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57 FLRA No. 73
NATIONAL TREASURY EMPLOYEES UNION
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
CINCINNATI SERVICE CENTER
July 23, 2001
Before the Authority: Dale Cabaniss, Chairman; Carol Waller Pope and Tony Armendariz, Members. [n1]
Decision by Chairman Cabaniss for the Authority
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator John Remington filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.
The Arbitrator denied a grievance that alleged that certain employees had performed higher graded duties without compensation in violation of the parties' collective bargaining agreement.
For the following reasons, we deny the exceptions.
II. Background and Arbitrator's Award
The Agency employs a group of Central Authorization File (CAF) clerks in its Cincinnati, Ohio Service Center whose principal duties involve the processing of power of attorney designations filed by taxpayers. At all times relevant to the case, the CAF clerks were classified at the GS-4 level. The grievance alleged that the CAF clerks were performing GS-5 level work. In support of their claim, the grievants relied on a Position Description (PD) of employees they contended performed identical duties, but were classified at the GS-5 level. The GS-5 PD (the Austin PD) applied to employees at the Internal Revenue Service's Service Center in Austin, Texas. Article 16 of the parties' collective bargaining agreement provides that an employee who performs higher graded duties for twenty-five percent or more of his or her direct time during the previous four months will receive a temporary promotion. [n2] Direct time is defined as total time minus such things as leave, holidays, and training.
The Agency denied the grievance at all steps of the parties' negotiated grievance procedure. The Agency maintained that its Cincinnati CAF clerks were performing duties similar to Power of Attorney clerks employed at the Ogden Service Center who were classified as GS-4. The Agency agreed, however, to conduct a classification audit of the Cincinnati CAF clerks. After arbitration was invoked but prior to the hearing, the audit was conducted, finding that the Cincinnati CAF clerks were properly classified as GS-4.
B. Arbitrator's Award
The par ties stipulated to the following issue:
Whether the CAF clerks at the Cincinnati Service Center are performing higher graded duties of GS-5 CAF processing clerks in violation of Article 16 of [the collective bargaining agreement], and if so, what shall the remedy be?
Award at 2. The parties further stipulated that there were no procedural issues.
Before the Arbitrator, both parties presented testimonial and documentary evidence in support of their respective positions concerning whether the CAF clerks had been performing higher graded duties. [ v57 p413 ]
The Arbitrator first found that although the Union witnesses testified authoritatively with regard to the grievants' duties, they had no first-hand knowledge of the duties of the GS-5 employees in the Austin Service Center to whom the grievants were being compared. The Arbitrator also found that the employees in the Austin Service Center were classified in the GS-503 series, whereas the grievants were classified in the GS-303 series and that positions in the GS-503 series require specialized knowledge in budgeting, financial management, and accounting. In that regard, the Arbitrator found that there was no evidence that the grievants' positions required such specialized knowledge. According to the Arbitrator, the evidence supported a finding that a GS-4 position description used in the Ogden, Utah Service Center (Ogden PD) more accurately described the work done by the grievants.
The Arbitrator also addressed the contractual requirements, specifically, the amount of time spent by employees in performance of higher graded duties, and the level of skill and responsibilities demonstrated by the employees. With respect to the former, the Arbitrator held that to prevail the grievants must show both that they performed higher graded duties and that they spent at least twenty-five percent of their time so doing. The Arbitrator then found that, assuming the Austin PD is relevant, the higher graded duties of that position involved budgeting, financial management, and accounting functions. In that regard, the Arbitrator found no evidence that the grievants performed such duties. To the extent that the grievants performed duties similar to those described in the Ogden PD, such duties were not higher graded. Lastly, the Arbitrator found that no evidence was presented to show that the grievants had performed higher graded duties "at least at a level of skill and responsibility properly expected." Award at 11.
In conclusion, the Arbitrator held that "the evidence is insufficient to show that [the grievants] are performing the higher graded duties of a GS-5 CAF Processing Clerk in violation of Article 16 of the collective agreement." Award at 13. Accordingly, he denied the grievance.
III. Positions of the Parties
A. Union's Exceptions
The Union first excepts to the Arbitrator's reliance on his finding that the GS-5 Austin PD required a specialized knowledge of finance and accounting to support his conclusion that the GS-4 grievants had not demonstrated that they performed higher graded duties. According to the Union, the Arbitrator improperly relied on classification standards to conclude that the employees under the Austin PD performed work in accounting, finance, and budgeting. The Union contends that the Arbitrator thus engaged in a classification analysis, contrary to well-established Authority precedent.
The Union also excepts to the Arbitrator's finding that the Ogden PD is the more accurate description of the type work done by the grievants. In this regard as well, the Union contends that the Arbitrator's determination was one involving a classification analysis.
B. Agency's Opposition
The Agency asserts that the Arbitrator did not improperly decide a classification issue, i.e., the Arbitrator did not engage in the analysis and identification of a position and the placement of it in a class under the government classification scheme. Rather, according to the Agency, the Arbitrator merely found that the grievants failed to demonstrate that they had performed the higher graded duties required for additional compensation. The Agency maintains that the Union's exceptions amount to nothing more than a disagreement with the Arbitrator's evaluation of the evidence and the inferences he drew from the evidence.
IV. Analysis and Conclusions
A. Applicable Legal Principles
When a party's exceptions involve an award's consistency with law, we review the questions of law raised by the arbitrator's award and the party's exceptions de novo. 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 de novo standard of review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, 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 removed from the scope of the negotiated grievance procedures. 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 [the Office of Personnel Management] under chapter 51 of title 5, United States Code." Soc. Sec. Admin., Office of Hearings and Appeals, Mobile, Ala., [ v57 p414 ] 55 FLRA FLRA 778, 779-80 (1999) (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 § 7121(c)(5) of the Statute. Soc. Sec. Admin., 31 FLRA FLRA 933, 936 (1988). However, where the substance of a grievance concerns whether the grievant is entitled to be compensated at a higher rate of pay by reason of having temporarily performed the established duties of a higher graded position, the grievance does not concern the classification of a position within the meaning of § 7121(c)(5). United States Dep't of the Navy, Naval Aviation Depot, Marine Corps Air Station, Cherry Point, N.C., 42 FLRA FLRA 795, 801 (1991).
B. The Arbitrator Did Not Impermissibly Engage in a "Classification Analysis" in Violation of § 7121(c)(5) of the Statute.
Before the Arbitrator, the Union contended that the dispute hinged on whether the grievants performed the higher graded duties described in the Austin PD. The Arbitrator's ultimate conclusion was that "the evidence [wa]s insufficient to show that th[e g]rievants are performing [those higher graded duties]." Award at 13. This is not, on its face, a classification determination. The Arbitrator did not evaluate the grade level of the duties permanently assigned to and performed by the grievants to determine their appropriate classification. Rather, he focused simply on whether the grievants performed the established duties of a higher graded position, comparing the grievants' duties to those performed by the CAF Processing Clerks at the Austin Service Center, conceded by both parties to be properly classified as GS-503-5. The Arbitrator concluded that the grievants had not demonstrated that they performed those higher graded duties. The Arbitrator thus avoided treating the grievance as one dealing with the classification of a position within the meaning of § 7121(c)(5).
Contrary to the Union's first exception, the Arbitrator did not impermissibly rely on classification standards rather than the employee PDs in determining the duties of the Austin clerks. Instead, the Arbitrator found that the concededly properly-classified Austin PD was in a series that required knowledge of budgeting, financial management, and accounting. The Arbitrator also determined from the record that the duties performed by the grievants did not require such knowledge. Further, the Arbitrator noted the lack of other testimony that would support the claim that the grievants performed higher graded duties in the manner required by the parties' agreement to justify additional compensation. Accordingly, we deny the first exception.
Similarly, we deny the Union's second exception, concerning the Arbitrator's finding that the Ogden PD was accurate. Relying on the record, the Arbitrator made a factual finding that the Ogden PD "accurately describes the work being performed by the grievants." This finding did not involve the analysis and identification of a position and placing it in a class under the government's position-classification plan. It therefore was not a classification determination. See AFGE, Local 2025, 50 FLRA 39, 42 (1994).
The Union's exceptions are denied.
Footnote # 1 for 57 FLRA No. 73
Footnote # 2 for 57 FLRA No. 73
If an employee is not detailed to a position of higher grade, but who performs higher graded duties for twenty-five (25%) or more of his or her direct time during the preceding four (4) months, the Employer will temporarily promote the employee retroactive to the first full pay period if the employee meets the following criteria:
(a) the employee performed such higher graded duties at least at a level of skill and responsibility properly expected;
(b) the employee meets minimum OPM qualifications for the promotion to the next higher grade, and;
(c) the employee meets time-in-grade requirements for promotion to the next higher grade.