Office and Professional Employees International Union, Local 2001 (Union) and United States, Department of Energy, Oak Ridge Office, Oak Ridge, Tennessee (Agency)

[ v62 p67 ]

62 FLRA No. 19

OFFICE AND PROFESSIONAL
EMPLOYEES INTERNATIONAL UNION
LOCAL 2001
(Union)

and

UNITED STATES
DEPARTMENT OF ENERGY
OAK RIDGE OFFICE
OAK RIDGE, TENNESSEE
(Agency)

0-AR-4108

_____

DECISION

April 2, 2007

_____

Before the Authority: Dale Cabaniss, Chairman and
Wayne C. Beyer, Member

I.      Statement of the Case

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

      The Arbitrator denied a grievance concerning the proper General Schedule (GS) pay grade for three grievants. For the reasons discussed below, we set aside the award as inconsistent with § 7121(c)(5), without considering the merits of the Union's exceptions.

II.      Background & Arbitrator's Award

      In April and May of 2000, the three grievants laterally transferred to GS-13 Facility Representative positions in the Environmental Management (EM) Division at the Agency's Oak Ridge Office. At that time, the positions had a promotion potential of GS-13. The Facility Representative position was reclassified and upgraded to a promotion potential of GS-14 on July 30, 2000. See Award at 2. According to the Arbitrator, at the time the position was reclassified, the grievants "understood" that they had to complete a Technical Qualification Program (TQP) and then work as Facility Representatives for one year in order to be eligible for a promotion from GS-13 to GS-14. Id. The grievants were "eventually upgraded to GS-14" after completing the TQP and working in the position for one year following certification. Id. at 4. [n1] 

      In May 2004, the Agency posted two vacancy announcements for Facility Representatives at the Agency's Oak Ridge National Lab to be filled at the GS-13 or GS-14 level. In October 2004, the two positions were filled at the GS-14 level. The selectees were not required to complete the TQP, nor were they required to work one year in the Facility Representative position prior to obtaining a GS-14. See id. at 1.

      In June 2005, after becoming aware that the selectees for the positions filled in October 2004 were hired as GS-14s, the grievants filed a grievance alleging unfair labor practices and violations of merit system principles, the parties' collective bargaining agreement, and the Agency's Facility Representative Manual. See Award at 1-2; Agency Exhibit 2; Agency Exhibit 3. The grievance was denied and submitted to arbitration. Before the Arbitrator, the Union alleged that: (1) the grievants were properly performing GS-14 level work from the date they were laterally transferred to the Facility Representative positions in April or May of 2000; (2) the grievants were eligible for promotion to GS-14 at the time the Facility Representative position was upgraded in July 2000 and should have been promoted at that time; and (3) the grievants were not treated the same as the Facility Representatives hired at the GS-14 level in October 2004. See Award at 2. The Union sought back pay, benefits, and seniority from July 30, 2000 -- the date the position was reclassified as a GS-14 position -- to the date the grievants were promoted to GS-14.

      The grievance was not resolved and was submitted to arbitration. The parties did not stipulate the issue. Without formally defining the issue, the Arbitrator stated that the grievance concerned "the proper GS pay grade, GS-13 or GS-14," for the three grievants. Id. at 1.

      The Arbitrator found that the grievants' terms and conditions of employment required completion of TQP and one year's work as a Facility Representative before they could be promoted to GS-14. The Arbitrator found [ v62 p68 ] that the two Facility Representatives hired at the GS-14 level in October 2004 "met the then existing [Office of Personnel Management (OPM)] requirements for Fac[ility] Rep[resentative] immediately at the GS-14 level, and were on the GS-14 certificate." Id. at 3. The Arbitrator found that the Agency had no authority to hire these new hires at the GS-13 level. See id.

      The Arbitrator construed the Union's arguments as an assertion that, since the Agency hired two GS-14 Facility Representatives competitively, the grievants should have received GS-14 Facility Representative pay when they assumed those positions non-competitively. The Arbitrator rejected the Union's argument, as he construed it, and found that the grievants were "not similarly situated" to the two Facility Representatives who were hired in 2004. Id. at 4. In this regard, the Arbitrator found that the grievants were hired through voluntary, non-competitive lateral transfers, but the new hires were hired competitively. The Arbitrator further found that the Agency's Facility Representative Manual has "absolutely nothing to do with [the] pay grades" of Facility Representatives because "[t]hat is governed and controlled by OPM statutorily." Id. Accordingly, he denied the grievance.

III.     Positions of the Parties

A.      Union's Exceptions

      The Union asserts that the Arbitrator's award is based on a nonfact. Specifically, the Union asserts that the Arbitrator erred in finding that the grievants knowingly accepted lateral transfers at the GS-13 pay grade with the understanding that the positions would be upgraded to GS-14 at some point in the future. According to the Union, neither the Agency, nor the grievants dispute that the added requirements for the grievants to obtain TQP and one year of experience "were added after the EM [Facility Representative] positions were reclassified to the higher grade." Exceptions at 3.

      Next, the Union asserts that the Arbitrator's award is contrary to law because the Agency failed to promote the grievants when all of the Agency's Facility Representative positions were reclassified from GS-13 to GS-14 in July 2000 "because of a new classification standard or because of an accretion of duties." Exceptions at 4. In this regard, the Union asserts that the Facility Representative "jobs did not change[,]" id. at 5, and the award is contrary to 5 C.F.R. § 335.103(c)(2), which states, in pertinent part, that "[c]ompetitive procedures do not apply to [a] promotion resulting from the upgrading of a position without significant change in the duties and responsibilities due to issuance of a new classification standard or the correction of an initial classification error[.]" In this connection, the Union notes that this regulation provides a "mandatory exception to competitive selection for the upgraded positions." Id. Similarly, the Union contends that if the reclassification of the positions was the result of an accretion of duties, then the Agency should have non-competitively promoted the grievants to GS-14 since it did not choose to fill all the reclassified positions through competition.

      Finally, the Union asserts that in denying the grievance, the Arbitrator failed to address back pay, seniority, retirement accumulations, or attorney fees. The Union seeks a remand to the Arbitrator for consideration of attorney fees since there is no evidence regarding this issue in the record.

B.      Agency's Opposition

      The Agency asserts that the award is not based on a nonfact. In this regard, while the Agency concedes that "the Arbitrator's statement as to when the [g]rievants accepted the terms and conditions of their employment is not entirely accurate," the Agency asserts that this is not fatal to the Arbitrator's "ultimate point" that the grievants failed to file a grievance in 2000 and "knew, understood, and accepted" that in order to be eligible for a non-competitive promotion to a GS-14 they would have to complete TQP and then work as Facility Representatives for one year thereafter. Opposition at 2-3. The Agency further asserts that the central fact underlying the Arbitrator's decision was his finding that selection, hiring, classifications, and pay grades of Facility Representatives are controlled by OPM standards, and not the Agency's Facility Representative Manual.

      The Agency asserts that the award is not contrary to law because the Agency properly followed OPM standards when it instituted the competitive selection process for the Facility Representative positions that were filled in October 2004. The Agency also asserts that the grievants and the October 2004 hires were not similarly situated because the grievants were promoted non-competitively while the new hires properly were hired competitively.

      Lastly, the Agency asserts that since the Arbitrator properly denied the grievance, there is no need to remand to the Arbitrator for consideration of other issues.

IV.     Analysis and Conclusions

      When an exception challenges an award's consistency with law, the Authority reviews the question of [ v62 p69 ] law raised by the exception and the arbitrator's 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 a standard of 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 such a determination, the Authority defers to the 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 held that this and the other statutory exclusions set forth in § 7121(c) "apply irrespective of whether a party makes such a claim before the Authority" because "[t]o hold otherwise would be inconsistent with clearly expressed congressional intent to bar grievances over such matters altogether." United States Dep't of the Army, Fort Polk, La., 61 FLRA 8, 12 (2005) (Member Pope dissenting) (Fort Polk). In Fort Polk, the Authority found that it had jurisdiction to address sua sponte the effect of § 7121(c)(5) even where, as here, no exceptions were filed on the jurisdictional point by any party. See id.

      Applying Fort Polk here, we note that 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." Soc. Sec. Admin., Office of Hearings & Appeals, Mobile, Ala., 55 FLRA 778, 779-80 (1999) (quoting 5 C.F.R. § 511.101(c)). The Authority has distinguished between two situations in assessing whether a grievance concerns the classification of a position. Where the substance of a grievance concerns the grade level of the duties permanently assigned to, and performed by, the grievant, the Authority finds that the grievance concerns the classification of a position within the meaning of § 7121(c)(5). See United States Dep't of Hous. & Urban Dev., La. State Office, New Orleans, La., 53 FLRA 1611, 1616 (1998). However, where the substance of the grievance concerns whether the grievant is entitled to a temporary promotion under a collective bargaining agreement by reason of having performed the established duties of a higher-graded position, the Authority has long held that the grievance does not concern the classification of a position within the meaning of § 7121(c)(5). See id.

      In the absence of a stipulated issue, the Arbitrator determined that the present case concerned "the proper GS pay grade, GS-13 or GS-14," for the grievants. Award at 1. There was no assertion that the grievants were entitled to a temporary promotion under a collective bargaining agreement, nor did the Arbitrator consider that issue. The Arbitrator considered solely whether the grievants were entitled to permanent, retroactive promotions from GS-13 to GS-14 from the time the Facility Representative position was reclassified to GS-14 in July 2002 to the time the grievants actually received their promotions to GS-14.

      Under Authority precedent, it is clear that the substance of the grievance concerned whether the grievants were entitled to permanent promotions and not whether they were entitled to temporary promotions under the parties' collective bargaining agreement for performing previously classified duties of higher-graded positions. As such, the grievance involves a classification matter within the meaning of § 7121(c)(5) of the Statute and is excluded from the grievance procedure. See, e.g., AFGE, Local 987, 58 FLRA 453, 454-55 (2003) (AFGE, Local 987) (grievance seeking permanent promotion involved classification); AFGE, Local 2142, 51 FLRA 1140, 1142 (1996) (grievance involving performance of duties assigned to permanent position involved classification). Thus, we find that the Arbitrator did not have jurisdiction to resolve the merits of the grievance and set aside the award. See AFGE, Local 2142, 61 FLRA 194, 198 (2005). [n2] 

V.     Decision

      The award is set aside.



Footnote # 1 for 62 FLRA No. 19 - Authority's Decision

   The award does not indicate the dates on which the grievants were promoted to GS-14, but, according to the hearing transcript, all of the grievants had been promoted to GS-14 by 2003. See Transcript at 31 (one grievant testified that he "became a GS-14" in 2003); Transcript at 56 (another grievant testified that he "was able to qualify" about a year and a half after transferring into the position in 2000); and Transcript at 67 (another grievant testified that he "was promoted" to GS-14 in 2003).


Footnote # 2 for 62 FLRA No. 19 - Authority's Decision

   In