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59 FLRA No. 12
DEPARTMENT OF THE AIR FORCE,
AIR FORCE MATERIEL COMMAND
WRIGHT-PATTERSON AIR FORCE BASE, OHIO
OF GOVERNMENT EMPLOYEES,
August 28, 2003
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This case is before the Authority on exceptions to an award of Arbitrator Mitchell B. Goldberg filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Regulations. The Union filed a motion to dismiss the Agency's exceptions as interlocutory and an opposition to those exceptions.
For the following reasons, we find that the Arbitrator's award involves a classification determination precluded by § 7121(c)(5) of the Statute. Accordingly, we grant the Agency's exceptions and set aside the award.
II. Background and Arbitrator's Award
When the military officer who had been the Program Manager of the Joint Engineering Data Management Information and Control System (JEDMICS) was transferred, the grievant was reassigned as the Acting JEDMICS Program Manager (Program Manager). Following the reassignment, the grievant was the only employee reporting to his supervisor who was not a GS-13. Rather, he remained at the GS-12 grade level of his previous position, after assuming the duties of Program Manager between 1997 and 2001 in place of his former supervisor. He performed the duties with only minor supervision and was eventually referred to as the Program Manager. He consistently received excellent performance [ v59 p65 ] appraisals based on his work as the Program Manager.
The grievant's supervisor failed to maintain the grievant's Form 971 personnel record documenting his increased duties and responsibilities. The grievant inquired about a promotion or increased pay, but he was told that such actions were not possible, among other things, because of a hiring freeze or a reduction-in-force. When his department was reorganized, the grievant was transferred from the Program Manager position and the duties were eventually assigned to a GS-13 employee, who completed the demands of the position as additional duties.
The grievant filed a grievance alleging that the Agency violated Article 13 of the parties' collective bargaining agreement by failing to grant him a temporary promotion. [n1] The grievance was ultimately denied and submitted to arbitration. [n2]
The Arbitrator stated the issue, in relevant part, as follows: "whether the Agency violated [Article 13] by failing to pay the [g]rievant the pay of a higher[-]graded position after he was temporarily assigned to perform the grade controlling duties of a higher[-]graded position[.]" Award at 4. [n3] He also stated that the Union requested that the Agency's violations of the grievant's rights be remedied "by an order of reinstatement, reimbursement of all lost wages and benefits, and an award of attorney's fees, costs, and interest." Id.
In his "initial Opinion and Award," see Cover Letter to the Award, the Arbitrator noted that § 7121(c)(5) precluded him from determining the classification of the Program Manager position. Award at 4-5. He found that his jurisdiction was limited to a determination of whether the grievant performed the grade-controlling duties of a higher-graded position during the period he was assigned as the Program Manager.
The Arbitrator noted the testimony of an Agency classification specialist that: (1) the person who replaced the grievant as Program Manager was a GS-13 because of his additional responsibilities and expertise; (2) the fact that the person the grievant replaced had the rank of Major did not mean that the position automatically corresponded to the civil service grade of GS-13; and (3) the duties actually performed by the grievant did not warrant a GS-13 grade. The Arbitrator discounted this testimony because he found that the classification specialist did not have "first hand knowledge" of the grievant's activities in the position. Award at 11. Rather, according to the Arbitrator, the classification specialist based her judgment on information provided by the grievant's supervisor. The Arbitrator found that the supervisor "had insufficient knowledge or understanding" of the grievant's duties. Id. In this regard, the Arbitrator found that the supervisor failed to record the grievant's activities in his personnel file during the period the grievant served as Program Manager.
The Arbitrator credited the testimony of persons who he found had first hand knowledge of the grievant's activities and discounted the testimony of an Agency witness who was not employed by the Agency during the period in question. Specifically, the Arbitrator noted the witnesses who had "first[-]hand knowledge" of the grievant's activities and had greater knowledge of the grievant's actual activities in the Program Manager position. Id. at 12. The Arbitrator stated that "[t]he evidence, when considered in its entirety," supported a finding that the grievant's "duties and responsibilities were substantially upgraded when he was assigned as the Acting [Program Manager] . . . ." Id. More particularly, the Arbitrator found that the grievant's "grade-controlling duties increased during his tenure" as the Program Manager. The Arbitrator concluded that the grievant "received a temporary promotion when he received this assignment and his rate of pay should have been increased commensurate with a GS-13 for the entire time he served as" Program Manager. Id. The Arbitrator found that the Agency violated Article 13 by failing to issue the grievant a "mandatory, temporary promotion . . . ." Id.
The Arbitrator ordered that the grievant be paid as a GS-13, with all the related benefits of that classification, for the period he served as Program Manager, beginning 30 days after he was assigned as Program Manager. He also reserved jurisdiction for 60 days "after the issuance of the final award to resolve any issues of back pay or compensation which arise as the result of the issuance of this award." Id. at 14. He noted the Union's request for attorney's fees, costs, and interest. [ v59 p66 ] He established time limits for the parties to present their positions regarding attorney's fees, costs, and interest. He concluded that, "[t]hereafter, a final award shall be issued within thirty days." Id.
III. Positions of the Parties
A. Threshold Issue--Interlocutory Appeal
1. Union's Motion
The Union requests that the Authority dismiss the Agency's exceptions as interlocutory. [n4] As support for its motion, the Union notes that: (1) the Arbitrator characterized his decision as an "`initial Opinion and Award;'" (2) retained jurisdiction to consider the Union's request for attorney's fees, costs, and interest and noted his intention to issue a "`final award'" after considering that request; and (3) reserved jurisdiction after that "`final award'" to resolve any disputes as to the remedy. Id. at 3.
2. Agency Response to Motion
The Agency did not request to file, nor did it file, a supplemental submission in opposition to the Union's motion to dismiss.
B. Agency's Exceptions
The Agency contends that, by finding a violation of Article 13 of the parties' agreement and ordering that the grievant receive a temporary promotion to GS-13, the Arbitrator determined the classification of the Program Manager position contrary to § 7121(c)(5) of the Statute. The Agency argues, in this regard, that the military manager position was never classified and that the Arbitrator, in effect, determined the civilian grade of the position. The Agency acknowledges that, under Authority precedent, an Arbitrator can order a temporary promotion by comparing the duties performed by a grievant to the duties of a higher-graded position and determining that the grievant has in fact performed the duties of the higher-graded position. The Agency maintains that, in this case, there was no higher-graded position to which the Arbitrator could compare the work performed by the grievant. According to the Agency, the "other managerial positions to which the [A]rbitrator referred did not entail the same or similar duties as those performed by the grievant in his assigned position." Exceptions at 6. Moreover, the Agency asserts, the Arbitrator treated personnel with the military rank of "Major" as having the equivalent of a GSA-13 grade level, despite testimony by a classification specialist that "the rank of major did not automatically correspond to the civil service grade of GS-13 . . . ." Id. at 7.
The Agency also claims that the award is contrary to law because the Arbitrator awarded back pay for a temporary promotion to an unclassified position. Specifically, according to the Agency, the military manager position had not been classified as a civilian position at the point that the grievant was assigned the duties of the position.
C. Union's Opposition
The Union contends that the Arbitrator's award did not involve classification of a position contrary to § 7121(c)(5). The Union notes that the Authority has consistently held that enforcement of a contractual provision requiring a temporary promotion for an employee who performs the duties of higher-graded positions does not involve a classification determination within the meaning of § 7121(c)(5). The Union asserts that the Arbitrator found that the grievant was entitled to a temporary promotion under Article 13 of the parties' agreement for performing the grade-controlling duties of a higher position and, thus, did not determine the classification of a position.
The Union also contends that the Arbitrator's award of a temporary promotion with back pay is consistent with law. The Union notes that, based on the evidence presented, the Arbitrator found that the grievant performed the grade-controlling duties of a GS-13 position, which entitled him to a temporary promotion under Article 13 of the parties' agreement. According to the Union, the Agency's failure to grant such a temporary promotion constituted an unjustified or unwarranted personnel action for which back pay is authorized under the Back Pay Act. The Union distinguishes the cases cited by the Agency on the ground that none of them involved enforcement of a contract provision mandating a temporary promotion for performing higher-graded duties.
Finally, the Union claims that the Agency did not timely raise its arbitrability argument concerning classification. In this regard, the Union states that "[a]s recognized by the [A]rbitrator, the Agency waives challenges to arbitrability under Section 6.03 of the [parties' agreement] by virtue of its tardy and incomplete answer to the grievance." Opposition at 17.
IV. Analysis and Conclusions
As an initial matter, the Union argues that the Agency's exceptions should be dismissed because they are interlocutory. However, even if exceptions are interlocutory, [ v59 p67 ] the Authority will consider them if they present a plausible jurisdictional defect, the resolution of which will advance the ultimate disposition of the case. See Library of Congress, 58 FLRA 486, 487 (2003) (Member Pope dissenting); United States Dep't of Defense, NIMA, St. Louis, Mo., 57 FLRA 837, 837 n.2 (2002); United States Dep't of the Interior, Bu. of Indian Affairs, Wapato Irrigation Project, Wapato, Wash., 55 FLRA 1230, 1232 (2000) (Wapato). In this regard, we note that the Union does not assert that the exceptions fail to present a plausible jurisdictional defect, the resolution of which will advance the ultimate disposition of the case; it simply argues that the exceptions are interlocutory.
We find that, whether or not the exceptions are interlocutory, they are properly before us. This is because: (1) if the exceptions are not interlocutory, then resolution of the exceptions is required; and (2) if the exceptions are interlocutory, then they present a plausible jurisdictional defect (inconsistency with § 7121(c)(5) of the Statute), the resolution which will advance the ultimate disposition of the case. Accordingly, it is unnecessary to determine, and we do not determine, whether the exceptions are interlocutory.
The Union also contends that, even if the exceptions are not dismissed, the Authority should not consider the Agency's classification argument because the Agency failed to timely raise that argument before the Arbitrator. We disagree. The Arbitrator expressly noted the parties' agreement that he was precluded from resolving a classification matter under § 7121(c)(5). Although the Arbitrator's awareness of this preclusion does not necessarily mean that he did not resolve a classification matter, it indicates that the § 7121(c)(5) issue was before him. Moreover, although the Arbitrator expressly found that the Agency's argument that the grievance was not timely filed was not raised timely under the parties' agreement, the Arbitrator made no such finding regarding the § 7121(c)(5) issue. That fact supports the conclusion either that the Union did not object to consideration of the § 7121(c)(5) issue or that, if it did, then the Arbitrator rejected the objection. In either circumstance, the issue is properly before the Authority. [n5]
As the Agency's exception involves the award's consistency with law, we will review the questions of law raised by the Arbitrator's award and the Agency's exception de novo. NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994).
When the substance of a grievance concerns whether the grievant is entitled to a temporary promotion under a collective bargaining agreement by reason of having performed the duties of an established (i.e., properly classified) higher-graded position, the grievance does not concern the classification of a position within the meaning of § 7121(c)(5). See, e.g., SSA, Office of Hearings and Appeals, Mobile, Ala., 55 FLRA 778, 779-80 (1999). In comparing the duties performed by a grievant with the properly classified duties of the higher-graded position claimed as the basis for the temporary promotion, an arbitrator is not involved in making a classification determination. See, e.g., NTEU, Chapter 73, 57 FLRA 412, 414 (2001); NAGE, Local R3-35, 52 FLRA 866, 871 (1997). However, when the duties of a position have not been previously classified, a grievance seeking a temporary promotion to that position concerns a classification matter within § 7121(c)(5). See United States Nuclear Regulatory Commission, 54 FLRA 1416, 1421-22 (1998). In such a grievance, a necessary predicate to determining whether the employee performed higher-graded duties would be to determine the classification of those duties. Cf. AFGE, Local 2142, 58 FLRA 416, 417 (2003) (condition precedent to promotion based on accretion of duties is classification determination upgrading the position).
Based on evidence related to duties performed by other GS-13 managers, the Arbitrator concluded that the grievant regularly performed GS-13 duties. However, in reaching the conclusion that these duties were those of a higher-graded position, the Arbitrator improperly had to determine the classification of the grievant's position. That is, it is undisputed that there was not a properly classified civilian position for the work being performed by the grievant. Thus, the Arbitrator's determination as to the grade-level of the grievant's duties was not based on a comparison between the duties performed by the grievant and the already classified duties of that position. By relying on testimony as to the duties performed by managers in other positions, instead of evidence as to the properly classified duties of the position in question, the Arbitrator improperly made a classification determination as to that position. In effect, the Arbitrator relied on his finding that the duties of those other positions were similar to the duties performed by the grievant in the Program Manager position to classify that position. Consequently, we find that the Arbitrator's award is deficient because it is contrary to § 7121(c)(5) and conclude that it should be set aside.
The award is set aside.
Footnote # 1 for 59 FLRA No. 12 - Authority's Decision
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. The employee must be qualified to fill the position on a permanent basis.
Footnote # 2 for 59 FLRA No. 12 - Authority's Decision
Footnote # 3 for 59 FLRA No. 12 - Authority's Decision
Footnote # 4 for 59 FLRA No. 12 - Authority's Decision
Except as set forth in part 2423, the Authority and the General Counsel will ordinarily not consider interlocutory appeals.
Footnote # 5 for 59 FLRA No. 12 - Authority's Decision
Chairman Cabaniss would consider the Agency's § 7121(c)(5) argument, regardless of whether the Agency timely presented the argument to the Arbitrator, because she considers such claims to be jurisdictional and, as such, they can be raised before the Authority at any time.