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  • United States, Department of the Treasury, Internal Revenue Service, South Texas District (Agency) and National Treasury, Employees Union, Chapter 52 (Union)

United States, Department of the Treasury, Internal Revenue Service, South Texas District (Agency) and National Treasury, Employees Union, Chapter 52 (Union)

[ v60 p598 ]

60 FLRA No. 120

UNITED STATES
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
SOUTH TEXAS DISTRICT
(Agency)

and

NATIONAL TREASURY
EMPLOYEES UNION
CHAPTER 52
(Union)

0-AR-3880

_____

DECISION

January 21, 2005

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.      Statement of the Case

      This matter is before the Authority on an exception to an award of Arbitrator I.B. Helburn 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 exception.

      The Arbitrator found that the matter was arbitrable, and that the grievant was not entitled to a retroactive promotion, back pay and interest for the performance of higher-graded duties. Accordingly, the Arbitrator denied the grievance.

      For the following reasons, we deny the Agency's exception.

II.      Background and Arbitrator's Award

      In 1995, the grievant, a GS-9 revenue agent, moved to another branch of the Agency for a rotational assignment as a GS-9 tax auditor coordinator/classifier. The grievant remained in this position from 1995 to 2000. Upon learning that there was a GS-11 employee in another district performing duties similar to her own, the grievant spoke to her supervisors about the position being upgraded.

      In August 2000, the grievant was selected for a position as a GS-11 revenue agent. Shortly thereafter, the Union filed a grievance claiming that the grievant had performed higher-graded duties from February 5, 1996 through August 24, 2000 and was entitled to back pay, interest and benefits. The grievance was denied, and the Union invoked arbitration.

      The Arbitrator accepted the issues presented by both parties as follows:

[presented by the Union]:
Whether the grievant . . . performed the duties of a Grade 11, Program Analyst, or Office Examination Coordinator, for the period February 5, 1996, through August 24, 2000 pursuant to Article 16. If so, what is the appropriate remedy?[]
[presented by the Agency]:
Does this grievance constitute an inarbitrable classification matter?
Was the grievance barred in whole or in part by the Grievant's failure to file same in a timely manner?
Did the grievant prove by preponderant evidence that she performed higher graded duties within the meaning of NORD V, Article 16? If so, did she demonstrate that she performed said duties at the level of responsibility properly expected of that position?
If the Grievant performed higher graded duties, did she prove by preponderant evidence that she did so for 25% or more of her direct time during any/each discreet four month period between February 5, 1996 and August 24, 2000?[].

Id. at 9.

      First, the Arbitrator found that the grievance was a "higher-graded duties grievance" and not a classification matter. Id. at 19. Citing Laborers' Int'l Union of N. America, Local 28, 56 FLRA 324 (2000), the Arbitrator found that "the concerns expressed by the grievant when she held the position do not make the grievance filed after she was promoted a classification issue[.]" Id. at 18. Further, the Arbitrator found that the grievance concerned the higher-graded duties of a previously classified position, as the Union referred to the specific position description of the GS-11 employee in the other office when arguing that the grievant was performing [ v60 p599 ] higher-graded duties. The Arbitrator also found that "[i]t does not matter that the period of time involved is 4 ½ years." Id. at 19. Therefore, the Arbitrator determined that the grievance was arbitrable.

      The Arbitrator also determined that the grievance concerned a continuing violation and was timely filed under the parties' agreement.

      On the merits, the Arbitrator found that "the agreement clearly states that in order to be eligible for a temporary promotion, [higher-graded] duties must have been performed for at least 25% of the direct time." Id. at 21. The Arbitrator noted that in order to establish that the grievant was performing higher-graded duties, she must first show that the duties she performed are unique to the higher-grade, and that those "grade-defining" duties were actually performed at least 25% of the time. Id. at 20. The Arbitrator concluded that a comparison of the duties performed by the grievant and the GS-11 employee in another district established that the GS-11 duties included higher-level duties and contacts, and that the two employees did not have the same level of authority and responsibility. The Arbitrator also found that, although the grievant and the GS-11 employee had some duties in common, these duties were not unique to the GS-11 position and therefore were not "grade defining duties." Id. at 24. Finally, the Arbitrator found that the grievant's work on special projects was not unique to a higher grade and, moreover, the evidence did not establish that those duties involved 25% of the grievant's time. As such, the Arbitrator denied the grievance.

III.      Positions of the Parties

A.      Agency's Exception

      The Agency claims that the grievance is not arbitrable pursuant to 5 U.S.C. § 7121(c)(5). In this regard, the Agency argues that the Arbitrator should not have addressed the merits of the grievance because it concerned the permanently assigned duties of a GS-9 employee.

      Citing Laborers Int'l Union, the Agency argues that the Arbitrator erroneously determined that the matter was arbitrable based upon the nature of the relief sought by the Union. In this regard, the Agency claims that "[u]nder the circumstances . . . a four-and-one half years assignment with the expectation that said assignment would have continued further could only be considered a permanent assignment." Exception at 8. The Agency asserts that, based on a totality of the evidence, the grievant was actually challenging the classification of the duties of her permanent position.

B.      Union's Opposition

      The Union asserts that the "Arbitrator fully explored the issue of classification in his Award after it was raised by the Agency during the hearing and in its post-hearing brief." Opposition at 2. According to the Union, the Agency's arguments are "mere disagreement with [the] Arbitrator . . . ." Id. at 3-4.

      The Union also claims that Arbitrator did not rely upon the type of relief requested by the Union in deciding that the grievance was arbitrable.

      Further, the Union asserts that it was not disputed that the grievant's position was rotational, but that the Agency "failed to treat [the grievant's] assignment as a rotation and never rotated [the grievant] out of the position." Id. at 3.

IV.      Analysis and Conclusions

      The Authority reviews questions of law raised by exceptions to an 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 determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id. [n2] 

      Section 7121(c)(5) of the Statute precludes any grievance or arbitration award concerning the classification of a position that does not result in a reduction in grade or pay. The Authority has construed the term "classification" in § 7121(c)(5) in the context of 5 C.F.R. § 551.101(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 Office of Personnel Management (OPM) under chapter 51 of title 5, United States Code." See, e.g., AFGE, Local 2025, 50 FLRA 39, 42 (1994).

      The Authority has distinguished between two situations in assessing whether a grievance concerns the classification of a position within the meaning of § 7121(c)(5) of the Statute. Where a grievance concerns the grade level of the duties assigned to, and performed by the grievant, the grievance concerns the classification of a position. See Social Security Administration, Local 1923, AFL-CIO, 31 FLRA 933, 936 (1988). However, where a grievance concerns whether the grievant is entitled to a temporary promotion by reason of having performed the established duties of a higher-graded position, the grievance does not concern the classification of a position. See United States [ v60 p600 ] Department of the Navy, Naval N.C., 42 FLRA 795, 801-02 (1991).

      In this case, the Arbitrator did not evaluate the grade level of the duties permanently assigned to and performed by the grievant to determine the appropriate classification of her position. Rather, the Arbitrator addressed whether the grievant performed the established duties of a higher graded position. See United States Dep't of the Air Force, 81st Training Wing, Keesler Air Force Base, Miss., 60 FLRA 425, 428 (2004).

      In this regard, the Arbitrator found that the grievance concerned whether the grievant performed the higher-graded duties encompassed in a specific position description of a GS-11 employee in another district. The Arbitrator found that, in order to prove entitlement to a temporary promotion, the grievant had to establish that she performed duties similar or identical to those of the previously classified GS-11 position, that those duties were unique to the GS-11 position and therefore "grade-defining," and that the grievant performed the duties unique to the GS-11 position at least 25% of her "direct time." Award at 22. In reaching the determination that the grievant was not entitled to a temporary promotion, the Arbitrator compared the grievant's position description and duties to the GS-11 employee's position description and duties. The Arbitrator found that the grievant did not perform the same level of duties, have "the same degree of interaction with higher level management [as the GS-11 employee]," or the same level of authority and responsibility. Id. at 24. In addition, the Arbitrator found that the duties that the grievant and the GS-11 employee were both performing were not unique to the GS-11 position.

      Based on this analysis, the Arbitrator determined that the grievant was not entitled to a temporary promotion for performing higher-graded duties while on the rotational assignment and denied the grievance. Thus, the Arbitrator's analysis was based not on the grade level of the duties permanently assigned to and performed by the grievant but, rather, on whether the grievant performed the duties of the GS-11 position entitling her to a retroactive temporary promotion under the parties' agreement.

      Based on the foregoing, we find that the Arbitrator did not make a classification determination contrary to § 7121(c)(5) of the Statute. See, e.g., NTEU, Chapter 73, 57 FLRA 412, 414 (2001). Accordingly, we deny the exception.

V.      Decision

      The Agency's exception is denied.

Dissenting opinion of Chairman Cabaniss:

      I write separately to explain why the majority decision fails when it attempts to hold that this case does not involve a matter excluded from the jurisdiction of arbitrators and the Authority because the case involves a classification determination and thus falls within the exclusion established by § 7121(c)(5).

      What the Union, Arbitrator and the majority fail to account for is the exact problem I discussed in my separate opinion in Laborers' Int'l Union of N. America, Local 28, 56 FLRA 324, 327-28 (2000) (LIUNA): a temporary promotion cannot be based upon duties that are not temporarily assigned to an employee. The Union, in marked distinction to the Agency's arguments (which are based upon LIUNA), argues that "[t]he difference between a classification issue and a higher-graded duties issue `lies in the type of promotion being sought'." Award at 10. That clearly is wrong, as even the majority opinion in LIUNA acknowledged that the Authority does not ignore (as it seems to be doing here) the fact that questions tied to a position's permanent position do not constitute a valid temporary promotion claim. LIUNA at 326 n.2.

      The Arbitrator, in not paying adequate attention to this issue, goes on to state that "the concerns expressed by the grievant when she held the position do not make the grievance filed after she was promoted a classification issue[.]" Award at 18. Unfortunately for the Arbitrator, that's the wrong answer where those "concerns expressed by the grievant when she held the position" pertain to the duties permanently assigned to the grievant. And, in that regard, there is no basis in the record, and none found by the Arbitrator or argued by the Union, for finding that this temporary promotion is based on anything other than the grievant's permanent duties of her position. The Arbitrator noted the Union's argument to be the following:

Classification issues involve permanent, forward-looking promotions; higher-graded duties issues involve retroactive, backward-looking promotions. Goldberg [the grievant] initially sought a permanent upgrade, but when th[at] did not happen, upon her promotion to a Grade 11 position she grieved the Agency's failure to temporary promote her. The grievance seeks only a retroactive remedy, does not seek a reclassification and is therefore arbitrable.

Award at 10 (emphasis added). There is nothing in the record to even hint that the grievant is now attempting to rely on duties temporarily assigned her to justify a temporary [ v60 p601 ] promotion. Both the Union and the Arbitrator have acknowledged by the above quotes that when the grievant was unable to get her position permanently upgraded, based upon the duties permanently assigned her, it is acceptable to re-examine those exact same duties she had been performing, for approximately four and one-half years, to see if she could be given a temporary promotion.

      This is the same outcome the LIUNA decision disavowed letting happen, yet here we are again, permitting an employee to receive a temporary promotion for duties permanently assigned the employee, primarily because the employee has deleted the phrase "permanent promotion" in her demand and substituted for it the phrase "temporary promotion." For these reasons, I dissent.

Footnote # 1 for 60 FLRA No. 120 - Authority's Decision

   Chairman Cabaniss' dissenting opinion is set forth at the end of this decision.

Footnote # 2 for 60 FLRA No. 120 - Authority's Decision

   The Authority has previously addressed and resolved an exception regarding arbitrability filed by the agency where the agency was the prevailing party on the merits in the underlying arbitration. See SSA, Mid-America Program Serv. Center, 26 FLRA 292 (1987).