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58 FLRA No. 142
OF GOVERNMENT EMPLOYEES
DEPARTMENT OF THE AIR FORCE
311TH HUMAN SYSTEMS WING
BROOKS AIR FORCE BASE, TEXAS
June 5, 2003
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1]
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator F. Jay Taylor 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 ruled that the grievance was not arbitrable. We find that the award is deficient and remand for further proceedings.
II. Background and Arbitrator's Award
The Union filed a grievance on behalf of the grievant, a GS-6 employee. The Union claimed that the grievant had been assigned the grade-controlling duties of an established GS-9 position within the organization for an extended period of time and that consequently, she was entitled to have been temporarily promoted under Article 13 [n2] of the parties' master labor agreement and detailed to the position under Article 20. [n3] The Agency contended that the grievance was not procedurally arbitrable because it was not timely filed. The Agency further contended that the grievance was not substantively arbitrable because the master labor agreement was not in effect when the grievant allegedly began performing the higher-grade duties and because the grievance concerned the classification of a position within the meaning of § 7121(c)(5) of the Statute.
The Arbitrator agreed with the Agency and denied the grievance. He ruled that under the terms of the Statute, the grievance was not substantively arbitrable. He found that the grievance concerned a classification matter because the only way to determine whether the grievant had performed the duties of a higher-grade position was to perform a classification analysis of the duties allegedly performed. He advised that therefore, the proper forum for resolution of the grievant's claim was a classification appeal. In view of this decision, the Arbitrator found that the Agency's other arbitrability arguments were moot and did not address them.
III. Positions of the Parties
A. Union's Exceptions
The Union contends that the award fails to draw its essence from the parties' master labor agreement and is based on nonfacts and that the Arbitrator failed to provide a fair hearing. In addition, the Union argues that the Arbitrator ignored FLRA case precedent under which the grievant's claims are not precluded by § 7121(c)(5).
B. Agency's Opposition
The Agency contends that the Union fails to establish that the Arbitrator did not provide a fair hearing and fails to establish that the award does not draw its essence from the agreement or is based on nonfacts. The Agency does not address the Union's argument that [ v58 p576 ] under FLRA case precedent, the grievance was not precluded by § 7121(c)(5).
IV. Analysis and Conclusions
A. Standard of Review
We construe the Union's argument that the Arbitrator ignored FLRA case precedent as an exception that the award is contrary to § 7121(c)(5) of the Statute. Because we view the Union to be challenging the award's consistency with law, our review of the question of law raised by the Union's exception and the award is de novo. See, e.g., NTEU Chapter 24, 50 FLRA 330, 332 (1995).
B. The award is contrary to § 7121 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 of grade or pay of an employee" is removed from the permissible scope of a negotiated grievance procedure. See, e.g., NTEU Chapter 73, 57 FLRA 412, 413 (2001). 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." See id. (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 Authority finds that the grievance concerns the classification of a position within the meaning of § 7121(c)(5). See id. at 414. In contrast, where the substance of the grievance concerns whether the grievant is entitled to be compensated at a higher rate of pay by reason of having temporarily performed the duties of an established higher-grade position, the Authority has long held that the grievance does not concern the classification of a position within the meaning of § 7121(c)(5). See id. When an arbitrator has found such a grievance to be precluded by § 7121(c)(5), the Authority has determined that the award is deficient and has remanded the matter to the parties for resubmission to the arbitrator to have the arbitrator resolve the merits of the grievance. See AFGE Local 987, 37 FLRA 386, 389-91 (1990); United States Dep't of the Air Force, Warner Robins Air Force Logistics Ctr., Robins Air Force Base, Ga., 37 FLRA 155, 158-60 (1990) (Robins AFB).
In this case, the grievance concerns the grievant's claim that she had been temporarily assigned the duties of an established higher-graded position for an extended period of time and that consequently, she was entitled to a temporary promotion pursuant to Article 13 of the agreement. The grievant did not claim that her permanent GS-6 position was improperly classified. Instead, she claimed that she had been temporarily assigned the duties of an established GS-9 position. Accordingly, the Arbitrator was not being asked to classify a position within the meaning of § 7121(c)(5). See AFGE Local 987, 37 FLRA at 390; Robins AFB, 37 FLRA at 159. Rather, the Arbitrator was required to decide only whether the grievant was temporarily assigned the duties of an established higher-grade position and whether the grievant was entitled to have been temporarily promoted under the terms of the parties' agreement. Furthermore, nothing in § 7121(c) precluded the Arbitrator from considering the proper classification of the temporary duties allegedly performed by the grievant in resolving whether she was entitled to a temporary promotion. See AFGE Local 2025, 50 FLRA 39, 42 (1994).
Consequently, the grievance is not precluded by § 7121(c)(5), and the Arbitrator's determination otherwise is deficient as contrary to the Statute. See AFGE Local 987, 37 FLRA at 389; Robins AFB, 37 FLRA at 158. Accordingly, we vacate the award and remand this matter to the parties for resubmission, absent settlement, to an arbitrator of their choice for further proceedings. [n4]
Although in its recent remands to the parties, the Authority has directed that the matter be resubmitted, absent settlement, to the original arbitrator, in many cases, the Authority has routinely remanded to the parties with the direction to resubmit the matter, absent settlement, to an arbitrator of their choice. See, e.g., AFGE Local 1997, 53 FLRA 342, 348 (1997) (and case cited therein); AFGE Local 2145, 39 FLRA 1045, 1050 (1991); Panama Canal Commission, 34 FLRA 740, 744 (1990) (PCC). In PCC, the Authority expressed the view that it was not its role to select arbitrators for the parties absent compelling reasons for directing the parties to return to the original arbitrator. See id. As the [ v58 p577 ] Arbitrator did not address the merits of the grievance, we find no compelling reasons for depriving the parties of their choice of arbitrator on remand.
This matter is remanded for further proceedings consistent with this decision.
Opinion of Chairman Cabaniss, concurring, in part, and dissenting, in part:
I write separately in dissent regarding whether the Arbitrator was correct or not in concluding that the case before him presented a classification issue under § 7121(c)(5) of our Statute. I would find, based upon the Arbitrator's factual determinations at page 10 of his award that "[the grievant] was not detailed to a higher graded position[.]" The Arbitrator then went on to point out that the only way to determine what the grade level of the duties performed would be, as the Agency argued, to have a classification review done. As there appears to be no dispute that the grievant first had to be detailed to a higher-graded position, the Arbitrator's discussion reflects the contractual mandate, i.e., without there being an already higher-graded position (and its already classified higher-graded duties) to use to examine the grievant's work, there would have to be a classification review done in order to determine whether or not an employee is indeed performing higher graded work. Absent some basis shown for not according arbitral deference to this finding of fact (and I see none in this case), I believe the majority has no option other than to defer to that arbitral finding and conclude that the case presented here involves an attempt by the grievant to have her grade level raised (even temporarily) by virtue of a classification review.
What I believe the present case points out is a systemic issue with temporary promotion claims, especially where an employee need allege that he or she is performing higher-graded duties only, regardless of whether or not the employee was actually detailed to a position and regardless of whether or not the duties involved are those of an established position. In order for there to be no classification review involved, there first has to be an applicable position description that has already undergone a classification analysis and review and thus has already determined the grade and series level of the duties relied on by a grievant to justify the temporary promotion to the higher grade. Without that already established position description to assess the temporary duties against, an arbitrator would have to engage in a classification action to ascertain whether those temporary duties are indeed at a higher grade level. Again, the Arbitrator here made a factual determination that there was no detail to an established higher-graded position: therefore, there is no way to ascertain the grade level of the duties at issue without conducting a classification review, which is precluded from grievance and arbitration procedures pursuant to § 7121(c)(5).
Finally, I also write separately to address the general issue of the parties remanding back to a different arbitrator than the one who issued the award being set aside. I believe the Arbitrator in this case (and arbitrators in most of the cases coming before us) is functus officio by now, and I concur that it is not the Authority's role to require or direct the parties to return to the same arbitrator in circumstances such as this. However, I note that our Statute envisions that its operation will reflect the effective conduct of public business and the requirement for an effective and efficient Government. See 5 U.S.C. § 7101. And, as was acknowledged by the Authority in the Panama Canal Commission cited by the majority, "We recognize that a goal of arbitration is to enable unions and management to resolve disputes speedily and economically . . . [and that] nothing in this clarification precludes the parties from choosing to proceed in this matter with the Arbitrator who authored the initial award." Panama Canal Commission, 34 FLRA 740, 744 (1990). Thus, our acknowledgment that parties have the ability in circumstances such as this to select a different arbitrator should not be interpreted as a recommendation that they actually do so.
Footnote # 1 for 58 FLRA No. 142 - Authority's Decsion
Footnote # 2 for 58 FLRA No. 142 - Authority's Decsion
When an employee is temporarily assigned to a higher graded position or the grade-controlling duties of a higher graded position for 30 consecutive calendar days, the employee shall be temporarily promoted into and receive the rate of pay of that position commencing on the 31st day.
Footnote # 3 for 58 FLRA No. 142 - Authority's Decsion
a. A detail exists when an employee continues in the employee's current status and pay and is temporarily assigned to:
(1) An established position, or the grade-controlling duties of such position or an identical one with a higher or lower basic pay rate, or one requiring different qualifications from those now required in the employee's official position assignment.
Footnote # 4 for 58 FLRA No. 142 - Authority's Decsion
In view of this decision, we do not address the Union's other exceptions to the award. We also note that the Arbitrator did not address the Agency's other arbitrability arguments, since he had found them to be moot in light of his decision on § 7121(c)(5). Accordingly, unlike the remands to address the merits in AFGE Local 987 and Robins AFB, the remand in this case will permit the arbitrator selected by the parties to address the remaining arbitrability arguments and, if necessary, the merits.