71 FLRA No. 29                                                                                                                                                                

 

UNITED STATES

DEPARTMENT OF DEFENSE

U.S. MARINE CORPS

AIR GROUND COMBAT CENTER

TWENTYNINE PALMS, CALIFORNIA

(Agency)

 

and

 

AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES

LOCAL 2018

(Union)

 

0‑AR‑5376

 

_____

 

DECISION

 

May 28, 2019

_____

 

Before the Authority:  Colleen Duffy Kiko, Chairman, and Ernest DuBester and James T. Abbott, Members

(Member DuBester dissenting)

 

Decision by Member Abbott for the Authority

 

1.         Statement of the Case

    

In this case, we must determine whether a grievance impermissibly involves classification under      § 7121(c)(5) of the Federal Service Labor‑Management Relations Statute (the Statute).^[1]  We determine that it does.

 

In an interim award, Arbitrator Trudi Ferguson determined that the grievance could proceed to a merits hearing because the arbitration could avoid classification issues.  The main question before us is whether that determination is contrary to law.  Because the essential nature of the grievance concerns classification, regardless of how the Arbitrator characterized it, we find that § 7121(c)(5) bars the grievance, and we set aside the interim award.

 

1. Background and Arbitrator’s Award

    

On September 22, 2017, the Union filed a grievance alleging that the grievant was performing duties outside her position description and that she had been “tasked with additional duties which are higher than her pay grade” in violation of the parties’ agreement.^[2]  As a remedy, the Union requested that the grievant be promoted to a General Schedule-9 position and awarded backpay.  The Agency denied the grievance, finding that it was a classification matter that could not be grieved.

 

The parties were unable to resolve the grievance, and they submitted it to arbitration. 

 

The Arbitrator issued an interim award on   April 6, 2018, in which she determined, among other things, that the dispute before her was arbitrable.  In particular, the Arbitrator stated that there was “insufficient and conflicting evidence as to the exact nature of the grievance.”^[3]  The Arbitrator added that she would not consider at arbitration classification issues excluded under the parties’ agreement.  Rather, the Arbitrator stated that she would consider how “duties are assigned to the [g]rievant, were they properly detailed, temporarily promoted, or compensated” in accordance with the parties’ agreement.^[4]

 

The Agency filed exceptions to the interim award on May 11, 2018.  The Union did not file an opposition to the Agency’s exceptions. 

 

1. Analysis and Conclusion:  Section 7121(c)(5) bars the grievance.

    

   The Agency acknowledges that its exceptions are interlocutory because the Arbitrator has not yet decided the merits of the grievance.^[5]  However, as the grievance raises^[6] a plausible jurisdictional defect concerning classification,^[7] we grant interlocutory review.^[8]

    

Under § 7121(c)(5), arbitrators lack jurisdiction to determine “the classification of any position [that] does not result in the reduction in grade or pay of an employee.”^[9]  As relevant, a grievance involves classification where it seeks the reclassification of an employee’s position based upon alleged classification errors, including where a grievance seeks a promotion due to the alleged performance of higher‑graded duties.^[10]   

 

Here, the Union’s grievance sought a promotion and backpay because the grievant allegedly had been working outside of her position description and was tasked with additional, higher‑graded duties.  As demonstrated by the requested remedy^[11] and regardless of how the Arbitrator characterized the dispute, the essential nature of this grievance concerned classification.^[12] 

 

Accordingly, we conclude that § 7121(c)(5) bars the grievance, and we set aside the interim award as contrary to law.^[13]

 

1. Decision

    

   We grant interlocutory review and set aside the interim award.

 

 

Member DuBester, dissenting:

 

                The majority errs in holding that the grievance concerns a classification matter within the meaning of § 7121(c)(5) of the Statute.1  Accordingly, because the Agency’s interlocutory exceptions to the Arbitrator’s interim award do not demonstrate that the award has a “plausible jurisdictional defect,”2 the Agency’s exceptions should be dismissed.

 

As relevant here, the Authority has long held that “where the substance of the grievance concerns whether the grievant is entitled to a temporary promotion under a collective-bargaining agreement because the grievant performed the established duties of a higher-graded position . . . the grievance does not concern the classification of a position within the meaning of        § 7121(c)(5).”3  In stark contrast, arbitrators lack jurisdiction when the essential nature of a grievance concerns the grade level of the duties assigned to and performed by a grievant in his or her permanent position, which would involve the classification of a position within the meaning of § 7121(c)(5).4  In prior decisions, the Authority has had relatively little difficulty in distinguishing between these two concepts.5

 

                The majority concludes that the Arbitrator was barred from considering the Union’s grievance because its “essential nature . . . concerned classification.”6  It bases this conclusion upon its finding that, as a remedy, “the Union requested that the grievant be promoted to a General Schedule-9 position and awarded backpay.”7

                But this perfunctory description wholly mischaracterizes the essential nature of the             Union’s grievance.  What the grievance actually requests is that the grievant “be made whole by compensating her retroactively and if any additional duties remain in effect, then the [grievant] should be promoted as prescribed in Article 14 [of the parties’ agreement].”8  Article 14, in turn, governs when and how an employee should receive a temporary promotion or detail.9  Thus, while the grievance requests that the grievant be promoted to a    GS-9 position, it is clear from this context that the request is for a temporary promotion contingent on the grievant continuing to be tasked with additional, higher‑graded duties outside of her position description.  It follows that the essential nature of the grievance does not concern the grade level of the duties assigned to, and performed by, the grievant in her permanent position.10

 

                The Arbitrator had no difficulty ascertaining the nature of the Union’s grievance.  She precisely states in her interim award that the merits phase of the arbitration will be confined to “issues of contractual obligations in how duties are assigned to the [g]rievant, were they properly detailed, temporarily promoted, or compensated in accordance with the requirement of the              [parties’ agreement].”11  Presumably wanting to extinguish any lingering doubt on this point, she explains that she is aware of the § 7121(c)(5) classification issue and will not consider any of the “excluded issues of classification.”12  Moreover, she advises the Union to “limit the arbitration to issues not excluded from coverage under the [parties’ agreement].”13

 

Considering the record in its entirety, it is clear that the Arbitrator correctly concluded that the grievance before her did not concern a classification matter within the meaning of § 7121(c)(5).  The single sentence selectively parsed from the grievance by the majority, when read in context of the entire grievance, simply does not bear the weight of the majority’s conclusion to the contrary.^[14]  Further, the majority fails to challenge the Arbitrator’s conclusion that during the merit’s phase of the arbitration she would not consider the classification issues and only address the parties’ contractual obligations.  Accordingly, I dissent.