United States, Department of Health and Human Services, Food and Drug Administration (Agency) and National Treasury Employees Union, Chapter 282 (Union)

[ v60 p352 ]

60 FLRA No. 74

UNITED STATES
DEPARTMENT OF HEALTH
AND HUMAN SERVICES
FOOD AND DRUG ADMINISTRATION
(Agency)

and

NATIONAL TREASURY
EMPLOYEES UNION
CHAPTER 282
(Union)

0-AR-3827

_____

DECISION

October 22, 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 Samuel A. Vitaro 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 a grievance alleging that the Agency violated the Peer Review promotion procedures contained in Article 59 of the parties' agreement and ordered the Agency to reevaluate the grievant in accordance with his Opinion and Award.

      For the following reasons, we find that the grievance concerns a classification matter that is not arbitrable under § 7121(c)(5) and set aside the award.

II.     Background and Arbitrator's Award

      The grievant is employed by the Agency as a GS-13 Regulatory Review Chemist Level II in the Office of Pharmaceutical Sciences, Drug Products, Center for Evaluation and Drug Research (CEDR). Award at 1. The grievant has been employed by the Agency for about 14 years. Id.

      The Agency utilizes a Peer Review process to evaluate Ph.D level scientists and determine whether those scientists should be upgraded to the GS-14 or GS 15 level. Id. at 2. Article 59 of the parties' agreement contains the procedures to be used in the Peer Review process. [n2]  Id. The Agency has additional guidance regarding the process in its "FDA Personnel Guide for the Evaluation of [CEDR], Regulatory Review Scientists at GS-14 and 15" (guide). [n3]  Id. at 3. Under the procedures, an employee may receive a management nomination for an upgrade, requiring the support of a supervisor, or an employee may self-nominate if unable to obtain a management nomination. Id.

      The grievant's supervisor refused to support her application for upgrade because it "did not evidence the skills and abilities necessary to support a promotion." Id. As a result, the grievant followed the self-nomination procedures and submitted her application for an upgrade to the "[CEDR] Review Career Path Committee for Chemistry" (committee), an advisory committee that makes a recommendation to the Position Classification Specialist (specialist) who has the authority "to make the final classification decision." [n4]  Award at 4.

      The committee met in April 2001, and requested additional information from the grievant. Id. at 4. The "in-depth reviewer" (reviewer), a member of the committee, interviewed the grievant and several others and reported to the committee. Id. The committee determined, based on the reviewer's report, "the criteria established in the [Guide] for the GS-14 grade level have not been met." Id. The grievant's nominee on the committee testified that he did not recall the committee conducting an analysis of the grievant's work against the classification factors found in the Guide. Id. at 4-5.

      The reviewer notified the grievant, by letter, that the committee determined she did not meet the standards for a GS-14 classification. [n5]  Id. at 5. In the letter, the reviewer explained that the committee applied the criteria and looked at the "complexity and impact of the work being performed and such issues as the level of knowledge and judgment necessary to perform the assigned work." Id. The reviewer also detailed the [ v60 p353 ] grievant's deficiencies stating that the committee did not find that the grievant deals with "complex, new and novel situations," displays personal initiative and independence or "create[s] and develop[s] new policy." Id. In the letter, the reviewer reminded the grievant that she could resubmit her application and address the deficiencies found. Id. at 5-6.

      After receiving the letter, the grievant contacted the reviewer for more details on the deficiencies the committee found. Id. at 6. The grievant then requested a "copy of the minutes" for the committee meetings to further understand and correct the deficiencies. Id. The reviewer informed the grievant that the committee did not keep minutes of its meetings and offered to meet with her. Id. The grievant then made a final request of the reviewer for "an official list and explanation of the deficiencies found by the [committee] as referenced in the last paragraph of the memo." Id. The reviewer referred the grievant to the specialist who takes "any formal minutes or formulates deficiencies" from the meetings. Id. The reviewer explained that the specialist notes the commentary made by the committee and then consults with the chairperson to determine the issues that "fall within the scope of Position Classification." Award at 6. The reviewer articulated that written records are intentionally not kept in an attempt to "thwart any [Freedom of Information] request that may come forward from a . . . candidate" and to ensure confidentiality to the committee members. Id. at 6-7.

      The grievant then contacted the specialist and requested a copy of the minutes from the meetings and a list of the deficiencies found. Id. at 7. The specialist replied and reiterated that the proceedings are held in confidence and therefore no written minutes are required to be kept. Id. In addition, the specialist stated that only the reviewer speaks on behalf of the committee and the reviewer did so when he sent the letter to the grievant. Id.

      The Union filed a grievance alleging that the Agency failed to comply with Article 59 because no record of the committee's proceedings were kept. [n6]  Id. After the Union filed the grievance, the specialist provided the Union Steward with a "Standard Evaluation Report" (report), which the specialist testified was the official and final Agency decision on the classification issue. Id. The specialist explained that he wrote the report because his supervisor requested it with the "formal appeal." Id. at 7-8. The report stated that the grievant was evaluated against nine GS-14 criteria as found in the guide, but that only the two grade determining factors, supervisory controls and guidelines, were addressed. [n7]  Id. at 8.

      In the report, the specialist explained that the grievant did not meet the criteria necessary for GS-14 in respect to guidelines because the grievant did not impact her position to the point where she is recognized as an "authority in an area of personal expertise who establishes guidelines which others must recognize and follow in the conduct of their work." Award at 8-9. The specialist then stated that the grievant did not exercise the "authoritative responsibility" or receive only administrative supervision as required for the supervisory controls at the GS-14 level. Id. at 9-10. The specialist commented that the two grade determining factors were linked and "[w]hen a position has been impacted to the level described [in the factor dealing with guidelines], the review scientist subsequently receives the kind of supervision and exercises the kind of responsibility described [in the factor dealing with supervisory controls]." Id. at 9.

      The parties were unable to resolve the grievance and it proceeded to arbitration. The Arbitrator framed the issue as "[d]id [the Agency] violate Article 59 of the Collective Bargaining Agreement when it processed [the grievant's] self-nomination package? If so, what is the appropriate remedy?" Id. at 10.

      The Arbitrator initially addressed the procedural issues. The Agency argued that the remedy requested and the evidence support a conclusion that the grievance was not arbitrable because it involved a classification matter excluded from the grievance procedure by § 7121(c)(5). Id. at 10-11. The Arbitrator, acknowledging that classification matters are excluded from grievance procedures by law, determined that the instant grievance concerned the Agency's compliance with Article 59, not whether the grievant was qualified for the GS-14 position. Id. at 11. The Arbitrator explained that he never discussed the grievant's qualifications for a GS-14 position in his opinion or award and any evidence dealing with substantive matters was only background information. Id. According to the Arbitrator, the Union withdrew its request for retroactive promotion in its post-hearing brief and requested appropriate relief for the alleged violation of Article 59. Id. Additionally, the Arbitrator contended that he was unaware of any precedent where a claim would not be subject to a grievance procedure based solely on the requested relief when other appropriate relief was requested and the claim goes to procedure, not substance. Id.

      The Agency also alleged that Article 59 is unlawful. Award at 11. The Union responded that review committees which make recommendations to management [ v60 p354 ] are not unlawful. Id. at 11-12. The Arbitrator determined that Article 59 is lawful and the grievance arbitrable.

      The Arbitrator then turned to the issue of whether the Agency complied with Article 59 of the agreement. Id. at 12. According to the Union, the Agency did not comply with the "record" keeping portion of the provision. Id. The Union contended that the Agency must consider all relevant factors and "keep a record of the proceedings containing a list of the factors considered, the determinations as to each factor, and an analysis of the employee level of work measured against the standard and the final decision, including providing an explanation, if the employee's level did not meet the grade level criteria." See id. (citing Union's Post-Hearing Brief at 8-9). Further, the Union asserted that the reviewer's letter to the grievant was inadequate "on its face" and the report was inadequate because it was not prepared contemporaneously, it did not discuss all of the factors and it was prepared directly in response to the filing of the grievance. Id. Finally, the Union explained that the report failed to address positive supervisory comments which illustrated that the committee did not seriously consider the grievant's application. Id. at 13.

      The Agency argued that Article 59 merely requires a limited record of the proceedings containing the factors actually considered by the committee. Id. In this regard, the Agency maintained that the report satisfied the Article 59 requirements because it addressed the grade controlling factors and analyzed the grievant's work against those factors. Id. Further, the Agency alleged that Article 59 does not require minutes to be kept, but only a list of factors and analysis. Id.

      The Arbitrator concluded that Article 59 contains ambiguous terms that must be interpreted in order to decide if the Agency violated the provision. [n8]  Award. at 14. The Arbitrator first looked at the term "record" and concluded that the provision required the record to be "composed at or near the time of the events recorded" because the parties intended for the record to be reliable. Id. at 15. The Arbitrator stressed that even with such a record, confidentiality should be protected. Id. at 17. According to the Arbitrator, the report was not meant to satisfy the required record because the specialist provided the report to the Union representative and not to the grievant and arguably, such a report is not required in all cases. Id. at 15-16.

      The Arbitrator went on to address the meaning of "analysis." The Union argued that analysis required the committee to address a supervisor's comments that an employee is performing at the higher grade level. Id. at 16. The Agency alleged that analysis only requires the committee to compare the employee's performance with the standards at the higher grade level. Id. The Arbitrator determined, based on the common meaning of analysis as well the context of Article 59, that any analysis would require a reference to supervisory comments that the employee was performing at a higher level, but would not require "abundant detail and analysis." Id. at 16-17. The Arbitrator then stated that Article 59 was not ambiguous as requiring only an analysis of the factors actually considered. Id. at 17.

      Applying the above standards, the Arbitrator concluded that the Agency violated Article 59. The Arbitrator found that the reviewer's letter did not satisfy Article 59 because it was not contemporaneous, did not list the factors considered or contain an analysis of those factors such that the grievant could address deficiencies and resubmit her application. Id. In addition, the Arbitrator determined that the report was inadequate even though it did list the factors considered because it was not contemporaneous and did not address the supervisory comments that the grievant was performing at the higher level. Id. at 18.

      Turning to the appropriate remedy, the Arbitrator ordered the Agency to reevaluate the grievant in accordance with Article 59. Award. at 18-19. The Arbitrator remanded the matter to the parties to resolve the issue of whether to create an entirely new panel for the reevaluation and retained jurisdiction to assist the parties with the remedy. Id. at 19-20.

      The parties were unable to agree on the composition of the new panel and requested the Arbitrator's assistance. Exceptions, Attachment G. The Arbitrator explained that he did not have the authority to "direct the composition of a new panel (although it might be wise for the Agency to do so) . . . ." Id., Attachment G at 2.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency argues that the award is inconsistent with law because it directs the Agency to reevaluate the grievant and interferes with the classification process. Exceptions at 2. According to the Agency, § 7121(c)(5) of the Statute excludes any grievance concerning the classification of a position, which does not result in the reduction in grade, or pay of an employee, from the scope of grievance and arbitration procedures. Id. at 8. The Agency contends that the Authority has held that classification is 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] . . . ." Id. (citing 5 C.F.R. 511.101(c)). [ v60 p355 ]

      The Agency alleges that the instant grievance concerns the appropriate grade level of the grievant's position and thus concerns a classification matter under § 7121(c)(5) of the Statute. Id. at 9. The Agency cites Authority precedent where arbitrators found grievances concerned classification matters and were therefore not arbitrable. Exceptions at 10-11, 12 (citing United States Environmental Protection Agency, Region 2, 59 FLRA 520 (2003); United States Dep't of the Air Force, Scott Air Force Base, Il., 38 FLRA 32 (1990); Federal Aviation Admin., Dep't of Transportation, Tampa, Fla., 8 FLRA 532 (1982)). Although the Arbitrator framed the issue as procedural, the Agency argues that the dispute "goes beyond procedural considerations . . . and invades the classification process." Id. In support of its contention, the Agency states that the Union initially processed the grievance with the expectation that the Arbitrator would place the grievant in the GS-14 position, a remedy that would only result from a reclassification. [n9]  Id. Despite the Union's withdrawal of the requested relief in its post-hearing brief, the Agency maintains that the Union's actions "at the tail end of the arbitration process should not serve as a basis to re-characterize the grievance, nor should it diminish the fact that the grievances concerned the grade level determinations and analysis that were contained in the [report]." Id. at 10.

      In support of its exceptions, the Agency submitted a document entitled "Addendum to the Negotiated Collective Bargaining Agreement - Article 59" which states that the parties' acknowledge that placing Article 59 into the agreement "in no way concedes that the peer review process as it is used in FDA is not `classification' as defined in Title 5 USC Chapter 51 - Classification." Exceptions, Attachment B.

B.     Union's Opposition

      The Union construes the Agency as arguing that the award impermissibly interferes with a management right. Opposition at 8. The Union contends that the Arbitrator found a violation of Article 59 and ordered a remedy consistent with his authority and law. Id. The Union alleges that the award does not interfere with a classification decision under § 7121(c)(5). Id. According to the Union, the award did not concern the grade level of the duties performed by the grievant, but the Union did acknowledge that "[p]eer review is a classification process of promotion for Ph.D level scientists within FDA." Id. at 3, 9.

      The Union argues that this case is analogous to non-promotion cases where an arbitrator reviews the procedures used but does not review the classification of a position. Id. at 9. The Union states that in those cases, arbitrators have ordered new ratings by new panels based upon findings of procedural errors. Id. (citing Corpus Christi Army Depot, 28 FLRA 362 (1987)). The Union asserts that the Arbitrator did not order a new committee, but merely ordered the committee to follow the agreement. Opposition at 10. Relying on the Arbitrator's framing of the issue and his finding that the Agency only needed to include factors considered in the record, the Union states that the Arbitrator did not make a classification determination. Id.

      The Union also argues, consistent with Authority precedent, that Article 59 is a negotiable procedure because the committee is limited to making recommendations and does not interject itself into the Agency's deliberative process. Id. at 11-12 (citing NTEU, 31 FLRA 566, 575 (1988); AFGE, Local 12, AFL-CIO, 17 FLRA 674, 676-77 (1985) remanded as to other matters sub nom. Local 12, AFGE v. FLRA, No. 85-1371 (D.C. Cir. Feb. 11, 1986) decision after remand AFGE, Local 12, 25 FLRA 979 (1987); AFGE, AFL-CIO, Local 2761, 14 FLRA 438 (1984)).

IV.     Analysis and Conclusions

      When an exception alleges that an award is contrary to law, the Authority reviews the question of law raised and the award de novo. NTEU, Chapter 24, 50 FLRA 330, 332 (1995). In applying de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to an arbitrator's underlying factual findings. Id.

      Under § 7121(c)(5) of the Statute, a grievance concerning "the classification of any position which does not result in the reduction of grade or pay of an employee" is removed from the scope of the negotiated grievance procedure. The Authority has construed 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 [the Office of Personnel Management] under chapter 51 of title 5, United States Code.'" Social Security Admin., Office of Hearings and Appeals, Mobile, Ala., 55 FLRA 778, 779-80 (1999) (SSA Mobile) (quoting 5 C.F.R. § 511.101(c)). The Authority has held that where the substance of a grievance concerns the grade level of the duties permanently 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. Social Security Admin., 31 FLRA 933, 936 (1988).

      As noted above, § 7121(c)(5) excludes from the Authority's and arbitrators' jurisdiction "any grievance concerning - (5) the classification of any position . . . ." [ v60 p356 ] The Statute does not distinguish between challenges to a classification determination based upon an allegedly substantive error in making that determination, and a challenge to a classification determination based upon an allegedly erroneous procedural error in making that determination, as the Union alleges here.

      This case involves a peer review process whereby an Agency scientist may petition for a permanent upgrade from a GS-13 to a GS-14 or a GS-15. The peer review process essentially consists of a committee analyzing the permanent duties of a scientist and then making a recommendation to a specialist who makes a final determination as to the appropriate GS level of the scientist. As such, the peer review process concerns the classification of a position within the meaning of § 7121(c)(5). SSA Mobile, 55 FLRA at 779-80; Social Security Admin., 31 FLRA at 936. In support of this determination, the parties' Addendum to Article 59 states that the inclusion of that article in no way concedes that the peer review process is not classification and the Union even concedes that peer review is a classification process. Exceptions, Attachment B; Opposition at 3. Therefore, any grievance, alleging a procedural or substantive error, concerning the peer review process is barred under § 7121(c)(5).

      This case is similar to United States Environmental Protection Agency, Region 2, 59 FLRA 520 (2003) (EPA), where the Authority found an award deficient under § 7121(c)(5) where an arbitrator set aside a classification determination as being both procedurally and substantively erroneous. The arbitrator noted that the "`failure to consult [the grievant's] supervisor, a requirement in the evaluation process . . . further undermines the [specialist's] conclusions and recommendations.'" Id. at 521. In addition, the arbitrator evaluated the agency's final evaluation statement (FES) and ordered a new one. Id. at 525. The Authority stated, "the FES is a step in the process whereby a position is placed `in a class under the position-classification plan established by [Office of Personnel Management]' and a matter pertaining to classification within the definition set forth in 5 C.F.R. § 511.101(c)." See id. Based on the above, the Authority concluded that the award was deficient under § 7121(c)(5) because the arbitrator evaluated and modified the FES. Id.

      As in the EPA case, the Arbitrator here found that the Agency committed procedural errors in conducting its classification determination, specifically, that the reviewer's letter notifying the grievant that she would not be upgraded to a GS-14 and the report provided by the specialist did not satisfy the record keeping requirements found in the peer review provision of the parties' agreement. The letter from the reviewer as well as the specialist's report are steps in the classification process. Therefore, by evaluating those documents and making a determination on their adequacy, the award concerns a classification matter and is deficient under § 7121(c)(5).

      The Union argues that the Authority should draw a distinction between arbitration awards that order a new classification determination to be made but do not direct the outcome to be reached, and arbitration awards that do. In support of the Union's claims the Arbitrator finds analogous our precedent upholding arbitral awards directing agencies to re-rate promotion candidates. Award at 18. The Arbitrator also found analogous the Authority's precedent permitting employees to challenge the accuracy of their position descriptions. Id. at 18-19. However, neither grievances over promotion actions nor the accuracy of positions descriptions are subject to the proscription of § 7121(c)(5) and thus have no value as guidance. Consistent with EPA, § 7121(c)(5) does not recognize the distinction the Union is seeking to draw between procedural challenges to the outcome of a classification determination and substantive challenges to the outcome of a classification determination.

      In addition, despite the Arbitrator's framing of the issue as procedural, the Arbitrator considered the actual classification determination in his award. The Arbitrator reviewed the application by the committee, reviewer and specialist of the classification criteria necessary for a GS-14 position and determined that the classification criteria had been improperly applied. As the Arbitrator's award evaluates the classification process and orders the Agency to reevaluate the grievant, the award is deficient under § 7121(c)(5) of the Statute. EPA, 59 FLRA at 525 (citing United States Dep't of Veterans Affairs, Medical Center, Muskogee, Okla., 47 FLRA 1112, 1116-17 (1993) (award found deficient under § 7121(c)(5) where arbitrator reviewed application of classification factors and determined they were improperly applied)). See also Social Security Admin., 60 FLRA 62, 65 (2004) (grievances concerning the grade level of duties assigned to permanent positions relate to classification and are not arbitrable) (citing AFGE, Local 987, 52 FLRA 212, 215 (1996)).

V.     Decision

      The award is set aside as it is inconsistent with § 7121(c)(5) of the Statute. [n10]  [ v60 p357 ]


APPENDIX

Article 59 - Peer Review

Section 1

The following rules apply to the operation of the various FDA peer review processes:

  • An employee will be allowed to nominate three (3) members of the committee and the Employer generally will select one (1) of the three (3) nominees for the committee, absent just cause, so long as they are qualified.
     
  • A record will be kept of the proceedings which will contain a list of the factors considered, the determinations as to each factor, and an analysis of the employee level of work measured against the standard and the final decision. For example, if an employee's level of independence did not meet the grade level criteria, an explanation will be provided. Furthermore, no records in the case file will be destroyed after the meeting. Personal notes of the committee members are excluded from this provision. (Emphasis added).
     
  • An employee will be given a peer review so long as he or she has the minimum qualifications necessary for promotion to the next grade, e.g., an employee may self-nominate for peer review.
     
  • The employee may submit any materials within reason and they will be included in the file that is put before the review committee. However, in order for the review to go forward, the employee must submit the documents minimally required for a review by the Agency.
     
  • Employees will be given an opportunity to appear before a peer review committee to answer any questions and make summary statements.
     
  • An employee will be promoted in a timely manner upon successful completion of the review process, normally at the end of the next full pay period.
     

Concurring opinion of Member Armendariz:

      Section 7121(c)(5) of the Statute precludes grievances concerning the classification of any position which does not result in the reduction in grade or pay of an employee. I would find that the award in this case is contrary to § 7121(c)(5) because the substance of the grievance effectively constitutes an attempt by the grievant to obtain the higher pay of a GS-14 level, compared to that of her current GS-13 level, based on the performance of duties in her permanent position. See, e.g., Soc. Sec. Admin., 60 FLRA 62 (2004) (award set aside as contrary to § 7121(c)(5), where substance of grievance concerned grade level of permanent duties performed by grievant); AFGE, Local 2142, 58 FLRA 692 (2003) (arbitrator correctly found that grievance, seeking to have grievant's position reclassified at higher level, was not arbitrable under § 7121(c)(5)).

      My colleagues disagree over the extent to which § 7121(c)(5) applies generally to procedural and substantive aspects of classification matters. To the extent that this issue needs to be resolved in this case, I join Chairman Cabaniss solely for the purpose of issuing this decision and avoiding impasse. See United States Dep't of Agriculture, Rural Development Oklahoma, Stillwater, Okla., 59 FLRA 983, 987 (2004) (separate opinion of Chairman Cabaniss).


File 1: Authority's Decision in 60 FLRA No. 74 and Opinion of Member Armendariz
File 2: Opinion of Member Pope


Footnote # 1 for 60 FLRA No. 74 - Authority's Decision

   Member Pope's dissenting opinion and Member Armendariz's concurring opinion are set forth at the end of this decision.


Footnote # 2 for 60 FLRA No. 74 - Authority's Decision

   The text of Article 59 is set forth in the Appendix to this decision.


Footnote # 3 for 60 FLRA No. 74 - Authority's Decision

   Although the record refers to CDER, we believe that the acronym is meant to refer to Center for Evaluation and Drug Research, more appropriately referred to as CEDR.


Footnote # 4 for 60 FLRA No. 74 - Authority's Decision

   The committee consisted of several "subject-matter experts," the grievant's personal nominee and a Position Classification Specialist (Specialist) from the Agency. Award at 4.


Footnote # 5 for 60 FLRA No. 74 - Authority's Decision

   The reviewer testified that he kept notes of the evaluation process and used them to compose the letter. He then discarded the notes and they did not become part of the official file. Id. at 6 n.2.


Footnote # 6 for 60 FLRA No. 74 - Authority's Decision

   The Union's initial grievance was returned for lack of specificity which was corrected in its second filing. Id. at 7.


Footnote # 7 for 60 FLRA No. 74 - Authority's Decision

   The factors set forth