United States, Department of Agriculture, Food and Consumer Service, Dallas, Texas (Agency) and National Treasury Employees Union, Chapter 265 (Union)

[ v60 p978 ]

60 FLRA No. 176

UNITED STATES
DEPARTMENT OF AGRICULTURE
FOOD AND CONSUMER SERVICE
DALLAS, TEXAS
(Agency)

and

NATIONAL TREASURY
EMPLOYEES UNION
CHAPTER 265
(Union)

0-AR-3868

_____

DECISION

May 31, 2005

_____

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 Otis H. King 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 grievant was entitled to a retroactive temporary promotion and backpay for the performance of higher-graded duties.

      For the reasons explained below, we find that the award is deficient as contrary to § 7121(c)(5) of the Statute. Accordingly, we set aside the award.

II.      Background and Arbitrator's Award

      The grievant occupied a position at the GS-11 level. By memorandum dated March 22, 2000, the grievant's team leader, a GS-12 Senior Program Specialist, advised management that the difficulty and amount of work had increased for him and the grievant. [n2]  The team leader proposed a division of duties in which he would assign "GS-12 level work" to the grievant. Award 2.

      The Arbitrator found no evidence of any written response to the memorandum. The Arbitrator noted that the team leader testified, without contradiction, that management was "aware of the division of duties and the assumption of higher level duties prior to his sending the March 22, 2000[,] memorandum and it was the formal notice." Id. The Arbitrator also found that the grievant may have performed higher level duties as early as January 24, 2000, the date of an earlier e-mail message from the team leader to management.

      The Arbitrator also noted testimony by the Agency's Regional Director that, on or about the same date as the memorandum, "there was a request for an upgrade of the [g]rievant's position." Id. According to the Arbitrator, the Agency took no action with regard to the request and the grievant performed the new duties for the following two and one-half years without an upgrade. Id.

      On June 27, 2002, the Agency conducted a desk audit, which found that the grievant was "operating at the GS-12 level." Id. The regional office then sought a promotion for the grievant, but the promotion was denied by higher level management on the ground that "it would have created an imbalance between Grade 11 and 12 for the region compared to other regions." Id. at 2-3. Subsequently, the Regional Director advised the grievant that "effective Monday June 9, 2003, I will remove the grade controlling GS-12 duties and responsibilities from your position. Therefore, you will now be working under your GS-11 position . . . ." Id. at 3.

      The Union filed a grievance alleging that the grievant was entitled to a retroactive temporary promotion and backpay for the performance of higher-graded duties since January 2000. The grievance was not resolved and was submitted to arbitration on the following stipulated issue:

Did the Agency violate the parties' Collective Bargaining Agreement, . . . law, rule, or regulation when it failed to temporarily promote the [g]rievant . . .to the Grade 12, Senior Program Specialist position for the performance of higher graded duties for more than thirty days? If so, what shall be the remedy?

Id. at 1.

      The Union argued before the Arbitrator that the grievant performed higher-level duties for which she [ v60 p979 ] was qualified and began performing the grade 12 duties on January 24, 2000. The Agency argued that "it created no de facto detail for the [g]rievant[,]" and that the grievant and her team leader decided on their own to divide the GS-12 work. Id. at 5.

      The Arbitrator found that the grievant "was effectively detailed to the higher level work on March 22, 2000" when management received the memorandum from the grievant's team leader and "took no action to countermand it[.]" Id. at 8. The Arbitrator noted that "[t]he desk audit validated that the [g]rievant was doing GS-12 level work" and that "[e]ven [m]anagement, admits that at some point in 2002 there was an accretion of duties that probably raised [the] [g]rievant's work to the GS-12 level." Id. at 7. The Arbitrator further noted that, by removing the grade-controlling GS-12 level work from the grievant's duties in a letter dated June 4, 2003, the Agency acknowledged that up until that time the grievant had been performing "GS-12 work." Id.

      The Arbitrator concluded that the Agency's failure to temporarily promote the grievant violated Article 13.03(1) of the parties' agreement. [n3]  The Arbitrator further determined that the Agency's actions constituted an unjustified and unwarranted personnel action that directly resulted in a reduction of the grievant's pay under the Back Pay Act. As a remedy, the Arbitrator directed the Agency to temporarily promote the grievant and to give her backpay, with interest, for the period of the promotion. The Arbitrator retained jurisdiction to consider the Union's request for attorney fees.

III.      Positions of the Parties

A.      Agency's Exceptions

      The Agency asserts that, as the substance of the grievance concerns the grade level of the duties assigned to, and performed by the grievant and/or the accretion of higher-graded duties to an existing position, the award is contrary to § 7121(c)(5) of the Statute because it involves a classification matter. [n4] 

      The Agency also contends that it did not violate the parties' agreement and, absent such a violation, the award is contrary to the Back Pay Act.

      The Agency further asserts that the award is contrary to 5 C.F.R. § 335.103(5)(c)(1)(i) by requiring the Agency to grant a retroactive temporary promotion for more than 120 days without the use of competitive procedures. [n5]  The Agency relies on the advisory opinion of the Office of Personnel Management (OPM) interpreting 5 C.F.R. § 335 that was discussed in United States Dep't of Veterans Affairs, Ralph H. Johnson Medical Center, Charleston, S.C., 60 FLRA 46 (2004) (Chairman Cabaniss and Member Pope concurring) (Dep't of Veterans Affairs). The Agency also claims that the award of a retroactive temporary promotion for more than 120 days without the use of competitive procedures is inconsistent with an Agency regulation, FNS Instruction 330-1, Section VII, subparagraphs A and B, and fails to draw its essence from Article 13, Section 13.04 of the parties' agreement. [n6] 

      Finally, the Agency asserts that the Arbitrator exceeded his authority insofar as the award "pertains to" various management reserved rights. Id. at 2.

B.      Union's Opposition

      The Union contends that the Authority should not consider the exceptions because they are not a "self-contained document" within the meaning of § 2425.2 of the Authority's Regulations. The Union argues that the Agency did not include a copy of the parties' agreement or the portions "that would reflect on any argument the Agency made in its exceptions." Opposition at 2.

      The Union also contends that the Agency is barred by § 2429.5 of the Authority's Regulations from raising a claim that the award concerns a classification matter and is therefore contrary to § 7121(c)(5) of the Statute. The Union asserts that the Agency never presented this issue to the Arbitrator. Citing United States Dep't of Veterans Affairs, Gulf Coast Veterans Health Care System, Biloxi, Miss., 57 FLRA 77, 78-79 (2001), the Union asserts that [ v60 p980 ] the Authority will not rule on "procedural issues of arbitrability that should have been but were not raised with the [a]rbitrator." Id. at 3-4. The Union further asserts that § 2429.5 also bars the Agency from raising the issue of "a competitive procedure after 120 days of a temporary promotion" because the Agency did not raise that issue before the Arbitrator. Id. at 4.

      As to the award, the Union requests that the Authority "consider this case as ripe for carving out an exception" to the ruling in Dep't of Veterans Affairs. Id. at 5. The Union argues that the grievant's case is an example of how OPM's interpretation of 5 C.F.R. § 335.103(5)(c) "hamstrings [F]ederal employees who try their best to bring issues to management's attention[.]" Id. at 5. In this regard, the Union asserts that "[t]he Agency sat on the desk audit, then removed the higher graded duties without ever paying the grievant a dime. This is not a fair result, and the Authority should not allow this result to stand . . .." Id. at 6.

IV.      Analysis and Conclusions

A.      The record is sufficient under § 2425.2 of the Authority's Regulations to address the exceptions

      Section 2425.2 of the Authority's Regulations requires an exception to be a self-contained document which sets forth in full "[a]rguments in support of the stated grounds, together with specific reference to the pertinent documents and citations of authorities[.]"

      The Union claims that the exceptions do not comply with this regulatory requirement because the Agency did not include a copy of the parties' agreement or relevant portions of that agreement in its exceptions. However, the exceptions and the award itself set forth the specific language of the parties' agreement that is at issue. Therefore, we conclude that the record is sufficient under § 2425.2 to address the exceptions. [n7] 

B.     The issue of § 7121(c)(5) is not barred by § 2429.5

      Section 2429.5 of the Authority's Regulations states, as relevant here, that "[t]he Authority will not consider . . . any issue[] which was not presented in the proceedings before the . . . arbitrator."

      The Agency argues that the award is contrary to § 7121(c)(5) of the Statute because the award concerns a classification matter. In response, the Union maintains that this issue was not raised before the Arbitrator and should not be considered by the Authority under § 2429.5 of the Authority's Regulations. In considering the Union's argument, we take this opportunity to review our precedent on whether a party's failure to raise a claim that § 7121(c) of the Statute bars an arbitrator from addressing a grievance precludes the Authority from addressing such a claim on exceptions to an award. For the reasons explained below, we conclude that exceptions asserting that an award is contrary to § 7121(c) are properly before the Authority for resolution whether or not the exceptions concern arguments that were raised in arbitration proceedings.

      Section 7121(c) states that negotiated grievance procedures "shall not apply with respect to any grievance concerning--

     (1) any claimed violation of subchapter III of chapter 73 of this title (relating to prohibited political activities);
     (2) retirement, life insurance, or health insurance;
     (3) a suspension or removal under section 7532 of this title;
     (4) any examination, certification, or appointment; or
     (5) the classification of any position which does not result in the reduction in grade or pay of an employee.

      Stated otherwise, § 7121(c) sets forth "mandatory exclusions" from the scope of negotiated grievance and arbitration procedures. NTEU, Chapter 260, 52 FLRA 1533, 1537 (1997). Parties may not include such matters in their negotiated procedures. Id. On its face, then, § 7121(c) limits the availability of negotiated grievance and arbitration procedures and, by doing so, renders unlawful an award concerning any of the matters enumerated therein. See, e.g., United States Dep't of Transportation, Federal Aviation Admin., 59 FLRA 579 (2004) (arbitrator's determination that grievance was arbitrable found inconsistent with § 7121(c)(2) and award was set aside).

      In United States EEOC, Memphis District Office, Memphis, Tenn., 18 FLRA 88, 89 (1985) (EEOC), the Authority addressed for the first time a union's claim that an agency was "estopped from contending" in its [ v60 p981 ] exceptions that an award was deficient as contrary to § 7121(c)(5) "because it failed to comply with the parties' collective bargaining agreement as to when arbitrability issues must be raised." EEOC, 18 FLRA at 89 n.2. The Authority found that "because section 7121(c)(5) precludes grievances concerning classification and because the [a]gency has timely filed an exception contending that the award was precluded on that basis, the [a]gency's exception is not barred and is properly before the Authority for resolution under the Statute." Id. The Authority's decision in EEOC did not refer to § 2429.5.

      Subsequently, in United States Dep't of the Interior, Nat'l Park Serv., Golden Gate Nat'l Recreation Area, San Francisco, Calif, 55 FLRA 193 (1999) (Golden Gate), the Authority effectively overruled EEOC without citing it. In Golden Gate, the agency had not argued to the arbitrator, as it had in its exceptions to the Authority, that the grievance was precluded by § 7121(c)(3), which, like § 7121(c)(5), is one of the mandatory exclusions from the scope of negotiated grievance procedures. Finding that the issue presented related to the arbitrability of the grievance, the Authority held that the issue "clearly could, and should, have been presented to the [a]rbitrator[,]" and the Authority declined to consider the exception under § 2429.5 of our Regulations. Golden Gate, 55 FLRA at 195. The Authority stated that, while the Authority's subject matter jurisdiction may be raised at any stage of the Authority's proceedings, the agency was "not questioning the jurisdiction of the Authority to issue a decision resolving its exception. Instead the [a]gency [was] questioning for the first time in its exception the jurisdiction of the [a]rbitrator to resolve the grievance." Id. The Authority did not further explain the basis for its decision.

      The Authority's holding in Golden Gate has been applied subsequently in several decisions. See, e.g., Soc. Sec. Admin., Balt., Md., 57 FLRA 690, 694 (2002) (§ 2429.5 bars agency claim that arbitrator made classification determination in violation of § 7121(c)(5), where agency did not make the argument before the arbitrator); United States Dep't of the Army, Dugway Proving Ground, Dugway, Utah, 57 FLRA 224, 227 (2001) (same). Those decisions cited Golden Gate, without additional explanation.

      On consideration of the language of the Statute and the precedent cited above, we believe that the Authority's earlier approach in EEOC, rather than its subsequent approach in Golden Gate, is consistent with the text and intent of § 7121(c) of the Statute. EEOC recognizes that, pursuant to § 7121(c), arbitrators have no authority to rule on grievances that are mandatorily excluded from the scope of negotiated grievance procedures.

      In our view, permitting the application of § 2429.5 to bar consideration of whether an arbitrator has subject matter jurisdiction over a grievance in conformance with § 7121(c) of the Statute, as the Authority did in Golden Gate, runs afoul of the express terms of § 7121(c). Golden Gate improperly confers statutory jurisdiction on an arbitrator to resolve a proceeding that is barred by the Statute from occurring in the first place. Put simply, a party's failure to present an issue to an arbitrator cannot have the effect of creating jurisdiction in an arbitrator over a matter that Congress expressly excluded in § 7121(c) of the Statute. Rather, consistent with the approach taken by the Authority prior to Golden Gate, where an issue is presented to the Authority concerning a statutory exclusion under § 7121(c) of the Statute, the Authority is required to address that statutory issue, regardless of whether the issue was also presented to the arbitrator. [n8]  See EEOC, 18 FLRA at 89 n.2 (the Authority held that the exception that award was contrary to § 7121(c)(5) was not barred and properly before the Authority because § 7121(c)(5) precludes grievances concerning classification). See also Devine v. Levin, 739 F.2d 1567, 1570 (Fed. Cir. 1984) (The court held that "[i]t was the arbitrator's duty, just as it is th[e] court's duty, to consider a jurisdictional question regardless of when it [i]s raised during the proceeding.").

      Accordingly, consistent with the foregoing, we will address the Agency's § 7121(c)(5) exception in this case. To the extent that the Authority's decisions in Golden Gate and similar cases involving § 7121(c) claims are inconsistent with today's decision, they will no longer be followed.

C.      The award is deficient under § 7121(c)(5)

      Where, as here, 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 [ v60 p982 ] 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.

      As noted previously, 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.

      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); Dep't of the Army, New Cumberland Army Depot, 21 FLRA 968, 969-70 (1986). 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 Soc. Sec. Admin., 60 FLRA 62 (2004) (SSA).

      Where, however, 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. See, e.g., United States Dep't of the Navy, Naval Aviation Depot, Marine Corps Air Station, Cherry Point, N.C., 42 FLRA 795 (1991). The Authority has recognized that a mere claim that a grievant is entitled to a temporary promotion will not cure a grievance that pertains to temporary duties assigned to the grievant's permanent position. See SSA, 60 FLRA at 64.

      In this case, the grievant claimed that she had been performing higher-graded work of a GS-12 position since sometime in early 2000. The Arbitrator found that the Agency had assigned the grievant GS-12 grade-controlling duties since March 2000 by virtue of the fact that the Agency had "detail[ed]" the grievant "to higher level work." Award at 8. As a consequence, the Arbitrator found that the grievant was entitled to be temporarily promoted under the parties' agreement.

      In our view, the grievance concerned a classification matter under § 7121(c)(5) of the Statute. In this connection, the record reflects that the grievant sought, and attempts were made, to "upgrade" the grievant's permanent position after the grievant began performing higher-graded duties. Award at 2. The Agency subsequently conducted a desk audit of the grievant's position that revealed that the grievant was in fact performing higher-graded GS-12 work. See Award at 3. Such actions are consistent with attempts to determine the proper grade level to assign to the duties being performed by the grievant, which constitutes a classification matter within the meaning of § 7121(c)(5). Rather than reclassifying the grievant's position at the GS-12 level, however, the Agency removed the grade-controlling duties from the grievant's position.

      The Authority previously has held that grievances concerning the grade level of duties assigned to permanent positions relate to the classification of those positions and may not be grieved under § 7121(c)(5) of the Statute. See, e.g., AFGE, Local 987, 52 FLRA 212, 215 (1996) (arbitrator correctly determined that grievance, claiming entitlement to temporary promotion under parties' agreement, concerned grade level of duties assigned to grievant's permanent position, and, as such, was not arbitrable because it concerned a classification matter under § 7121(c)(5)). We reach the same result here.

      Because the Arbitrator resolved an issue that involved the classification of the grievant's grade level, we find that the award is inconsistent with § 7121(c)(5) of the Statute. Accordingly, we set aside the award.

V.      Decision

      The award is set aside as contrary to § 7121(c)(5) of the Statute. [n9] 


File 1: Authority's Decision in 60 FLRA No. 176
File 2: Opinion of Member Pope


Footnote # 1 for 60 FLRA No. 176 - Authority's Decision

   Member Pope's opinion, dissenting in part, is set forth at the end of this decision.


Footnote # 2 for 60 FLRA No. 176 - Authority's Decision

   The Union refers to the author of the memorandum as the grievant's team leader. We will use the same terminology.


Footnote # 3 for 60 FLRA No. 176 - Authority's Decision

   Article 13, Section 13.03 provides that:

(1) It is agreed that an employee detailed to a higher graded position for more than (30) consecutive calendar days will be temporarily promoted to the position effective with the beginning of the first full pay period following the 30th day of the detail, providing the employee meets the appropriate qualification standards and time-in-grade requirements.

Award at 4.


Footnote # 4 for 60 FLRA No. 176 - Authority's Decision

   As discussed further below, 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 precluded from coverage by a negotiated grievance procedure.


Footnote # 5 for 60 FLRA No. 176 - Authority's Decision

   5 C.F.R. § 335.103 provides, generally, for the use of competitive procedures for certain promotion actions.


Footnote # 6 for 60 FLRA No. 176 - Authority's Decision

   As relevant here, both the cited regulation and agreement provision require the use of competitive procedures for details or temporary promotions of more than 120 days to higher grade positions.


Footnote # 7 for 60 FLRA No. 176 - Authority's Decision

   The Union's additional argument that, "by failing to brief its argument[s,]" the Agency's exceptions do not satisfy § 2423.28(a)(3) of the Authority's Regulations, is misplaced. Opposition at 3. Section 2423.28(a)(3), which has been modified and renumbered as § 2423.40, applies to exceptions to decisions of Administrative Law Judges, not to arbitration awards. See United States Dep't of Justice, Immigration and Naturalization Service, Los Angeles, Cal., 59 FLRA 387, 389 n.4 (2003).


Footnote # 8 for 60 FLRA No. 176 - Authority's Decision

   Of course, parties' an