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60 FLRA No. 173
DEPARTMENT OF VETERANS AFFAIRS
OF GOVERNMENT EMPLOYEES
May 24, 2005
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Richard L. Horn 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. [n1]
The Arbitrator found that the grievants were entitled to temporary promotions under the parties' agreement for having performed the higher-graded duties of a higher-graded position. For the reasons that follow, we find that the award improperly resolves a classification issue, and we set aside the award.
II. Background and Arbitrator's Award
The grievance alleged that five GS-6 Police Officers were entitled to temporary promotions under Article 12, § 2a of the parties' agreement [n2] because they performed the grade-controlling duties of the GS-7 Lead Police Officer during periods when the Lead Police Officer was absent. [n3] When the grievance was not resolved, it was submitted to arbitration on the following stipulated issues:
Whether General Schedule employees (Police Officers-GS6) perform the grade-controlling duties of a higher- graded position (Lead Police Officer --GS7); and if so,
Whether the General Schedule employees, (Police Officer -- GS6) do so for at least [25 percent] of their time.
Award at 2.
The Arbitrator interpreted Article 12 of the parties' agreement as requiring a temporary promotion whenever an officer performs the grade-controlling duties of a higher-graded position: (1) for a period of more than [ v60 p972 ] 10 consecutive days; and (2) for at least 25 percent of the officer's time. See id. at 9.
According to the Arbitrator, the first criterion "was not made an issue during the hearing." Id. at 10. Considering the second criterion of Article 12, the Arbitrator determined that the Union's undisputed evidence established that the grievants "worked various periods of time at 25 [percent] in a higher grade, and as such, should have been up-graded to the higher rate of pay for those periods of time." Id. at 10. Accordingly, the Arbitrator found that the Agency violated the parties' agreement by not temporarily promoting the grievants to the higher grade. In reaching this conclusion, the Arbitrator rejected as "not pertinent" testimony from the Agency's Human Resources (HR) Specialist who classified the GS-6 and GS-7 positions at issue that the grievants did not perform the grade-controlling duties of the GS-7 position. Id.
Having found that the grievants were entitled to temporary promotions, the Arbitrator could not determine the precise times that the grievants were entitled to the higher pay rate. Therefore, the Arbitrator ordered the parties to either calculate the time periods themselves or submit records to the Arbitrator to make the calculations.
III. Positions of the Parties
A. Agency's Exceptions
The Agency claims the award is contrary to law in three respects.
First, the Agency claims the award is contrary to § 7121(c)(5) of the Statute because the grievance concerns a classification matter. According to the Agency, the grievants' claimed temporary promotions are based on their performance of duties set forth in "Factor 4" of their position description. [n4] Exceptions at 5. Specifically, the Agency asserts that Factor 4 "mirrors the testimony of the grievants at arbitration concerning their duties that they contend were at the higher-graded GS-7 level[,]" and that Factor 4 "encompasses the duties that are being grieved." Id. at 4-5. According to the Agency, the HR Specialist properly classified the Factor 4 duties at the GS-6 level and determined that they are not grade-controlling for the GS-7 position. The Agency argues that, "[s]ince Factor 4 is not grade controlling and . . . is the essence of the grievants' complained of higher-graded duties," the grievance is barred by § 7121(c)(5). Id. at 5.
Second, the Agency claims the award is contrary to the Office of Personnel Management classification standards because work that is performed in another employee's absence cannot be considered in determining whether an officer performs the grade-controlling duties of a higher-graded position for 25 percent of his time. See id. (citing Agency's Attachment Introduction to the Position Classification Standards, TS-107 August 1991 J. Mixed Grade Positions (Exhibit E)).
Third, the Agency asserts that the award violates the Back Pay Act because the grievants were not affected by an unjustified or unwarranted personnel action that resulted in a loss of pay. See id. at 11.
The Agency also argues that the award fails to draw its essence from Article 12 of the parties' agreement because the Arbitrator ignored the requirement that only grade-controlling duties are relevant in determining whether an officer is entitled to a temporary promotion. Id. at 7. In addition, according to the Agency, the award is based on the following three nonfacts: (1) that the grievants performed "grade-controlling" duties of a higher graded position; (2) that the grievants performed higher-graded duties for 10 consecutive days; and (3) that any of the grievants filled-in for the Lead Police Officer 25 percent of his time. See id. at 8-10. Finally, the Agency asserts that the Arbitrator exceeded his authority by failing to "delineate the time period" for which the grievants are entitled to a temporary promotion. Id. at 11.
B. Union's Opposition
According to the Union, the Agency's claim that the award concerns a classification matter "is based upon a theoretical finding of a classification specialist who never interviewed the grievants to determine the work they performed." Opposition at 1. The Union claims that the grievants testified, without rebuttal, that they "performed at least seven higher level, grade-controlling duties, at least 25 [percent] of their time. . . ." Id. at 2. The Union also disputes the Agency's claims that the award fails to draw essence from the parties' agreement and is based on nonfacts. [ v60 p973 ]
IV. The Award Is Contrary To Law Because It Resolves a Classification Matter
When an exception involves an award's consistency with law, the Authority reviews any question of law raised by the exception and the award de novo. See 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 an arbitrator's legal conclusions are consistent with the applicable standard of law. See United States DOD, Dep'ts of the Army and the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
Section 7121(c)(5) of the Statute precludes any grievance or award concerning the classification of a position that does not result in a reduction in grade or pay. The Authority has construed the term "classification" in § 7121(c)(5) in the context of 5 C.F.R. § 511.101(c), which defines the term as "the analysis and identification of a position and placing it in a class under the position-classification plan established by [Office of Personnel Management] (OPM) under chapter 51 of title 5, United States Code." See AFGE, Local 2025, 50 FLRA 39, 42 (1994). Consistent with this, the Authority has long held that grievances concerning whether a grievant is entitled to a temporary promotion under a collective bargaining agreement for having temporarily performed the previously classified duties of a higher-graded position do not concern the classification of a position within the meaning of § 7121(c)(5) of the Statute. See United States Dep't of the Navy, Naval Aviation Depot, Marine Corps Air Station, Cherry Point, N.C., 42 FLRA 795, 801 (1991). Conversely, grievances concerning the grade level of duties previously classified as part of a grievant's permanent position concern classification within the meaning of § 7121(c)(5). See, e.g., AFGE, Local 1617, 55 FLRA 345, 347 (1999).
The Union alleged in arbitration that the grievants temporarily performed particular duties that are grade-controlling for the GS-7 position. As relevant here, the Agency claimed before the Arbitrator, and claims here, that those particular duties are, in fact, encompassed in Factor 4, which was previously classified as part of the grievants' permanent GS-6 position. Although the Union argues that the HR Specialist never interviewed the grievants about the work they performed, the Union does not dispute the Agency's claims that the alleged higher graded duties are encompassed in Factor 4 and that Factor 4 was previously classified at the GS-6 level. Thus, the Arbitrator's determination that the grievants were entitled to temporary promotions to GS-7 for having performed duties that the Agency previously classified at the GS-6 level amounts to a classification determination. As such, the award is contrary to law. See, e.g., AFGE, Local 2142, 51 FLRA 1140, 1142 (1996).
The award is set aside.
Footnote # 1 for 60 FLRA No. 173 - Authority's Decision
The Union also filed a copy of its post-hearing brief as a supplement to its opposition. However, the Authority's Regulations do not provide for the filing of a supplemental submission. Therefore, it was incumbent upon the Union to demonstrate why the Authority should consider its supplemental submission. See, e.g., United States Dep't of the Treasury, United States Customs Serv., El Paso, Tex., 52 FLRA 622, 625 (1996) (citing Nat'l Union of Labor Investigators, 46 FLRA 1311, 1311 n.1 (1993)). As the Union has not explained why the Authority should consider its supplemental submission, we would generally not accept the supplemental submission. We note, however, that a copy of the Union's post-hearing brief was properly submitted by the Agency with its exceptions. See Exceptions Attachment C. As such, the brief is part of the record, and we have considered it. Accordingly, the issue of whether to accept the Union's supplemental submission is moot.
Footnote # 2 for 60 FLRA No. 173 - Authority's Decision
Article 12, § 2(a) provides, in pertinent part:
Employees detailed to a higher grade position for a period of more than ten (10) consecutive work days must be temporarily promoted.. . . The temporary promotion should be initiated at the earliest date known by management that the detail is expected to exceed the ten (10) consecutive work days. The ten (10) consecutive work day provision will not be circumvented by rotating employees into a high-grade position for less than ten (10) days in order to avoid the higher rate of pay. For the purposes of this section, a General Schedule employee who performs the grade-controlling duties for at least 25 percent of his time, or a Wage grade employee who performs higher-graded duties on a regular basis, shall be temporarily promoted.
Footnote # 3 for 60 FLRA No. 173 - Authority's Decision
1. Responsibility for issuing and inspecting weapons of other police officers.
2. Responsibility for training other police officers.
3. Maintaining control of the Master Key.
4. Vicarious liability (responsibility for the actions of the other police officers).
5. Responsibility for reviewing, correcting and completing the daily journal.
6. Responsibility for keeping track of the police officers.
7. Responsibility for briefing the next shift.
Footnote # 4 for 60 FLRA No. 173 - Authority's Decision
Employee supervises the officers on their shift, guiding fellow officers in applicable laws, regulations and police methodology. Employee conducts and supervises on and off station investigations as required, sometimes encompassing more than a single shift or day. Employee supervises and completes work as shift supervisor, desk Sgt., pass and ID, fingerprinting as required by FBI, supervises the arming and disarming of officers and their mental and physical status prior to and while on duty.