American Federation of Government Employees, Local 2142 (Union) and United States, Department of the Army, Corpus Christi Army Depot, Corpus Christi, Texas (Agency)

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61 FLRA No. 37

LOCAL 2142






August 29, 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 Robert B. Moberly filed by the Union and 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 exception and the Agency filed an opposition to the Union's exceptions.

      The Arbitrator denied a grievance alleging that the Agency violated the parties' collective bargaining agreement by failing to promote the grievants due to the accretion of duties.

      For the following reasons, we find that the grievance concerns a classification matter that is not arbitrable under § 7121(c)(5), and we set aside the award.

II.     Background and Arbitrator's Award

      The Union filed a grievance alleging that the Agency violated the parties' agreement by failing to noncompetitively, permanently promote the grievants from GS-9 to GS-11. When the grievance was not resolved, it was submitted to arbitration. Before the Arbitrator, the Union stated the issue to be whether the Agency violated the parties' agreement when it did not promote the grievants to GS-11 due to accretion of higher-graded duties. The Agency stated the issue as whether [ v61 p195 ] grievance is nonarbitrable because it involves a classification issue. The Arbitrator did not set forth an issue to be resolved but stated that the issues set forth by the parties would be "considered further in the discussion portion of this opinion." Award at 2.

      The Arbitrator concluded that the grievants should not be permanently promoted to GS-11 based on accretion of duties and thus denied the grievance on the merits rather than dismissing it as not being arbitrable. In reaching this conclusion, the Arbitrator noted that Article 20, § 3.e of the parties' agreement states that the negotiated grievance procedure "shall not include grievances concerning . . . [t]he classification of any position, which does not result in the reduction in grade or pay of an employee" and that the parties negotiated a memorandum of understanding (MOU) regarding procedures for noncompetitive promotions resulting from accretion of duties. Id. at 7. The Arbitrator found, in this regard, that the grievants had not utilized the accretion procedures contained in the MOU, which states they are the only available procedures for promotions based on accretion of duties.

      In addition, the Arbitrator found that the evidence established that the Agency created a new GS-11 position that requires at least 25 percent team leader duties. The Arbitrator stated that while GS-11 employees perform the same duties as the GS-9 employees, the GS-11 employees also spend at least 25 percent of their time performing leader duties. The Arbitrator determined that Agency testimony established that the grievants do not perform these lead duties. The Arbitrator concluded that, as the work of the two positions is not equal, equal pay for the positions is not required.

      Based on the foregoing, the Arbitrator denied the grievance.

III.     Positions of the Parties

A.     Agency's Exception

      The Agency contends that the award is contrary to § 7121(c)(5) of the Statute because it concerns the classification of the grievants' positions. In this regard, the Agency argues that the substance of the grievance concerns the grade level of the duties assigned to and performed by the grievants. In support, the Agency cites, among other cases, AFGE, Local 2142, 51 FLRA 1140 (1996).

B.      Union's Opposition

      The Union asserts that the grievance does not involve a classification issue. Instead, according to the Union, the grievance is based solely on the Agency's failure to properly promote the grievants to GS-11 based on accretion of higher-graded duties.

C.      Union's Exceptions

      The Union contends that the Arbitrator improperly relied only on Agency testimony in reaching his decision and did not give any "legal weight" to the evidence provided by the Union. Exceptions at 2. In particular, the Union characterizes the Agency testimony relied on by the Arbitrator as being "nonfact," "noncorroborative" and without "substance or relevance." Id. at 4, 6. The Union further contends that the Agency submitted no factual evidence supporting its position.

      In addition, the Union argues that the Arbitrator erred in finding that the grievants were not entitled to equal pay under the Equal Pay Act. [n1]  According to the Union, the courts have ruled that jobs are equal for the purposes of the Equal Pay Act when both require equal levels of skills, effort, and responsibility and are performed under the same conditions. The Union contends that the GS-9s are entitled to pay equal to GS-11s because the GS-9s have been performing 75 percent of the major duties performed by GS-11s for more than one year.

D.     Agency's Opposition

      The Agency reiterates that the grievance is not arbitrable pursuant to § 7121(c)(5) of the Statute. In this regard, the Agency argues that the Arbitrator should not have addressed the merits of the grievance because it concerned the reclassification of the grievants permanent positions from GS-9 to GS-11.

      The Age