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United States, Department of Transportation, Federal Aviation Administration (Agency) and National Air Traffic Controllers Association (Union)

[ v61 p634 ]

61 FLRA No. 123

UNITED STATES
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
(Agency)

and

NATIONAL AIR TRAFFIC CONTROLLERS
ASSOCIATION
(Union)

0-AR-4029

_____

DECISION

July 27, 2006

_____

Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Jerome H. Ross 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 Arbitrator found that the issue raised in the grievance was arbitrable and ordered a hearing on the merits. For the following reasons, we remand the matter for further findings.

II.     Background and Arbitrator's Award

      The grievance alleged that the Agency violated the parties' upgrade memorandum of understanding (MOU) by not upgrading the air traffic control (ATC) level of the Atlanta facility, which would have resulted in pay increases for the employees at that facility. [n1]  When the grievance was not resolved, it was submitted to arbitration. The Agency filed a motion to dismiss the grievance, claiming that the matter was not arbitrable because it concerned a classification issue within the meaning of § 7121(c)(5) of the Statute. The parties agreed to bifurcate the arbitrability issue and the merits.

      The Arbitrator determined that the matter was arbitrable. In this connection, the Arbitrator explained that the Authority defines classification within the meaning of § 7121(c)(5) in terms of the Office of Personnel Management's (OPM) classification standards. Acknowledging that the Agency is not subject to the OPM's classification standards, the Arbitrator found that the Agency, consequently, is not subject to § 7121(c)(5). Based on his conclusion that § 7121(c)(5) is inapplicable, the Arbitrator ordered a hearing on the merits.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency acknowledges that its exceptions are interlocutory, but asserts that extraordinary circumstances warrant review because "there is an immediate need to resolve the jurisdictional defect to advance the ultimate resolution of the case." Exceptions at 3 (citations omitted). In this regard, the Agency argues that the Arbitrator erred in asserting jurisdiction over the grievance because the grievance, which the Agency claims resolves a classification issue, is precluded by § 7121(c)(5) of the Statute. [n2]  According to the Agency, the Arbitrator's finding "clearly contradict[s]" the Authority's recent holding in United States Securities and Exchange Comm'n, Wash., D.C., 61 FLRA 251 (2005) (SEC) that "the mere fact that the Agency has discretion to determine the classification and pay of positions without regard to Chapter 51 of Title 5 does not preclude a finding that a grievance and award concern[] classification within the meaning of § 7121(c)(5)." Exceptions at 4. The Agency further asserts that the Arbitrator erred in not addressing its claim that the grievance is precluded by the parties' contract, which the Agency asserts also excludes classification matters. See id. at 5.

      Furthermore, according to the Agency, the Authority has consistently found that a grievance involved a classification matter where the arbitrator resolved issues concerning the grade level of the duties assigned to, and performed by, the grievant and determined whether the grievant's duties were properly classified. In this connection, the Agency asserts that neither the Arbitrator [ v61 p635 ] nor the Union disputes that the grievance in this case concerns a classification matter. See id.

      Finally, the Agency asserts that the Arbitrator erred by not addressing "the arbitrability question" of whether "the relief the Union requests in its grievance would unduly interfere with management's rights" to determine its organizational structure and budget. Id. at 6.

B.     Union's Opposition

      The Union argues that the Agency has not demonstrated any extraordinary circumstances to warrant interlocutory review of its exceptions. The Union further argues that the SEC decision, which the Agency cites, does not support the Agency's view that the grievance concerns a classification matter or that § 7121(c)(5) applies to the Agency. In this connection, the Union asserts that the Agency "has been removed" from certain provisions of Title 5 and, as a result, the parties are required "to negotiate all changes to the personnel management system, regardless of the limitations imposed on them by Chapter 71 of Title 5." Opposition at 5. In any event, the Union argues that the procedures for adjusting pay, as outlined in the parties' upgrade MOU, "do not concern `a position' as referenced in 5 U.S.C. [§] 7121(c)(5)." Id.

IV.     Analysis and Conclusion

      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 Dep't of Def., 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 2429.11 of the Authority's Regulations provides, in pertinent part, that "the Authority . . . ordinarily will not consider interlocutory appeals." Pursuant to this regulation, the Authority ordinarily will not resolve exceptions to an arbitration award unless the award constitutes a complete resolution of all the issues submitted to arbitration. See United States Dep't of the Treasury, Bureau of Engraving & Printing, W. Currency Facility, Fort Worth, Tex., 58 FLRA 745, 746 (2003). In this case, the Arbitrator addressed only the matter of arbitrability and ordered the parties to proceed to a hearing on the merits of the grievance. Therefore, the Arbitrator did not address all of the issues submitted to arbitration and, as the Agency acknowledges, the exceptions are interlocutory.

      The Authority has held that review of interlocutory exceptions is warranted where the exceptions present a plausible jurisdictional defect, the resolution of which would advance the ultimate disposition of the case. See United States Dep't of the Interior, Bureau of Indian Affairs, Wapato Irrigation Project, Wapato, Wash., 55 FLRA 1230, 1232 (2000). Recently, the Authority explained that a "plausible jurisdictional defect is one that, on its face, is a credible claim . . . ." Library of Congress, 58 FLRA 486, 487 (2003) (Member Pope dissenting) (LOC). [n3] 

      The Agency claimed before the Arbitrator that the grievance was not arbitrable because it involved classification within the meaning of § 7121(c)(5) of the Statute. 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 OPM under chapter 51 of title 5, United States Code." United States Dep't of VA, Med. Ctr., Marion, Ill., 60 FLRA 971, 973 (2005). The Authority recently clarified that "the mere fact that the [a]gency has discretion to establish pay without regard to [C]hapter 51 of [T]itle 5 does not preclude a finding that the grievance and award concern classification within the meaning of § 7121(c)(5)." See SEC, 61 FLRA at 253.

      The Arbitrator found that, because the Agency is not subject to OPM classification standards, the Agency also is not subject to § 7121(c)(5) of the Statute. Therefore, the Arbitrator found that the grievance was arbitrable and he did not consider whether the grievance involves a classification matter under § 7121(c)(5) of the Statute. However, as explained above, § 7121(c)(5) applies whether or not an agency is subject to OPM's classification standards. Id. Consequently, the Arbitrator erred in finding that § 7121(c)(5) is inapplicable. [ v61 p636 ] The Agency's argument that the grievance concerns classification, therefore, presents a plausible jurisdictional defect.

      The Authority consistently has described grievances that concern classification under § 7121(c)(5) as involving "the grade level of the duties assigned to, and performed by, the grievant[.]" AFGE, Local 1858, 59 FLRA 713, 715 (2004); accord SSA, 31 FLRA 933, 936 (1988). See also SSA, 60 FLRA 62, 64-65 (2004) (arbitrator assessed duties that were permanently assigned to grievant's position and found that grievant should be compensated at higher grade); United States Dep't of Veterans Affairs, Med. Ctr., Muskogee, Okla., 47 FLRA 1112 1116-17 (1993) (arbitrator compared duties of positions with classification standards for higher-graded positions and found positions should be reclassified). By contrast, as argued by the Union, the Authority has not previously found that an arbitration award involved classification under § 7121(c)(5) merely because the award involves the amount of an employee's pay. See, e.g., United States DOL, 12 FLRA 639, 640 (1983) (grievance and award involving whether grievants were entitled to hazard differential pay did not involve classification under § 7121(c)(5)). Cf. Int'l Org. of Masters Mates & Pilots, Marine Div., Pan. Canal Pilots Branch, 51 FLRA 333, 340 (1995) (proposals concerning the process of setting the amount of compensation to be assigned to a classification that has already been established by the agency did not involve classification under § 7103(a)(14)(B)).

      Because the Arbitrator incorrectly found § 7121(c)(5) inapplicable, he did not resolve the parties' dispute over whether the grievance concerns a classification matter under § 7121(c)(5) of the Statute. As such, the record is devoid of any factual findings to which we may defer in assessing whether the grievance involves a classification matter. Indeed, the only reference to classification that the Arbitrator makes is that the parties' agreement "address[es] pay and the upgrading/downgrading of facilities." Award at 5. Moreover, the parties' submissions to the Authority do not otherwise permit the Authority to resolve the issue of whether the grievance concerns a classification matter under § 7121(c)(5) of the Statute. Consequently, we remand the matter to the parties for resubmission to the Arbitrator, absent settlement, for a determination of whether the grievance concerns a classification matter within the meaning of § 7121(c)(5) of the Statute. See, e.g., HUD, 59 FLRA at 631-32 (citing LOC, 58 FLRA at 487) (remanding award to parties where record was insufficient for the Authority to resolve the classification issue).

V.     Decision

      The grievance is remanded to the parties for resubmission to the Arbitrator, absent settlement, for further findings consistent with this decision.

Footnote # 1 for 61 FLRA No. 123 - Authority's Decision

   As relevant here, the MOU requires the Agency to raise or lower an ATC facility's level "based on mathematical formulas that analyze the number of planes that pass through a facility's airspace and the complexities of that traffic." Award at 4. Based on that data, an index number is assigned to the facility, which ultimately establishes salaries for air traffic controllers at the facility.

Footnote # 2 for 61 FLRA No. 123 - Authority's Decision

   Under § 7121(c)(5) of the Statute, grievance procedures negotiated under the Statute "shall not apply with respect to any grievance concerning . . . the classification of any position which does not result in the reduction in grade or pay of an employee."

Footnote # 3 for 61 FLRA No. 123 - Authority's Decision

   Member Pope dissented on the ground that "grants of interlocutory review of jurisdictional claims should be restricted primarily to situations where interlocutory review would actually advance the ultimate disposition of the case because the party seeking such review is correct in asserting a lack of jurisdiction." LOC, 58 FLRA at 489. However, in circumstances where the record does not permit resolution of the jurisdictional issue, Member Pope has agreed to remand the award to the parties for resubmission to the arbitrator to make further findings. See United States Dep't of Hous. and Urban Dev., Wash., D.C., 59 FLRA 630, 632 n.5 (2004) (HUD).