United States, Department of Agriculture, Food Safety and Inspection Service (Agency) and National Joint Council of Food Inspection Locals, American Federation of Government Employees (Union)

[ v60 p192 ]

60 FLRA No. 43

UNITED STATES
DEPARTMENT OF AGRICULTURE,
FOOD SAFETY
AND INSPECTION SERVICE
(Agency)

and

NATIONAL JOINT COUNCIL
OF FOOD INSPECTION LOCALS
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
(Union)

0-AR-3807

_____

DECISION

August 25, 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 Timothy J. Heinsz 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 matter was arbitrable and that the grievant was entitled to a retroactive temporary promotion and backpay for the performance of higher-graded duties. For the reasons that follow, we set aside the award.

II.     Background and Arbitrator's Award

      The grievant was a Consumer Safety Inspector, GS-8, who inspected the processing and sanitation of meat. The grievant also served as the local Union president.

      One meat processing plant to which the grievant was assigned began producing a second type of meat product on a temporary basis, with the grievant inspecting this additional meat product on eight different days between May 8 and August 9. Based upon this work, the grievant spoke to various persons in the Agency's district office about a job upgrade. According to a matrix used to determine job classification, if an employee performed any combination of inspection processes from any two groups, then the inspector should be paid as a GS-9 rather than a GS-8. The grievant claimed that because he was inspecting two types of meat product, he should be paid as a GS-9. When his requests were not granted, he filed a grievance on June 7, requesting backpay, no future violations, restoration of rights, and to upgrade his position to GS-9, with the upgrade being "`retroactive from 05/02/02[.]'" Award at 8.

      On August 8, the same meat processing plant began producing a second meat product on a regular basis. On August 9, the grievant received notice of a promotion from GS-8 to GS-9, effective August 25, because he was now inspecting two types of meat product being made.

      When the grievance was not resolved, it was submitted to arbitration. Prior to the hearing, the Agency filed a motion to dismiss contesting the arbitrability of the grievance. The Arbitrator heard testimony on the issue of arbitrability, as well as the merits, and reserved ruling on the arbitrability issue.

      The parties did not stipulate the issue, and the Arbitrator framed the issue to be "whether the Agency violated the collective bargaining agreement as to its wage payments to the [g]rievant between May 2, 2002 and August 25, 2002." Id. at 2.

      Before the Arbitrator, the Agency contended that the case involved classification, an issue excluded from arbitration by the agreement and applicable law. The Union asserted that this was a matter concerning backpay owed for a temporary promotion. The Arbitrator found that the grievance included claims both for backpay and for an upgrade retroactive from May 2. The Arbitrator determined that the latter demand was "undoubtedly precluded from the arbitration process" under Article XXXII Section C and §§ 7103(a)(14)(B) and 7121(c)(5) of the Statute. Award at 13.

      The Arbitrator considered the issue before him as whether performing higher grade work triggered a temporary promotion requiring GS-9 pay and, if so, whether the action may be grieved under the parties' agreement. [ v60 p193 ] The Arbitrator concluded that because the grievant received a permanent promotion to GS-9, it "mooted" any issue of permanent classification. Id. at 14. Before the Arbitrator, the Agency argued that there can be no temporary promotion because the grievant was not detailed to a higher-graded position under Article XXV Section C. Further, the Agency argued that no financial remedy could be awarded under the Back Pay Act because there was no proof of an unjustified or unwarranted personnel action.

      The Arbitrator concluded that the Agency's interpretation of Article XXV Section C was "unduly restrictive" because it would give the Agency "sole discretion to decide whether to determine if an employee [was] detailed or promoted to another position." Id. at 16. According to the Arbitrator, Article XXV Section C defines a "temporary assignment" as when an employee is performing tasks other than his or her regular duties. The Arbitrator also found that, under the agreement, employees were not to be detailed to perform higher grade work but instead should be given temporary promotions. The Arbitrator concluded that the Agency violated Article XXV and that such a violation could properly be grieved. However, the Arbitrator rejected the grievant's claim that he is entitled to backpay for days on which he did not perform the inspection of the two kinds of meat between May 2 and August 25, 2002.

      The Arbitrator also concluded, contrary to the Union's argument, that the Agency did not discriminate against the grievant because he was a Union official. The Arbitrator found that there was no evidence of any anti-Union animus because the Agency, at the grievant's request, reassigned him to St. Joseph, Missouri, and in accordance with classification procedures, promoted the grievant to a GS-9 when it determined that he was inspecting two types of meat products on a regular and recurring basis.

      As his award, the Arbitrator determined that the grievance was arbitrable and that the grievant should be paid at a GS-9 rate for any work he performed between May 2 and August 25, 2002, that involved inspecting two types of meat products.

III.     Positions of the Parties

A.     Agency's Exception

1. The Arbitrator exceeded his authority

      The Agency contends that the original grievance sought to reclassify the grievant's position from GS-8 to GS-9, and as such, the matter was not grievable or arbitrable. The Agency further contends that under the parties' negotiated agreement, the grievance as submitted at the initial stage is not permitted to be expanded or changed. According to the Agency, the Arbitrator exceeded his authority by improperly expanding the grievance to include a request for temporary promotion and issued his award on an issue not presented at the initial filing of the grievance.

2.      The award is contrary to § 7122(a) of the Statute because it involves the classification of a position

      The Agency contends that the award is deficient because the Arbitrator made a classification determination when he determined that the grievant had performed higher-graded work, thus entitling him to a temporary promotion. According to the Agency, the Arbitrator relied on the number of types of meat inspected and concluded that the grievant performed work at a higher grade level. The Agency argues that the Arbitrator made a classification determination himself by relying on the Agency's classification guidance (the matrix) to conclude that the work in question was GS-9 work.

      The Agency contends that the Arbitrator had no authority to classify a set of duties and then rely on that determination to find that certain duties were performed at a higher-grade. The Agency asserts that the matrix, relied on by the Arbitrator, was merely a guide to classify a position. The Agency also asserts that the matrix is one of several factors relied on by Agency personnel staff to appropriately classify a position. The Agency contends that its classification staff determined that the grievant "did not perform the full range of duties of the higher-graded GS-9 position to warrant a detail or temporary promotion" during the eight days that the grievant inspected two different meat products. Exceptions at 6.

      The Agency argues that the award could only be rendered by making a classification decision from comparing the duties allegedly being performed with the [ v60 p194 ] applicable classification standard. The Agency contends that the Arbitrator does not have authority under the Statute to render classification decisions pertaining to the pay plan, occupational series, or grade of a Federal position. Additionally, the Agency contends that the Arbitrator improperly extended his authority by determining what duties should be credited for purposes of applying the classification standard.

B.     Union's Opposition

1. The Arbitrator did not exceed his authority

      The Union maintains that the temporary promotion issue is properly before the Arbitrator. According to the Union, the grievant performed work at the GS-9 level, for which he did not receive GS-9 pay from May 2 through August 25, 2002. The Union contends that the Agency failed to properly investigate the grievant's claim that his work should be reclassified, pursuant to the Agency's contractual obligation to do so.

2. The award is not contrary to § 7122(a) of the Statute because it does not involve the classification of a position

      The Union argues that the award is valid because it violates no laws and is consistent with the language of the parties' agreement. According to the Union, the Arbitrator compared the duties of the grievant with the Agency's classification guide and made the appropriate decision, based on the parties' agreement, that the grievant should be awarded backpay.

IV.     Analysis and Conclusions

A.     The Arbitrator did not exceed his authority

      An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority or awards relief to persons who are not encompassed within the grievance. United States Dep't of Def., Army & Air Force Exch. Serv., 51 FLRA 1371, 1378 (1996).

      As the parties did not stipulate the issue in the underlying grievance, the Arbitrator framed the arbitrability issue, and resolved it, in terms of the accuracy of the wages paid to the grievant pursuant to the terms of the parties' agreement, which would cover the issue of whether the grievant should have received a temporary promotion. [n2]  In the absence of a stipulation, the Authority will defer to an arbitrator's framing of the issue. See, e.g., AFGE, Local 933, 58 FLRA 480, 482 (2003). Accordingly, we find that the Arbitrator did not exceed his authority by addressing the temporary promotion issue.

B.      The award is contrary to § 7122(a) of the Statute because it involves the classification of duties

      When an exception involves an award's consistency with law, the Authority reviews any question of law raised by the exception and the award 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 Dep't of Def., Dep'ts of the Army & 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. See 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 by law from coverage by a negotiated grievance procedure. Thus, an arbitrator is barred from resolving any grievance concerning the classification of a position that does not result in the reduction in grade or pay of an employee. See Soc. Sec. Admin., 60 FLRA 62, 64 (2004).

      The Authority has construed the term "classification" in § 7121(c)(5) in the context of 5 C.F.R. § 511.101(c), which defines the term as "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." See AFGE, Local 987, 37 FLRA 386, 389 (1990). 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 § 7121(c)(5) of the Statute. Similarly, where the substance of a grievance concerns the accretion of higher-graded duties to an existing position, the grievance concerns a classification matter. See AFGE Local 1858, 59 FLRA 713, 715 (2004). Where, however, [ v60 p195 ] the substance of a grievance concerns whether a grievant is entitled to a temporary promotion under a collective bargaining agreement by reason of having temporarily performed the duties of a higher-graded position, the grievance does not concern the classification of a position within the meaning of § 7121(c)(5) of the Statute. United States Dep't of the Navy, Naval Aviation Depot, Marine Corps Air Station, Cherry Point, N.C., 42 FLRA 795, 801 (1991). However, when the duties of a position have not been previously classified, a grievance seeking a temporary promotion to that position concerns a classification matter within the meaning of § 7121(c)(5) of the Statute. See United States Nuclear Regulatory Comm'n, 54 FLRA 1416, 1421-22 (1998). In such a grievance, a necessary predicate to determining whether the employee performed higher-graded duties would be to determine the classification of those duties. United States Dep't of the Air Force, Air Force Materiel Command, Wright-Paterson Air Fore Base, Ohio, 59 FLRA 64, 67 (2003) (Wright-Patterson AFB).

      In this case, the Arbitrator examined duties performed by the grievant, compared those duties to the matrix used as a tool by Agency classification staff, and determined that the grievant should have received a temporary promotion. However, it is clear that the grievant was seeking an upgrade, in his permanent position, based on the performance of additional duties. As noted, grievances concerning the grade level assigned to an employee concern classification matters.  [n3]  Thus, to reach his conclusion that the grievant was due a temporary promotion, the Arbitrator classified and graded a set of duties.

      The Union admits as much when it stated that the Arbitrator "compared the duties of the grievant with the [A]gency's classification guide, and made the appropriate decision[.]" Opposition at 14. Because the Arbitrator resolved an issue that involved the classification of the grievant's grade level, the award is inconsistent with § 7121(c)(5) of the Statute. See Soc. Sec. Admin., 60 FLRA No. 16, slip op. at 8.

      We grant the exception and set aside the award, including the award of backpay, because it involves the classification of duties under § 7121(c)(5) of the Statute. [n4] 

V.     Decision

      The award is set aside.


File 1: Authority's Decision in 60 FLRA No. 43
File 2: Opinion of Member Pope


Footnote # 1 for 60 FLRA No. 43 - Authority's Decision

   Member Pope's separate opinion, dissenting in part, is set forth after this decision.


Footnote # 2 for 60 FLRA No. 43 - Authority's Decision

   The Arbitrator framed the issue to be "whether the Agency violated the collective bargain