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International Association of Machinists and Aerospace Workers, District Lodge 776 (Union) and United States Department of the Army, Corpus Christi Army Depot, Corpus Christi, Texas (Agency)

[ v63 p93 ]

63 FLRA No. 38







February 3, 2009


Before the Authority:  Thomas M. Beck, Chairman and
Carol Waller Pope, Member

I.     Statement of the Case

      This matter is before the Authority on an exception to an award of Arbitrator Barnett Goodstein 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. [n1]  The Union did not file an opposition to the Agency's exception.

      The grievance alleged that, for six years, the wage grade employees at issue had been performing duties outside of their job description that were performed by higher-graded and higher paid Agency engineers at other Agency facilities. As a result, the Union requested back pay with interest. As an initial matter, the Arbitrator determined that the grievance did not involve a classification matter, and was thus arbitrable. On the merits, the Arbitrator concluded that the wage grade employees were not performing substantially equal work to that of the higher-graded Agency engineers. Accordingly, the Arbitrator denied the Union's grievance.

      For the reasons that follow, we dismiss the Agency's exception.

II.     Background and Arbitrator's Award

      The Union filed a grievance claiming that for a period of six years wage grade metal tube makers, installers, and repairers were responsible for making "conversions from manufacturer's data for computer numerical control tube bending machines into data for use in conventional machines[.]" Award at 1. As relevant here, the Union claimed that this job was being performed by engineers at other Agency facilities and, as such, the Agency should compensate these wage grade employees equally under the concept of equal pay for substantially equal work as set forth in 5 U.S.C. § 5101. See id.

      The grievance was not resolved and submitted to arbitration. The Arbitrator framed the issues as follows:

1.     Is the grievance filed by the Union arbitrable?
2.     If the grievance is arbitrable, did the Agency violate Title 5 U.S. Code, Section 5101, the principle of equal pay for substantially equal work?
3.     If the Answer to issue #2 is in the affirmative, should the griev-ants [sic] be made whole for all contractual, including monetary, losses suf-fered [sic] for the six years prior to the filing of the subject grievance?

Award at 1.

      In resolving these issues, the Arbitrator determined that the grievance was arbitrable, and dismissed the Agency's contention that it involved a classification matter. In arriving at this conclusion, the Arbitrator credited the Union's assertion that "the [g]rievants all are properly classified . . . and [that it] is not seeking to change that classification[.]" Id. at 2. In so doing, the Arbitrator determined that the grievants were not requesting a change in the classification of their positions. Rather, the Arbitrator found that the grievants were arguing only that while they were performing duties outside of their job descriptions, they should be compensated equally with employees also performing those same duties. In summary, the Arbitrator stated, "[s]ince the Union has used all the proper arguments, and said all the right words, to take the [g]rievance out of the exemption from arbitration, that would keep the [g]rievance from being arbitrable, I must find that the issue before me is arbitrable, and does not come within an exclusion in the [collective bargaining agreement] or the law, that would keep this matter from being arbitrable." Id. at 3. [ v63 p94 ]

      With respect to the second issue, the Arbitrator concluded that the wage grade employees were not performing substantially equal work to that of higher-graded Agency engineers. Accordingly, the Arbitrator determined that it was unnecessary to resolve the remaining issue and denied the Union's grievance.

III.     Agency's Exception

      As relevant here, the Agency argues that the award involves a classification matter and is, therefore, precluded from arbitrable review under 5 U.S.C. § 7121(c)(5) and Article 21, Section 1(e) of the parties' agreement. [n2]  Specifically, the Agency contends that "where the substance of a grievance concerns the grade level of the duties assigned to and performed by the grievant, the grievance is nonarbitrable because it concerns the classification of a position within the meaning of 5 U.S.C. § 7121(c)." Exceptions at 5. Accordingly, the Agency contends that, as the grievance involves classification, "[t]he Arbitrator exceeded the scope of his authority by ruling on the merits of the grievance[.]" Id. at 9.

IV.     Analysis and Conclusions

      Although the Agency does not dispute the Arbitrator's determination on the merits, it contends that the Arbitrator erred in concluding that the grievance was arbitrable. See Exception at 8, 23. The Arbitrator determined that the grievance was arbitrable as it did not require the resolution of a classification matter, and ultimately resolved the dispute in favor of the Agency. For the following reasons, we dismiss as moot the Agency's exception claiming that the matter is not arbitrable.

      An arbitration matter becomes moot when the parties no longer have a legally cognizable interest in the dispute. AFGE, Local 171, Council of Prison Locals 33, 61 FLRA 661, 663 (2006) (Local 171) (citing United States Dep't of Justice, Fed. Bureau of Prisons, Metro. Det. Ctr., Guaynabo, P.R., 59 FLRA 787, 790 (2004)). Stated otherwise, "`[A] case is moot when the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome.'" City of Erie v. Pap's A. M., TDBA "Kandyland", 529 U.S. 277, 287 (2000) (citing County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)) (citations omitted); see also Larsen v. United States Navy, 525 F.3d 1, 3 (D.C. Cir. 2008).

      Under the facts of this case, we need not rule on the Agency's exception. The Arbitrator denied the Union's grievance and the matter was resolved in favor of the Agency. Therefore, the issue regarding whether the matter was arbitrable is no longer legally cognizable. See Local 171, 61 FLRA at 663. Consequently, we dismiss the Agency's exception as moot. [n3]  See id. (Authority dismissed union's exception as moot where union excepted to award ordering union to pay all arbitration costs and agency contended that it paid one-half of costs and union did not dispute agency's contention); see also United States Dep't of Justice, INS, Jacksonville, Fla., 36 FLRA 928, 932 (1990) (Authority found agency's first exception moot where union in its opposition agreed with agency's interpretation of arbitration award as set forth in that exception).

V.     Decision

      The Agency's exception is dismissed.

Footnote # 1 for 63 FLRA No. 38 - Authority's Decision

   The Union also filed exceptions, however, those exceptions were dismissed as procedurally deficient by an Authority Order.

Footnote # 2 for 63 FLRA No. 38 - 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." 5 U.S.C. § 7121(c)(5).

Article 21, Section 1(e) of the parties' agreement states:

Section 1. This Article is intended to serve as the sole procedure available for the orderly processing of grievances concerning alleged violations of this Agreement or any claimed violation of law or regulation affecting conditions of employment. This procedure shall not include grievances concerning:
. . . .
e.     The classification of any position which does not result in the reduction in grade or pay of any employee.

Agency Ex. 6 at 49.

Footnote # 3 for 63 FLRA No. 38 - Authority's Decision

   Insofar as the Authority's decisions in United States Dep't of the Treasury, IRS, S. Tex. Dist., 60 FLRA 598 (2005) and Soc. Sec. Admin., Mid-Am. Program Serv. Ctr, 26 FLRA 292 (1987), may be read as holding that the Authority will always resolve exceptions to an arbitrator's arbitrability award in situations where the excepting party prevailed on the merits, they will no longer be followed. Instead, the Authority will examine the records in such cases to determine whether the excepting party has demonstrated that there are unusual circumstances or other reasons to conclude that, despite the fact that the excepting party prevailed on the merits, the exceptions nevertheless should be resolved.