47:0294(21)AR - - NFFE, Local 273 and Army Field Artillery Center, Fort Sill, OK - - 1993 FLRAdec AR - - v47 p294
[ v47 p294 ]
The decision of the Authority follows:
47 FLRA No. 21
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
U.S. DEPARTMENT OF THE ARMY
ARMY FIELD ARTILLERY CENTER
FORT SILL, OKLAHOMA
March 31, 1993
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Donald Austin Woolf filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. No opposition was filed to the Agency's exceptions.
This case concerns a grievance that contested the reassignment of the grievant during a reduction-in-force (RIF) to a position in a lower grade. The Arbitrator found that the grievant was not properly placed in the position as the result of the RIF and directed the Agency to place the grievant in a position within her former classification and grade level.
For the following reasons, we conclude that the award must be remanded to the parties.
II. Background and Arbitrator's Award
During an Agency RIF in July 1991, the grievant's position of Management Analyst, GS-343 at the GS-9 level, was abolished and she was reassigned to a position of Accounting Technician, at the GS-7 level. A grievance was filed contesting the reassignment, claiming that there were at least four other employees holding GS-343-09, Management Analyst positions with lower retention standing than the grievant and that, therefore, the grievant should have been entitled to displace any of those employees. The grievance was not resolved and was submitted to arbitration.
The parties stipulated to the following issue before the Arbitrator: "Was the [g]rievant properly placed in her present position [as a result of] the Reduction in Force of July 16, 1991, and, if not, what is the appropriate remedy?" Award at 3.
The Union contended before the Arbitrator that the Agency violated the grievant's rights by giving preferential treatment to a junior employee over a senior employee of the same grade and position classification series. The Union argued that while the duties found in the various GS-343-09 positions are different, all require common skills and abilities, and therefore, should be in the same competitive level. The grievant testified that although she had not performed the specific duties of the other GS-343-09 positions, she was fully capable of learning those duties and had the qualifications for the successful performance of any of those jobs.(1)
The Agency contended before the Arbitrator that there were two very different kinds of series GS-343 positions, that the grievant's former position did not fit into either category, and that it should not even have been classified as a GS-09 position. The Chief of the Agency's Classification Branch testified that the grievant's former position was one of several "one-of-a-kind" jobs, which resulted in there being a single position in the grievant's competitive level. Id. at 18. The witness further testified that employees in jobs at the same competitive level should be able to step into any other job at that level with no disruption of performance in the new job other than that attributable to the move from one position to another of the same kind. This witness further testified that in the placement of jobs at competitive levels, the emphasis is on the similarity of duties and critical elements necessary to the job and not the personal qualifications of employees.
The Arbitrator found that the RIF was conducted under the provisions of the Federal Personnel Manual (FPM) Supplement 351-1. The Arbitrator stated that "[a]bsent a clear violation of contract or of applicable law, rule, or regulation, the usual criteria used in evaluation of an employer's action leading to the filing of a grievance are whether or not the action is 'arbitrary, capricious, or discriminatory.'" Id. at 21. The Arbitrator found that the "creation of relatively large numbers of single-job competitive levels in jobs requiring the same or very similar qualifications gives at least the appearance of behavior which is arbitrary, if not capricious." Id. at 23. The Arbitrator found that the Agency's official's testimony that the practice is common does not justify it, particularly in view of other testimony from management officials that placing all GS-343-09 positions in the same competitive level was equally possible.
The Arbitrator concluded, however, that the Union's argument that the series 343 jobs are nearly interchangeable can be refuted, in part, by the "very clear differences" in duties. Id. at 22. The Arbitrator further determined that the Agency made a "convincing argument" that differences in critical elements of a job would appropriately lead to different competitive levels based on FPM Supplement 351-1. Id. However, the Arbitrator noted that although critical elements were introduced as evidence for the other GS-343-09 positions, no critical elements were introduced for either the former job held by the grievant or the job she presently holds.
The Arbitrator noted that the FPM is explicit regarding the use of both critical elements and seniority. Although the Arbitrator concluded that there was insufficient evidence regarding critical elements on the record for comparison, he noted the "exceptional difference" in seniority between the grievant and the incumbents in the other GS-343-09 positions at issue. Id. at 24 (emphasis in original). The Arbitrator found that the grievant was a member of Tenure Group I, which confers the right to bump a member of Tenure Group II, where the jobs are of sufficient similarity as to not cause "undue interruption . . . that would prevent the completion of required work within the allowable limits of time and quality . . . [.]" Id. at 23 (quoting FPM Supplement 351-1, paragraph S2-1(v)). The Arbitrator noted that under the standard set forth in paragraph S2-1 an employee must be able to perform the critical elements of a position within 90 days after reassignment. The Arbitrator found that one of the GS-343-09 positions in question was held by a Tenure Group II employee and that the grievant testified that "she was confident that she could perform the duties of [that position] within a reasonable period of time . . . ." Id.
The Arbitrator found that regardless of any differences between the critical elements of the grievant's previous job and the positions held by the employees who had service dates later than that of the grievant, "it is most unlikely that they are as great as the differences in critical elements between the job of Management Analyst and Accounting Technician." Id. at 23-24. Admitting that he could only speculate as to the contents of the critical elements of the grievant's two jobs, the Arbitrator concluded that the grievant should have been placed in a job with critical elements that were more similar to the job that was abolished.
The Arbitrator found that even in instances where grave doubt has been expressed as to the ability of a senior employee potentially subject to downgrading because of a RIF to perform duties of another job, "it is common to at least offer a trial period." Id. at 24.
Accordingly, the Arbitrator made the following award:
The [g]rievant was not properly placed in her present position as a result of the Reduction in Force of July 16, 1991. The [Agency] is directed to place her in any GS-343-09 position for which she was qualified and whose incumbent she would have been entitled to displace (bump) but for the creation of a single job competitive level, provided that the [g]rievant must perform all critical elements of said job in a fully satisfactory manner in a period of not more than ninety (90) days. In the event that her performance proves to be less than fully satisfactory, she shall be granted retreat rights to the position to which she is now assigned, or to an equivalent one. There being no loss of pay, no back pay has been sought, and none is granted.
Id. at 26 (emphasis in original).
III. The Agency's Exceptions
The Agency contends that the Arbitrator's award is inconsistent with FPM Supplement 351-1; is based on a nonfact; and interferes with the Agency's right to assign employees.
A. Government-wide Regulation
The Agency contends that the Arbitrator did not understand Federal sector RIF procedures or FPM Supplement 351-1. The Agency argues that the award confused the issue of whether the competitive levels were correct with that of whether the grievant had any assignment rights in either the first or second rounds of RIF competition. The Agency argues that the Arbitrator ignored the FPM Supplement and based his conclusion solely upon his perception of equity and his mistaken understanding of the relevant factors to consider in RIF placements. Consequently, the Agency asserts the Arbitrator's analysis, conclusions, and award are inconsistent with FPM Supplement 351-1.
The Agency argues that although the Arbitrator mentioned competitive levels, he failed to draw any conclusion about the appropriateness of the Agency's determination that different Management Analyst, GS-343-09, positions were in different competitive levels. Instead, according to the Agency, the Arbitrator "confused the standard for defining competitive levels with the standards for assignment rights and avoided the issue by discussing principles of equity . . . ." Exceptions at 4.
The Agency contends that a competitive level is a grouping of similar positions that are essentially interchangeable, within which employees compete for retention in the first round of competition during a RIF. The Agency argues that it is undisputed that all Management Analyst, GS-343-09, positions are in the same grade and classification series. However, it claims that different management analyst positions require the performance of different duties. In this regard, the Agency argues that although the Arbitrator noted the clear differences in the duties in the different management analyst position descriptions involved in this case, he then ignored the regulatory standard for defining competitive levels in FPM Supplement 351-1, paragraph S3-3a(1) and instead focused on bumping rights, which apply only to the second round of competition during a RIF. The Agency asserts that the Arbitrator's standard of whether the employee could learn the position within 90 days is inconsistent with the requirements of the FPM. The Agency further contends that the Arbitrator's award was contrary to FPM Supplement 351-1, paragraph S3-3a(2) by focusing on the grievant's abilities and qualifications.(2)
The Agency contends that the Arbitrator "mixes apples and oranges" by stating that the differences between the grievant's previous job and the other management analyst jobs were not as great as the differences between her previous job and the accounting technician position to which she was assigned. Exceptions at 6. The Agency argues that the similarity between the grievant's former position and the position to which she aspires is relevant only to the issue of whether the competitive levels were properly set. The Agency further contends that the difference between the critical elements of the grievant's former position and the position to which she was assigned is an improper consideration in determining placement rights. The Agency maintains that "[t]he [A]rbitrator's award is based upon the mistaken belief that the goal of RIF placement is to minimize the difference in critical elements." Id. The Agency asserts that the Arbitrator's statements demonstrate that the award is based on a nonfact. The Agency also argues that the Arbitrator mistakenly concluded that the Arbitrator could assign the grievant to a position for a 90-day trial period with retreat rights to the accounting technician position.
C. The Right to Assign Employees
The Agency, citing Congressional Research Employees Association and Library of Congress, Congressional Research Service, 25 FLRA 306, 318-20 (1987) (Proposal 6) (CRS), contends that the Authority has held that an agency has the right, without interference, to establish competitive levels. The Agency argues that in CRS the Authority found that a proposal that sought to define competitive levels excessively interfered with the agency's rights to assign work and make selections for positions. The Agency contends, similarly, that the Arbitrator in this case has imposed on the Agency an award that excessively interferes with its rights to assign work and make selections pursuant to section 7106(a)(2)(A) of the Statute.
IV. Analysis and Conclusions
We are unable to determine whether the placement of the grievant in the Management Analyst position is supportable under the controlling regulations. Therefore, we will remand the award to the parties for resubmission to the Arbitrator to make the required findings as to whether the grievant was properly placed by the Agency in a single-position competitive level.
The stipulated issue before the Arbitrator was whether the grievant was properly placed in her present position as a result of the RIF. In the first round of competition during a RIF employees compete within a competitive level for retention in the competitive level. During this round of competition, an employee may be released from his or her competitive level based on his or her relative retention standing. See generally International Federation of Professional and Technical Engineers, AFL-CIO, NASA Headquarters Professional Association and National Aeronautics and Space Administration, Headquarters, Washington, D.C., 8 FLRA 212, 213-14 (1982). Therefore, if the competitive level in which a position is abolished is limited in the positions it includes, an employee's ability to exercise rights to remain in the competitive level will also be limited. Because the grievant was placed by the Agency in a single-position competitive level, she had no other positions to compete against in the first round of the RIF, and consequently, she was released from her competitive level. Therefore, in order to reach a conclusion as to whether the assignment of the grievant was proper, the Arbitrator initially should have determined whether the grievant was properly placed in a single-position competitive level. It is in the second round of competition during a RIF that employees who have been released from their competitive levels compete for jobs in other competitive levels, at which point assignment rights, such as bumping rights, come into play. During this round of competition, the Agency offered the grievant the accounting technician position she presently holds.
FPM Supplement 351-1, paragraph S3-3 provides, as noted above in footnote 2, that a competitive level consists of positions in a competitive area that are "[s]imilar enough in duties, qualification requirements . . . so that the incumbent of one position can successfully perform the critical elements of any other position in the level upon assignment to it, without any loss of productivity beyond that normally expected in the orientation of any new but fully qualified employee." Paragraph S3-3(2) provides that "[d]eterminations are not based on the personal qualifications or performance levels of individual employees." An employee's ability to perform the duties of a specific position does not establish that the position is interchangeable with another position and belongs in the same competitive level with that position. Rather, the qualifications set forth in the official position description, not the qualifications of an employee, determine the composition of the competitive level. See, for example, Estrin v. Social Security Administration, 24 M.S.P.R. 303, 307 (1984). Thus, in determining whether a competitive level has been properly established for purposes of a RIF, it is necessary to compare either the official position descriptions or a detailed description of the duties required for the positions alleged to be within that competitive level. See Kline v. Tennessee Valley Authority, 46 M.S.P.R. 193 (1990) (Kline).
The Arbitrator found that there were "very clear differences" in duties between the different management analyst positions. Award at 22. The Arbitrator also found that the Agency made a "convincing argument" that differences in critical elements of a job would appropriately lead to different competitive levels. Id. However, the Arbitrator noted that although critical elements were introduced as to the other GS-343-09 positions in question, none was introduced for the position formerly held by the grievant. The Arbitrator also found that there was insufficient evidence on the record for comparing critical elements. The Arbitrator did not analyze whether the grievant properly was placed in the single-position competitive level from which she was released during the first round of the RIF. Instead, he addressed the grievant's seniority as compared to the other employees in the GS-343-09 positions; the similarity of the grievant's former position to her current position; and the grievant's ability to perform the duties of the other GS-343-09 positions. None of these analyses is relevant to determining whether the Agency's placement of the grievant's position in a single-position competitive level was proper.
The correct determination of whether the single-position competitive level was properly established is through either an analysis of the qualifications set forth in the position descriptions of the various management analyst positions or a close examination of the duties performed in those positions. See generally, Kline. Because the Arbitrator did not follow the requirements of the FPM in addressing this issue, we cannot determine what result the Arbitrator would have reached had he applied the proper analysis. Accordingly, we will remand the award to the parties for resubmission to the Arbitrator to clarify the basis for his award, consistent with this decision. See, for example, U.S. Department of the Army, Army Natick Research Development and Engineering Center, Natick, Massachusetts, and National Association of Government Employees, Local R1-34, 44 FLRA 1251, 1254-55 (1992). If the Arbitrator were to find that the grievant should have been placed in a competitive level with a Management Analyst possessing a lower retention standing than the grievant, then the award in this case would be sustainable. If, on the other hand, the Arbitrator were to conclude that the grievant was properly placed in a single-position competitive level, an award requiring the Agency to place her in a GS-343-09 position would be deficient.(3)
We remand the award to the parties for resubmission to the Arbitrator. Consistent with this decision, the Arbitrator should determine, based on an analysis of the duties and qualifications of the various GS-343-09 positions, whether the grievant's position was properly placed in a single-position competitive level. The Arbitrator should then determine whether, during the RIF of July, 16, 1991, the Agency properly placed the grievant in the Accounting Technician, GS-07, position.
Following clarification of the award by the Arbitrator, either party may timely file with the Authority exceptions to that award.
(If blank, the decision does not have footnotes.)
1. In her management analyst position, the grievant was responsible for administering the Agency's Model Installation Program and the Army Suggestion Program. In general, however, series 343 positions fit into two general categories, those involving management studies and those involving management of manpower and equipment.
2. FPM Supplement 351-1, paragraph S3-3 provides:
a. General. Each agency must establish competitive levels, i.e., groups of similar positions, and assign each position to a level. Employees compete for retention in their competitive levels during the first round of RIF competition.
(1) Characteristics of competitive levels. A competitive level consists of positions in the competitive area that are:
(a) In the same grade (or occupational level);
(b) In the same classification series; and
(c) Similar enough in duties, qualification requirements, pay schedules, and working conditions so that the incumbent of one position can successfully perform the critical elements of any other position in the level upon assignment to it, without any loss of productivity beyond that normally expected in the orientation of any new but fully qualified employee. This determination is made on the basis that the jobs are so similar that the agency may readily assign an employee in one position to any of the other positions in the competition level without changing the terms of the employee's appointment and without unduly interrupting the agency's work program.
(2) Determinations are not ba