United States, Department of the Navy, Marine Corps Air Station, Cherry Point, North Carolina (Agency) and International Association of Machinists and, Aerospace Workers, Local 2296 (Union)

[ v60 p155 ]

60 FLRA No. 37

UNITED STATES
DEPARTMENT OF THE NAVY
MARINE CORPS AIR STATION
CHERRY POINT, NORTH CAROLINA
(Agency)

and

INTERNATIONAL ASSOCIATION
OF MACHINISTS AND
AEROSPACE WORKERS,
LOCAL 2296
(Union)

0-AR-3795

_____

DECISION

August 23, 2004

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Don E. Williams 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 sustained in part a grievance alleging that the Agency violated the parties' collective bargaining agreement by not properly paying the grievant for his work.

      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 grievant, a WG-10 Instrument Mechanic, claimed that he had been performing the duties of a WG-11 Electronic Industrial Mechanic since May 2001 and was entitled to WG-11 pay. The Agency refused to change the grievant's pay grade and the grievant filed a grievance alleging that the Agency's refusal violated Article 18, §§ 2, 3, and 5 of the parties' agreement. [n2]  The grievance was unresolved and submitted to arbitration. [n3]  As the parties were unable to agree on the issues, the Arbitrator framed the issues as follows:

Whether the Agency breached the CBA [by] failure to include in the job description a task or responsibility assigned to the grievant.
Whether the Agency breached the CBA by failure to assign work consistent with the classification of the positions involved, with compensation on the basis of the highest level of duty, assigned consistent with applicable position classification and job grading standards, procedures, and regulations.
Whether the Agency breached the CBA by failing to equitably treat the grievant, consistent with [the grievant's] skills about job assignments recognized as prestigious or qualifying duties for higher level positions.
If the answer to any of the alleged breaches are [sic] affirmative, then and only then what is the appropriate remedy.

Award at 8-9. [n4] 

      The Arbitrator rejected the Agency's claim that the grievance was not substantively arbitrable because it [ v60 p156 ] concerned the classification of a position within the meaning of § 7121(c)(5) of the Statute. In this regard, the Arbitrator stated that the grievant did not claim that the Agency's classifications were improper but, instead, claimed his position should be classified at a higher grade. See id. at 9. The Arbitrator also found that "the parties did not suggest an issue of `detailing' or `temporary promotion.'" Id. at 6.

      On the merits, the Arbitrator found that the Agency violated Article 18, § 3 of the parties' agreement because the grievant performed the same tasks as the other members of his work unit who were paid at a WG-11 rate. The Arbitrator also concluded that the Agency violated Article 18, § 5 of the parties' agreement, which provides that the Agency will assign work consistent with classifying the positions involved. In reaching this conclusion, the Arbitrator credited the testimony of the grievant's unit supervisor that the grievant was assigned and performed WG-11 work. The Arbitrator also found that the auditor's testimony that the grievant did not perform WG-11 work was "not persuasive." Id. at 11. In addition, the Arbitrator reviewed position descriptions of a Grade 11 Electronics Industrial Mechanic and a Grade 10 Electrician submitted by the parties, and found that the "job description of Grade 11 most clearly applies to the work of [the grievant]." Id.

      Accordingly, the Arbitrator sustained the Union's allegations that the Agency failed to treat the grievant equally and failed to pay him at a WG-11 rate. As a remedy, the Arbitrator ordered the Agency to pay the grievant at the WG-11 rate beginning October 18, 2002.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency contends that the Arbitrator erred in determining that there was a violation of Article 18, § 5 of the parties' agreement when the Agency failed to classify the grievant's tasks at a WG-11 level. According to the Agency, the fact that the result of the desk audit was a determination that the grievant was not performing WG-11 duties does not demonstrate that the Agency treated the grievant adversely. As support for this contention, the Agency relies on United States EPA, Reg. 2, 59 FLRA 520 (2003) (Member Pope dissenting in part on other grounds) (EPA), where the Authority found that the arbitrator's award concerning the appropriate grade level of the grievant's current position concerned a classification matter. In addition, the Agency cites Article 18, § 2 of the parties' agreement, which sets forth the classification appeal process. See Exceptions at 3-4.

B     Union's Opposition

      Citing § 2425.2 of the Authority's Regulations, the Union asserts that the Agency's exceptions are procedurally deficient because they fail to "assert the grounds on which review is requested" and they do not include "evidence or arguments in support of any legal errors of the Arbitrator." Opposition at 2. In this regard, the Union contends that the Agency has not identified a law, rule or regulation with which the award conflicts, as required by § 7122(a)(1) of the Statute. In addition, the Union claims that Exhibit 3 of the Agency's exceptions -- an article containing a citation and discussion of EPA -- should not be considered by the Authority because it was not presented to the Arbitrator at the hearing.

      The Union also contends that the Agency has not provided any support for its argument that the Arbitrator erred in finding a violation of Article 18, § 5 of the parties' agreement. According to the Union, the Authority defers to an arbitrator's factual findings and the Arbitrator found that the grievant performed WG-11 tasks. In making this finding, according to the Union, the Arbitrator considered the same arguments at arbitration that the Agency is asserting in its exceptions.

      The Union further contends that the Agency's reference in its exceptions to the Arbitrator's use of the word "classify" to demonstrate that the Arbitrator made a classification finding is misleading. In this regard, the Union contends that the Arbitrator did not identify the job series containing the duties assigned to the grievant.

IV.     Preliminary Issues

A.     The Agency's exceptions satisfy § 2425.2 of the Authority's Regulations.

      Section 2425.2 of the Authority's Regulations provides that "[a]n exception must be a dated, self-contained document which sets forth in full: (a) A statement of the grounds on which review is requested; (b) Evidence or rulings bearing on the issues before the Authority; [and] (c) Arguments in support of the stated grounds, together with specific reference to the pertinent documents and citations of authorities . . . ."

      In its exceptions, the Agency contends that the Arbitrator erred in determining that there was a violation of Article 18, § § 5 of the parties' agreement when the Agency failed to classify the grievant's tasks at a WG-11 level. In support of this contention, the Agency relies on EPA, where the Authority found that the arbitrator's award concerning the appropriate grade level of the grievant's current position concerned a classification matter excluded from the grievance procedure by [ v60 p157 ] § 7121(c)(5). In addition, the Agency cites Article 18, § 2 of the parties' agreement, which sets forth the classification appeal process.

      Consistent with the foregoing, the Agency specifically identifies Article 18, § 5 of the parties' agreement, and cites both an Authority decision concerning a § 7121(c)(5) matter and the parties' classification appeal process. This constitutes sufficient grounds and sufficient substantive information for the Authority to consider the merits of the Agency's exceptions. [n5]  See AFGE, Local 1698, 57 FLRA 1, 2 (2001); Patent Office Prof'l Ass'n, 34 FLRA 883, 886 (1990). As such, we find that the Agency's exceptions adequately set forth the bases upon which the award is allegedly deficient, and deny the Union's contention in this regard.

B     The Authority will consider Exhibit 3 of the Agency's exceptions.

      Under § 2429.5 of the Authority's Regulations, the Authority will not consider evidence offered by a party that was not presented to the arbitrator. However, § 2429.5 does not preclude consideration of an attachment that provides support for an exception. See NTEU, Chapter 45, 52 FLRA 1458, 1460-61 (1997) (Authority considered documents created after the arbitration proceeding as support for exceptions, not as evidence). Here, Exhibit 3 cites and discusses an Authority decision regarding classification, and it constitutes support for the Agency's classification argument within the meaning of § 2429.5. Accordingly, we deny the Union's request that the Authority not consider Exhibit 3.

V.     Analysis and Conclusions

     The award is contrary to law.

      As set forth above, the Agency asserts that the award of backpay is deficient because the Agency did not violate the parties' agreement and because it did not treat the grievant "adversely by the classifier not finding" an entitlement to a higher grade. Exceptions at 6. In this latter connection, the Agency cites EPA, an Authority decision involving a § 7121(c)(5) claim. The Union interprets the exceptions as raising a § 7121(c)(5) argument. See Opposition at 3. In these circumstances, we construe the Agency's contention as an argument that the award is contrary to § 7121(c)(5) of the Statute.

      As the Agency's exception concerns whether the award is contrary to law, the Authority's review is 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 the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See United States DoD, Dept's of the Army and the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. Id.

      Under § 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 precluded from coverage by a negotiated grievance procedure. When 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 § 7121(c)(5). See AFGE, Local 2142, 58 FLRA 416, 417 (2003). When the substance of a grievance concerns whether the grievant is entitled to a temporary promotion under a collective bargaining agreement by reason of having performed the duties of a previously classified higher-graded position, the grievance does not concern the classification of a position within the meaning of § 7121(c)(5). See id.

      In this case, the grievance seeks an upgrade of the grievant's permanent position based on his performing higher-graded duties. The Arbitrator evaluated the grade level of the duties permanently assigned to and performed by the grievant to determine their grade level. In this regard, the Arbitrator rejected the auditor's determination that the grievant was not performing WG-11 work and found that the grievant performed the same tasks as the other members of his work unit who were paid at the WG-11 rate. In addition, the Arbitrator reviewed Grade 10 and 11 position descriptions and found that the "job description of Grade 11 most clearly applies to the work of [the grievant]." Award at 11. Further, the Arbitrator explicitly found, and the parties do not dispute, that the grievance did not involve the issue of a detail or a temporary promotion. See id. at 6.

      In AFGE, Local 2142, 51 FLRA 1140, 1142-43 (1996), the Authority found that, as "the substance of the grievances concerned the grade level of the duties assigned to, and performed by, the grievants in their permanent positions[,]" the grievances concerned the classification of the grievants' positions and were precluded by § 7121(c)(5) of the Statute. As the grievance in this case also concerns the grade level of the permanent [ v60 p158 ] duties performed by the grievant and does not concern whether the grievant was entitled to a temporary promotion, it concerns a matter relating to the classification of that position. Accordingly, we find that the award is contrary to § 7121(c)(5) of the Statute and set it aside. [n6] 

VI.     Decision

      The award is set aside.


Concurring Opinion of Chairman Cabaniss:

      While I agree with the resolution of this case, I write separately to explain why I would reach that conclusion for a different reason. I note that the Agency never asserted that the award conflicted with § 7121(c)(5) of the Statute because it addressed a classification matter, although the Agency did allege a violation of the Back Pay Act and the Agency's right to assign work. While the Agency did indeed cite to a case that addressed the § 7121(c)(5) issue, that case also addressed exceeds authority, fair hearing, and nonfact exceptions as well, so the alleged connection between the Agency's generalized comments and a § 7121(c)(5) contrary to law argument are not all that strong or apparent. Given the Agency's inability to articulate this contrary to law argument (the Agency's assertion that it did not adversely treat the grievant, by the classifier's failure to find that the grievant was performing at the WG-11 level, does not make out a conflict with § 7121(c)(5), and is made no more apparent by its generic reference to 59 FLRA 520), I would not find that the Agency raised it.

      I note, however, that the Authority has the ability to raise and address jurisdictional considerations such as this sua sponte, so our action on this issue is appropriate in any event. See, e.g., Dep't of the Army, v. FLRA, 56 F.3d 273, 275 (D.C. Cir. 1995); and United States Small Bus. Admin., Wash., D.C., 51 FLRA 413, 423 n.9 (1995) (citing to United States Dep't of the Army, Army Reserve Pers. Ctr., 34 FLRA 319 (1990)).



Footnote # 1 for 60 FLRA No. 37 - Authority's Decision

   Chairman Cabaniss' concurring opinion is set forth at the end of this decision.


Footnote # 2 for 60 FLRA No. 37 - Authority's Decision

   Article 18, § 2 provides that "if an employee's duty changes, the employee has the right to request the supervisor to make the appropriate changes" and that "[i]f there is a disagreement about whether a task or responsibility assigned should be included in the job description, then the matter may be grieved under the grievance procedure." Award at 10.

      Section 3 provides that "all employees in the [u]nit shall receive equitable treatment, consistent with their skills for job assignments recognized as prestigious or qualifying duties for higher level positions." Id.

      Section 5 provides that the Agency will "assign work consistent with classifying the positions involved, to the extent possible." Id. at 11.


Footnote # 3 for 60 FLRA No. 37 - Authority's Decision

   Upon receiving the request for arbitration, the Agency conducted a desk audit of the grievant's position, and the result of that audit was a determination that the grievant was not performing WG-11 level work.


Footnote # 4 for 60 FLRA No. 37 - Authority's Decision

   The Arbitrator found that: (1) the grievance was untimely filed for the period of May 2001 through July 2002; (2) the grievance was timely filed for the period after October 18, 2002 because it concerned a continuing violation; and (3) the Agency did not violate Article 18, § 2 of the parties' agreement because the evidence was insufficient to support a finding that the ta