics Ctr., Robins Air Force Base, Ga., 56 FLRA 498, 502 (2000). Accordingly, we find that the Union has not demonstrated that the award is based on a nonfact, and we deny the exception.

C.     The Arbitrator did not exceed his authority.

      We construe the Union's claim that the Arbitrator improperly failed to find that the Agency's refusal to provide requested information to the Union constituted an unfair labor practice pursuant to § 7114(b)(4) as a claim that the Arbitrator exceeded his authority. Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority, or award relief to persons who are not encompassed within the grievance. See United States Dep't of the Navy, Naval Base, Norfolk, Va., 51 FLRA 305, 307-08 (1995). In the absence of a stipulation of the issues by the parties, we accord substantial deference to the arbitrator's framing of the issue. See United States Dep't of the Army, Corps of Engineers, Memphis Dist., Memphis, Tenn., 52 FLRA 920, 924 (1997).

      Here, the parties did not stipulate the issues to be resolved, and the Arbitrator framed the issues as whether the grievance is arbitrable and whether the Agency violated the parties' agreement by failing to promote the grievant. See Award at 2. Although the Union argued in its post-hearing brief that the Agency violated § 7114 of the Statute, see Appellant's [Post-Hearing] Brief, at 31-32, the Union has not demonstrated that the Arbitrator was required to have addressed that issue or that by failing to do so, the Arbitrator failed to resolve an issue that was submitted to arbitration. Accordingly, we find that the Union has not demonstrated that the Arbitrator exceeded his authority, and we deny the exception. [n5] 

D.     The award is not contrary to law.

      The Authority reviews questions of law raised by exceptions to an arbitrator's award de novo. NTEU,

      Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. Id.

1.     5 U.S.C. § 7116(a)(7)

      The Union contends that the Arbitrator's awardviolates § 7116(a)(7) of the Statute because the award fails to enforce the promotion procedures contained in the parties' agreement. Section 7116(a)(7) provides, in pertinent part, that "it shall be an unfair labor practice for an agency . . . to enforce any rule or regulation . . . which is in conflict with any applicable collective bargaining agreement if the agreement was in effect before the date the rule or regulation was prescribed" (emphasis added). Section 7103(a)(3) of the Statute provides that the term "agency" includes "an Executive agency[,]" and also provides a list of specific agencies that are included and excluded from the definition. Arbitrators are not included on this list. In addition, the Union has not cited any Authority precedent demonstrating that § 7116(a)(7) applies to the actions of an arbitrator. Thus, we conclude that the Union's contention does not provide a basis for finding the award deficient, and we deny the exception. [n6] 

2.     5 U.S.C. § 7121(c)(5)

      Section 7121(c)(5) of the Statute provides that any grievance concerning "the classification of any position which does not result in the reduction in grade or pay of an employee" is excluded from the scope of negotiated grievance procedures. [n7]  It is well established that where the substance of a grievance concerns the appropriateness of a grievant's assigned grade level, it falls within the scope of § 7121(c)(5) and is not arbitrable. See AFGE, Local 987, 52 FLRA 212, 215 (1996); AFGE, [ v58 p695 ] Local 2142, 51 FLRA 1140, 1142 (1996); United States Dep't of the Air Force, Air Educ. & Training Command, Randolph Air Force Base, San Antonio, Tex., 49 FLRA 1387, 1389 (1994).

      In this case, the Arbitrator found that the grievance sought to have the grievant's position reclassified at a higher level. See Award at 8. Based on this finding, the Arbitrator concluded that the grievance was not arbitrable under § 7121(c)(5). The Arbitrator's conclusion is fully consistent with precedent cited above, as the substance of the grievance concerns the "appropriateness of a grievant's assigned grade level" with no accompanying reduction in grade or pay. AFGE, Local 987, 52 FLRA at 215.

      The Union argues that the matter at issue is grievable because the parties' agreement provides for the resolution of noncompetitive promotion procedures and eliminates the need for classification appeals. Contrary to the Union's claim, the exclusions contained in § 7121(c) of the Statute are mandatory exclusions from grievance and arbitration procedures and, as a result, "[t]he parties may not include these matters in such procedures[.]" NTEU, Chapter 260, 52 FLRA 1533, 1537 (1997) (emphasis in original). Accordingly, we find that the Union's argument does not provide a basis for finding the grievance arbitrable, and we deny the exception. [n8] 

V.     Decision

      The Union's exceptions are denied.



Footnote # 1 for 58 FLRA No. - Authority's Decision

   We note that subsequent to the filing of its exceptions, the Union submitted a document that was inadvertently omitted from the exceptions. As the exceptions explicitly refer to this document as an attachment, and in the absence of any opposition from the Agency, we will consider the document.


Footnote # 2 for 58 FLRA No. - Authority's Decision

   5 U.S.C. § 7121(c)(5) provides that "the classification of any position which does not result in the reduction in grade or pay of an employee" is excluded from the scope of negotiated grievance procedures.


Footnote # 3 for 58 FLRA No. - Authority's Decision

   5 U.S.C. § 7114(b)(4) states that "[t]he duty of an agency and an exclusive representative to negotiate in good faith . . . shall include the obligation . . . in the case of an agency, to furnish to the exclusive representative involved [various information]."


Footnote # 4 for 58 FLRA No. - Authority's Decision

   5 U.S.C. § 7116(a)(7) states, in part, that "it shall be an unfair labor practice for an agency . . . to enforce any rule or regulation . . . which is in conflict with any applicable collective bargaining agreement if the agreement was in effect before the date the rule or regulation was prescribed[.]" Sections 7103(a)(8) and (12) define "collective bargaining agreement[s]" and "collective bargaining[,]" respectively.


Footnote # 5 for 58 FLRA No. - Authority's Decision

   To the extent that this exception is construed as a contention that the award is contrary to § 7114(b)(4) of the Statute because the Agency did not provide requested information, we deny it on the same basis. As the Arbitrator was not required to, and did not, address this issue, there is no basis for finding that the award is contrary to § 7114(b)(4).


Footnote # 6 for 58 FLRA No. - Authority's Decision

   To the extent this exception is construed as a contention that the award is deficient because it failed to find that the Agency violated § 7116(a)(7), there is no evidence that this issue was raised before the Arbitrator. Thus, consistent with § 2429.5 of the Authority's Regulations, we decline to address this contention.


Footnote # 7 for 58 FLRA No. - Authority's Decision

   The Authority construes the term "classification" in § 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[.]" United States Nuclear Regulatory Comm'n, 54 FLRA 1416, 1421 (1998) (quoting 5 C.F.R. § 511.101(c)).


Footnote # 8 for 58 FLRA No. - Authority's Decision

   We also find that it is not necessary to address the Union's remaining exceptions regarding the Arbitrator's conclusion that the grievance is not arbitrable because those exceptions, even if valid, would not alter the conclusion that the