American Federation of Government Employees, Local 2142 (Union) and United States, Department of the Army, Corpus Christi Army Depot, Corpus Christi, Texas (Agency)

[ v61 p194 ]

61 FLRA No. 37

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2142
(Union)

and

UNITED STATES
DEPARTMENT OF THE ARMY
CORPUS CHRISTI ARMY DEPOT
CORPUS CHRISTI, TEXAS
(Agency)

0-AR-3955

_____

DECISION

August 29, 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 exceptions to an award of Arbitrator Robert B. Moberly filed by the Union and 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 exception and the Agency filed an opposition to the Union's exceptions.

      The Arbitrator denied a grievance alleging that the Agency violated the parties' collective bargaining agreement by failing to promote the grievants due to the accretion of duties.

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

II.     Background and Arbitrator's Award

      The Union filed a grievance alleging that the Agency violated the parties' agreement by failing to noncompetitively, permanently promote the grievants from GS-9 to GS-11. When the grievance was not resolved, it was submitted to arbitration. Before the Arbitrator, the Union stated the issue to be whether the Agency violated the parties' agreement when it did not promote the grievants to GS-11 due to accretion of higher-graded duties. The Agency stated the issue as whether [ v61 p195 ] grievance is nonarbitrable because it involves a classification issue. The Arbitrator did not set forth an issue to be resolved but stated that the issues set forth by the parties would be "considered further in the discussion portion of this opinion." Award at 2.

      The Arbitrator concluded that the grievants should not be permanently promoted to GS-11 based on accretion of duties and thus denied the grievance on the merits rather than dismissing it as not being arbitrable. In reaching this conclusion, the Arbitrator noted that Article 20, § 3.e of the parties' agreement states that the negotiated grievance procedure "shall not include grievances concerning . . . [t]he classification of any position, which does not result in the reduction in grade or pay of an employee" and that the parties negotiated a memorandum of understanding (MOU) regarding procedures for noncompetitive promotions resulting from accretion of duties. Id. at 7. The Arbitrator found, in this regard, that the grievants had not utilized the accretion procedures contained in the MOU, which states they are the only available procedures for promotions based on accretion of duties.

      In addition, the Arbitrator found that the evidence established that the Agency created a new GS-11 position that requires at least 25 percent team leader duties. The Arbitrator stated that while GS-11 employees perform the same duties as the GS-9 employees, the GS-11 employees also spend at least 25 percent of their time performing leader duties. The Arbitrator determined that Agency testimony established that the grievants do not perform these lead duties. The Arbitrator concluded that, as the work of the two positions is not equal, equal pay for the positions is not required.

      Based on the foregoing, the Arbitrator denied the grievance.

III.     Positions of the Parties

A.     Agency's Exception

      The Agency contends that the award is contrary to § 7121(c)(5) of the Statute because it concerns the classification of the grievants' positions. In this regard, the Agency argues that the substance of the grievance concerns the grade level of the duties assigned to and performed by the grievants. In support, the Agency cites, among other cases, AFGE, Local 2142, 51 FLRA 1140 (1996).

B.      Union's Opposition

      The Union asserts that the grievance does not involve a classification issue. Instead, according to the Union, the grievance is based solely on the Agency's failure to properly promote the grievants to GS-11 based on accretion of higher-graded duties.

C.      Union's Exceptions

      The Union contends that the Arbitrator improperly relied only on Agency testimony in reaching his decision and did not give any "legal weight" to the evidence provided by the Union. Exceptions at 2. In particular, the Union characterizes the Agency testimony relied on by the Arbitrator as being "nonfact," "noncorroborative" and without "substance or relevance." Id. at 4, 6. The Union further contends that the Agency submitted no factual evidence supporting its position.

      In addition, the Union argues that the Arbitrator erred in finding that the grievants were not entitled to equal pay under the Equal Pay Act. [n1]  According to the Union, the courts have ruled that jobs are equal for the purposes of the Equal Pay Act when both require equal levels of skills, effort, and responsibility and are performed under the same conditions. The Union contends that the GS-9s are entitled to pay equal to GS-11s because the GS-9s have been performing 75 percent of the major duties performed by GS-11s for more than one year.

D.     Agency's Opposition

      The Agency reiterates that the grievance is not arbitrable pursuant to § 7121(c)(5) of the Statute. In this regard, the Agency argues that the Arbitrator should not have addressed the merits of the grievance because it concerned the reclassification of the grievants permanent positions from GS-9 to GS-11.

      The Agency also asserts that the Union's exceptions are meritless because they contest the Arbitrator's factual findings and the Authority defers to an arbitrator's factual findings when applying de novo review. Moreover, according to the Agency, the Arbitrator's factual determinations are amply supported by the testimonial and documentary evidence presented in the record.

      In addition, the Agency contends that the Arbitrator correctly found that the grievants are not entitled to equal pay. In this regard, the Agency claims that the [ v61 p196 ] term "equal pay for substantially equal work" stems from 5 U.S.C. § 5101(1)(A) and that the Authority has determined that nothing in the equal pay principles of § 5101 is inconsistent with an award finding that grievances concerning classification are nonarbitrable pursuant to § 7121(c)(5) of the Statute. Opposition at 6. Further, the Agency asserts that the grievants are not entitled to back pay because the instant case concerns a classification matter and United States v. Testan, 424 U.S. 392 (1976), held that neither § 5101 nor the Back Pay Act provided back pay for allegedly improperly classified positions.

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. See 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. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to an arbitrator's underlying factual findings. See 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 excluded from the scope of the 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, e.g., AFGE, Local 2025, 50 FLRA 39, 42 (1994). 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. See SSA, 31 FLRA 933, 936 (1988). In this regard, where 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).

      The Union claims that the grievants are entitled to permanent promotions based on an accretion of higher-graded duties to their existing positions. In addition, the Arbitrator specifically found that the substance of the grievance concerned the accretion of higher-graded duties to an existing position. As the award involves accretion