The grievants work as non-supervisory firefighters. From 2007 to 2011, the grievants worked under either the lead-firefighter PD or the               non‑lead-firefighter PD. Both PDs classified the grievants in the same general schedule (GS)-7 grade level and      GS-0081 occupational series. However, employees working under the lead-firefighter PD were provided certain benefits that were not provided to employees working under the non‑lead-firefighter PD. The benefits permitted lead firefighters to:  (1) be titled as “sergeant”;^[1] (2) wear insignia denoting the sergeant rank; (3) act in the absence of a captain; and (4) be primary drivers of certain complex fire vehicles. 

 

                In the proceeding on the merits, the parties did not stipulate to, and the Arbitrator did not frame, any issues. As relevant here, the Agency submitted the following issue statement:  “Was the Agency required to bargain with the Union over the impact and implementation of its decision to change the [PDs] for [non-supervisory] [f]irefighters at [the Agency]?”^[2] 

 

 

 

                As part of its contrary‑to‑law argument, the Agency contends that the Arbitrator erred in finding that the sergeant title and the wearing of the sergeant insignia constituted conditions of employment.^[3] According to the Agency, § 7103(a)(14)(B) of the Statute – which states that “conditions of employment” do not include policies, practices, and matters “relating to the classification of any position”^[4] – excludes these two matters from the definition of conditions of employment because they relate to the classification of a position.^[5]   

The record shows that the Union’s argument before the Arbitrator concerned whether the Agency satisfied its contractual obligation to bargain before it implemented changes to conditions of employment.^[6] As the Agency was on notice of the Union’s argument, the Agency had the opportunity to raise any related defenses or responsive arguments before the Arbitrator, including its claim that the sergeant title and the wearing of the sergeant insignia are not conditions of employment.^[7] But the record does not demonstrate that the Agency made this claim to the Arbitrator. Under §§ 2425.4(c) and 2429.5 of the Authority’s Regulations, the Authority will not consider any evidence or arguments that could have been, but were not, presented to the Arbitrator.^[8] As the Agency could have, but did not, make this claim to the Arbitrator, we dismiss this exception under §§ 2425.4(c) and 2429.5.^[9]

 

                Moreover,the Agency contends that the award is contrary to § 7121(c)(5) because the grievance concerned a classification action that the Agency took when it replaced the non-supervisory-firefighter PDs with the joint PD and, thus, was not arbitrable.^[10] Although the Union argues that the Agency did not raise this issue before the Arbitrator,^[11] the record shows otherwise.^[12] Specifically, in the interim award discussed above, the Arbitrator stated that “the Agency raises the threshold claim[] that . . . the grievance protests an Agency classification action that is not arbitrable pursuant to 5 U.S.C. § 7121(c)(5)” – a claim that the Arbitrator explicitly rejected in the interim award.^[13] As the Agency raised this issue at arbitration, we find that the Agency’s exception regarding § 7121(c)(5) is not barred by §§ 2425.4(c) and 2429.5.

 

 

                The Agency asserts that the award is contrary to law in several respects. To assess these claims, the Authority reviews questions of law de novo.^[14] In applying the standard of de novo review, the Authority determines whether the arbitrator’s legal conclusions are consistent with the applicable standard of law.^[15] In making that determination, the Authority defers to the arbitrator’s underlying factual findings.^[16]

 

                As stated previously, the Agency contends that the award is contrary to § 7121(c)(5) because the grievance concerned a classification action that the Agency took when it replaced the non-supervisory-firefighter PDs with the joint PD and, thus, was not arbitrable.^[17] 

                Under § 7121(c)(5) of the Statute, a grievance concerning “the classification of any position which does not result in the reduction in grade or pay of an employee” is removed from the scope of the negotiated grievance procedure.^[18] The Authority interprets “classification” under § 7121(c)(5) in the context of 5 C.F.R. chapter 511, which defines classification of a position 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 (OPM)] under chapter 51 of title 5, United States Code.”^[19] Thus, the Authority has held that classification entails the identification of the appropriate title, series, grade, and pay system of a position,^[20] and classification matters are implicated “when the essential nature of a grievance is integrally related to the accuracy of the classification of the grievant’s position, e.g., where the substance of the dispute concerns the grade level of the duties assigned to and performed by the grievant.”^[21] 

 

                Consistent with the foregoing, the Authority has distinguished grievances regarding classification from those seeking impact-and-implementation bargaining over a change in classification.^[22] In particular, the Authority has held that grievances concerning the duty to bargain over the impact and implementation of the reclassification of positions do not concern classification within the meaning of § 7121(c)(5).^[23] 

                Here, there is no contention that the Union either grieved or sought to bargain over the title, series, grade, or pay systems of affected employees. Rather, the grievance concerns only whether the Agency should have engaged in impact-and-implementation bargaining with the Union before implementing the joint PD and eliminating the    lead-firefighter benefits.^[24] Thus, consistent with the principles set forth above, we find that the grievance did not involve classification within the meaning of § 7121(c)(5) of the Statute.^[25]

 

The Agency contends that the Arbitrator erred in finding that § 7116(d) does not bar the grievance.^[26] Specifically, the Agency argues that the Union filed two ULP charges based on subjects that are the same as or similar to subjects contained in the grievance, particularly the grievants’ driving assignments.^[27] 

 

The Authority will find that a grievance and a ULP charge involve the same issue when they arise from the same set of factual circumstances and advance substantially similar legal theories.^[30] Of particular relevance to the latter requirement, the Authority has held that an alleged statutory violation relies on a different legal theory than an alleged contract violation, and, as a result, a ULP charge alleging a violation of the Statute does not result in a § 7116(d) bar on a subsequent grievance alleging a breach of the parties’ agreement.^[31]

                Here, with regard to whether the grievance is barred by the 2011 ULP charge, the Arbitrator found,^[32] and the Agency acknowledges,^[33] that the Union filed the grievance on July 3, 2011, and that the Union filed the 2011 ULP charge on July 5, 2011. The copy of the 2011 ULP charge in the record, recording the “[d]ate [f]iled” as “7/5/11,” confirms the 2011 ULP charge’s filing date.^[34] Because the Union filed the grievance two days before it filed the 2011 ULP charge, the grievance is not barred from consideration under § 7116(d) by the 2011 ULP charge.

 

                Notwithstanding the evidence in the record, the Arbitrator’s findings, and the Agency’s acknowledgement, the dissent suggests that the Union filed the 2011 ULP on July 3, 2011, the same day that the grievance was filed.^[35] In support, the dissent relies on the date the Union official who submitted the 2011 ULP charge signed the charge.^[36] But the dissent cites no legal authority for the proposition that the date a filing is signed is the document’s filing date with the tribunal concerned. And common sense supports the notion that a filer may prepare and sign a document but not “file” it until later. More importantly, the Agency does not except to the Arbitrator’s factual finding as to the date of the 2011 ULP charge’s filing. Consequently, the dissent’s suggestion concerning the 2011 ULP charge’s filing date lacks merit.  

 

                With regard to whether the grievance is barred by the 2010 ULP charge, there is no dispute that the Union filed the 2010 ULP charge before it filed the grievance. But the Arbitrator characterized the grievance as alleging that the Agency violated its contractual duty to bargain by eliminating the lead-firefighter PD without giving the Union an opportunity to bargain over the impact and implementation of the change.^[37] The Arbitrator’s conclusion that the Agency violated this contractual duty was consistent with this characterization. The Arbitrator’s conclusion also gives no indication that the Union raised, or that the Arbitrator intended to resolve, an issue regarding a statutory duty to bargain. 

 

                Conversely, the record shows that the               2010 ULP charge alleged that the Agency violated various provisions of the Statute, including its statutory duty to bargain.^[38] The 2010 ULP charge did not allege a contractual duty to bargain or mention the parties’ agreement at all.^[39] 

 

                The legal analyses required to resolve statutory duty-to-bargain issues differ from the analyses required to resolve contractual duty-to-bargain issues. For example, arbitrators are required to apply statutory burdens of proof when resolving an alleged ULP.^[40] In contrast, and unless a contract provision mirrors the Statute – not the case       here – in contractual duty to bargain cases, “the issue of whether the parties have complied with the agreement becomes a matter of contract interpretation for the [a]rbitrator.”^[41] In those circumstances, the Authority applies the deferential essence standard to the arbitrator’s contract interpretation.^[42] 

 

 

                The dissent’s contrary conclusion – that the 2010 ULP charge bars the grievance – is without support. In this regard, the dissent finds that, in various ways, the Union “concedes” that the grievance and the                  2010 ULP charge raise the same issues.^[43] But there is no Union “concession” either in proceedings below or now before the Authority. Quite to the contrary, the Union argues vigorously before the Authority that the grievance and the 2010 ULP raise different issues. And the Agency makes no claim, implicit or explicit, that a concession was ever made. 

 

                Moreover, the Union’s actions on which the dissent relies neither reflect a “concession” nor prove that the grievance is barred by § 7116(d). The dissent finds significance in the Union’s agreement to withdraw its 2011 ULP charge.^[44] But the Union apparently thought better of the matter and never withdrew the                 charge – which remained pending with the FLRA’s Regional Office for months until it was finally dismissed.^[45] And the Union’s description of its 2010 ULP charge in its 2011 ULP charge, cited by the dissent,^[46] does not alter the fact that the issues the 2010 ULP charge actually raised are different from the issues raised in the grievance. As for the dissent’s assertion that the Union does not argue before the Authority that the 2010 ULP charge “raised a different issue or theory” than the grievance,^[47] the dissent is simply wrong. The Union expressly argues that “the triggering events, factual circumstances, [and] legal theories” of the grievance and the 2010 ULP charge “differed.”^[48] Finally, the dissent’s reliance on the Union’s request for a status quo ante remedy in the grievance – as proof that the grievance raised ULP issues – ignores Authority precedent finding status quo ante relief an appropriate remedy for contract violations.^[49] Put simply, the dissent’s claim that the grievance is barred by § 7116(d), advancing arguments that even the Agency does not make, is unfounded.

 

 

 

The Agency asserts that the award fails to draw its essence from the parties’ agreement because the subject matter of the grievance is “covered by” Article 17 of the parties’ agreement and is, therefore, not subject to bargaining.^[50]  

 

The “covered-by” doctrine applies as a defense to an alleged failure to satisfy a statutory bargaining obligation.^[51] Where a grievance involves only a dispute as to whether a contractual – as opposed to a                statutory – bargaining obligation has been violated, “the issue of whether the parties have complied with the agreement becomes a matter of contract interpretation for the arbitrator.”^[52] 

 

                The Arbitrator discussed only a contractual, not a statutory, bargaining obligation. Although the Union’s post-hearing brief to the Arbitrator made a passing reference to “relevant labor law,”^[53] the rest of its brief, as well as the grievance, involved only a claim that the Agency failed to meet its bargaining obligation under the parties’ agreement.^[54] Thus, there is no basis for concluding that a statutory duty to bargain was at issue here, and the Agency’s reliance on the “covered-by” doctrine is misplaced.^[55] 

                The Agency also argues that the award fails to draw its essence from the parties’ agreement because the Arbitrator’s interpretation of Article 17 is implausible and evidences a manifest disregard of the agreement.^[56] According to the Agency, Article 17, Section 2 requires the Agency to give the Union notice and an opportunity to bargain over changes to a PD where there is a change in position classification, but Article 17, Section 1 contains no such requirement where changes to a PD do not result in reclassification.^[57] The Agency contends that the Arbitrator should have applied Article 17, Section 1 because the change to the PD did not result in reclassification of the firefighters’ positions.^[58]   

 

In reviewing an arbitrator’s interpretation of a collective-bargaining agreement, the Authority applies the deferential standard of review that federal courts use in reviewing arbitration awards in the private sector.^[59] Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the collective-bargaining agreement when the appealing party establishes that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective-bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement.^[60] 

 

                Applying the foregoing, the Agency’s assertions provide no basis for finding the award deficient. As an initial matter, the Arbitrator based his finding of a contractual obligation to bargain on Article 4, Section 2, not Article 17.^[61] In addition, the Arbitrator’s determination that Article 17, Section 1 of the parties’ agreement does not address elimination of PDs is not an implausible interpretation of this provision’s language. The provision addresses a “[PD that] is revised to reflect significant changes,”^[62] not a PD that is eliminated. Further, nothing in the language of Article 17 prohibits the Agency from bargaining with or providing notice to the Union over any changes to a PD. Thus, in these circumstances, we find that the Agency has failed to demonstrate that the Arbitrator’s interpretation of Article 17 is implausible or evidences a manifest disregard of the agreement. Accordingly, we deny the Agency’s essence exception.

                The Agency also argues that the Arbitrator exceeded his authority by:  (1) failing to resolve an issue submitted to arbitration – namely, whether the changes made to the grievants’ PDs were “de minimis”;^[63] and         (2) finding a past practice based on matters that the Agency alleges are excluded from the grievance-arbitration procedure – namely, the priority in driving complex fire vehicles, the title of sergeant, and wearing the sergeant insignia.^[64]

Arbitrators exceed their authority when they fail to resolve an issuesubmitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority, or award relief to those who are not encompassed within the grievance.^[65] When an arbitrator fails to frame any issues, but the award is directly responsive to the parties’ submitted issue(s), the Authority denies exceptions contending that arbitrators exceeded their authority by failing to resolve an issue submitted to arbitration.^[66]

                Regarding whether the Arbitrator failed to resolve an issue submitted to arbitration, as addressed above, the only issue before the Arbitrator was whether the Agency met its contractual obligation to bargain.^[67] An analysis of whether a change in conditions of employment is greater than de minimis is required in cases involving the duty to bargain under the Statute.^[68] As the issue before the Arbitrator did not involve the duty to bargain under the Statute, he was not obligated to address and resolve the    de-minimis issue, and we reject the Agency’s argument regarding that issue.^[69]

The Agency also claims that the Arbitrator disregarded a specific limitation on his authority by relying on certain evidence.^[70] Specifically, the Agency argues that the evidence pertaining to the driving assignments is barred under § 7116(d) because this matter was the subject of one of the ULP charges filed by the Union, and that the evidence pertaining to the sergeant title and insignia is barred under § 7121(c)(5) because it concerns classification matters.^[71] Both arguments are premised on the Agency’s claims that §§ 7116(d) and § 7121(c)(5) bar the grievance. Because we have rejected those claims, we reject this one as well.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

---