United States, Environmental Protection Agency, Region 2 (Agency) and American Federation of Government Employees, Local 3911 (Union)

[ v61 p671 ]

61 FLRA No. 136

UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
REGION 2
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 3911
(Union)

0-AR-3982

_____

DECISION

August 23, 2006

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope, Member

I.     Statement of the Case

      This case is before the Authority on exceptions to an award of Arbitrator Harold L. Richman filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

      The grievance in this case concerned whether the Agency: (1) discriminated against the grievant on the basis of sex, age, and national origin; (2) subjected her to unfair and inequitable treatment; and (3) failed to establish working conditions conducive to enhancing morale and efficiency, when it failed to grant the grie-vant an accretion-of-duties promotion. The Arbitrator found that the Agency's failure to grant the promotion violated the Equal Pay Act (Act) and title VII of the 1964 Civil Rights Act (title VII), and the parties' agreement. Among other things, the Arbitrator ordered the Agency to promote the grievant to GS-13 within 10 days of the award and pay her back pay for a period of two years prior to the date of her promotion.

      For the following reasons, we find that the award is contrary to § 7121(c)(5) of the Statute and set the award aside.

II.     Background and Arbitrator's Award

A.     Background

      This is the second award in this case. In a previous award (First Award), the grievant underwent a classification review, including a desk audit, to determine if she should receive a promotion from GS-12 to GS--13 based on an accretion of higher-graded duties. See United States Environmental Protection Agency, Region 2, 59 FLRA 520 (2003) (EPA). She was denied the promotion and the Union filed a grievance alleging that the promotion was denied because of the grievant's age, sex, and national origin. The grievance was subsequently amended to allege in addition that the grievant had been subject to reprisal for filing the initial grievance.

      The Arbitrator, among other things, found that the grievant's position description (PD), and a Final Evaluation Statement (FES) by a classification specialist (specialist), were incorrect and inaccurate. [n1]  The Arbitrator found that the correctness and accuracy of the PD and FES were arbitrable. The Arbitrator's award in this regard required the Agency to revise the grievant's PD and the FES consistent with his findings. See EPA, 59 FLRA at 521-22. Upon exceptions filed by the Agency, the Authority found that, to the extent that it concerned the sufficiency, and required revision, of the FES, the award was deficient because it related to the classification of the grievant's position, a matter barred from the grievance procedure under § 7121(c)(5) of the Statute. See id.

      Subsequent to the Authority's decision, the parties entered into discussions as to the issues in the grievance that remained unresolved. When the parties were unable to reach agreement, the Union filed an unfair labor practice charge. Working with the General Counsel, the parties reached a settlement in which it was agreed that they would submit the question of the remaining issues to the Arbitrator who issued the First Award. The parties also agreed, that having defined those issues, the Arbitrator would then resolve them.

B.     Second Award

      The Arbitrator stated that the following issues remained to be resolved and "should be the subject of a hearing:" [ v61 p672 ]

1.      Whether [the grievant] was discriminated against because of her age, sex or national origin?
2.      Whether [the grievant] was subjected to unfair and inequitable treatment under Article 8, Section 1(C) of the Union's contract with the Agency?
3.      Whether[,] in the case of [the grievant], the Agency has failed to establish work conditions conducive to enhancing morale and efficiency as provided for in Article 8, Section 1(D) of the contract?

Award at 2. [n2] 

1.     Findings of Fact

      The Arbitrator reviewed his findings from the First Award and made additional findings based on testimony and evidence presented in connection with the underlying arbitration proceeding in this case. The Arbitrator found that the procedures used in the classification review of the grievant's position varied significantly from the procedures followed in the classification review of other positions proposed for upgrade to GS- 13. Specifically, according to the Arbitrator, the specialist did not compare the grievant's duties with those performed by the GS-13 Team Leader, nor did she interview the Team Leader. He noted, in this regard, that the Section Chief testified that the Team Leader and the grievant performed essentially the same duties, except for those that were specific to being a Team Leader. He also noted that the Team Leader testified that Team Leader duties involved only 20% of his work time and consisted mainly of non-routine work assignments. Further, the Arbitrator stated that of the last 13 requests for an accretion of duties promotion, which included the grievant, only the grievant was not promoted. The Arbitrator stated that there were, in the branch in which the grievant worked, other GS-13 employees who were not Team Leaders.

      Finally, the Arbitrator set forth statistics concerning the grade, age, and national origin of the employees of the two sections of the branch in which the grievant worked. In this regard, the Arbitrator noted that the results of the test used by Equal Employment Opportunity Commission (EEOC) to determine significant levels of age, sex and racial discrimination (the Chi Square test) "showed less than the level set by the EEOC" to measure significant discrimination for the Region's employees in grades GS-12 and 13. Award at 12.

2.     Award

      The Arbitrator found that the grievant "was subjected to unfair and inequitable treatment under Article 8, Section 1(C) of the contract." Id. Based on his findings as to the process used in the classification review of the grievant's position, the Arbitrator concluded that the manner in which the Agency conducted that review, as compared to the other reviews referenced in the record, constituted unequal treatment in violation of Article 8 of the parties' collective bargaining agreement. In support of this conclusion, the Arbitrator noted his finding in the First Award that the PD used by the specialist for her classification review of the grievant's position was incorrect and inaccurate. The Arbitrator further found that the grievant's rights under Article 8, Section 1(C) were "not linked to any classification action" and "[t]he fact that the forbidden treatment of [the grievant] took place in connection with a request for reclassification does not convert the violation of her rights into a classification matter[.]" Award at 14-15

      The Arbitrator next considered whether the Agency had discriminated against the grievant on the basis of her sex. In this regard, the Arbitrator stated that the issue was whether the grievant "received less pay than a male employee for equal work[.]" Id. at 15. Re-ferencing 29 C.F.R. § 1620.14(a), implementing the Equal Pay Act, 29 U.S.C. § 206(d) (Act), the Arbitrator noted that "'equal' does not mean `identical.'" 29 C.F.R. § 1620.14(a). According to the Arbitrator, a determination as to whether employees are performing equal work takes into consideration not only the amount of time spent in the performance of different duties, but also the degree of difference in skill, effort, and responsibility. See 29 C.F.R. § 1620.14(c). In this regard, the Arbitrator noted that an employer cannot assert additional duties as a defense against a claim for equal pay where those duties "consume[] a minimal amount of time and [are] of peripheral importance." Award at 15 (citing 29 C.F.R. § 1620.30(d)).

      Applying the Act and its implementing regulations to the facts of this case, the Arbitrator noted that the record indicated that the grievant's job, a GS-12, and that of the Team Leader, a GS-13, are "mirror images of each other." Award at 16. According to the Arbitrator, outside the Team Leader's duties as a Team Leader, "their jobs have the same level[,] of skill, effort and responsibility." Id. In addition, the Arbitrator stated that the Team Leader testified that his responsibilities as [ v61 p673 ] a Team Leader took 20% of his time and then "reduced his estimate to `wild card' or non-routine work one to two times per month." Id. The Arbitrator rejected the Agency's attempt to distinguish the jobs on the basis of the Team Leader's additional duties. Specifically, the Arbitrator found that: (1) the Team Leader is not a supervisor; (2) the "actual exercise of the responsibilities" cited by the Agency "takes a minimal amount of his work [time];" (3) there are GS-13 positions in the same section that are not Team Leaders; and (4) the evidence did not establish that Team Leader duties are grade-controlling. Id. at 17. The Arbitrator found that the Agency failed to show that the work of the grievant's position and that of the Team Leader's position were not substantially equal. Consequently, the Arbitrator found that the Agency "discriminated against [the grievant] under the [Act] because of her sex." Id. at 18. He also stated that, "[h]aving found that the [A]gency violated the [Act], it follows that the [A]gency violated Title VII of the Civil Rights Act of 1964 [(title VII)], as amended." Id. (citing 29 C.F.R. § 1620.27(c). The Arbitrator found, however, that the grievant had not been discriminated against on the basis of her age or national origin.

      Further, the Arbitrator found that the Agency violated Article 8, Section 1(D) of the parties' agreement by failing to establish working conditions that were conducive to enhancing employee morale and efficiency. In this regard, the Arbitrator stated that "[t]he morale of an individual in an organization is based not only on the work assigned and performed, or the physical conditions of employment, but also upon how she is being treated by management and the role she sees for herself in the section in which she works." Id. at 21. The Arbitrator found that having been a GS-12 for ten years, and being subjected to discrimination, "has had an obvious effect on [the grievant's] morale." Id.

      As to the Agency's criticism of the manner in which he conducted the hearing, the Arbitrator noted that he treated the Agency's complaints as objections, and overruled them. He stated, in this regard, that it is his responsibility to develop "a record as complete and comprehensive as possible in order [that he might] fulfill his obligation to render a fair and intelligent decision." Id. The Arbitrator rejected the Agency's arguments as to limitations on possible remedies.

      As remedies for the Agency's violations of the parties' agreement, law, and regulation, the Arbitrator ordered the Agency "to promote [the grievant] to Grade GS-13 within two weeks of the date of this order." Id. at 24. He also ordered the Agency to pay the grievant "the difference between the GS-12 pay she received and the GS-13 pay she would have received but for the discrimination against her, for the period of two years, beginning on October 26, 2001, with appropriate adjustments for in-grade increases." Id. Finally, he ordered the Agency to cease and desist from: (1) violating title VII of the Civil Rights Act of 1964 or the Act; (2) subjecting employees to unfair and inequitable treatment in violation of Article 8, Section 1(C); and (3) failing to establish work conditions conducive to enhancing morale and efficiency in violation of Article 8, Section 1(D).

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency contends that the award is deficient because is it contrary to law. Specifically, the Agency maintains that the Arbitrator's award concerns the classification of the grievant's position and is therefore excluded from the grievance procedure under § 7121(c)(5) of the Statute. In this regard, the Agency asserts that where an arbitrator evaluates whether employees job duties are those of or are similar to those of a higher-graded position, the arbitrator is making a classification determination. The Agency argues that in the second award, as in the First Award, the Arbitrator continued to resolve the proper classification of the grievant's position.

      The Agency asserts, in this regard, that the Statute does not distinguish between a challenge to a classification determination based on a "procedural error" and a challenge based on a "substantive error." Exceptions at 11 (quoting United States Dep't of Health and Human Services, FDA, 60 FLRA 352, 356 (2004) (Member Armendariz concurring and Member Pope dissenting) (FDA)). According to the Agency, after the Authority found his First Award deficient because it was based on a substantive classification decision, the Arbitrator, in his second award, based his award on alleged procedural errors in the specialist's classification review. The Agency maintains that, "[e]ither way, the [a]ward is contrary to law and should be set aside[.]" Id.

      Moreover, the Agency contends that by comparing the grievant's position to that of the Team Leader, and by assessing whether the additional responsibilities of the Team Leader are "grade-controlling," the Arbitrator engaged in the same type of analysis that is used to make a classification determination. According to the Agency, an arbitrator "may not rely on an `equal pay for equal work' rationale to reclassify an employee." Id. at 12 (citing Overseas Education Association, 15 FLRA 358 (1984) (OEA)). The Agency maintains, [ v61 p674 ] in this regard, that "because of the proscription of classification cases from the grievance process, cases involving claims of `equal pay' may be excluded from the grievance process." Id. at 14 (citing AFGE, Local 2142, 51 FLRA 1140 (1996) (Local 2142)). Stated differently, an award upgrading an employee's position "based on a comparison to work performed by other employees" is deficient under § 7121(c)(5) of the Sta-tute. Id. at 13 (citing United States Dep't of the Navy, Marine Corps Air Station, Cherry Point, N.C., 60 FLRA 155 (2004) (Marine Corps Air Station)).

      The Agency also argues that the award is deficient under § 7121(c)(5) because the Arbitrator ordered the grievant promoted to GS-13. A condition precedent to ordering a promotion in the circumstances of this case, the Agency maintains, is a determination that "the classification result was incorrect." Exceptions at 16. According to the Agency, the Arbitrator's award amounts to a determination that, if the grievant had not been "subjected to unfair treatment in the classification process[,]" the grievant's position would have been reclassified as GS-13. Id. The Agency asserts that where, as here, an arbitrator recognizes that he or she cannot reclassify a position, but nevertheless addresses and resolves a question that is "integrally related to, and controlling of, the grade of the grievant's position," the Authority will find that the matter concerns the classification of the position and is barred from arbitration under § 7121(c)(5). Id.

      In addition to its claim that the award is deficient because it is contrary to law, the Agency also claims that the award is deficient because: (1) the Arbitrator exceeded his authority under the agreement; (2) the award fails to draw its essence from such agreement; (3) the award is based on nonfacts; and (4) the Arbitrator failed to conduct a fair hearing. [n3] 

B.     Union's Opposition  [n4] 

      As to the Agency's claim that the award is contrary to law, the Union maintains that the Arbitrator "made a Title VII discrimination and Equal Pay Act decision, not a classification decision." Opposition at 2. The Union asserts that § 7121(c)(5) "does not apply to grievances concerning discrimination or other prohi-bited personnel practices." Id. at 5. The Union further notes that, under title VII, agency "classification decisions are covered complaints." Id. at 7.

      Moreover, the Union contends that Congress did not intend to exclude from the grievance procedure "classifications that [are] arbitrary, capricious, or patently contrary to the Classification Act." Id. at 8. The Union asserts that § 7121(c)(5) was intended "to remove the authority of an arbitrator to question the `professional judgment' of a classifier," but not "to remove the authority of an arbitrator to review classification decisions made contrary to [t]itle VII, . . . the Equal Pay Act, or . . . the statutory requirements of [the] Classification Act[,] as opposed to what is in the realm of professional judgment." Id. at 9 (emphasis in original).

      Further, the Union maintains that the Agency's claim that "the substance of the underlying grievance . . . was a classification matter should be dismissed as it has already been litigated, and it is no longer subject to review." Id.

      The Union also contends that: (1) the Arbitrator did not exceed his authority; (2) the award does not fail to draws its essence from the parties' agreement; (3) the award is not based on nonfacts; and (4) the arbitrator conducted a fair hearing.

IV.     Analysis and Conclusions

A.     The Award is Contrary to Law

1.     Analytical Framework

      The Agency's exceptions raise questions as to whether the Arbitrator's award is consistent with law. The Authority reviews questions of law 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 a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.

2.     The Award is Contrary to § 7121(c)(5)

      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 [ v61 p675 ] 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 OPM under chapter 51 of title 5, United States Code." SSA, Office of Hearings and Appeals, Mobile, Ala., 55 FLRA 778, 779-80 (1999) (quoting 5 C.F.R. § 511.101(c)). The Authority has also 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). See SSA, 31 FLRA 933, 936 (1988).

      As his award, the Arbitrator, among other things, ordered the grievant non-competitively promoted to GS-13. Given the facts of this case, the only basis for such a permanent promotion is the permanent accretion of higher-graded duties to the grievant's position. [n5]  See EPA, 59 FLRA at 520. As the Authority has made clear, "where a grievance concerns the accretion of higher-graded duties to an existing position, the grievance concerns a classification matter." See AFGE, Local 2142, 61 FLRA 194, 196 (2005) (citing AFGE, Local 1858, 59 FLRA 713, 715 (2004) (Local 1858)). See also AFGE, Local 2142, 58 FLRA 416, 417 (2003) ("at least one condition precedent to a promotion is a classification determination upgrading the position.").

      The Arbitrator's analysis of the propriety of the classification process under the Act involved a determination of the grade level of the grievant's position by comparing it to that of the Team Leader. The Authority has held that such a comparison involves classification determinations within the meaning of § 7121(c)(5) of the Statute. See United States Dep't of Agriculture, Food Safety and Inspection Serv., 60 FLRA 192, 195 (2004); United States Dep't of Veterans Affairs, Med. Ctr., Muskogee, Okla., 47 FLRA 1112, 1116-17 (1993) (Medical Center, Muskogee). As a result of that comparison, the Arbitrator found that the grievant's position should be upgraded to GS-13. Consequently, in resolving the question of whether the Agency's classification of the grievant's position was improper, the Arbitrator rendered a classification determination.

      In this regard, the Authority has consistently held that, "[w]here the substance of a grievance concerns the grade level of duties assigned to and performed by [a] grievant, the grievance concerns the classification of a position within [the] meaning of § 7121(c)(5) of the Statute." United States Dep't of the Air Force, Scott AFB, Illinois, 38 FLR 32, 36 (1990). See also Medical Center, Muskogee, 47 FLRA at 1116. Stated diffe-rently, the Authority has held that when the essential nature of a grievance is integrally related to the accuracy of the classification of the grievant's position, the grie-vance concerns a classification matter within the meaning of § 7121(c)(5) of the Statute. See Veterans Administration Medical Center, Tampa, Fla., 19 FLRA 1177, 1178-79 (1985); FAA, Dep't of Transportation, Tampa, Fla., 8 FLRA 532, 534 (1982). See also United States Dep't of Defense, Marine Corps Logistics Base, Albany, Ga., 57 FLRA 275, 277 (2001). It is clear, given the facts of this case, that the substance of the grievance concerned, and is integrally related to, the classification of the grievant's position. The grievance itself sought a promotion for the grievant to a GS-13 position, the Arbitrator's analysis involved a determination of the grade level of the duties assigned to and performed by the grievant, and, based on his conclusions as to the proper classification of those duties, he awarded the grievant a promotion to the next available GS-13 position.

      Further, the Authority has held that "nothing in the equal pay principles of 5 U.S.C. § 5101 is inconsistent with an award finding that grievances concerning the classification of a position are precluded by law under [§] 7121(c)(5) of the Statute from coverage by a negotiated grievance procedure." AFGE, Local 2142, 51 FLRA 1140, 1142-43 (1996). See also OEA, 15 FLRA at 359 (enforcement of equal pay principle does not prevent award from conflicting with § 7121(c)(5) of the Statute).

      Finally, the Union's analysis of the structure of § 7121 misses the point. The provisions of § 7121 referenced by the Union, e.g., § 7121(c) and (d), relate to the status of given subject matters with respect to the negotiated grievance procedure. That is, those provisions, along with § 7121(e) and (g), specify which matters can and cannot be processed through the grievance procedure. The relative positions of those provisions with respect to one another within § 7121 have no significance as to their meaning in connection with the coverage of the grievance procedure. And, in an analogous [ v61 p676 ] situation, the Authority stated that a discrimination allegation under § 7121(d) does not establish jurisdiction by the Authority over a matter otherwise outside the jurisdiction of the Authority where the two issues were "inextricably intertwined" with each other. United States Dep't of Commerce, Patent and Trademark Ofc., Arlington, Va., 61 FLRA 476, 477-78 (2006) (§ 7121(d) discrimination claim did not grant the Authority jurisdiction over a "mixed case" that was otherwise excluded from the jurisdiction of the Authority per §§ 7121(f) and 7122(a)).

      Based on the foregoing, because the Arbitrator had no jurisdiction to determine the classification of the grievant's position, the award is contrary to § 7121(c)(5) of the Statute, and we will set the award aside. [n6] 

B.     Remaining Exceptions

      Because the award is deficient under §7122(a)(1) of the Statute as contrary to law, it is not necessary to reach the Agency's remaining exceptions. Similarly, it is not necessary to reach the Union's motion to strike the affidavit attached to the Agency's exceptions because the content of that affidavit went to the issue of the Agency's nonfact exception.

V.     Decision

      The award is set aside.


APPENDIX

1.      Article 8, Section 1(C) and (D) provide as follows:

ARTICLE 8

EMPLOYEE RIGHTS

Section 1.
. . . .
C.      All employees shall be treated fairly and equitably and with dignity in all aspects of conditions of employment.
D.      It is agreed that Management will endeavor to establish working conditions which will be conducive to enhancing and improving employee morale and efficiency.

2. Article 43, Section 3(E) provides as follows:

ARTICLE 43

GRIEVANCE PROCEDURE

. . . .
Section 3. In addition to any other exclusions contained in this agreement, the grievance procedure will not apply to:
. . . .
E. The classification of any position which does not result in the reduction in grade or pay of an employee[.]

4. Article 44, Section 3 provides as follows:

ARTICLE 44

ARBITRATION

. . . .

Section 3. Issues and charges raised before the arbitrator shall only be those raised at the last stage of the applicable grievance procedure. The arbitrator shall have no authority to alter in any way the terms and conditions of this Agreement, any supplemental agreement or any other condition of employment not properly before him/ her.



Footnote # 1 for 61 FLRA No. 136 - Authority's Decision

   An FES "constitutes the application by the specialist of the [Office of Personnel Management's (OPM)] classification criteria to the grievant's PD, the result of which is ultimately determinative of the classification" of the grievant's position. EPA, 59 FLRA at 525.


Footnote # 2 for 61 FLRA No. 136 - Authority's Decision

   The text of Article 8, Sections 1(C) and 1(D) is set forth in the Appendix to this decision.


Footnote # 3 for 61 FLRA No. 136 - Authority's Decision

   The text of Article 43, Section 3(E) is set forth in the Appendix to this decision.


Footnote # 4 for 61 FLRA No. 136 - Authority's Decision

   The Union notes that the Agency's exceptions contain, as an attachment, an affidavit by the Agency attorney, with certain additional attachments, setting forth her recollection of certain matters presented at the hearing. Citing § 2429.5 of the Authority's Regulations, the Union contends that the Autho-rity should strike the affidavit on the grounds that the material contained therein, and the attachments thereto, were available to the Agency when presenting its case before the Arbitrator and should not be considered at this stage of the proceedings.


Footnote # 5 for 61 FLRA No. 136 - Authority's Decision

   There is nothing in the record of this case to suggest that the grievance concerns: (1) a non-competitive promotion based on an existing career ladder for the grievant's position, see, e.g., NTEU, 60 FLRA 226, 228 (2004); (2) a non-competitive promotion based on priority consideration, see, e.g., SSA, Chicago Region, Cleveland Ohio Dist. Office, University Circle Branch, 56 FLRA 1084, 1088 (2001); or (3) a merit promotion based on the Agency's competitive procedures, see, e.g., Panama Canal Commission, 56 FLRA 451, 460 (2000). See also United States Dep't of the Air Force, Air Education and Training Command, Randolph AFB, San Antonio Tex., 49 FLRA 1387, 1388-89 (1994).


Footnote # 6 for 61 FLRA No. 136 - Authority's Decision

   Chairman Cabaniss agrees with this resul