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

[ v60 p789 ]

60 FLRA No. 151

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

and

NATIONAL TREASURY
EMPLOYEES UNION
CHAPTER 282
(Union)

0-AR-3827
(60 FLRA 352 (2004))

_____

ORDER DENYING MOTION
FOR RECONSIDERATION

March 31, 2005

_____

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 the Union's motion for reconsideration of the Authority's decision in United States Dep't of Health & Human Servs., Food & Drug Admin., 60 FLRA 352 (2004) (Member Armendariz concurring and Member Pope dissenting) (FDA). The Agency filed an opposition to the Union's motion.

Section 2429.17 of the Authority's Regulations permits a party who can establish extraordinary circumstances to request reconsideration of an Authority decision. For the following reasons, we find that the Union has failed to establish that extraordinary circumstances exist, and we deny the Union's motion.

II. Background

The background of this dispute is set forth fully in FDA and will not be repeated here. As relevant to the Union's motion for reconsideration, the Union filed a grievance alleging that the Agency failed to comply with Article 59 of the parties' agreement because no record of a Peer Review Committee's proceedings on the evaluation of whether the grievant met the requirements for an upgrade from a GS-14 level to a GS-15 level scientist was kept. [n1] Article 59 of the parties' agreement provides that a "record" of the [Peer Review Committee's] proceedings" will be kept. FDA, 60 FLRA at 357. In the award reviewed in FDA, the Arbitrator "concluded that the Agency violated Article 59" by not keeping a record of the proceeding, as required by Article 59, when it conducted the grievant's peer review evaluation. Id., 60 FLRA at 354. To remedy the violation, the Arbitrator ordered the Agency to reevaluate the grievant in accordance with Article 59 and remanded the issue of whether to create an entirely new panel (Peer Review Committee) for the reevaluation to the parties to resolve. Id.

The Agency filed exceptions alleging that the award was inconsistent with law because it ordered the Agency to reevaluate the grievant and interfered with the classification process. Id. In its opposition, the Union argued that the award did not concern the grade level of the duties performed by the grievant but was more analogous to non-promotion cases where an arbitrator reviews the procedures applied but not the classification of the position. Id. at 355.

The Authority concluded that the award was inconsistent with § 7121(c)(5) of the Federal Service Labor-Management Relations Statute (the Statute) and set it aside. Id. at 356. The Authority explained that § 7121(c)(5) "excludes from the Authority's and arbitrators' jurisdiction" any grievance concerning the classification of any position. Id. at 355. The Authority also stated that the Statute does not distinguish between "challenges to a classification determination based upon an allegedly substantive error . . . and a challenge to a classification determination based upon a . . . procedural error in making that determination . . . ." [n2] Id. at 356. Upon examination, the Authority found that the peer review process concerned the classification of a position and therefore any challenge, substantive or procedural, was barred under § 7121(c)(5). Id.

III. Motion for Reconsideration

The Union requests reconsideration of the Authority's decision in FDA alleging that the decision is based [ v60 p790 ] on an erroneous conclusion of law. Request at 1. The Union contends that the Authority ignored well established precedent in the FDA decision. Id. at 2. According to the Union, the grievance at issue concerned only the record keeping procedures of the peer review process and not the classification of the grievant's position. Id. The Union asserts that the Authority's decision did not focus on the issue, but rather "decided that section 7121(c)(5) does not distinguish between procedural and substantive challenges to classification." Id.

The Union argues that the majority in FDA ignored well established precedent that if the "substance of a grievance does not concern the grade level of the grievant's duties, then it does not fall within 7121(c)(5) and is within the permissible scope of a negotiated grievance." Id. In support of its argument, the Union asserts that Authority precedent has long held that cases concerning the accuracy of position descriptions do not directly concern position classification, even if the change in a position description ultimately results in a reclassification. Id. at 2-3 (citing Veterans Admin., Reg'l Office, Winston-Salem, N.C., 16 FLRA 50, 51 (1984); Fed. Aviation Admin., Dep't of Transp., Tampa, Fla., 8 FLRA 532, 535 n.3 (1982)).

The Union further argues that the Authority's reliance on United States Environmental Protection Agency, 59 FLRA 520 (2003) (EPA) is misplaced. According to the Union, in EPA, the Authority relied on United States Dep't of Veterans Affairs, Med. Ctr., Muskogee, Okla., 47 FLRA 1112, 1116-17 (1993) (VA Muskogee), a case where the arbitrator compared the duties of a GS-5 position with those of a GS-6 position and determined that the grievants should be classified at the GS-6 level. Request at 3. The Union concludes that central to the Authority's decisions in EPA and VA Muskogee was that the arbitrators "delved into the substance of classification." Id. In contrast, the Union explains, in this case, the Arbitrator did not evaluate the classification decision, he "simply analyzed whether the record-keeping requirements of Article 59 had been followed." Id. The Union asserts that the grievance in this case is about whether the Agency violated the procedures set forth in Article 59, not about classification. Id. at 4.

Finally, the Union alleges that the legislative history of the Statute supports Member Pope's dissent and the Union's position in this case. Id. The Union first cites language addressing an agency's obligation to negotiate procedures and arrangements. Id. The Union then explains that the legislative history specifically addresses grievances concerning a classification that are included in the negotiated grievance procedure, those that result in a reduction in pay or grade, and states that those grievances may contain allegations of procedural violations as well as improper classification criteria. Id. The Union concludes from this legislative history that Congress never intended to exclude procedural aspects of classification from the grievance procedure. Id.

IV. Agency's Response

The Agency argues that the Union's request for reconsideration should be denied because the Union has failed to demonstrate extraordinary circumstances warranting reconsideration. Response at 1. The Agency asserts that the Authority properly found that the grievance involved a classification matter and therefore was barred under § 7121(c)(5). Id. at 2.

Addressing the Union's use of legislative history to support its arguments, the Agency explains that the Union's reliance on that legislative history was misplaced because the Agency's obligation to bargain appropriate arrangements and procedures was not at issue in this case. Id. In addition, the Agency states that no management rights arguments were asserted in connection with this case and the Authority never addressed the "interrelationship between sections 7106(a) and 7121(c)(5) in its [d]ecision." Id.

The Agency also asserts that the Union does not provide any reason why the Authority should revisit the cases it already discussed in the FDA decision. Id. at 3. The Agency argues that the Union does not demonstrate how the cases cited constitute extraordinary circumstances warranting a reconsideration of FDA. Id.

V. Analysis and Conclusions