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57 FLRA No. 58
U.S. DEPARTMENT OF DEFENSE
MARINE CORPS LOGISTICS BASE
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 22
June 21, 2001
Before the Authority: Dale Cabaniss, Chairman; Donald S. Wasserman and Carol Waller Pope, Members
Decision by Member Pope for the Authority
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Jerry Scola 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 exceptions.
The Arbitrator sustained a grievance alleging that the Agency violated the parties' collective bargaining agreement by not providing the grievants with an accurate position description (PD). To remedy the Agency's violation, the Arbitrator ordered that the Agency implement a proposed PD written by the grievants and their supervisor. For the reasons that follow, we find that the Agency has failed to establish that the award is deficient under § 7122(a) of the Statute. Accordingly, we deny the exceptions.
II. Background and Arbitrator's Award
The grievants, claiming that their current position description (PD) was inaccurate, submitted a proposed PD to the Agency's Manpower Division for implementation. For a variety of reasons, including the fact that the proposed PD would warrant an upgrade not supported by the Agency, the grievants and their supervisor were required to rewrite and resubmit the proposed PD several times over a period of two-and-one-half years. When the Agency failed to implement the proposed PD, [ v57 p276 ] the grievants filed a grievance alleging a violation of Article 18 of the parties' agreement. [n1] When the grievance was not resolved, it was submitted to arbitration. The Arbitrator stated the issue as follows: "The Grievants' P.D.s are inaccurate. The current P.D. does not accurately describe the major duties of their P.D. or the supervisory controls. Remedy - The Grievants will be given an accurate P.D. by placing the proposed P.D. in place and staffing." Award at 2.
The Arbitrator found that under Article 18 of the parties' agreement, each position must be current and the PD must clearly and concisely state the major duties, responsibilities and supervisory relationships of the position. The Arbitrator found that, based on testimony, the grievants' supervisor was fully and exclusively responsible for deciding the duties and responsibilities of each position. The Arbitrator further found that the grievants performed certain duties -- e.g., economic analysis -- that were not included in the grievants' current PD but were included in the proposed PD that had been "signed off" by the grievants' supervisor. Id. at 4.
Based on his findings, the Arbitrator concluded that the grievants' current PD was inaccurate and ordered that the grievants be given "an accurate PD by placing the proposed PD in place and staffing it." Id. at 11.
III. Positions of the Parties
A. Agency's Exceptions
The Agency contends that the grievance is not arbitrable under § 7121(c)(5) of the Statute because it concerns the classification of the grievants' positions. In this regard, the Agency argues that the substance of the grievance concerns the grade level of the duties assigned to and performed by the grievants. In support, the Agency cites, among other cases, AFGE, Local 547, 19 FLRA 1177, 1178-79 (1985).
The Agency also makes three management rights arguments. First, the Agency argues that the award violates its right to determine its organization under § 7106(a)(1) of the Statute by forcing the Agency to alter its grade structure by classifying the grievants' positions at a higher grade. See id. at 10 (citing AFGE, Local 32, 26 FLRA 452, 455-57 (1987)). Second, the Agency argues that the award violates its right to assign work under § 7106(a)(2)(B) because it prohibits the Agency from removing from the PD a duty -- economic analysis -- it believes the grievants currently do not perform. See id. at 11 (citing AFGE, Local 3392, 52 FLRA 141, 143 (1996)). Third, the Agency argues that the award violates management's right to select, which, according to the Agency, includes the "right to determine the qualifications, skills, and abilities needed to perform the work of a position and the right to determine whether applicants for the position possess such qualifications, skills, and abilities." Id. (quoting Assn'n of Civilian Technicians, N.Y. State Council, 45 FLRA 17, 20 (1992)).
B. Union's Opposition
As a threshold matter, the Union asserts that the Agency's exceptions are untimely. On the merits, the Union asserts that the grievance concerns only the accuracy of the grievants' PD and does not involve a classification issue. In this connection, the Union claims that there is no mention of "promoting the [g]rievants" or of "a classification problem" in the grievance or award. Opposition at 2.
IV. Preliminary Matter
The Union contends that the Agency's exceptions were not timely filed. The time limit for filing exceptions to an arbitration award is thirty days beginning on the date the award is served on the filing party. See 5 C.F.R. § 2425.1(b). The date of service is the date the arbitration award is deposited in the United States mail or is delivered in person. See 5 C.F.R. § 2429.27(d). If the award is served by mail, five days are added to the period for filing exceptions. See 5 C.F.R. § 2429.22. Further, the last day of the period so computed is to be included unless it is Saturday, Sunday, or a Federal legal holiday, in which case the period shall run until the end of the next day which is not a Saturday, Sunday, or a Federal legal holiday. See 5 C.F.R. § 2429.21(a); see also GSA, 54 FLRA 1582, 1587 (1998) (GSA) (explaining the procedure for computing time periods).
The Arbitrator's award was served on the parties by mail on November 20, 2000. After adding five days to the period for filing exceptions under § 2429.22 of our Regulations, the due date was Sunday, December 24, 2000. Because both that day and the next day are [ v57 p277 ] excluded under § 2429.21(a) of our Regulations -- as a Sunday and Federal legal holiday, respectively -- the Agency's exceptions were required to be filed no later than December 26, 2000. See GSA, 54 FLRA at 1587. As the Agency's exceptions were filed (postmarked) on December 26, 2000, the exceptions were filed timely.
V. Analysis and Conclusions
The Agency argues that the award is contrary to § 7121(c)(5), and § 7106(a)(1), (2)(B) and (C) of the Statute. When a party's exception challenges an arbitration award's consistency with law or regulation, we review the question of law or regulation raised in the exception and the arbitrator's award de novo. See, e.g., 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 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., NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. Id.
A. The award is not contrary to § 7121(c)(5) of the Statute.
Under § 7121(c)(5) of the Statute, a grievance concerning "the classification of any position which does not result in the reduction in grade or pay of an employee" is removed from the scope of the negotiated grievance procedure. The Authority has recognized that a grievance concerning the accuracy of an employee's official PD, such as a grievance about whether duties are accurately reflected in a PD, is not a grievance concerning classification within the meaning of § 7121(c)(5), even if an arbitrator's award to change the PD results in a reclassification of the position. See AFGE, Local 547, 19 FLRA at 1178-79; VA, Regional Office, Winston-Salem, N.C., 16 FLRA 50, 51 (1984) (VA, Winston-Salem); FAA, Dep't of Transp., Tampa, Fla., 8 FLRA 532, 535 n.3 (1982). However, the Authority has also held that when the essential nature of a grievance is integrally related to the accuracy of the classification of the grievant's position, e.g., where the substance of the dispute concerns the grade level of the duties assigned to and performed by the grievant, the grievance concerns the classification of a position within the meaning of § 7121(c)(5). See United States Dep't of Veterans Affairs, Med. Ctr., Muskogee, Okla., 47 FLRA 1112, 1116 (1993).
In this case, the grievants, in seeking accurate PDs, did not request a change in the series, grade, or pay system of their officially assigned positions. Likewise, the Arbitrator did not order any change in the class, grade, or pay system of the grievants' positions, or find that implementation of the proposed PD would result in the grievants' positions being classified at a higher grade level. The Arbitrator merely enforced the grievants' contractual right to have their positions current and accurately described, in writing . . . . Award at 3. The enforcement of that contractual right does not affect the Agency's ability to assign, or not assign, work to any particular position, and as such, does not give rise to a classification issue.
In this connection, the Agency's reliance on AFGE, Local 547 is misplaced. In AFGE, Local 547, the arbitrator awarded the grievant a retroactive promotion for a period of time ending with a reclassification action and considered the grade level of the duties performed by the grievant in ordering the agency to give the grievant a higher-graded PD. Here, by contrast, the grievants did not request, and the Arbitrator did not award, a promotion. Further, the Arbitrator did not consider or refer to the grade level of the duties he found that the grievants performed in awarding an accurate PD. As such, AFGE, Local 547 does not support a conclusion that the grievance concerns classification, within the meaning of § 7121(c)(5) of the Statute.
Because the substance of the grievance concerns whether the duties regularly assigned by management and performed by the grievants were accurately reflected in the PD, the fact that the award may result in the reclassification of the grievants' positions does not render this a dispute concerning classification. See VA, Winston Salem, 16 FLRA at 51. As such, the award does not concern the classification of a position and, therefore, is not deficient as contrary to § 7121(c)(5) of the Statute. Accordingly, we deny the exception.
B. The award does not affect management's rights under § 7106(a) of the Statute.
Where a party files exceptions alleging that an award violates management's rights under § 7106 of the Statute, the Authority first assesses whether the award affects the rights. See United States Dep't of Veterans Affairs, Med. Ctr., Coatesville, Pa., 56 FLRA 966, 971 (2000) (VAMC, Coatesville). If the award affects such rights, then the Authority applies the two-prong test set forth in United States Dep't of the Treasury, Bureau of Engraving and Printing, Wash., D.C., 53 FLRA 146, 151-54 (1997) (BEP). See VAMC, Coatesville, 56 FLRA at 971. If the award does not affect the rights, then the BEP analysis is not required and the exception is denied. See id. [ v57 p278 ]
1. Right to determine organization
Management's right to determine its organization includes the authority to determine how its organizational grade-level structure will be designed. See AFGE, Local 1336, 52 FLRA 794, 802-03 (1996). As stated in section V.A. above, the award does not require the Agency to increase the grade level of the grievants' positions, and the Arbitrator did not find that implementation of the award would result in a reclassification of the grievants' positions. As such, the award does not affect the Agency's right to determine its organization under § 7106(a)(1) of the Statute.
2. Right to assign work
The Authority has repeatedly held that PDs are not themselves the assignment of work; they merely reflect the duties and responsibilities which an agency has decided to assign a position. See, e.g., State of Conn., AG Office, 27 FLRA 801, 807 (1987). The Agency has not established that the award prohibits it from changing the duties of the grievants by removing a duty from the PD if the grievants are not performing the particular duty. Therefore, the award does not affect the Agency's right to assign work under § 7106(a)(2)(B) of the Statute. See AFGE, AFL-CIO, Local 1999, 2 FLRA 153, 160-61 (1979), enforced as to other matters, 659 F.2d 1140 (D.C. Cir. 1981) (proposal to ensure the accuracy of PDs did not affect management's right to assign work because the proposal did not prohibit the agency from changing the duties assigned to employees).
3. Right to select
The award requires the Agency to implement an accurate PD for already occupied positions. The award does not limit the Agency's ability to establish qualification requirements for the positions, nor does it limit the Agency's ability to determine whether the grievants possess the skills and abilities to perform the duties of their positions. As such, the award does not affect the Agency's right to select under § 7106(a)(2)(C) of the Statute.
In sum, the award does not affect management's rights under § 7106(a). Therefore, it is unnecessary to apply the two-prong test set forth in BEP, and we deny the exceptions. See VAMC, Coatesville, 56 FLRA at 971.
The Agency's exceptions are denied.
Footnote # 1 for 57 FLRA No. 58
a. Each position covered by this agreement must be current and accurately described, in writing, and classified . . . in accordance with OPM and Agency regulations.
b. The description must clearly and concisely state the major duties[,] responsibilities and supervisory relationships of the position . . . . Supervisors may direct and assign specific tasks that are not reflected in the job and [PD]. Should such tasks become duties or grade controlling, the description should be modified to reflect these tasks so that the description will be kept current and accurate.
Award at 3.