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63 FLRA No. 83
DEPARTMENT OF LABOR
OF GOVERNMENT EMPLOYEES
April 17, 2009
Before the Authority: Carol Waller Pope, Chairman and
Thomas M. Beck, Member
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Merry C. Hudson filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and 5 C.F.R. part 2425. [n1] The Union filed an opposition to the Agency's exceptions.
In an award on threshold issues, the Arbitrator concluded that the grievance is grievable and arbitrable and ordered a hearing on the merits. The Arbitrator also ordered the Agency to provide the Union with specified information to process the grievance.
For the following reasons, we conclude that the exceptions are interlocutory, but that their resolution is warranted at this time. In resolution of the exceptions, we conclude that the award is contrary to § 7121(c)(5) of the Statute.
II. Background and Arbitrator's Award
The Union filed a grievance contending that the Agency violated the parties' agreement by failing to provide equal pay for substantially equal work to attorneys employed in the Benefits Retirement Board (BRB) and the Employee Compensation Appeals Board (ECAB). Award at 2. The Agency responded that the grievance was not grievable "because it involved the classification of positions which did not result in the reduction in grade or pay of an employee." Id. at 3. The Agency also claimed that the grievance was untimely and procedurally deficient. Subsequently, the Union submitted a request for information to process the grievance and, in the request, also asserted that the grievance was filed to "demonstrate that all persons classified as 905 series attorneys should be similarly compensated." Id. The Union maintained that the grievance concerns "equal pay for equal work[.]" Id.
The parties submitted the threshold issues to arbitration, where the Arbitrator conducted a hearing on the issues of whether: (1) the grievance was timely, grievable, and procedurally sufficient; and (2) the Agency was obligated to provide the requested information. Id. at 2.
On the first issue, the Arbitrator determined that the grievance was timely and procedurally sufficient. Id. at 5-8. In addressing the Agency's assertion that the grievance concerns classification, the Arbitrator first noted the Union's claim that it "does not disagree with the classification[.]" Id. at 4. The Arbitrator also quoted the grievance as alleging that the Agency had failed to provide equal pay for substantially equal work in violation of Article 20, Section 5 [n2] :
There is no distinction between the attorneys in BRB and ECAB and the majority of the attorneys in the Office of the Solicitor that would justify having a two-tier journeymen level, Solicitor's being the GS-14 or 15 level and BRB/ECAB's being the GS-13 level. There is absolutely no distinction between the duties of the attorneys in BRB and ECAB and those in [Administrative Review Board (ARB)], where the journeymen level is GS-15.
Id. (quoting grievance). [n3]
[ v63 p217 ] Based on the record, the Arbitrator concluded that the Union's allegation of a failure to provide "equal pay for equal work" does not raise "issues relating to classification of job positions." Award at 5. On the second issue--the information request--the Arbitrator concluded that, because she had found that the grievance does not concern classification, the Agency's objection on that basis to providing the information did not justify its failure to produce the information. Id. at 11.
Accordingly, as her award on threshold issues, the Arbitrator concluded that the grievance is grievable and arbitrable. She ordered the parties to schedule a hearing on the merits and ordered the Agency to provide the specified information. Id. at 12.
III. Positions of the Parties
A. Agency's Exceptions
Preliminarily, the Agency contends that, although its exceptions are interlocutory, resolution is warranted at this time. Exceptions at 3. On the merits, the Agency contends that the award is contrary to § 7121(c)(5). Id. at 5. The Agency argues that the grievance asserts, essentially, that the disputed positions are misclassified. Id. The Agency also argues that, based on Authority precedent, § 7121(c)(5) applies despite the issue of equal pay. Id. at 6 (citing United States Envtl. Prot. Agency, Region 2, 61 FLRA 671 (2006) (EPA)). In addition, the Agency contends that, by ordering the Agency to provide specified information, the award is contrary to § 7114 of the Statute and that, by finding the grievance timely and procedurally sufficient, the award fails to draw its essence from the agreement. Id. at 2 n.3, 8 n.5.
B. Union's Opposition
The Union contends that the award is not contrary to § 7121(c)(5). The Union reiterates its agreement that the BRB and ECAB attorneys are properly classified in the 905 series. Opposition at 2. The Union asserts that the grievance challenges only the work that merits a GS-14 journeyman level. Id. The Union claims that the grievance requires the Arbitrator to "compare the duties of already classified positions to determine whether comparable duties are being compensated at comparable rates of pay" and that the Authority has rejected that such a grievance is precluded by § 7121(c)(5). Id. at 6 (emphasis original) (citing United States Dep't of Veterans Affairs Med. Ctr., Buffalo, N.Y., 37 FLRA 379 (1990) (VAMC, Buffalo)). The Union also contends that the Arbitrator's order to produce the specified information is not deficient.
IV. Preliminary Issue
As noted above, the Authority ordered the Agency to show cause why its exceptions should not be dismissed as interlocutory. In its response, the Agency reiterates its view that, although its exceptions are interlocutory, resolution is warranted at this time because they present a plausible jurisdictional defect, the resolution of which will advance the ultimate disposition of this case. Response at 2. The Union does not contest resolution of the interlocutory exceptions. Opposition at 4.
Section 2429.11 of the Authority's Regulations provides that the Authority "ordinarily will not consider interlocutory appeals." In arbitration cases, this means that the Authority ordinarily will not resolve exceptions filed to an arbitration award unless the award completely resolves all of the issues submitted to arbitration. E.g., United States Dep't of Transp., Fed Aviation Admin., 61 FLRA 634, 635 (2006). However, the Authority will resolve interlocutory exceptions when they present a plausible jurisdictional defect, the resolution of which will advance the ultimate disposition of the case. Id. Exceptions present a "plausible jurisdictional defect" when, on their face, they present a credible claim that the arbitrator lacked jurisdiction. Id.
Here, there is no dispute that the exceptions are interlocutory. However, for the reasons that follow, we conclude that the Arbitrator lacked jurisdiction. Accordingly, resolution of the Agency's exceptions is warranted at this time. Id. at 635-36 (argument that the grievance was barred by § 7121(c)(5) presented a plausible jurisdictional defect, the resolution of which would advance the ultimate disposition of the case).
V. Analysis and Conclusions
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. E.g., NTEU Chapter 24, 50 FLRA 330, 332 (1995). In applying the standard of de novo review, the Authority assesses whether the arbitrator's legal conclusion is consistent with the applicable standard of law. E.g., United States Dep't of Transp., Fed Aviation Admin., Atlanta, Ga., 62 FLRA 519, 520-21 (2008) (FAA, Atlanta).
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 any negotiated grievance procedure. The Authority has construed the term "classification" as involving the analysis and identification of a position and placing it in a class under the [ v63 p218 ] position classification plan established by the Office of Personnel Management under 5 U.S.C. chap. 51. Id. at 521. Consequently, when the substance of a grievance concerns whether the grievants are entitled to permanent promotions based on the grade level of the duties performed by the grievants, the grievance concerns classification within the meaning of § 7121(c)(5). Id.; LIUNA Local 28, 56 FLRA 324, 326 n.2 (2000) (Member Cabaniss concurring). Moreover, nothing in the equal pay principles of § 5101 or the Equal Pay Act makes such grievances grievable. EPA, 61 FLRA at 675-76. Grievances disputing the journeyman or career-ladder level and promotion potential of grievants' permanent positions likewise concern classification. See United States Dep't of Housing & Urban Dev., Wash., D.C., 59 FLRA 630, 632 (2004) (HUD).
Applying this established precedent here, we conclude that the grievance concerns classification within the meaning of § 7121(c)(5). In this regard, the grievance alleges that attorneys of BRB and ECAB are entitled to be permanently promoted to GS-14 or GS-15 based on the asserted grade level of the work performed by these attorneys. Exceptions, Ex. UPE #1 (Ex. #1). Moreover, the Union concedes that the grievance challenges the grade level of the career-ladder or journeyman level warranted for the attorneys of BRB and ECAB. Opposition at 2.
We note that grievances concerning whether grievants are entitled to temporary promotions on the basis of having temporarily performed the established duties of a position other than their own are not barred by § 7121(c)(5). E.g., FAA, Atlanta, 62 FLRA at 521. We also note that, in the grievance, the Union cites an agreement provision pertaining to temporary promotions. Ex. #1. Nevertheless, the grievance requests permanent promotions and, as a result, does not involve a dispute over a temporary promotion based on the temporary performance of the duties of another position. See LIUNA Local 28, 56 FLRA at 326 n.2 (mere claim of a temporary promotion will not cure a grievance that pertains to the grievants' permanent positions). For the same reason, the Union's reliance on VAMC, Buffalo, Opposition at 6, a temporary promotion case, is misplaced. Also misplaced is reliance on the equal pay principle, which, as noted, does not make grievable a grievance that concerns classification. E.g., EPA, 61 FLRA at 675-76. For the same reason, the alleged violations of the Equal Pay Act, 5 U.S.C. § 2301, and 5 U.S.C. § 2302 do not make the grievance in this case grievable. See id. Finally, the fact that the Union agrees that the attorneys involved herein are properly placed in the 905 classification series does not render the grievance arbitrable because position classification involves the placement of positions in grade levels, as well as in series. E.g., HUD, 59 FLRA at 632.
Based on the foregoing, we modify the award to strike the portions of the award finding that the grievance is grievable and ordering the parties to schedule a hearing on the merits. We also modify the award to strike the order that the Agency provide specified information to the Union to permit it to process the grievance because the conclusion that the grievance is barred by § 7121(c)(5) moots the information request. [n4] See United States Dep't of the Air Force, San Antonio Air Logistics Ctr., Kelly Air Force Base, San Antonio, Tex., 58 FLRA 71, 72 (2002) (Member Pope concurring) (after underlying award was set aside, the arbitrator's supplemental order set aside as moot).
The award is modified in accordance with this decision.
Footnote # 1 for 63 FLRA No. 83 - Authority's Decision
The Authority ordered the Agency to show cause why its exceptions should not be dismissed as interlocutory. The Agency filed a response to the show-cause order. This preliminary issue is discussed in Part IV, infra. At the same time, the Union corrected a procedural deficiency, as ordered by the Authority.
Footnote # 2 for 63 FLRA No. 83 - Authority's Decision
Article 20 (Position Classification), Section 5 provides: "The parties agree to the principle of equal pay for substantially equal work." Exceptions, Attach. The Union also alleged violations of the Equal Pay Act, 5 U.S.C. § 2301 (merit system principles), and 5 U.S.C. § 2302 (prohibited personnel practices). Id., Ex. UPE #1.
Footnote # 3 for 63 FLRA No. 83 - Authority's Decision
As a remedy, the Union sought: "Immediate promotion of all GS-13 attorneys (who have been within grade for at least one year) in BRB/ECAB to comparable pay grades of the attorneys in the Office of the Solicitor and the [ARB]. These positions are at the GS-14 and GS-15 levels." Id.
Footnote # 4 for 63 FLRA No. 83 - Authority's Decision