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56 FLRA No. 85
U.S. DEPARTMENT OF THE ARMY
HEADQUARTERS, III CORPS AND FORT HOOD
FORT HOOD, TEXAS
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1920
August 8, 2000
Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.
Decision for the Authority by Member Cabaniss.
I. Statement of the Case
This case is before the Authority on exceptions to an award of Arbitrator Raymond L. Britton 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 Regulations. The Union filed an opposition to the Agency's exceptions.
The Arbitrator sustained a grievance over whether the grievant had performed higher-graded duties. The Arbitrator issued no remedy with his award. For the reasons that follow, we find that the award is ambiguous and remand the award to the parties to obtain clarification from the Arbitrator.
II. Background and Arbitrator's Award
The grievant is a GS-12 Military Test Plans Analyst (MTPA). The Union filed a grievance alleging that the Agency violated Article 39 of the parties' collective bargaining agreement by failing to notify the Union that the grievant had been reassigned and by assigning the grievant higher-graded, supervisory duties without pay. [n1] As relief, the Union requested in the grievance that the Agency reassign the grievant to her original position with the proper paperwork and pay her for performing higher-graded duties.
The Agency denied the grievance on the ground that some supervisory duties were included in the grievant's position description and were taken into account in the classification of her position. The Agency interpreted the Union's grievance as a challenge to the classification of the grievant's position. The Agency also noted that the reassignment of the grievant was designed to afford her the opportunity to demonstrate supervisory skills. The parties were unable to resolve the grievance and it was submitted to arbitration.
The Arbitrator stated the issue as follows:
Whether or not the [g]rievant . . . performed higher level rated work in the form of supervisory job duties since 1992 that was not included in the job description for Military Test Plans Analysts, GS-0301-12?
Award at 1.
As a threshold jurisdictional question, the Arbitrator addressed the issue of whether the grievance was arbitrable under the parties' agreement and section 7121(c)(5) of the Statute because it concerned a classification matter. The Arbitrator found that the grievant was not "claiming that she should be graded as a GS-13," but was seeking compensation for the performance of higher-graded duties. As such, the Arbitrator found that the grievance was arbitrable under the agreement and the Statute. Award at 5.
With respect to the merits of the grievance, the Arbitrator found that prior to January 1999 the grievant's GS-12 MTPA position description "did not expressly state" that the incumbent "was required to perform supervisory duties[.]" Id. In January 1999, the position description was revised to include the exercise of limited supervisory responsibility, amounting to approximately 10% of the job.
The Arbitrator found that resolution of the grievance depended on determining whether the grievant performed supervisory duties during the time period in question and, "if so, the percentage of time devoted to the performance of such duties." Id. Based on the testimony of the grievant, and other, similarly situated MTPAs, the Arbitrator found that the grievant spent "over 25% of [her] time" as a supervisor. [n2] Id. Specifically, the Arbitrator noted that, according to the grievant, when she is assigned to a test, she develops the test plan, determines the type of employees needed and the recruiting requirements; processes those requirements [ v56 p545 ] through the chain of command; receives the referral list, conducts interviews, and is the selecting official; counsels and rates employees; disciplines employees and terminated one employee; recommends employees for awards; and grants sick and annual leave requests. The Arbitrator found that the Agency violated Article 39 of the parties' agreement by requiring or allowing the grievant to perform supervisory duties that were not assigned to her or were not in her job description and that "she is entitled to be compensated for the performance of those duties." Id.
The Arbitrator rejected the Agency's arguments, finding that "[w]hether viewed singly or collectively," the arguments "cannot be accorded controlling force" and "fail to rebut or controvert the testimony of the [g]rievant" and other MTPAs. Id. at 6. As his award, the Arbitrator sustained the grievance.
III. The grievance is arbitrable under section 7121(c)(5) of the Statute.
A. Positions of the Parties
1. Agency's Exceptions
The Agency claims that the grievance in this case is not arbitrable. Specifically, the Agency asserts that the "grievance concerns the accuracy of the classification of grievant's position" and that such a grievance "is not properly the subject of a negotiated grievance procedure" under section 7121(c)(5) of the Statute. Exceptions at 3. The Agency notes that the grievance concerned compensation for the performance of higher-graded duties and argues that the "only way" the grievant could be paid at a higher level "would be for management to permanently reclassify the position at a higher grade/salary." Id. at 4. The Agency maintains that the grievant's remedy lies in a classification appeal.
2. Union's Opposition
The Union contends that the grievant "did not seek to have her position reclassified but rather only to receive pay for higher[-]graded duties actually performed." Opposition at 2. According to the Union, the "Arbitrator's analysis is legally and factually correct." Id.
B. Analysis and Conclusions
The Agency's exception questions whether the award is contrary to section 7121(c)(5) of the Statute. The Authority reviews the questions of law raised by the award and the parties' exceptions de novo. See, e.g., National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994). In applying the standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See, e.g., National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. Id.
Under section 7121(c)(5) of the Statute, grievances concerning "the classification of any position which does not result in the reduction of grade or pay of an employee" are removed from the scope of the negotiated grievance procedures. The Authority has construed the term "classification" in section 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 [the Office of Personnel Management] under chapter 51 of title 5, United States Code." American Federation of Government Employees, Local 2025 and U.S. Department of the Air Force, Ninth Reconnaissance Wing, Beale Air Force Base, California, 50 FLRA 39, 42 (1994) (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 grievance concerns the classification of a position within the meaning of section 7121(c)(5) of the Statute. See Social Security Administration and American Federation of Government Employees, Local 1923, AFL-CIO, 31 FLRA 933, 936 (1988). However, where the substance of a grievance concerns whether the grievant is entitled to a temporary promotion by reason of having performed the established duties of a higher-graded position, the grievance does not concern the classification of a position within the meaning of section 7121(c)(5). See U.S. Department of the Navy, Naval Aviation Depot, Marine Corps Air Station, Cherry Point, North Carolina and International Association of [ v56 p546 ] Machinists and Aerospace Workers, Local 2297, 42 FLRA 795, 801-02 (1991).
The Arbitrator found that the grievant was not alleging that her position should be permanently classified as a GS-13 supervisory position. Rather, she claimed that she was performing supervisory duties and should be compensated at that level for the period of time that she performed those duties. After reviewing the testimony of the grievant, and other MTPAs, the Arbitrator concluded that the grievant spent at least 25% of her time performing supervisory duties. As the substance of the grievance concerned whether the grievant should be compensated at the higher pay level for performing higher-graded duties, the award does not concern the classification of a position and, therefore, is not deficient as contrary to section 7121(c)(5) of the Statute. See, e.g., U.S. Department of Health and Human Services, Denver, Colorado and National Treasury Employees Union, Chapter 235, 56 FLRA 131, 135 (2000).
Accordingly, we deny the Agency's exception.
IV. The award is ambiguous and should be remanded to the Arbitrator for clarification.
A. Positions of the Parties
1. Agency's Exceptions
The Agency claims that the award is ambiguous. According to the Agency, the Arbitrator found a violation of Article 39 of the parties' agreement, but he did not "identify any specific remedy[.]" Exceptions at 4. Specifically, the Agency maintains that the Arbitrator did not: (1) specify the grade level of the duties performed by the grievant or the period of time that the grievant performed those duties; (2) state whether back pay was appropriate or warranted; (3) address "all the remedies requested by the [U]nion." Id. The Agency states that it is unable to determine how to properly implement the award. The Agency asserts that the Authority will remand an award to the parties when the award is ambiguous as to the period of time a make-whole remedy is to apply. The Agency contends that, because the remedy in this case is ambiguous, the Authority must remand the award to the parties for resubmission to the Arbitrator, absent settlement, for clarification of the remedy. [n3]
2. Union's Opposition
The Union contends that the award is clear. According to the Union, the grievant performed higher-graded duties and should be compensated appropriately. Specifically, the Union claims that the Agency does not contest that the duties were those of a GS-13 supervisor or that "the monetary calculation is simply to compare the salary of the [g]rievant as a GS[-]12 and what the comparable salary of a GS[-]13 performing the duties of [g]rievant would have been." Opposition at 2. The "Arbitrator's analysis is legally and factually correct." Id.
B. Analysis and Conclusions
An employee may be compensated for the temporary performance of the duties of a higher-graded position based on an agency regulation or collective bargaining provision making temporary promotions mandatory for details to higher-graded positions. See, e.g., U.S. Department of the Air Force, 88th Air Base Wing, Aeronautical Systems Division, Wright-Patterson Air Force Base, Ohio and International Association of Machinists and Aerospace Workers, Local 2333, 52 FLRA 285, 288 (1996). However, where an arbitrator fails to identify a non-discretionary agency policy set forth in an agency regulation or a collective bargaining agreement provision that would entitle a grievant to back pay for performing the duties of a higher-graded position, there is no unjust or unwarranted personnel action which would entitle the grievant to an award of back pay under the Back Pay Act. Id.
In this case, the Arbitrator sustained the grievance, finding that the Agency violated Article 39 of the parties' collective bargaining agreement by failing to pay the grievant at the supervisory rate of pay even though the grievant performed supervisory duties. The Arbitrator found that the grievant was entitled to be paid at the supervisory rate. However, although the Union had requested that the grievant be compensated at the supervisory rate, the Arbitrator did not explicitly order the Agency to pay the grievant at that rate. [ v56 p547 ]
It is unclear whether the Arbitrator's award requires the Agency to compensate the grievant at the supervisory rate of pay for the performance of supervisory duties and, if so, whether the Arbitrator relied on some portion of Article 39 or other authority as mandating a temporary promotion and compensation at the supervisory level. If the Arbitrator did not intend his award to require the Agency to compensate the grievant at the supervisory rate, the award would not be deficient under the Back Pay Act. On the other hand, if the Arbitrator did intend his award to require the Agency to pay the grievant at the supervisory rate for the performance of supervisory duties, the Arbitrator did not identify the source of the nondiscretionary policy warranting the temporary promotion of the grievant. As a result, we are unable to determine whether or not the award is deficient.
Where the Authority is unable to determine whether an arbitrator's award is deficient, the practice of the Authority is to remand the case to the parties for resubmission to the arbitrator, absent settlement, for a clarification of the basis of the award. See, e.g., Federal Trade Commission, Headquarters, Washington, D.C. and American Federation of Government Employees, Local 2211, 53 FLRA 1782, 1787 (1998); National Federation of Federal Employees, Local 1442 and U.S. Department of the Army, Letterkenny Army Depot, Chambersburg, Pennsylvania, 46 FLRA 1631 (1993) (case remanded for clarification of ambiguous award). Consequently, because we are unable to determine whether the award is deficient, we will remand it to the parties for resubmission to the Arbitrator, absent settlement, for an explanation by the Arbitrator of the requirements and basis of the award.
However, if the Arbitrator responded to the Agency's request for clarification noted above, note 3, and the parties are unable to resolve the matter based on that clarification, we direct the parties, in any further filings with the Authority in response to this remand, to provide the Authority with a copy of the clarification and to address the significance of the clarification on the issues raised by the Agency's exceptions. If the Arbitrator did clarify his decision in response to the Agency's request, and it has not already done so, the Agency should serve a copy of that clarification on the Union.
The award is remanded to the parties for resubmission to the Arbitrator, absent settlement, for clarification of the award consistent with this decision.
1. Article 39 provides as follows:
ASSIGNMENT OF WORK/DETAILS
Section 1. The employer agrees that employees will be assigned to work which is appropriate to their position descriptions taking into account the mission of the agency.
Section 2. The employer will furnish each employee a copy of the employee's position description and any changes when made.
Section 3. As prescribed by OPM and appropriate regulations, a detail is defined as a temporary assignment of an employee to a different position or a set of duties for a specified period, with the employee returned to his regular duties at the end of the detail. Details are intended only for meeting temporary need [sic] of the agency's work program when necessary services cannot be obtained by other desirable or practical means. Details may be made under circumstances such as the following:
a. To meet emergencies occasioned by abnormal workload, special projects or studies, change in mission or organization, or unanticipated absences.
b. Pending official assignment, pending description and classification of new position, pending security clearance, and for training purposes.
Section 4. All noncompetitive details to higher graded positions will be limited to 120 calendar days within a twelve month period. A detail to a higher graded position for more than 120 calendar days must be made under competitive procedures. Details to an equal or lower grade will only be accomplished as provided by appropriate regulations and this article.
Section 5. It is agreed that no detail will be made to evade the principle of recruitment through open competitive examinations. The employer assumes the responsibility for keeping details within the shortest practicable time limits and for a continuing effort to secure necessary services through use of appropriate personnel actions. Details will not be used as a basis for reward or punishment. [ v56 p548 ]
Section 6. All details of more than 30 days will be documented by the employee's immediate supervisor not later than the end of the detail and submitted to the Civilian Personnel Advisory Center. The document reflecting the detail will be included in the employee's OPF. All details less than 30 days will be documented by the employee's immediate supervisor not later than the end of the detail and a copy provided to the employee.
Section 7. Selection for details shall be made on a fair and equitable basis. Details shall not be made as a reward or punishment.
Section 8. The parties agree that when an employee is detailed to any position in which the employee has had no previous experience the employee shall be given a reasonable break-in period with an experienced employee or necessary training. The parties further agree that a detail should be reasonably related to an employee's official position and qualifications.
Section 9. Work will normally be assigned by the employee's first line supervisor.
Footnote # 1 for 56 FLRA No. 85
Footnote # 2 for 56 FLRA No. 85
Footnote # 3 for 56 FLRA No. 85
The Agency states that it wrote to the Arbitrator requesting clarification of "what he has directed as the appropriate remedy for the contractual violation." Exceptions at 5. Specifically, in its letter, the Agency stated as follows:
We do not understand what you are directing the agency to do. You did not specify what, if any, corrective action is appropriate. Therefore, we respectfully request clarification of your award.
Letter to Arbitrator dated November 17, 1999, Attachment to Agency's Exceptions. The record does not contain the Arbitrator's reply, if any.