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62 FLRA No. 97
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
July 14, 2008
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 Rodney E. Dennis 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.
As relevant here, the Arbitrator found that the Agency violated the parties' collective bargaining agreement by failing to permanently promote three grievants. For the reasons discussed below, we set aside the award as inconsistent with § 7121(c)(5) of the Statute.
II. Background and Arbitrator's Award
Under the parties' negotiated pay plan, which replaced the previously-used General Schedule system, each of the three grievants was classified as a Logistics Management Specialist (LMS) at Career Level 1. [n1] Several years after the parties' negotiated pay plan became effective, a joint labor-management team conducted a classification study of the LMS position and, according to the Arbitrator, "recommended that any LMS who had been working at Career Level 1 for at least one year and whose work was satisfactory should be promoted immediately to Career Level 2." [n2] Award at 4. The Arbitrator further found that the classification study recommended that local management immediately review each LMS position within its jurisdiction and implement the recommendations of the classification study within a specified time frame. See id. In addition, the Arbitrator found that in disseminating the final draft of the classification study to its managers, the Agency notified managers that each recommendation of the classification study must be implemented locally by the designated time frame. See id. at 6. The Arbitrator further stated that the failure of local management to do so would constitute a breach in the terms and requirements of the classification study, as well as of the parties' collective bargaining agreement. See id.
Following Agency-wide dissemination of the classification study, the Southern Region, within which the grievants work, formed a regional committee to review the classification study's recommendations and oversee their implementation in that region. This regional review committee, which included an Agency Classifier, ultimately concluded that only one LMS out of twenty-seven in the Southern Region would be promoted to Career Level 2. See id. at 8. Nationwide, 71 out of 121 LMSs were promoted to Level 2 as a result of the classification study. See id. at 17.
When the grievants learned that they were "not going to be promoted as a result of the [classification] study, they filed separate grievances." [n3] Id. at 8. The grievances were not resolved and were submitted to arbitration. As relevant here, in the absence of a stipulation, the Arbitrator framed the issue as: "Did the [ v62 p520 ] Agency violate the Collective Bargaining Agreement by failing to promote [the grievants] to [C]areer [L]evel 2?" [n4] Award at 9.
The Arbitrator found that the results of the classification study were generally accepted and implemented throughout the Agency. However, the Arbitrator found that the Southern Region "did not adopt the final report as presented, but, instead, . . . established a committee to review the basis for the report and examine the status of each LMS in the [Southern Region] before making any decision regarding promotion." Id. at 15. According to the Arbitrator, the Classifier on the regional review committee ultimately determined that most of the tasks listed in the classification study were not Career Level 2 tasks and, "based on that unilateral undocumented decision, concluded that all but one of the LMSs in the Southern [Region] should be denied promotion." Id. at 16. The Arbitrator further found that the Southern Region reached that conclusion despite the fact that all of the local supervisors in the Southern Region rated their LMSs as Career Level 2. See id. at 17. The Arbitrator concluded that the Southern Region had "denied promotions" to the three grievants "without acceptable justification for doing so" and awarded the grievants permanent promotions, retroactive to the date the final report of the classification study group was published. Id. at 18.
III. Positions of the Parties
A. Agency's Exceptions
The Agency asserts that the award is inconsistent with § 7121(c)(5) of the Statute. [n5] In this regard, the Agency states that, under Authority precedent, where the substance of a grievance concerns the grade level of the duties 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 and is excluded from the parties' negotiated grievance procedure. According to the Agency, as the substance of the grievances in the present case "clearly encompasses only those duties that were permanently assigned to the [grievants]," the grievances concern classification matters and the Arbitrator did not have authority to award permanent promotions. Exceptions at 9. In addition, the Agency notes that the Authority has found that "the mere fact that [an] [a]gency has discretion to establish pay without regard to chapter 51 of title 5 does not preclude a finding that the grievance and award concern a classification matter within the meaning of § 7121(c)(5)." Id. at 5-6 (citing United States Secs. & Exch. Comm'n, Wash., D.C., 61 FLRA 251, 253 (2005) (SEC)).
The Agency also asserts that the award is inconsistent with management's right to determine its organization and that the Arbitrator exceeded his authority. See id. at 9-10.
B. Union's Opposition
The Union argues that the award does not concern the classification of positions, but rather concerns noncompetitive promotions. See Opposition at 15-16, 22-24. In support of its assertion that the Arbitrator did not make a classification determination, the Union argues that as a result of the classification study, the LMS position was reclassified at the Career Level 2 level. Therefore, according to the Union, there was an applicable position description that had already undergone a classification analysis and had been assigned a grade and series by the Agency. In addition, the Union alleges that the Arbitrator did not perform his own comparison of the grievants' duties to the applicable classification standard. Relying on these two factors, the Union asserts that the Arbitrator did not undertake a classification of the positions. See id. at 11-16. The Union asserts that, "[w]hile the promotions . . . may not bear the label of `career-ladder,' . . . the Agency offers no evidence to refute that the promotions are noncompetitive under the competition requirements established in the [p]arties' [collective bargaining agreement]. Id. at 5.
With regard to the Agency's remaining exceptions, the Union asserts that the Agency has failed to explain which management right has allegedly been violated, or how the Arbitrator's award fails to draw its essence from the parties' collective bargaining agreement. See id. at 1.
IV. Analysis and Conclusions
When an exception challenges an award's consistency with law, the Authority reviews the question of law raised by the exception and the arbitrator's 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 a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent [ v62 p521 ] with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making such a determination, the Authority defers to the arbitrator's underlying factual findings. See id.
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 excluded 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." Soc. Sec. Admin., Office of Hearings & Appeals, Mobile, Ala., 55 FLRA 778, 779-80 (1999) (quoting 5 C.F.R. § 511.101(c)). The Authority has further stated that, "the mere fact that [an] [a]gency has discretion to establish pay without regard to chapter 51 of title 5 does not preclude a finding that the grievance and award concern a classification matter within the meaning of § 7121(c)(5)." United States Dep't of Transp., Fed. Aviation Admin., 61 FLRA 634, 635 (2006) (citing SEC, 61 FLRA at 253).
The Authority has distinguished between two situations in assessing whether a grievance concerns the classification of a position. Where the substance of a grievance concerns the grade level of the duties permanently assigned to, and performed by, the grievant, the Authority finds that the grievance concerns the classification of a position within the meaning of § 7121(c)(5). See United States Dep't of Hous. & Urban Dev., La. State Office, New Orleans, La., 53 FLRA 1611, 1616 (1998). However, where the substance of the grievance concerns whether the grievant is entitled to a temporary promotion under a collective bargaining agreement by reason of having performed the established duties of a higher-graded position, the Authority has long held that the grievance does not concern the classification of a position within the meaning of § 7121(c)(5). See id.
In the absence of a stipulated issue, the Arbitrator framed the pertinent issue as whether the Agency violated the parties' collective bargaining agreement by "failing to promote [the grievants] to [C]areer [L]evel 2?" Award at 9. There was no assertion that the grievants were entitled to temporary promotions under the collective bargaining agreement, nor did the Arbitrator consider that issue. The Arbitrator considered solely whether the grievants were entitled to permanent, retroactive promotions from Career Level 1 to Career Level 2. This is evidenced by the Arbitrator's award, promoting each of the grievants to Level 2 "effective immediately" and awarding backpay from the date the final report of the classification study group was published. See Award at 18-19. The only basis articulated by the Arbitrator for sustaining the grievances was the Southern Region's failure to promote the three grievants pursuant to the recommendations set forth in the classification. See Award at 18. In so finding, the Arbitrator rejected the determination of the Southern Region's Classifier that the grievants were not entitled to promotions.
Under Authority precedent, the substance of the grievance concerned whether the grievants were entitled to permanent promotions based on the grade level of the duties permanently assigned to, and performed by, the grievants and not whether they were entitled to temporary promotions under the parties' collective bargaining agreement for performing previously classified duties of higher-graded positions. Moreover, there is no dispute that the basis for the grievance was the Agency's failure to implement, vis-a-vis the grievants, the recommendations of the classification study. As such, the grievances involve a classification matter within the meaning of § 7121(c)(5) of the Statute and are excluded from the grievance procedure. [n6] See, e.g., AFGE, Local 987, 58 FLRA 453, 454-55 (2003); AFGE, Local 2142, 51 FLRA 1140, 1142 (1996).
Based on the foregoing, we find that the Arbitrator did not have jurisdiction to resolve the merits of the grievance and set aside the award as inconsistent with § 7121(c)(5) of the Statute. See AFGE, Local 2142, 61 FLRA 194, 196 (2005). [n7]
The award is set aside as inconsistent with § 7121(c)(5) of the Statute.
Footnote # 1 for 62 FLRA No. 97 - Authority's Decision
Pursuant to the Air Traffic Management System Performance Improvement Act (FAA Act), Pub. L. No. 104-264, 110 Stat. 3213, 3227, which is codified at Title 49 of the United States Code, the Agency is governed by an Agency-specific personnel system that is exempt from most of the requirements of Title 5. See Nat'l Air Traffic Controllers Ass'n, AFL-CIO, Local ECE, 61 FLRA 803, 804 (2006). Under the FAA Act, the Agency is also required to negotiate pursuant to the Statute with exclusive representatives concerning the compensation of its employees. See United States Dep't of Transp., Fed. Aviation Admin., 61 FLRA 750, 752 (2006).
Footnote # 2 for 62 FLRA No. 97 - Authority's Decision
Recommendation: Based on our findings in this review, we have concluded that the body of work to be performed by our LMSs is most accurately and appropriately described in Career Level 2 of the occupation as described in the collective bargaining agreement. Therefore, any SMO LMS who has been in the FV-346 series at Career Level One for at least one year and who local management deems is performing in accordance with the validated task list (in Appendix 1) and in accordance with the CLD 2 requirements, should be immediately promoted to Career Level 2 . . . .
Award at 5.
Footnote # 3 for 62 FLRA No. 97 - Authority's Decision
Footnote # 4 for 62 FLRA No. 97 - Authority's Decision
Footnote # 5 for 62 FLRA No. 97 - Authority's Decision
Under § 7121(c)(5), 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 # 6 for 62 FLRA No. 97 - Authority's Decision
As the grievance concerns classification, it is irrelevant whether the grievants sought noncompetitive promotions. Indeed, under applicable government-wide regulations, a reclassification is a noncompetitive promotion. See 5 C.F.R. § 335.103(c)(2)(i), "Noncompetitive actions." ("A promotion resulting from the upgrading of a position without significant change in the duties and responsibilities due to issuance of a new classification standard or the correction of an initial classification error" is not subject to competitive procedures).
Footnote # 7 for 62 FLRA No. 97 - Authority's Decision