[ v59 p520 ]
59 FLRA No. 86
ENVIRONMENTAL PROTECTION AGENCY
OF GOVERNMENT EMPLOYEES
December 15, 2003
Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope and Tony Armendariz, Members [n1]
I. Statement of the Case
This case is before the Authority on exceptions to an award of Arbitrator Harold L. Richman 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 Union also filed a motion requesting that the Agency's exceptions be dismissed as interlocutory.
For the following reasons, we find that the Arbitrator's award is contrary to law in part and that the Arbitrator exceeded his authority in fashioning a part of the remedy. As a result, we set aside the award in part.
II. Background and Arbitrator's Award
The grievant's supervisor recommended her to higher level management for a promotion from GS-12 to GS-13 based upon an accretion of duties. Management ultimately agreed to perform a desk audit and classification review of the grievant's position. As a result of that audit, the classification specialist who conducted the audit and review issued a Final Evaluation Statement (FES) concluding that the grievant performed work at a GS-12 level.
The Union filed a grievance alleging that the grievant had been denied a promotion to GS-13 because of her national origin, gender, and/or age. The grievance also alleged that the grievant had, "`on a continuing basis,'" been treated in an unfair and disparate manner. Arbitrator's Award (Award) at 3, quoting Union grievance. At a subsequent stage of the grievance procedure, the grievance was amended to add the claim that the grievant had been subject to reprisal for having filed her grievance by being denied the opportunity to function as the Acting Section Chief and, more generally, that she had been "treated in an unfair and disparate manner on a continuing basis." Id. at 16. None of the grievant's claims were resolved in the grievance procedure and they were submitted to arbitration.
B. Arbitrator's Award
As stated by the Arbitrator,
[t]he following issues were presented for decision during the hearing:
1. Is [the grievant's] position description following the desk audit . . . a grievance concerning classification and therefore not arbitrable?
2. Are the failures to name [the grievant] as Acting Section Chief on November 9 and 23, 2001, reprisals for filing a grievance?
3. Are the failures to name [the grievant] as Master Certifying Officer (MCO) or EPA Project Officer or Client Representative, arbitrable?
4. Were the failures to name [the grievant] MCO or EPA Project Officer or Client Representative in reprisal for filing a grievance?
5. What shall be the remedy for any of the grievances?
Id. at 2.
The Arbitrator concluded, based on the testimony and evidence presented at the hearing, that the notes taken by the classification specialist (specialist) during the desk audit of the grievant's position revealed that the grievant performed many duties and had many accomplishments that were not reflected in the position description (PD) that the specialist used to determine the classification of the position. The Arbitrator found that, during the classification review process, the specialist did not interview the grievant's supervisor. He also found that the grievant was an accountant and that neither the classification specialist, nor the grievant's supervisor, had any training in accounting. [ v59 p521 ]
The Arbitrator examined the specialist's FES, noting the criteria applied to determine whether the grievant's position would properly be rated as a GS-13 position. Comparing those criteria to the duties and accomplishments reflected in the specialist's desk audit notes, the Arbitrator concluded that those notes revealed that the grievant performed functions that the specialist had concluded she did not perform. Specifically, he stated that the specialist's "FES statement misrepresented or did not give proper credit to many of [the grievant's] duties and accomplishments, which the desk audit disclosed." Id. at 6.
The Arbitrator concluded that the specialist's FES, "which graded [the grievant's] performance as GS-12 and not GS-13, incorrectly and inaccurately reflected the duties performed by [the grievant] as shown by [the specialist's] own desk audit." Id. at 10. He also found that the specialist's "failure to consult [the grievant's] supervisor, a requirement in the evaluation process stressed [in testimony by a management official,] further undermines [the specialist's] conclusions and recommendations." Id. According to the Arbitrator, "the issues, regarding [the grievant's] classification, are arbitrable." Id. In this regard, he stated that "both the FES Evaluation Statement and the GS-12 Position Description written by [the specialist] after the desk audit are both incorrect and inaccurate and the denial of promotion on these bases is improper." Id. He found, moreover, that "a grievance seeking to correct the PD is not a grievance concerning classification." Id. He stated that, as a remedy, he would "direct the Agency to revise [the grievant's] position description and FES Evaluation consistent with [his] findings . . . ." Id. at 11. He further indicated that "[w]hen these revisions are made, [he] believe[d] that [the grievant] w[ould] be entitled to promotion to GS-13." Id.
As to the issue of reprisal for filing a grievance, the Arbitrator found the Agency had an established practice of designating employees to serve as Acting Section Chief "on the basis of seniority within grade." Id. He also found that, previous to the filing of her grievance, the grievant had twice been designated Acting Section Chief, but that after filing the grievance, two employees with less seniority than the grievant were assigned that responsibility. He did not credit the testimony of the grievant's supervisor purporting to explain the failure to designate the grievant in the latter two instances. The Arbitrator found that "[t]his change in the practice without credible justification and timed immediately after the filing of [the grievant's] first step grievance," led to the conclusion "that the change in practice was in reprisal for the grievance filing." Id. at 12.
The Arbitrator rejected the Agency's claim that the grievant's allegations of reprisal in connection with designation of the MCO, Project Officer and Client Representative were not arbitrable because they were not raised at the last step of the grievance procedure. The Arbitrator found that the grievance at the last step alleged that the grievant had been treated in an unfair and disparate manner on a continuing basis. He noted that the Agency's position would result in "additional arbitration proceedings involving much of the same evidence presented in the instant arbitration." Id. at 17. He also noted that these matters were "fully litigated" at the hearing." Id.
On the merits of those claims of reprisal, the Arbitrator found that "the Union [had] not sustained the burden of proof on the Project Officer and Client Representative claims . . . ." Id. He found, however, that "the failure to name [the grievant] MCO was a reprisal for filing the grievance." Id. In this regard, he did not credit the Agency's explanation that the decision was justified on the grounds of "workload distribution." Id. at 18.
The Arbitrator stated his award as follows:
1. [The grievant's] position description and FES Evaluation Statement based on [a] desk audit conducted by [the specialist] are not correct or accurate and therefore not the subject of a grievance concerning classification.
2. The classification of [the grievant] as GS-12 based on an inaccurate and incorrect position description and FES Evaluation Statement is arbitrable.
3. [The grievant's] position description and FES Evaluation Statement shall be revised consistent with the Arbitrator's findings . . . .
4. The failure to name [the grievant] as Acting Section Chief on November 9 and November 23, 2001, were reprisals against [the grievant] because she filed a grievance.
5. The failures to name [the grievant] as MCO and as EPA Project Officer and Client Representative are arbitrable.
6. The failure to name [the grievant] as MCO was a reprisal against her because she filed a grievance.
7. The failure to name [the grievant] as EPA Project Officer and Client Representative were [ v59 p522 ] not reprisals against her. Th[e] grievance is dismissed.
8. The Agency is ordered to inform its responsible supervisory staff in Region 2 that they are to follow the Agency's Conduct and Discipline Order.[ [n2] ]
9. The Agency is ordered to cease and desist from taking reprisals against employees who file grievances.
10. A notice embodying Paragraphs 8 and 9 of this Award shall be posted in Region 2 for 30 days, on bulletin boards in areas where notices to employees are posted.
Award at 18-19.
III. Positions of the Parties
A. Preliminary Issues
1. Union's Motions
As a preliminary matter, the Union filed a motion to dismiss the Agency's exceptions as interlocutory. According to the Union, the Agency, in its exceptions, "repeatedly points out that not all issues involved in the grievance have yet been heard by the [A]rbitrator." Motion at 2. Among others, the Union references the Agency's statements that: (1) "[t]here was no substantive evidence as to the merits of the claim regarding the denial of an accretion of duties promotion"; and (2) "that issue would be presented to the Arbitrator at a later date only if he ruled it arbitrable." Id. (quoting from page 3 of the Agency's Exceptions).
The Union also submits a motion to strike certain evidence included with the Agency's exceptions. [n3] According to the Union, the evidence was available for presentation to the Arbitrator and, under § 2429.5 of the Authority's Regulations, should not be considered by the Authority in connection with those exceptions.
2. Agency's Response to the Union's Motions
The Agency did not seek leave to file a supplemental submission in response to the Union's Motions.
B. Agency's Exceptions
1. Contrary to Law
The Agency states that the Arbitrator found that the grievant's classification as a GS-12, "based on an inaccurate and incorrect position description and FES Evaluation Statement[,] is arbitrable." Agency Exceptions (Exceptions) at 4 (emphasis in original). The Agency maintains that, in this regard, the Arbitrator's award is contrary to law, specifically, § 7121(c)(5) of the Statute, because the award concerns a classification matter. The Agency maintains that the "`substance of the dispute'" concerns "`the grade level of the duties assigned to and performed by the grievant'" and that the Authority has held such grievances to be barred by § 7121(c)(5) of the Statute. Id. at 6 (citing VA Medical Center, Tampa, Fla., 19 FLRA 1177, 1178 (1985)).
More particularly, the Agency contends that the Arbitrator "did not merely determine whether the position description was accurate[,]" but "attempted to refute the classifier's determination" that no evidence of GS-13 level work was presented during the desk audit. Id. at 6. In this regard, the Agency argues that the Arbitrator determined that the classifier's own notes from the desk audit demonstrated that the grievant met the factors used in the FES.
2. Exceeded Authority
The Agency contends that the parties agreed to limit the issues before the Arbitrator to the arbitrability of the underlying accretion of duties promotion grievance and the merits of the retaliation claim, but the Arbitrator ignored those limits and thereby exceeded his authority. As evidence, the Agency points to the parties' statement of the issues to the Arbitrator at the hearing and in their subsequent briefs to the Arbitrator and to their obvious agreement as to the nature of those issues.
The Agency also contends that the Arbitrator exceeded his authority by ordering the posting of a notice. Citing Authority precedent, the Agency notes that the grievance concerned "only the named grievant," and argues that the "award of a notice to non-affected employees and supervisors via a posting" exceeds the Arbitrator's authority. Id. at 13.
Further, the Agency argues that the Arbitrator exceeded his authority under the collective bargaining [ v59 p523 ] agreement by: (1) ruling on a classification issue, despite the "clear and explicit language of Article 43 of the collective bargaining agreement" that the issue is "not grievable," id. at 14; (2) ruling on reprisal claims that were not the subject of the grievance, contrary to Article 44, Section 3 of the parties' agreement; and (3) awarding a remedy, i.e., the posting of a notice, that the Union had not sought in the grievance procedure as required by Article 43, Section 7 of the agreement. [n4]
3. Fair Hearing
The Agency claims that the Arbitrator denied it a fair hearing by ruling on the underlying grievance concerning the denial of an accretion of duties promotion without allowing it to present evidence on the merits of that issue. Specifically, the Agency notes that the Union introduced documentary evidence as to the nature of the classification process, but contends that no evidence was introduced as to the classifier's "analysis of what the grievant told her" in the desk audit or as to how the classifier used her notes in preparing the position description. Id. at 20. According to the Agency, "there was no substantive testimony on the issue of discrimination," on "the development of the position description[,] or on the classifier's determination" because those issues were "not yet before the Arbitrator." Id.
Finally, the Agency claims that the award is based on nonfacts. In particular, the Agency maintains that the Arbitrator found the grievant's position description was inaccurate based upon "two misstatements of fact[,]" namely, "that the classification process requires that the employee's supervisor be interviewed" and that "the classifier must be trained in the field of the position he is classifying." Id. at 21.
C. Union's Opposition
1. Contrary to Law
On the merits of the exceptions, the Union contends that, although the Arbitrator did not "precisely and artfully" frame his award, he recognized the appropriate legal distinction between classifying a position and determining whether a position description is accurate. Union's Opposition (Opposition) at 3. In this regard, the Union contends that the Arbitrator "recognized that an accurate and correct PD is a necessary precursor to a proper classification" and based his judgement that the grievant's position description was inaccurate only on "management's own documentation[.]" Id. at 4. The Union argues that the Arbitrator did not order that the grievant be promoted or that "particular points be assigned to each of the factors used to classify the position." Id. at 5. The Union also notes that the Arbitrator did not "place [the grievant] in a `class' or assign her to a `position.'" [n5] Id.
2. Exceeded Authority
As to the Agency's claim that the Arbitrator exceeded his authority by ordering the posting of a notice, the Union notes that the grievance concerned retaliation against the grievant for exercising her right under the Statute to file a grievance. The Union maintains that requiring the posting of a notice "is the standard remedy issued" for that kind of violation of the Statute. Id. at 9.
As to the Agency's contention that the Arbitrator erred under the contract by addressing the additional reprisal claims, the Union asserts that the contention contests a procedural arbitrability determination by the Arbitrator, which provides no basis for finding the award deficient. Further, according to the Union, the Agency's claim that the Arbitrator exceeded his authority by ordering a remedy that had not been sought during the grievance procedure, as required by the contract, does not demonstrate that the award is deficient. Specifically, in this regard, the Union asserts that the Arbitrator's award is consistent with the issues as he framed them.
3. Fair Hearing
The Union maintains that the Agency's fair hearing exception is an unsupported bare assertion that provides no basis for finding the award deficient. According to the Union, "the parties presented the evidence they thought was necessary in order to prevail on the issues that had been submitted" and the Arbitrator "did not refuse to hear anything." Opposition at 14 (emphasis in original).
Finally, the Union argues that the Agency's nonfact contentions do not demonstrate that the award is deficient because the Arbitrator's decision did not "hinge" on the alleged erroneous conclusions of fact. [ v59 p524 ] Id. at 15 (emphasis in original). Rather, according to the Union, the Arbitrator primarily relied on the classifier's own notes for his decision and not her failure to interview the supervisor or her lack of accounting knowledge.
IV. Analysis and Conclusions
A. Preliminary Matters
1. The Union's Motion to Strike is Granted
Arbitration awards are not subject to review on the basis of evidence in existence at the time of the arbitration, but not presented to the arbitrator. See, e.g., NAGE, Local R4-45, 53 FLRA 517, 519-20 (1997). This precedent is consistent with § 2429.5 of the Authority's Regulations. [n6] In this case, there is no dispute that the affidavit and the regulatory provisions offered by the Agency were in existence before the arbitration proceeding. The Agency has not demonstrated that those materials were presented to the Arbitrator. Nor has the Agency demonstrated why, in the light of the clear terms of § 2429.5, we should consider those materials in the circumstances of this case.
Accordingly, we grant the Union's motion to strike the disputed attachments to the Agency's exceptions.
2. The Agency's Exceptions are not Interlocutory
The Authority's Regulations, § 2429.11, provide that ordinarily the Authority will not consider interlocutory appeals. Applying § 2429.11 in the context of an arbitration case, the Authority has consistently held that it ordinarily will not consider exceptions to an arbitrator's award until the arbitrator has issued a final decision completely determining all issues submitted to arbitration. See, e.g., United States Dep't of Health and Human Services, Ctrs. For Medicare and Medicaid Services, 57 FLRA 924, 926 (2002).
The parties did not stipulate the issues in the case and the Arbitrator framed the issue, in relevant part, in terms of the accuracy of the grievant's position description and resolved that issue. Because the Arbitrator's award is a complete and final disposition of that issue, there is nothing left of this part of the grievance to be resolved. Consequently, this part of the award is not interlocutory. See AFGE, Local 1760, 37 FLRA 1193, 1200 (1990) (award constituted complete determination of issues submitted); USIA, 32 FLRA 739, 744 (1988) (award constitutes final decision on only issue submitted to arbitrator). Cf. Library of Congress, 58 FLRA 486, 487 (2003) (arbitrator did not address all issues submitted and award interlocutory).
B. The Arbitrator's Award is Deficient under § 7121(c)(5) of the Statute
The Agency contends that because the substance of the underlying grievance concerns the appropriate grade level of the grievant's current position, it concerns a classification matter barred from arbitral review by § 7121(c)(5) of the Statute. Because this exception concerns whether the award is consistent with law, the Authority will review it de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1985) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994). See also AFGE, Local 987, 58 FLRA 453, 454 (2003).
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 procedure. 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.'" SSA, Office of Hearings and Appeals, Mobile, Ala., 55 FLRA 778, 779-80 (1999) (quoting 5 C.F.R. § 511.101(c)).
The Authority has held that 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. See SSA, 31 FLRA 933, 936 (1988). However, where the substance of a grievance is limited to the question of the accuracy of the grievant's position description, the grievance does not concern the classification of a position within the meaning of § 7121(c)(5). See, e.g., United States Dep't of Defense, Marine Corps Logistics Base, Albany, Ga., 57 FLRA 275, 277 (2001) (Marine Corps Logistics Base); United States Dep't of Veterans Affairs, Medical Center, Providence, Rhode Island, 49 FLRA 110, 114 n.5 (1994) (5 C.F.R. § 511.607 recognizes that employees may grieve the accuracy of their position descriptions under the negotiated grievance procedure). [ v59 p525 ]
As the parties did not stipulate the issues in the underlying grievance, the Arbitrator framed the arbitrability issue, and resolved it, in terms of the accuracy of the grievant's position description. In the absence of a stipulation, the Authority will defer to the arbitrator's framing of the issues. See, e.g., AFGE, Local 933, 58 FLRA 480, 482 (2003). Considered in terms of the issue as framed by the Arbitrator, the substance of the grievance in this case and the remedy requiring an accurate PD for the grievant would not be barred by § 7121(c)(5).
However, despite framing the issue in terms of the accuracy of the PD, the Arbitrator did not confine his award solely to that issue. Rather, he also evaluated the FES prepared by the classification specialist and ordered a new FES consistent with his findings. A review of the Arbitrator's description of the FES involved in this case reveals that it constitutes the application by the specialist of OPM's classification criteria to the grievant's PD, the result of which is ultimately determinative of the classification. See Award at 6-9. As such, the FES is a step in the process whereby a position is placed "in a class under the position-classification plan established by OPM" and a matter pertaining to classification within the definition set forth in 5 C.F.R. § 511.101(c).
In examining the FES, the Arbitrator determined that the specialist improperly applied the classification criteria in finding that the grievant's position was correctly classified at the GS-12 level. The Arbitrator's analysis includes statements to the effect that an accurate PD would meet the criteria for the GS-13 position used by the specialist. See Award at 6-9. As the award evaluates and modifies the FES, the Arbitrator's award concerns a classification matter and is deficient under § 7121(c)(5). See, e.g., United States Dep't of Veterans Affairs, Medical Center, Muskogee, Okla., 47 FLRA 1112, 1116-17 (1993) (award found deficient under § 7121(c)(5) where arbitrator reviewed application of classification factors and determined they were improperly applied).
We find that the part of the Arbitrator's award concerning the sufficiency of the FES is deficient under § 7121(c)(5) of the Statute.
C. The Arbitrator's Award is Deficient, in Part, on the Ground that the Arbitrator Exceeded His Authority
The Agency argues that the Arbitrator exceeded his authority by: (1) ordering the posting of a notice; and (2) ruling on reprisal claims that were not the subject of the grievance, contrary to provisions of the parties' agreement. [n7]
An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed by the grievance. See United States Dep't of Defense, Army & Air Force Exch. Serv., 51 FLRA 1371, 1378 (1996). In the absence of a stipulation by the parties of the issues to be decided, arbitrators are accorded substantial deference in the formation of issues to be resolved in an arbitration proceeding. See AFGE, Local 1637, 49 FLRA 125, 130 (1994) (AFGE, Local 1637).
As to the Agency's first argument, that the award is deficient because the Arbitrator's posting remedy exceeds his authority by awarding a remedy to persons not included in the grievance, the Authority has found awards deficient on the ground that an arbitral remedy is too broad. See, e.g., United States Dep't of the Air Force, Okla. City Air Logistics Ctr., Tinker AFB, Okla., 42 FLRA 680, 685 (1991). This is particularly true where the grievance pertained to particular employees and the remedy applies to individuals not included among those employees. Id. at 685-86. In particular, the Authority has held, on these grounds, that a remedy including a posting exceeded the arbitrator's authority because it defined the rights of employees beyond the grievant. See United States Environmental Protection Agency, 57 FLRA 648, 651-52 (2001) (EPA). On the other hand, the Authority has upheld an award, challenged on exceeded authority grounds, which required the union to post a notice acknowledging that it had violated the contract. See United States Dep't of Defense, Defense Mapping Agency, Hydrographic/Topographic Ctr., 35 FLRA 1175, 1178 (1990).
Essentially, the Arbitrator's posting remedy was designed to ensure that the Agency complied with its own prohibitions concerning reprisal against employees for exercising rights under the Statute. Thus, the award was not limited to requiring the Agency to cease and desist from acting in reprisal against the grievant for her exercise of rights under the Statute, but against all employees who exercised such rights. The only employee whose rights were adjudicated in this case was the grievant, but the award established a right [ v59 p526 ] against reprisal for all Agency employees. Therefore, the Arbitrator's award defined the rights of employees other than the grievant and exceeded his authority. See EPA.
With respect to the Agency's second argument, that the Arbitrator exceeded his authority by ruling on reprisal claims that were not part of the grievance, in violation of Article 44 of the parties' agreement, the Agency has not demonstrated that the award is deficient on this ground. Although the Union's initial grievance alleged generally that the Agency had engaged in reprisal against the grievant for filing a grievance, the grievance at the second step of the grievance procedure not only claimed reprisal against the grievant by failing to assign her as Acting Section Chief, it also more broadly alleged that she had been treated in an unfair and disparate manner on a continuing basis. In the absence of a stipulation of the issues in this case, the Arbitrator's formulation of the issues to include the failure to name the grievant to other positions is owed substantial deference. See AFGE, Local 1637. The Agency has provided no support for concluding that the Arbitrator erred in construing the second step grievance to include allegations of reprisal against the grievant by failing to assign her to those other positions. Moreover, as the Arbitrator dismissed the grievance insofar as it alleged reprisal by failing to assign the grievant as EPA Project Officer and Client Representative, the Agency's exceptions as to these matters are moot.
In sum, we find that the Arbitrator exceeded his authority to the extent that he ordered the posting of a notice. We deny the Agency's other exceeded authority exception.
D. The Award is not Deficient on the Ground that the Arbitrator Failed to Conduct a Fair Hearing
The Authority will find an award deficient on the ground that an arbitrator failed to conduct a fair hearing when it is demonstrated that the arbitrator refused to hear or consider pertinent or material evidence, or that other actions in conducting the proceeding so prejudiced a party as to affect the fairness of the proceeding as a whole. See, e.g., AFGE, Local 1668, 50 FLRA 124, 126 (1995).
In this regard, the Agency's argument that the Arbitrator ruled on the underlying grievance without providing it an opportunity to present evidence on that issue is not persuasive. As we pointed out above, the Arbitrator framed the issue, in part, in terms of the arbitrability of the accuracy of the grievant's position description. The Agency has not demonstrated that it was denied an opportunity to present evidence as to the issue of the accuracy of the position description. Consequently, the Agency has failed to substantiate its claim that it was denied a fair hearing.
Accordingly, we deny the Agency's fair hearing exception.
E. The Award is not Deficient on the Ground that it is Based on Nonfacts
To establish that an award is based on a nonfact, the excepting party must establish that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See United States Dep't of the Air Force, Lowry AFB, Denver, Colo., 48 FLRA 589, 593 (1993). The Authority will not find an award deficient on the basis of an arbitrator's determination of any factual matter that the parties had disputed before the arbitrator. Id. at 594 (citing Nat'l Post Office Mailhandlers v. United States Postal Serv., 751 F.2d 834, 843 (6th Cir. 1985).
The Agency excepts to the award on the basis of certain misstatements of fact by the Arbitrator, specifically, concerning the supervisor's role in the classification process and the training required of a classifier. As the Arbitrator discussed those matters in his award, it is clear that the role of the supervisor and the classification specialist in the classification process were clearly disputed at the arbitration hearing. Consequently, the Agency's arguments do not provide a basis for finding that the award is deficient based on a nonfact.
Accordingly, we deny the Agency's nonfact exception.
We find that the portion of the award concerning the sufficiency of the FES is deficient as contrary to law and set aside that part of the award. We also find that the award is deficient to the extent that the Arbitrator exceeded his authority by ordering a posting of a notice encompassing employees other than the grievant and set aside that part of the award as well. We deny the Agency's other exceptions. [ v59 p527 ]
1. Article 43, Section 3.E. of the parties' collective bargaining agreement provides as follows:
Section 3. In addition to any other exclusions contained in this agreement, the grievance procedure will not apply to:
. . . .
E. The classification of any position which does not result in the reduction in grade or pay of an employee . . . .
2. Article 44, Section 3 of the parties' collective bargaining agreement provides, in relevant part, as follows:
Section 3. Issues and charges raised before the arbitrator shall only be those raised at the last stage of the applicable grievance procedure. . . .
3. Article 43, Section 7 of the parties' collective bargaining agreement provides, in relevant part, as follows:
Employee Grievance Procedure
. . . .
B. The employee must state specifically that he/she is presenting a grievance; the personal relief sought; and the name, organizational unit and location of the aggrieved, a statement of the items, regulations or agreement alleged to have been violated, citing specific paragraphs or articles, the corrective actions desired, designation by name of the Union representative or statement of self-representation. The grievance must be signed and dated.
Opinion of Member Carol Waller Pope, dissenting in part:
I agree with the majority in all respects except one. In particular, I do not agree that the Arbitrator exceeded his authority by ordering that the Agency post a notice. In this regard, the grievance asserted that the Agency's failure to name the grievant as MCO constituted a reprisal for filing a grievance and that the reprisal violated an Agency regulation prohibiting reprisal "for exercising a right provided under 5 U.S.C. Chapter 71 (governing Federal labor-management relations)." Opposition, Attachment 2 at 4. The Arbitrator concluded that the Agency violated the regulation and directed the Agency to follow the regulation, to cease and desist from taking reprisals against employees, and to post a notice reflecting that it would comply with these two requirements.
The Authority and the Federal courts have consistently emphasized the broad discretion accorded arbitrators in fashioning appropriate remedies. United States Dep't of the Interior, United States Geological Survey Nat'l Mapping Div. Mapping Applications Center, 55 FLRA 30, 33 (1998); Air Force Space Division, Los Angeles Air Force Station, Cal., 24 FLRA 516, 519 (1986) (AFSD). As relevant here, remedies may address issues beyond those pertaining to an individual grievant where the dispute before the arbitrator also encompasses that issue. Id. at 519. Further, the Authority has upheld arbitral awards requiring a notice posting in cases where the Agency engaged in conduct that violated the Statute. See General Services Administration, 53 FLRA 925, 933 (1997). The Authority also routinely requires a notice posting in unfair labor practice cases, including those involving alleged unlawful retaliation. See United States Dep't of the Air Force, Aerospace Maint. & Regeneration Ctr., Davis Monthan AFB, Tucson, Ariz., 58 FLRA 636 (2003).
Given the Arbitrator's broad remedial authority and the routine nature of a posting in situations where an agency has engaged in prohibited reprisal, I find no reason to prohibit the Arbitrator from providing that remedy here. This is particularly true, in my view, because the Agency violated a regulation that specifically incorporates the Statute. In reaching a contrary conclusion, the majority relies on precedent indicating that an arbitrator exceeds his/her authority by issuing an order that "define[s] the rights of employees beyond the grievant." Majority Opinion at 15 (citing United States Environmental Protection Agency, 57 FLRA 648, 651-52 (2001)). I believe this reliance is misplaced because here, the employees rights are defined not by the Arbitrator, but by the regulation. Requiring the Agency to certify that it will comply with those rights in no way "defines" them.
For these reasons, I would find that the Arbitrator did not exceed his authority by requiring the notice posting, and I would deny the Agency's exception to the posting.
Footnote # 1 for 59 FLRA No. 86 - Authority's Decision
Member Pope's separate opinion, dissenting in part, is set forth at the end of this decision.
Footnote # 2 for 59 FLRA No. 86 - Authority's Decision
The reference to the Agency's "Conduct and Discipline Order" concerns Environmental Protection Agency Order 3120.1, dated September 20, 1985. Item 36 of the Appendix to that Order prohibits reprisal against an employee for exercising a right provided under the Statute. See Attachment 4 to the Union's Opposition.
Footnote # 3 for 59 FLRA No. 86 - Authority's Decision
The evidence referenced in the Union's motion includes an affidavit and two documents, one of which, HR Advisory 511-1, is entitled "An Employee Guide to Desk Audits," and the other, HR Policy Bulletin 335-1," is entitled "Accretion of Duties."
Footnote # 4 for 59 FLRA No. 86 - Authority's Decision
The relevant portions of the parties' collective bargaining agreement are set forth in the Appendix to this decision.
Footnote # 5 for 59 FLRA No. 86 - Authority's Decision
The Union cites the definition of the term "classification" set forth in 5 C.F.R. § 511.101(c). This is the definition cited by the Authority for its interpretation of § 7121(c)(5) of the Statute. See, e.g., AFGE, Local 2025, 50 FLRA 39, 42 (1994).
Footnote # 6 for 59 FLRA No. 86 - Authority's Decision
§ 2429.5 of the Authority's Regulations provides, in relevant part, as follows:
The Authority will not consider evidence offered by a party, or any issue, which was not presented in the proceedings before the . . . arbitrator. The Authority may, however, take official notice of such matters as would be proper.
Footnote # 7 for 59 FLRA No. 86 - Authority's Decision
Because we have found that the award insofar as it concerns the sufficiency of the FES is contrary to law, it is unnecessary to address the Agency's additional claim that the Arbitrator exceeded his authority by ruling on a classification issue.