71 FLRA No. 150                                                                                                                                                              

 

UNITED STATES

DEPARTMENT OF THE TREASURY

INTERNAL REVENUE SERVICE

(Agency)

 

and

 

NATIONAL TREASURY

EMPLOYEES UNION

CHAPTER 97

(Union)

 

0‑AR‑5513

 

_____

 

DECISION

 

June 2, 2020

 

_____

 

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

(Member DuBester dissenting)

 

1. Statement of the Case

 

In this case, we remind the                          federal labor‑management community that a grievance allegedly seeking a temporary promotion is a non‑arbitrable classification matter under § 7121(c)(5) of the Federal Service Labor‑Management Relations Statute (the Statute)^[1] when, as relevant here, the assigned duties providing the basis for the claim were not different from duties the employee performed in his or her permanent position.  

                                                                                                                             

Arbitrator Samuel A. Vitaro issued an award finding that the Union’s grievance was arbitrable because it sought a temporary promotion.  The main issue before us is whether the award is contrary to law.  Applying the clarified standards set forth in U.S. Small Business Administration (SBA I),^[2] we find that § 7121(c)(5) bars the grievance, and we set aside the award in its entirety.

 

II.            Background and Arbitrator’s Award

 

Within the Agency’s “[e]ntity section,”    General Schedule (GS)‑4 and ‑6 employees process amended tax returns known as “1040x.”^[3]  The entity employees are all assigned a random batch of twenty‑five 1040x tax returns to complete before moving to the next assignment.

 

The Union filed a “[m]ass” grievance alleging that GS‑4 employees (grievants) were performing GS‑6 duties at least 25% of the year without compensation.^[4]  As a remedy, the Union requested that the grievants receive a retroactive temporary promotion for 120 days “per [affected] year,” consistent with the parties’ collective‑bargaining agreement.^[5]  The parties were unable to resolve the grievance, and the dispute proceeded to arbitration. 

 

The Arbitrator assessed whether the grievance concerned a non‑arbitrable classification matter under § 7121(c)(5).  He noted that the position descriptions for GS‑4 and ‑6 employees “contain[ed] the same language [for the] major duties.”^[6]  However, the Arbitrator found that the grievance concerned a temporary‑promotion claim under the parties’ agreement because the grievants performed duties that were in the GS‑6 position description; therefore, the grade level of the duties was already established.  On the merits, the Arbitrator noted the Agency’s argument that the grievants in both GS‑4 and GS‑6 grades performed 1040x work, but the GS‑4s were under less rigorous standards than GS‑6 employees, for example a GS‑4 employee would need more “nurturing or assistance” while a GS‑6 employee would be more self‑sufficient.^[7]  But the Arbitrator relied on an email by an Agency representative (who had retired in 2008)^[8] stating that “1040x work is GS‑6 level.”^[9]  Accordingly, the Arbitrator concluded that the grievants qualified for a temporary promotion under the parties’ agreement. 

 

On June 3, 2019, the Agency filed an exception to the award, and the Union filed an opposition on July 22, 2019.

 

 

 

 

 

 

 

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

 

The Agency argues that the grievance and award are contrary to § 7121(c)(5) of the Statute.^[10]  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.”^[11]  The Authority has construed “classification” 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.”^[12]  But the Authority has held that an employee’s entitlement to a temporary promotion under a collective‑bargaining agreement or agency regulation does not concern classification within the meaning of § 7121(c)(5).^[13]  As relevant here, to present an arbitrable temporary‑promotion claim under SBA I, a party must offer evidence that the allegedly reassigned duties were different from the duties of the lower‑graded employee’s permanent position.^[14]  We exercise our discretion to review the record and determine whether the dispute concerns classification under § 7121(c)(5) or a temporary promotion.^[15]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The Union asserts that 1040x work is solely GS‑6 work^[16] because of an Agency email stating that “1040x work is GS‑6 level.”^[17]  And the Union contends that because the grievants’ “job title and description” were different from those of GS‑6 employees, the grievants were “engaging in higher[‑]graded duties.”^[18]  Although the GS‑4 employees’ performance of those duties was evaluated under a less rigorous standard,^[19] all entity employees were assigned the same work, 1040x tax returns,^[20] and the position descriptions for GS‑4 and GS‑6 “contain[ed] the same language [for the] major duties.”^[21]  In this regard, the Arbitrator did not find that the assigned duties were different from the duties of the lower‑graded employees’ permanent position – only that both GS‑4 and ‑6 employees performed 1040x work.^[22]  As the clarified SBA I standard for establishing a temporary‑promotion claim was neither discussed in the award, nor met under the facts of this case,^[23] § 7121(c)(5) bars the grievance, and we set aside the arbitration award as contrary to § 7121(c)(5).^[24]

 

IV.          Decision

 

                We set aside the award.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Member DuBester, dissenting:

 

                In my dissenting opinion in U.S. Small Business Administration (SBA I),1 I warned that the majority’s newly-devised test for assessing whether a grievance involves a classification matter under § 7121(c)(5) of the Federal Service Labor-Management Relations Statute (the Statute)2 “includes consideration of issues that have nothing to do with classification.”3  And in my subsequent dissenting opinion in U.S. Small Business Administration (SBA II),4 I noted that the majority’s “deeply flawed” test “adopts a presumption, without explanation, that temporary-promotion grievances involve ‘classification’ if a union fails to support its temporary-promotion claim.”5  On this basis, I cautioned that the majority’s test improperly “conflat[es] arbitrability and merit issues” without either “a legal [or] a logical explanation.”6 

 

It is hard to imagine a better illustration of these obvious flaws than the majority’s decision in the case before us today.

 

                Although barely mentioned in the majority’s analysis, the Arbitrator based his conclusion that the grievants were entitled to temporary promotions upon Article 16, Section 2(A)(2) of the parties’ bargaining agreement, which sets forth the conditions under which the Agency is required to “temporarily promote” an employee.7  Framing the issues before him according to this provision’s requirements, the Arbitrator considered whether the Union had proved, by a preponderance of the evidence, that:

 

(1) each [G]rade 4 [employee] performed higher graded duties for 25 percent or more of his/her direct time; (2) each employee performed such higher graded duties at a level of skill and responsibility properly expected of a [G]rade 6 [employee]; (3) each employee meets the minimum [Office of Personnel Management] qualifications for the promotion to the next higher grade; and (4) each employee meets time and grade requirements for promotion to the next higher grade.8

 

After weighing the evidence, the Arbitrator concluded that the Union had proven each element with respect to a number of the grievants.

 

                The Arbitrator also concluded that the grievance was not barred by § 7121(c)(5).9  In addition to the fact that the Union’s grievance sought enforcement of a provision in the parties’ agreement specifically governing entitlement to temporary promotions, the Arbitrator noted that the Union had not “claimed, either in its grievance or testimony, that the GS-4 positions were misclassified or that the [g]rievants should be permanently promoted.”10

 

                Notwithstanding the Arbitrator’s detailed findings, the majority concludes that the Union’s grievance is jurisdictionally barred by § 7121(c)(5) of the Statute because “the clarified SBA I standard for establishing a temporary-promotion claim was neither discussed in the award, nor met under the facts of this case.”11  And it finds that the SBA I standard was not satisfied because the Arbitrator “did not find that the assigned duties were different from the duties of the lower-graded employees’ permanent position,”12 and because “there is no evidence in the record that the Agency expressly reassigned all of the grade-controlling duties of the GS-6 position to the grievants.”13

 

                Even if the majority was correct regarding these purported deficiencies, its conclusion that they render the Union’s grievance non-arbitrable under § 7121(c)(5) simply defies common sense.  To be sure, a finding that the grievants’ assigned duties were no different from the duties they were expected to perform in their permanent positions would certainly relate to whether the grievants had been temporarily promoted to higher-graded duties, as would evidence concerning the degree to which higher-graded duties had been assigned to the grievants.  But the majority has yet to explain how a lack of sufficient evidence with respect to either issue compels the conclusion that a grievance concerns the “classification” of a position.14

                This is not merely a question of semantics.  Concluding that a grievance is jurisdictionally barred by § 7121(c)(5) has enormous consequences.  Indeed, in a prior case, the majority relied upon this provision to vacate – on a sua sponte basis – no less than             “seven decisions made by a variety of panels of Authority members reaching back well over a decade” because it found that the union’s grievance concerned classification matters.15  And by concluding that the Arbitrator’s award in the case before us is contrary to § 7121(c)(5) because the Union failed to meet SBA I’s four-part test, the majority effectively discards the Arbitrator’s application of the provision in the parties’ agreement governing temporary promotions in favor of a test that bears little relevance to the grievance’s arbitrability.16

 

                Before our flawed decision in SBA I, the Authority consistently held that a grievance concerns a classification matter within the meaning of § 7121(c)(5) “[w]here the essential nature of [the] grievance concerns the grade level of the duties assigned to and performed by the grievant in his or her permanent position.”17  In contrast, “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 Authority would find that the grievance “does not concern the classification of a position within the meaning of § 7121(c)(5).”18  Applying these straight-forward principles, I would conclude that the Union’s grievance does not concern the classification of the grievants’ positions for the reasons set forth by the Arbitrator.

 

                Accordingly, I would find that the Union’s grievance was not barred by § 7121(c)(5) of the Statute, and would deny the Agency’s exception.