United States Department of Transportation, Federal Aviation Administration (Agency) and National Air Traffic Controllers Association Engineers and Architects (Union)

[ v62 p516 ]

62 FLRA No. 96

UNITED STATES
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
(Agency)

and

NATIONAL AIR TRAFFIC
CONTROLLERS ASSOCIATION
ENGINEERS AND ARCHITECTS
(Union)

0-AR-4182

_____

DECISION

July 14, 2008

_____

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

I.     Statement of the Case

      This matter is before the Authority on an exception to an award of Arbitrator Anne L. Draznin 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 exception.

      As relevant here, the Arbitrator found that the Agency violated the parties' collective bargaining agreement by failing to promote two grievants. For the reasons discussed below, we set aside the award as inconsistent with § 7121(c)(5) of the Statute.

II.     Background and Arbitrator's Award

      The parties negotiated and adopted a new pay system consisting of Career Level Descriptors (CLDs) "to replace the Office of Personnel Management [(OPM)] classification criteria for various grade levels[.]" [n1]  Award at 3-4. As relevant here, following implementation of the new pay system, two CLD 3 Engineers filed two individual grievances alleging that the Agency did not "adjust their CLDs so that they accurately reflect the duties of their current positions" pursuant to the parties' agreement. [n2]  Id. at 4. Specifically, one grievant alleged that, after he was reassigned into a Lead Engineer CLD 3 position, he discovered that "lead engineers across the nation had been re-assigned to CLD-4 levels" and requested an "upgrade to CLD-4[.]" Exception, Attachment 8 at 1-2. The other grievant alleged that his assigned duties and responsibilities did not accurately reflect his position and assigned CLD and requested reassignment to a CLD 4. See id., Attachment 9 at 1.

      The grievances were not resolved and were submitted to arbitration. The parties stipulated to the following issue: "Did the Agency violate [the parties' collective bargaining agreement] when it denied elevation of the [g]rievants' positions to Career Level Descriptor 4? If so, what will the remedy be?" Award at 2.

      As an initial matter, the Arbitrator rejected the Agency's assertion that the grievances concerned classification matters. In this regard, the Arbitrator found that the grievants were challenging "the managerial assessment made as to whether their particular job duties fit within one or another career level descriptor" and not the job classifications themselves. Id. at 8.

      With respect to the first grievant, the Arbitrator found that the grievant's supervisor refused to promote him solely because doing so would result in the grievant reporting to someone who is also a CLD 4. See Award at 16. In this regard, the Arbitrator determined that this was an insufficient basis for denying a promotion to the grievant "when [his] job duties easily fit within the CLD level 4 criteria." Id. The Arbitrator further found that the grievant's position "requires him to spend considerably more than 25% of his time . . . doing work that is labeled as CLD 4." Id. The Arbitrator concluded that the grievant should be retroactively, permanently promoted to CLD 4, effective as of the date he accepted a change of duty to his position. See id. at 18-19.

      With regard to the other grievant, the Arbitrator found that the Agency shifted the grievant from his position as an 801 General Engineer to a position as an 805 Electrical Engineer in order to avoid promoting the grievant to CLD 4. See Award at 16. "Reviewing all of [ v62 p517 ] the evidence presented with respect to [the grievant's] duties and the way in which they were assessed for purposes of CLD evaluation," the Arbitrator found that the grievant "should have been ranked at the CLD 4 [level]." Id. at 18. In this regard, the Arbitrator further found that the grievant should have had his position placed within CLD 4 because "[a]lmost all of his assigned duties fall within CLD 4, and other people doing the same work in different platforms or regions were given the CLD 4 designation." Id. at 26. The Arbitrator concluded that the grievant should be retroactively, permanently promoted to CLD 4, effective as of the date his position designation was changed from 801 General Engineer to 805 Electrical Engineer. See id. at 18-19.

III.     Positions of the Parties

A.      Agency's Exception

      The Agency requests that the Authority set aside the Arbitrator's award as inconsistent with § 7121(c)(5) of the Statute. [n3]  According to the Agency, the Arbitrator reclassified the grievants' positions when she found that the Agency had "erred in its classification" of them and awarded them permanent, retroactive promotions from CLD 3 to CLD 4. Exception at 5 (emphasis omitted). The Agency asserts that such classification matters are specifically excluded from the parties' negotiated grievance procedure under § 7121(c)(5), as well as the parties' agreement.

B.      Union's Opposition

      The Union asserts that the award does not involve a classification matter within the meaning of § 7121(c)(5) of the Statute. Specifically, the Union argues that, since OPM regulations and governing provisions no longer apply to the Agency, statutory limitations specifically referencing the OPM system are not applicable in the present case. See Opposition at 6. According to the Union, the parties "devised a new system for handling independent reviews of employee duties to insure that all employees were provided some form of fair and due process" and to replace the desk audit process offered by OPM. Id. at 10. The Union asserts that this process is set forth in the parties' collective bargaining agreement, which allows employees to challenge their CLDs by filing a grievance. See id.

      The Union further asserts that the grievances do not involve a classification matter because they involve "the improper denial of a [non-competitive] promotion[.]" Id. at 7. In addition, the Union also argues that the grievances do not involve classification because they involve "the temporary performance of a body of work already classified at a higher level." Id. at 8 (emphasis omitted). Moreover, the Union alleges that this case is similar to United States Securities and Exchange Commission, Washington, D.C., 61 FLRA 251, 253 (2005) (SEC), in which the Authority held that, insofar as the grievance and the arbitrator's award "concern[ed] only the amount of pay provided to employees, and not the [a]gency's determination regarding the appropriate grade levels at which duties should be classified," the grievance and award did not involve a classification matter. Opposition at 9 (quoting SEC, 61 FLRA at 254).

IV.     Analysis and Conclusions

      When an exception challenges an award's consistency with law, the Authority reviews the question of 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 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." 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 further stated that, "the mere fact that [an] [a]gency has discretion to establish pay without regard to chapter 51 of title 5 does not preclude a finding that the grievance and award concern classification within the meaning of § 7121(c)(5)." United States Dep't of Transp., Fed. Aviation Admin., 61 FLRA 634, 635 (2006) (quoting SEC, 61 FLRA at 253).

      [ v62 p518 ] 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.

      As set forth above, the stipulated issue was whether the Agency violated the parties' collective bargaining agreement when it denied the grievants promotions to CLD 4. See Award at 2. There is no evidence that the Arbitrator considered whether the grievants were entitled to temporary promotions under the collective bargaining agreement. [n4]  The Arbitrator considered solely whether the grievants were entitled to permanent, retroactive promotions from CLD 3 to CLD 4 based on the performance of the duties assigned to the grievants' permanent positions. This is evidenced by the Arbitrator's award directing that the grievants "shall be promoted to CLD 4[,]" effective, respectively, as of the date the first grievant accepted the change of duty to his position, and as of the date the second grievant's position designation was changed from 801 General Engineer to 805 Electrical Engineer. See id. at 27-28.

      Under Authority precedent, the substance of the grievance concerned whether the grievants were entitled to permanent promotions based on the grade level of the duties permanently assigned to, and performed by, the grievants 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 grievances involve classification matters within the meaning of § 7121(c)(5) of the Statute and is excluded from the grievance procedure.  [n5]  See, e.g., AFGE, Local 987, 58 FLRA 453, 454-55 (2003) (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).

      Based on the foregoing, 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, 196 (2005).

V.     Decision

      The award is set aside as inconsistent with § 7121(c)(5) of the Statute.



Footnote # 1 for 62 FLRA No. 96 - Authority's Decision

   Pursuant to the Air Traffic Management System Performance Improvement Act (FAA Act), Pub. L. No. 104-264, 110 Stat. 3213, 3227, which is codified at Title 49 of the United States Code, the Agency is governed by an Agency-specific personnel system that is exempt from most of the requirements of Title 5. See Nat'l Air Traffic Controllers Ass'n, AFL-CIO, Local ECE, 61 FLRA 803, 804 (2006). Under the FAA Act, the Agency is also required to negotiate pursuant to the Statute with exclusive representatives concerning the compensation of its employees. See United States Dep't of Transp., Fed. Aviation Admin., 61 FLRA 750, 752 (2006).


Footnote # 2 for 62 FLRA No. 96 - Authority's Decision

   The Arbitrator denied a third grievance. As no exceptions were filed with respect to that grievance, we do not address it further.


Footnote # 3 for 62 FLRA No. 96 - Authority's Decision

   Under § 7121(c)(5), grievance procedures negotiated under the Statute "shall not apply with respect to any grievance concerning . . . the classification of any position which does not result in the reduction in grade or pay of an employee."


Footnote # 4 for 62 FLRA No. 96 - Authority's Decision

   In this regard, the Union's statement that the grievances involve "the temporary performance" of higher-graded duties, Opposition at 8, is unsupported by the record and inconsistent with the Arbitrator's award, to which the Union filed no exceptions.


Footnote # 5 for 62 FLRA No. 96 - Authority's Decision

   As the grievance concerns classification, it is irrelevant whether the grievants sought noncompetitive promotions. Indeed, under