[ v37 p1102 ]
The decision of the Authority follows:
37 FLRA No. 94
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE ARMY
FORT CAMPBELL, KENTUCKY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
ORDER DISMISSING UNION EXCEPTION
AND DECISION ON AGENCY EXCEPTIONS
October 22, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Marvin A. Griffin filed by the Department of the Army (Agency) on behalf of the Activity under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exceptions.
The Arbitrator found, among other things, that the grievant, a GS-9 engineering technician, was entitled to be promoted noncompetitively to a GS-10 or GS-11 position. The Arbitrator's award did not provide for retroactive promotion or backpay. For the following reasons, we conclude that the Agency has not demonstrated that the award is deficient under section 7122 of the Statute.
II. Preliminary Matters
The Union asserts that the Agency's exceptions should be dismissed because they were not filed timely and because the Agency failed to notify the Union, as required by the parties' collective bargaining agreement, that it intended to file exceptions. (1)
In addition, in its opposition, the Union asserts that the portion of the Arbitrator's award relating to the grade level of the position to which the grievant is to be promoted noncompetitively should be modified to require the Activity to promote the grievant to a GS-10 "trainee position." Opposition at 9-10.
We find first that the exceptions were timely filed. Exceptions to an arbitration award must be filed within 30 days of the date of service of the award. 5 C.F.R. § 2425.1(b). There is no dispute in this case that the award was served on the parties on December 11, 1989. There is also no dispute that the award was served by mail. Accordingly, under sections 2429.21 and 2429.22 of the Authority's Regulations, 5 days are added to the 30-day time period for filing exceptions. To be timely, therefore, exceptions had to be filed with the Authority by January 16, 1990. The Agency's exceptions were filed on January 16, 1990 and, as such, are timely.
Second, we reject the Union's contention that the exceptions should be dismissed because the Agency failed to notify the Union's counsel of its intention to file exceptions. The issue of whether the Agency complied with the parties' contractual procedures applicable to notice of intentions to file exceptions is not before us in this case. As the Union's asserted right to receive notice was established contractually, the Union's remedy lies in enforcement of that contractual right. The Agency's exceptions were timely filed and otherwise complied with the Authority's Regulations. The parties' contractual dispute does not deprive us of our statutory jurisdiction over the exceptions.
Finally, the Union did not file an exception to the Arbitrator's award. Instead, as noted, the Union filed only an opposition to the Agency's exceptions. The Union's request that the award be modified constitutes an exception to the award, however. As such, the portion of the opposition requesting modification of the award was not timely filed under section 7122 of the Statute. It will, therefore, be dismissed. See U.S. Small Business Administration, Atlanta, Georgia and American Federation of Government Employees, Local 3906, 37 FLRA 137, 141-42 (1990).
The grievant is a GS-9 engineering technician who works in the Activity's Engineering Plans and Services Division (the Division). In late 1988, the Activity initiated a reorganization in the Division. Pursuant to the reorganization, a "routine" job audit of 10 to 12 of the positions in the Division was conducted by a Classification Specialist. Award at 4.
Among the positions audited by the Classification Specialist were those of the grievant and a co-worker, who also occupied a GS-9 engineering technician position. The Classification Specialist concluded that the position held by the co-worker "had changed and he upgraded that restructured job to a GS-10 level." Id. The upgraded position subsequently was filled, competitively, with the co-worker, who was the only qualified applicant.
The Classification Specialist found that the grievant "had only performed two projects which could properly be classified at the GS-10 level." Id. The Specialist concluded that "this limited amount of highest level work was not sufficient to upgrade" the grievant's position and recommended that "the few GS-10 tasks be identified and transferred to another job." Id.
The Activity rejected the Specialist's recommendation to leave the grievant's position "as is." Id. at 5. Instead, the Activity directed that the grievant's G-9 position description be "rewritten to include sufficient higher level duties to warrant a GS-11 classification." Id. The position description was rewritten and classified at the GS-11 level.
The GS-11 position was "seen as a 'new' position" by the Activity and, accordingly, was advertised pursuant to competitive procedures. Id. As there were no qualified applicants for the GS-11 position, however, the position was reclassified again as a "GS-10 trainee position leading to a GS-11 position." Id. When the GS-10/11 position was announced, the only qualified "on post" candidates were the grievant and the co-worker (who at this time occupied the GS-10 position). Id. at 5-6. The co-worker was selected.
The grievant filed a grievance stating as follows:
This grievance is being filed due to violation of CAM Reg 690-1, Chapter 7, in that improper procedures were followed in promotion action for Engineer Technicians.
The promotion of [the co-worker] be overturned and the job reannounced and CAM Regulation be complied within [sic] its entirety.
Id. at 6. (2) The grievance was not resolved and was submitted to arbitration.
IV. The Arbitrator's Award
As relevant here, the Arbitrator stated that the issues before him were:(3)
A. Whether or not [the grievant's] failure to receive a noncompetitive promotion is grievable or arbitrable under Article 40, Section 40-3f of the Collective Bargaining Agreement (CBA)? If not, what is the proper forum?
B. Did management apply competitive procedures in accordance with applicable laws and regulations or should it have utilized noncompetitive promotion procedures pursuant to Chapter 335, paragraph 1-56 of the Federal Personnel Manual and CAM Reg 690-1, paragraph 7-15a?
Award at 1. (4)
With respect to the first issue, the Activity argued to the Arbitrator that the grievance was not arbitrable because "the Grievant [was] challenging his nonselection for promotion from a group of properly ranked and certified candidates." Id. at 7. The Union claimed that the grievance was not barred because the grievant was "challenging the use of improper procedures in the reclassification of his job . . . ." Id.
The Arbitrator concluded that the grievance was arbitrable. According to the Arbitrator, it was "clear . . . that this grievance [was] not directed toward the Grievant's nonselection but rather the ' . . . improper procedures' implemented in the promotion action." Id. at 9. The Arbitrator noted, in this regard, that "doubts about the coverage of the grievance procedure should be resolved in favor of coverage." Id.
With respect to the second issue, the Activity argued to the Arbitrator that "the basis for reclassifying [the grievant's] old job to a GS-11 job was because of added duties and responsibilities." Id. at 10. The Union claimed that the GS-11 job "was simply a restatement of the work that [the grievant] had been doing for some time." Id.
The Arbitrator found that, at the time of the audit by the Classification Specialist, the grievant's old job description did not describe accurately the grievant's duties. The Arbitrator noted that "some 'new emphasis' was added to the new job description regarding project coordination and contacts with outside architects, engineers, and contractors." Id. at 11. The Arbitrator found, however, that it was "clear that the old GS-9 job was upgraded without a significant change in most duties and responsibilities." Id. at 11. According to the Arbitrator, the grievant "was indeed substantially performing the duties and responsibilities stated in the GS-11/10 job description at the time" the new job description was drafted. Id.
The Arbitrator concluded that the Activity "improperly applied competitive procedures in selecting [the grievant's co-worker] for the GS-11/10 position." Id. The Arbitrator concluded also that the grievant "should have been promoted to the upgraded position according to CAM Reg 690-1, paragraph 7-15a." Id. The Arbitrator stated that his "only doubt" was "whether [the grievant's position] should have been upgraded to a GS-10 or a GS-11 without the addition of the 'new emphasis.'" Id. The Arbitrator noted that the Activity could reassign some of the GS-11 duties to another position so that the new position could properly be classified at the GS-10 level. The Arbitrator stated, however, that "the grade level of the restructured job must be at grade GS-10 or higher." Id. at 12.
As his award, the Arbitrator held that the grievant was "entitled to be promoted noncompetitively to the [g]rade of a GS-10 or GS-11 according to CAM Reg 690-1 par[a.] 7-15a. The Grievant is not to receive any [backpay]." Id. at 14.
V. The Parties' Positions
A. The Agency's Exceptions
The Agency argues that the award conflicts with section 7121(c)(5) of the Statute and is inconsistent with the Agency's right to select applicants for positions under section 7106(a) of the Statute and Government-wide regulations. (5)
With respect to its first exception, the Agency maintains that the "essential nature of the grievance and the award concern the grade level to which the grievant should be promoted and the level of the duties assigned to and performed by the grievant." Exceptions at 3. The Agency argues that because the grievance "is a direct result of a classification review[,]" the award concerns a classification matter and, consistent with numerous Authority decisions, must be set aside. Id. at 2.
With respect to its second exception, the Agency asserts that the Arbitrator's finding that the grievant was entitled to a noncompetitive promotion violates its right to select under section 7106(a) of the Statute and Federal Personnel Manual (FPM) chapter 335, subchapter 1-4, requirement 4. According to the Agency, Army Regulation 690-300, chapter 335, 1-5(c) provides that the following requirements must be met for a noncompetitive promotion:
(i) There are no other employees at the same grade in the unit supervised by the selecting official who are performing duties substantially the same as those performed by the employee before the addition of the new duties.
(ii) The employee continues to perform the same basic functions as those in the former position, and the duties of the former position . . . are in the new position.
. . . .
(iv) The employee meets all eligibility and qualification requirements for the position.
Id. at 5-6.
The Agency argues that the requirements of subsection (i) of this regulation were not met because the Arbitrator recognized "that there [were] two positions at issue in this case." Id. at 6. Accordingly, the Agency maintains that the grievant "was not the only employee performing Engineering Technician work in" the Division. Id.
B. The Union's Opposition
The Union claims that the award is not deficient under section 7121(c)(5) of the Statute because the grievant "is not challenging the upgrade and reclassification of his job to a higher level." Opposition at 5. According to the Union, the Arbitrator did not "make a classification determination, the classification determination had previously been made by" the Activity. Id. at 6-7. The Union asserts that the Arbitrator determined only that "once [the Activity] had elected to reclassify the job to a higher level without any additional duties, it was required to follow the proper procedures of the Federal, Army and Base Regulations." Id. at 6. The Union notes the Arbitrator's finding that it was "'clear that the old GS-9 job was upgraded without a significant change in most duties and responsibilities.'" Id. at 5 (quoting Award at 11).
With respect to the Agency's second exception, the Union maintains that the grievant met all the requirements for a noncompetitive promotion established in the FPM and Army regulations. The Union asserts that, at the time the grievant's position was reclassified, there were no other GS-9 employees performing the same work as the grievant. The Union asserts also that the Agency's claims that the GS-10/11 position description contained duties that were not performed by the grievant "is not supported by the facts or the [A]rbitrator's findings." Id. at 12.
VI. Analysis and Conclusions
We conclude that the Agency has not demonstrated that the award is deficient under section 7122 of the Statute.
First, we reject the Agency's assertion that the award conflicts with section 7121(c)(5) of the Statute. That section, as noted above, excludes from the coverage of a negotiated grievance procedure any grievance concerning "the classification of any position which does not result in the reduction in grade of pay of an employee." Classification of a position is defined in 5 C.F.R. § 511.101(c) 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.
There is no basis in the record of this case on which to conclude that the grievance concerned the classification of the grievant's position. Indeed, there is no dispute in the record as to the classification of the grievant's position. Instead, the grievance concerned whether, following the Activity's reclassification of the position, the Activity was required to promote the grievant noncompetitively. The Agency does not contend, and the Activity did not contend before the Arbitrator, that the issue of whether the Activity was required to promote the grievant noncompetitively after it reclassified the position is not arbitrable. Accordingly, we reject the Agency's contention that the award is deficient under section 7121(c)(5) of the Statute.
Second, the Agency's assertion that the award conflicts with its right to select is based solely on its contention that the regulatory requirements applicable to noncompetitive promotions were not satisfied in this case. That is, the Agency acknowledges that it may be required to promote an employee noncompetitively; the Agency contends only that it may not be required to do so in this case because applicable regulatory requirements were not met. The Agency has not demonstrated, however, that those requirements were not met.
The Agency's sole assertion in this regard is that the requirement in Army Regulation 690-300, chapter 335, 1-5(c) that, to promote an employee noncompetitively, there must be "no other employees at the same grade in the unit supervised by the selecting official who are performing duties substantially the same as those performed by the employee before the addition of the new duties" was not satisfied here. The Agency has not asserted, however, that, at the time the grievant's position was reclassified, there was any other GS-9 employee performing the same duties as the grievant. Moreover, it is uncontroverted in the record that, at the time the grievant's position was reclassified, the grievant's co-worker was encumbering a GS-10 position. Accordingly, the Agency has not demonstrated that the noncompetitive promotion of the grievant is inconsistent with the Army Regulation. As the Agency's sole claim with respect to its right to select is premised on the alleged violation of the Army Regulation, we reject this claim.
The Agency has not demonstrated that the award is deficient under section 7122 of the Statute. Accordingly, we will deny the Agency's exceptions.
The Agency's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. Section 41-9 of the parties' agreement provides, in relevant part:
Either party may file exceptions to an arbitrator's award with the Federal Labor Relations Authority under regulations prescribed by the Authority. Within 15 workdays of receipt of an arbitration award, both parties will inform each other whether an exception to the award will be filed. If no notice is made, the award will be final and binding on all parties.
Attachments 1 and 2 to Brief Accompanying Motion to Dismiss.
2. The record before us does not disclose the wording of CAM Regulation 690-1.
3. The Arbitrator addressed four other issues. As no exceptions have been filed with respect to his award concerning the other issues, they will not be addressed here.
4. Article 40, section 3.f. of the parties' agreement excludes from the grievance procedure challenges to nonselections for promotion from among groups of properly ranked and certified candidates.
5. Section 7121(c)(5) of the Statute excludes from the scope of negotiated grievance procedures "any grievance" concerning "the classification of any position which does not result in the reduction in grade or pay of an employee."