AFGE Local 3258 and Department of Housing and Urban Development (Authority decision, April 22, 1986)

Final FLRA decision. The Authority modifies an arbitration award about a career ladder employee's promotion opportunities. Under 5 U.S.C. § 7123(a)(1), ordinary judicial review is generally unavailable for an order concerning an arbitration award unless it involves an unfair labor practice under § 7116; this decision does not decide one.

Plain-English summary

A HUD support specialist claimed that lower-graded duties kept him from showing he could perform at the GS-11 level of his career ladder. An arbitrator found that the agency had reduced his opportunity and ordered it to restore his former mix of duties or provide an equivalent opportunity. The Authority rejected HUD's argument that the grievance was barred as a position classification dispute. But it held that directing the mix of duties interfered with management's right to assign work. It revised the award to require opportunities for the employee to demonstrate GS-11 performance without prescribing his work assignments.

Decision snapshot

• Authority: Assignment of work under 5 U.S.C. § 7106(a)(2)(B); classification grievance exclusion under § 7121(c)(5).
• Outcome: Award modified to remove the directed mix of duties while preserving a remedy for lost opportunity.
• Key point: An arbitrator may remedy a lost chance to demonstrate higher-grade skills without assigning specific duties for management.

Full text (FLRA public release)

[ v21 p413 ]

21:0413(56)AR

The decision of the Authority follows:

21 FLRA No. 56

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3258
Union

and

U.S. DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT
Agency

Case No. 0-AR-1026

DECISION

I. STATEMENT OF THE CASE

This matter is before the Authority on exceptions to the award of Arbitrator Albert J. Hoban filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations.

II. BACKGROUND AND ARBITRATOR'S AWARD

The grievant, a GS-9 support service specialist claimed that he should have received a noncompetitive, career ladder promotion to GS-11. His position had previously been graded GS-11 and was identified as one with promotion potential to GS-11, subject to further classification review. However, when funds for the Agency were reduced, the grievant was assigned a number of duties of lower-graded positions that had been eliminated, duties that were not within his position description. When the grievant was eligible for a career promotion to GS-11, his supervisor forwarded a recommendation that he be promoted to the Personnel Office for review. When no action was taken on the recommendation after almost five months, the grievance in this matter was filed. The supervisor's recommendation eventually was disapproved based upon the findings of a classification desk audit that the grievant was working most of the time on duties at or below the GS-9 level. The Agency argued before the Arbitrator that the grievance was not arbitrable because it involved the classification of the grievant's position and, further, that even if the grievance was arbitrable, the grievant was not entitled to a promotion because two conditions for promotion had not been met, i.e., that the employee must demonstrate the ability to perform at the next higher level and that there must be enough work at the higher level.

The Arbitrator acknowledged that he had no jurisdiction over a classification matter but found that the dispute was arbitrable because the essence of the grievance was that the Agency violated the parties' collective bargaining agreement when it changed the grievant's duties and prevented him from demonstrating that he could perform satisfactorily at the GS-11 level. The Arbitrator found that under Section 13 of the parties' agreement an employee such as the grievant in a career ladder position with potential for a higher grade was entitled to a chance to demonstrate ability to perform at the higher grade. As his award, the Arbitrator provided as follows:

1. The grievance is arbitrable.

2. The grievant's present classification is correct.

3. The Agency violated the rights of the grievant as a career
   employee by assigning him to duties which were not in his position description and altering the balance between higher and lower rated duties causing a reduction in his opportunities to demonstrate his ability to perform at the GS-11 level.

4. The Agency must comply with the letter and intent of the
   collective bargaining agreement, particularly Section 13, by restoring as near as practical, the balance of higher and lower rated duties which the grievant performed (previously); or in some other way provide him with the same opportunities he then had to demonstrate that he is able to satisfactorily perform at the GS-11 level.

III. FIRST EXCEPTION

A. Contentions

In its first exception, the Agency contends that the award is contrary to section 7121(c)(5) of the Statute which precludes grievances concerning the classification of any position that does not result in the reduction in grade or pay of an employee. The Agency argues that this dispute concerns the classification of the grievant's position and, therefore, is not grievable or arbitrable.

B. Analysis and Conclusions

The Authority has held that a grievance and an award which pertain to whether a grievant is entitled to a noncompetitive promotion do not concern the classification of any position within the meaning of section 7121(c)(5). See, e.g., U.S. Army Missile Command and American Federation of Government Employees, Local 1858, 15 FLRA 286 (1984). The Authority finds that the grievance and award in this case pertain to whether the grievant was entitled to a noncompetitive promotion and do not directly concern the classification of his position. In that regard, and particularly in view of the Arbitrator's acknowledgement that he was without jurisdiction to consider classification matters, the Authority finds that the Arbitrator's statement in paragraph 2 of his award that "(t)he grievant's present classification is correct(,)" constitutes nothing more than a recognition of the fact that the desk audit had determined that based upon the duties assigned and performed the grievant's position was properly classified at GS-9. The Authority concludes that the Agency has failed to establish that the award is deficient as alleged. Accordingly, this exception must be denied.

IV. SECOND EXCEPTION

A. Contentions

In its second exception, the Agency contends that the award interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

B. Analysis and Conclusion

The Authority has repeatedly recognized that the plain language of section 7106 provides that "nothing" in the Statute shall "affect the authority" of an agency to exercise the rights enumerated in that section. E.g., American Federation of Government Employees, AFL-CIO, Local 1968 and Department of Transportation, Saint Lawrence Seaway Development Corporation, Massena, New York, 5 FLRA 70, 79 (1981), aff'd sub nom. AFGE Local 1968 v. FLRA, 691 F.2d 565 (D.C. Cir. 1982), cert. denied, 461 U.S. 926 (1983). Therefore, the Authority has consistently held that an arbitration award may not interpret or enforce a collective bargaining agreement so as to improperly deny an agency the authority to exercise its rights under section 7106 or result in the substitution of the arbitrator's judgment for that of the agency in the exercise of those rights. Id.; National Treasury Employees Union and U.S. Customs Service, 17 FLRA No. 12 (1985); U.S. Customs Service, Laredo, Texas and Chapter 145, National Treasury Employees Union, 17 FLRA No. 17 (1985). Section 7106(a)(2)(B) of the Statute, in particular, reserves to management officials the authority to assign work. In this case, to the extent that the Arbitrator restricts the assignment of duties to the grievant or directs the Agency to restore the mix of higher and lower-rated duties which the grievant had previously performed, the Arbitrator substituted his judgment for that of management as to the duties to be assigned to the grievant. Therefore, the Authority finds that to that extent the award is deficient as contrary to management's right to assign work pursuant to section 7106(a)(2)(B).

V. DECISION

Accordingly, based on the above reasons, the Arbitrator's award is modified by striking paragraphs 3 and 4 and substituting the following:

3. The Agency violated the rights of the grievant as a career
   employee by causing a reduction in his opportunities to demonstrate his ability to perform at the GS-11 level.

4. The Agency must comply with the letter and intent of the
   collective bargaining agreement, particularly Section 13, by providing him with opportunities to demonstrate his ability to perform satisfactorily at the GS-11 level.

Issued, Washington, D.C., April 22, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY