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60 FLRA No. 16
SOCIAL SECURITY ADMINISTRATION
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
LOCAL 1923
(Union)
0-AR-3761
_____
DECISION
June 30, 2004
_____
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Richard Trotter 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 grievant was entitled to a retroactive temporary promotion and back pay for the performance of higher-graded duties, and directed the Agency to pay the Union reasonable attorney fees.
For the reasons that follow, we set aside the award.
II. Background
To streamline operations and give better customer service, the Agency created a new position, the Benefit Technical Examiner (BTE), which merged the duties of the Benefit Authorizer and Inquiry Specialist (IS). Employees who occupied the IS position could remain in their positions, but as positions became vacant through attrition, they would not be filled. A memorandum of agreement (MOU) negotiated by the parties provided, as relevant here, that employees "choosing to remain in the IS position would be assigned the residual IS workload . . . ." Award at 3.
The grievant, a GS-9 IS, was assigned the duties of a GS-10 IS employee who retired. Approximately two years later, the Union filed a grievance seeking a promotion for the grievant to the GS-10 position from the time that the grievant began performing the duties of the [ v60 p63 ] retired employee, with back pay and interest. The issue was not resolved, and the parties submitted the grievance to arbitration.
The Arbitrator framed the issues as follows:
1. Whether the grievance is arbitrable because it concerns an improper classification issue?
2. Whether the Agency violated Article 26,16 of the Master Labor Agreement, law, rule or regulation when it constructively detailed the grievant to the [GS-10 IS] position from July 2000 to present without proper compensation denying the Grievant pay for higher work? And if so, what is the remedy.
Id. at 3-4. [n1]
As an initial matter, the Arbitrator rejected the Agency's argument that the grievance concerned a classification issue and was not arbitrable under § 7121(c)(5) of the Statute. [n2] The Arbitrator relied upon Authority decisions cited by the Union where the Authority found that grievances involving the performance of higher-graded work and requesting temporary promotions were arbitrable. The Arbitrator found that "[i]n view of the fact that significant case law was presented by the Union in support of its contention that the grievance is arbitrable the arbitrator finds the grievance is arbitrable and thus comes within the ambit of Article 26, Section 16." Id. at 9.
Next, the Arbitrator addressed whether the grievant performed the "grade controlling" duties of the GS-10 IS position. Id. The Arbitrator found that "all" of the duties of the retired GS-10 employee were assigned to the grievant as of July 2000. Id. (emphasis in original). In this regard, the Arbitrator found that the Agency did not present any evidence to contradict the fact that no one replaced the retired GS-10 employee and the Agency conceded it was phasing out and not replacing the GS-10 IS employees. Id. at 9. Further, the Arbitrator found that "the evidence presented at the hearing demonstrates that the duties of the GS-10 fell to the Grievant since there are no GS-10 left to perform them . . . yet the necessity of performing the duties still remains." Id. at 10.
In sum, the Arbitrator found that:
(1) The accretion of duties is a recognized basis for a temporary promotion for higher grade of duties[.]
(2) That higher graded duties are grade controlling when performed in excess of 25% of the time even if an employee is performing other work at a lower grade the rest of the time.
(3) That the Grievant's supervisors were and are aware of the fact that the Grievant performed the grade controlling higher grade work 25% of the time.
(4) That the Grievant was assigned or directed to perform the duties of the post in question.
Id. at 10-11.
As a remedy, the Arbitrator awarded the grievant a retroactive temporary promotion with back pay to the GS-10 IS position as of July 2000. The Arbitrator also directed the Agency to "make whole[] the Grievant with interest for performing [the duties of the GS-10 position]." Id. at 11. Further, the Arbitrator directed the Agency to "pay the Grievant back pay with interest and front pay at the grade 10 level until her job is reclassified or the duties she is performing are removed[,]" and awarded the Union reasonable attorney fees. Id.
III. Positions of the Parties
A. Agency's Exceptions
First, the Agency argues that the award is contrary to § 7121(c)(5) because it involves a classification matter. In this regard, the Agency asserts that the grievance and the award concerned the grade level of the duties permanently transferred to the grievant when the GS-10 employee retired. In addition, the Agency asserts that this is "clearly a proper classification matter" because whenever an employee in a retiree's position left, the employee's duties were permanently assigned to other employees. Exceptions at 10.
Further, the Agency claims that the award fails to draw its essence from the parties' collective bargaining agreement. The Agency argues that because Article 24, Section 2D(5) "tracks the language of 5 U.S.C. § 7121(c)(5)" the grievance is excluded from the collective bargaining procedure. Id. at 13. [n3] [ v60 p64 ]
Finally, the Agency argues that "[n]otwithstanding the evidence and his own finding, the Arbitrator made the illogical and unsupported assumption that [the retiree in the GS-10 position] was performing grade-controlling GS-10 duties when she retired." Id. at 14. The Agency claims that the award is based on a non-fact because "[b]ut for that erroneous assumption, the Arbitrator would have reached a different conclusion." Id.
B. Union's Opposition
The Union argues that the case does not involve a classification matter because the grievant was seeking a temporary retroactive promotion. The Union claims that because "the Grievant was assigned to a properly graded and classified [GS-9] position and has accreted the duties of a properly graded and classified [GS-10 employee], upon her termination[,]" the grievance does not concern a classification matter. Opposition at 8. Further, the Union claims that the Agency did not present any evidence that the duties of the GS-10 "have been permanently assigned to anyone officially." Id. at 9.
The Union also asserts that the Authority should not find the award deficient based on a non-fact, because the issue of whether the grievant actually performed the GS-10 duties is a factual matter that was disputed at arbitration. [n4]
IV. 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. 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 & 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.
Under § 7121(c)(5) of the Statute, grievances concerning "the classification of any position which does not result in the reduction in grade or pay of an employee" are precluded by law from coverage by a negotiated grievance procedure. Thus, an arbitrator is barred from resolving any grievance concerning the classification of a position that does not result in the reduction in grade or pay of an employee.
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 the Office of Personnel Management under chapter 51 of title 5, United States Code." See AFGE, Local 987, 37 FLRA 386, 389 (1990); Dep't of the Army, New Cumberland Army Depot, 21 FLRA 968, 969-70 (1986). 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. Similarly, where the substance of a grievance concerns the accretion of higher-graded duties to an existing position, the grievance concerns a classification matter. See AFGE Local 1858, 59 FLRA 713 (2004) (AFGE Local 1858). Where, however, the substance of a grievance concerns whether a grievant is entitled to a temporary promotion under a collective bargaining agreement by reason of having temporarily performed the duties of a higher-graded position, the grievance does not concern the classification of a position within the meaning of § 7121(c)(5) of the Statute. United States Dep't of the Navy, Naval Aviation Depot, Marine Corps Air Station, Cherry Point, N.C., 42 FLRA 795 (1991).
In this case, it is undisputed that, when the incumbent in the GS-10 position retired, her duties were assigned to the grievant's position. [n5] The Union concedes that the grievant "accreted the duties of a properly graded and classified [GS-10 employee], upon her termination." Opposition at 8. Although the grievant later sought a temporary promotion to the GS-10 IS position, the Authority has recognized that a mere claim that a grievant is entitled to a temporary promotion will not cure a grievance that pertains to temporary duties assigned to the grievant's permanent position. See LIUNA, Local 28, 56 FLRA 324, 326 n.2 (2000). As explained below, we believe that the Arbitrator's findings demonstrate that the grievance concerned a classification matter and, as such, that the award is inconsistent with § 7121(c)(5) of the Statute.
In addressing the grievance, the Arbitrator initially examined the grade-controlling duties of the retired GS-10 [ v60 p65 ] IS employee's position. The Arbitrator found that the grade-controlling duties of that position were assigned to and performed by the grievant more than 25 percent of the grievant's time. In making these factual findings, the Arbitrator then concluded that "[t]he accretion of duties is a recognized basis for a temporary promotion for higher grade of duties[.]" Award at 10. The Arbitrator's conclusion on this point is incorrect. As the Authority explained more fully in AFGE Local 1858, and cases cited therein, a claim that an accretion of higher-graded duties justifies a temporary promotion is a matter that concerns classification under § 7121(c)(5). As such, it is excluded from the scope of a negotiated grievance procedure.
It is apparent in this case that the Arbitrator addressed the duties that were permanently assigned to the grievant's position and the grade level of those duties, following the elimination of the GS-10 IS position. The Authority previously has held that grievances concerning the grade level of duties assigned to permanent positions relate to the classification of those positions and may not be grieved under § 7121(c)(5) of the Statute. See AFGE, Local 987, 52 FLRA 212, 215 (1996) (arbitrator correctly determined that grievance, claiming entitlement to temporary promotion under parties' agreement, concerned grade level of duties assigned to grievant's permanent position, and, as such, was not arbitrable because it concerned a classification matter under § 7121(c)(5)). The Authority has also consistently found that promotions due to accretion of duties constitute reclassifications. See, e.g., AFGE Local 1858. We reach the same result here.
The Arbitrator's remedy provides additional support for finding that the Arbitrator improperly decided a classification matter under § 7121(c)(5). In addition to ordering back pay, the Arbitrator ordered the Agency to temporarily promote the grievant to the GS-10 position and to pay her "front pay at the grade 10 level until her job is reclassified or the duties she is performing are removed." Award at 11. This remedy indicates that, in the Arbitrator's view, the performance of higher-graded GS-10 IS duties by the grievant was of an on-going, permanent nature, thereby defeating any claim that the performance of GS-10 duties was for a temporary period of time. Consistent with the reasons expressed above, we find the award deficient. [n6]
V. Decision
The award is set aside.
APPENDIX
Article 26, § 16
(A) When employees are temporarily assigned to a position of a higher grade for a period in excess of 30 days, the assignment must be made via temporary promotion effective the first day of the assignment.
(B) For the purposes of [this] section when dealing with temporary assignments to a position or higher grade for a period [in] excess of 30 days, a General Schedule employee who performs the grade-controlling [duties] takes on a higher graded position for at least 25% of his time, or a wage grade employee who performs higher-graded duties on a regular and recurring basis, shall be temporarily promoted.
Award at 7.
Article 24, § 2D
. . . .
(D) Grievances on the following matters are excluded from the scope of this procedure:
. . . .
5. the classification of any position which does not result in the reduction in grade or pay of an employee.
Exceptions at 12.
Footnote # 1 for 60 FLRA No. 16 - Authority's Decision
Article 26, Section 16 of the parties' collective bargaining agreement is set forth in the appendix.
Footnote # 2 for 60 FLRA No. 16 - Authority's Decision
Section 7121(c)(5) provides that grievance procedures do not apply to "the classification of any position which does not result in the reduction in grade or pay of an employee."
Footnote # 3 for 60 FLRA No. 16 - Authority's Decision
Article 24, Section 2D(5) of the parties' agreement is set forth in the appendix.
Footnote # 4 for 60 FLRA No. 16 - Authority's Decision
The Union does not address the Agency's allegation that the award fails to draw its essence from the parties' agreement.
Footnote # 5 for 60 FLRA No. 16 - Authority's Decision
Although the parties dispute whether all of the duties of the retired employee were assigned to the grievant, the Arbitrator found this to be the case, and we adopt that factual finding.
Footnote # 6 for 60 FLRA No. 16 - Authority's Decision
In light of this decision, we do not address the Agency's remaining exceptions.