United States, Department of the Army, U.S. Army Corps of Engineers, Northwestern Division, Portland, Oregon (Agency) and United Power Trades Organization (Union)

[ v59 p443 ]

59 FLRA No. 68

UNITED STATES
DEPARTMENT OF THE ARMY
U.S. ARMY CORPS OF ENGINEERS
NORTHWESTERN DIVISION
PORTLAND, OREGON
(Agency)

and

UNITED POWER
TRADES ORGANIZATION
(Union)

0-AR-3703

_____

DECISION

November 14, 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 Joe H. Henderson filed by the Agency under § 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 Agency violated the parties' collective bargaining agreement by failing or refusing to place the grievants into the Trades and Crafts (TC) pay system for the time period they performed duties consistent with that pay system. To remedy the violation, the Arbitrator awarded the grievants backpay.

      For the following reasons, we conclude that the award involves a classification determination precluded by § 7121(c)(5) of the Statute. Accordingly, we find that the award is deficient, and we set aside the award.

II.     Background and Arbitrator's Award

      The Agency hired the three grievants to work as "laborers" (also referred to as "student hires" by the Arbitrator) in the warehouse at the Dalles-John Day Project under the Wage Grade (WG) pay system. Award at 2. [n1]  Employees employed under the WG pay system, in contrast to those employed under the TC pay system, are "paid at a lower scale and excluded from the Union's bargaining unit." Id.

      The Union filed a grievance claiming that the grievants should have been placed into the TC pay system, rather than the WG pay system. See id. at 3. In response to the grievance, the Agency agreed that the grievants "were more appropriately included in the TC pay system." Id. However, rather than place the grievants into the TC pay system and provide them backpay, the Agency reassigned the grievants "out of TC-type work[,]" and into a WG work area. Id. at 3, 12.

      The grievance was not resolved and was submitted to arbitration, where the Arbitrator framed the issue as follows:

Did management violate the law or the labor contract when it failed or refused to place student hire employees at The Dalles-John Day Project into the TC pay system?
If so, what is the remedy?

Id. at 2.

      Before the Arbitrator, the Union contended that the grievance was arbitrable. The Union argued that the grievance did not involve a classification matter under § 7121(c)(5) of the Statute, but sought "the appropriate remedies to employees whom the Agency itself has already determined to be TC employees." Id. at 3. As to the merits, the Union argued that the Agency's refusal to place the grievants into the TC pay system violates the parties' collective bargaining agreement. See id. at 4. As a remedy, the Union requested that the grievants be placed into the TC pay system and provided backpay.

      The Agency argued that the grievance was not arbitrable on two grounds. First, the Agency argued that the grievance was not arbitrable under § 7121(c)(5) of the Statute because "whether the [grievants] should be paid as WG or TC is a classification issue." Id. at 6. The Agency asserted that the grievants had not suffered a reduction in grade or pay as they were never paid from the TC pay system. See id. at 7. The Agency also asserted that the Back Pay Act does not apply to reclassification actions such as in this case. See id. at 8. Second, the Agency argued that the grievance was not arbitrable under the Statute because the grievants have never been members of the bargaining unit and, thus, [ v59 p444 ] the Union does not have the authority to file the grievance on their behalf. See id. at 7-8. Nevertheless, the Agency noted that the Union has the right to file a grievance on its own behalf in this matter. See id.

      The Arbitrator determined that the grievance was arbitrable. The Arbitrator rejected the Agency's argument that the grievance was not arbitrable because the grievants were not included in the bargaining unit. The Arbitrator reviewed the definition of the bargaining unit as set forth in the parties' collective bargaining agreement. [n2]  See id. at 10-11. Based on that definition, the Arbitrator stated that the bargaining unit is not "identified by specific job classifications, but by location of work within the project area[.]" Id. at 11. The Arbitrator noted that, in response to the grievance, the Agency had acknowledged that the grievants were performing "warehousing support duties more appropriately classified in the TC Pay Schedule." Id. Consequently, the Arbitrator concluded that, under the terms of the parties' agreement, the grievants were "subject to the protection" of the Union. Id.

      On the merits, the Arbitrator determined that the Agency violated the parties' collective bargaining agreement by failing or refusing to place the grievants into the TC pay system for the time period they performed duties consistent with that pay system. The Arbitrator stated that the TC pay system is "applicable to all wage board jobs in power production dams under the jurisdiction of the North Pacific Division, Corps of Engineers, in the Pacific Northwest." See id. The Arbitrator noted that the warehouse at the Dalles-John Day Project is part of the power production dam. See id. at 12. Thus, the Arbitrator found that employees working within the warehouse should be paid under the TC pay system. See id.

      The Arbitrator further found that, because the Agency admitted that the grievants were working in the warehouse and performing "TC work, they were entitled to be paid according to the TC pay system." Id. at 13. The Arbitrator added that "[t]his is true" even if management inappropriately assigned the grievants to TC work areas and paid them according to the WG pay system. Id. The Arbitrator found that, in these circumstances, the Agency's argument that the grievance involves a classification matter does not relieve the Agency of the duty to pay the "appropriate scale" for employees it admits were "performing duties in a TC work area and/or position." Id. Accordingly, the Arbitrator sustained the grievance and awarded the grievants backpay with interest for the period they performed duties consistent with the TC pay system.

III.      Positions of the Parties

A.     Agency's Exceptions

      The Agency contends that the award is contrary to §§ 7105(a)(2)(A) and 7121(c)(5) of the Statute, the Back Pay Act, 5 U.S.C. § 5596, and that the Arbitrator exceeded his authority.

      Specifically, the Agency contends that the award violates § 7121(c)(5) of the Statute because the Arbitrator made a classification determination which did not result in the reduction in grade or pay of the grievants. Exceptions at 10. The Agency asserts that the grievants did not seek compensation for having temporarily performed the duties of a higher-graded position. See id. at 12-13. Rather, according to the Agency, the basis of the dispute was "whether the grievants should have been classified under the WG or TC pay systems." Id. at 9.

      Further, the Agency contends that the Arbitrator violated the Statute and exceeded his authority by determining the bargaining unit status of the grievants. See id. at 6. Citing §§ 7105(a)(2)(A) and 7112(a)(1) of the Statute, the Agency states that bargaining unit status determinations are reserved exclusively to the Authority. [n3]  The Agency asserts that, in ruling on the bargaining unit status of the grievants, the Arbitrator relied only on the definition of the bargaining unit set forth in the parties' collective bargaining agreement and not the "unit certification." See Exceptions at 2, 7. The Agency argues that the Arbitrator's determination that the grievants are in the bargaining unit is inconsistent with the parties' agreement and the "unit certification." Id. at 7. In this regard, the Agency contends that the bargaining unit does not include employees paid under the WG pay system, and since the grievants were paid under the WG pay system for all times relevant here, they are excluded from the bargaining unit. [ v59 p445 ]

      In addition, the Agency contends that the remedy providing for backpay is contrary to the Back Pay Act because, by its terms, the Back Pay Act does not apply to classification actions. [n4] 

B.      Union's Opposition

      The Union asserts that the Agency's exceptions repeat the same arguments that were raised before, and rejected by, the Arbitrator. The Union disputes the Agency's contentions that the grievance involves a classification determination precluded by § 7121(c)(5) of the Statute and that the Arbitrator improperly determined the bargaining unit status of the grievants. See Opposition at 2. The Union argues that the parties did not request the Arbitrator to resolve a dispute "as to classification or bargaining unit status." Id. In this regard, the Union asserts that the Arbitrator "simply accepted the Agency's own determination that these employees were covered by the TC pay scale and thus in the bargaining unit." Id.

      The Union also disputes the Agency's contention that the remedy providing for backpay is contrary to the Back Pay Act. The Union argues that when it requested backpay as a remedy it relied on a contractual provision providing for the fair and equitable treatment of employees, and not the Back Pay Act. See id.

IV.      Analysis and Conclusions

      The Authority reviews questions of law de novo. See 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. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.

      The Agency contends, among other things, that the award is deficient because it involves a classification determination precluded by § 7121(c)(5) of the Statute. Under § 7121(c)(5) of the Statute, a grievance concerning "the classification of any position which does not result in the reduction in grade or pay of an employee" is removed from the scope of the negotiated grievance procedures. The Authority has viewed the meaning of "classification" under section 7121(c)(5) in the context of 5 C.F.R. chapter 511. Soc. Sec. Admin., Office of Hearings and Appeals, Mobile, Ala., 55 FLRA 778, 779-80 (1999); United States Department of the Navy, Naval Aviation Depot, Marine Corps Air Station, Cherry Point, N.C., 42 FLRA 795, 801-02 (1991) (Naval Aviation Depot). Classification of a position is defined in 5 C.F.R. § 511.101(c) as "the analysis and identification of a position and placing it in a class under the position-classification plan established by OPM [Office of Personnel Management] under chapter 51 of title 5, United States Code." Under the system established by OPM, classification entails the identification of the appropriate title, series, grade, and pay system of a position. See 5 C.F.R. § 511.701(a) (a classification action is the determination to establish or change the title, series, grade or pay system of a position). The Authority has found that the definition of the term "classification" that appears in 5 C.F.R. § 511.101 applies to prevailing rate employees. [n5]  See Naval Aviation Depot, 42 FLRA at 801-02; cf. NAGE, Local R5-168, 53 FLRA 1622, 1624 (1998). Where the substance of a grievance concerns whether the grievant is entitled to be compensated at a higher rate of pay by reason of having temporarily performed the established duties of a higher-graded position, the grievance does not concern the classification of a position within the meaning of § 7121(c)(5). Naval Aviation Depot, 42 FLRA at 801.

      In this case, both the grievance and the award concern the pay system assigned to the grievants' position, and, therefore, the classification of a position under § 7121(c)(5) of the Statute. The Agency asserts, and the Union does not dispute, that the grievants did not seek compensation for having temporarily performed the duties of a higher-graded position. See Exceptions 12-13. Instead, the grievance challenged the pay system under which the Agency hired the grievants. See Award at 3. The issue before the Arbitrator and his disposition of that issue clearly concerned the pay system the Agency assigned to the grievants' position. In this regard, the Arbitrator framed the issue, in relevant part, as: "Did management violate the law or the labor contract when it failed or refused to place student hire employees at The Dalles-John Day Project into the TC pay system?" Id. at 2.

      Further, in his award, the Arbitrator found that the Agency violated the parties' collective bargaining agreement by failing or refusing to place the grievants who were hired under the WG grade pay system into the TC pay system for the time period they performed duties consistent with that pay system. The Arbitrator [ v59 p446 ] stated that because the Agency admitted that the grievants were performing "TC work, they were entitled to be paid according to the TC pay system." Id. at 13.

      In these circumstances, we find that the substance of the grievance and the award concern the pay system assigned to the grievants' position, and, therefore, the classification of a position under § 7121(c)(5) of the Statute. Accordingly, we conclude that the award is deficient because it involves a classification determination precluded by § 7121(c)(5) of the Statute. See, e.g., AFGE, Local 987, 52 FLRA 212, 215 (1996) (arbitrator correctly concluded that grievance was not arbitrable under § 7121(c)(5) where substance of grievance concerned grade level of duties assigned to grievant's position).

      Because we find that the Arbitrator's award is deficient as contrary to law, we conclude that the award must be set aside in its entirety. [n6] 

V.      Decision

      The award is set aside.



Footnote # 1 for 59 FLRA No. 68 - Authority's Decision

   Initially, the grievance concerned eight employees and was subsequently limited to three employees. See Award at 8; Exceptions at 2. According to the Agency, the Union amended the grievance to cover only three of the eight employees. See Exceptions at 2.


Footnote # 2 for 59 FLRA No. 68 - Authority's Decision

   According to the Arbitrator, the bargaining unit is defined in the parties' agreement as follows:

[T]he Union is recognized as the exclusive representative of a bargaining unit consisting of Corps of Engineers' non-supervisory operation and maintenance employees, as defined by the Department of the Army, [who] are paid from the Pacific Northwest Regional Power Rate Schedule within the Portland, Seattle and Walla Walla Districts of the Division.

Award at 10-11.


Footnote # 3 for 59 FLRA No. 68 - Authority's Decision

   Section 7105(a)(2)(A) of the Statute provides that the Authority shall "determine the appropriateness of units for labor organization representation . . . ." Moreover, § 7112(a)(1) directs that the "Authority shall determine the appropriateness of any unit."