Laborers' International Union of North America, Local 28 (Union) and U.S. Department of Defense, U.S. Army Garrison, Fort Sam Houston, Texas (Agency) (Authority decision, May 5, 2000)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority involving an arbitral award under 5 U.S.C. § 7122. Judicial review under 5 U.S.C. § 7123(a) generally does not extend to such an order unless the order involves an unfair labor practice under 5 U.S.C. § 7116. This decision resolves exceptions to an arbitration award and does not state that it involves an unfair labor practice.

Plain-English summary

An Army employee at grade WG-8 took over traffic-signal maintenance duties previously assigned to WG-11 electronic mechanics. Arbitrator Kathy L. Eisenmenger denied a requested temporary promotion because the duties themselves were not higher-graded work. The Authority denied all three union exceptions. It held that assessing the duties’ grade to decide this contractual temporary-promotion grievance did not violate the statutory bar on classification grievances or exceed the arbitrator’s authority. The prior assignment of those duties to a mixed-duty WG-11 position did not establish that each duty was WG-11 work, and the union did not establish that the award violated Office of Personnel Management standards. Member Cabaniss concurred but urged closer attention to whether disputed duties were permanently assigned to an employee’s own position.

Decision snapshot

• Authority: Temporary promotions, classification grievances, and an arbitrator’s authority.
• Outcome: Union exceptions denied; denial of the temporary-promotion grievance upheld.
• Key point: The grade of a mixed-duty position does not establish the grade of every duty within it.

Full text (FLRA public release)

[ v56 p324 ]

56 FLRA No. 46

LABORERS' INTERNATIONAL UNION OF

NORTH AMERICA, LOCAL 28

(Union)

and

U.S. DEPARTMENT OF DEFENSE

U.S. ARMY GARRISON

FORT SAM HOUSTON, TEXAS

(Agency)

0-AR-3243

_____

DECISION

May 5, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman; Phyllis N. Segal and Dale Cabaniss, Members. [n1]

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Kathy L. Eisenmenger filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

The Arbitrator determined that the Agency had not violated the parties' collective bargaining agreement when it failed to temporarily promote the grievant, and she denied the grievance. We conclude that the Union fails to establish that the award is deficient. Accordingly, we deny the Union's exceptions.

II. Background and Arbitrator's Award

The Agency installed a new traffic control system and assigned maintenance and repair functions to two electronic industrial control mechanics, WG-11. When the Agency abolished the positions of the two electronic mechanics, the Agency assigned the maintenance and repair functions to the grievant, a high voltage electric worker, WG-8.

The Union filed a grievance on the grievant's behalf, which contended that the grievant's performance of the traffic control duties entitled him to have been [ v56 p325 ] temporarily promoted under the parties' collective bargaining agreement. The parties submitted the following issue to arbitration:

Did the Employer violate the CBA by failing to temporarily promote the Grievant to a WG-11 level for performing traffic signal maintenance and repair duties?

Award at 2.

The Arbitrator determined that the central question was whether the work the grievant performed on the traffic control system was higher-level work under applicable job grading standards. In answering the question, she first ruled that the fact that such duties have been assigned to WG-11 electronic mechanics did not, by itself, establish that the duties were equivalent to WG-11 work. She found that the work the grievant performed on the traffic control system was not work of a grade higher than the grievant's grade, and she denied the grievance.

III. Positions of the Parties

A. Union's Exceptions

The Union contends that the award is deficient on three grounds.

First, the Union contends that the award is contrary to section 7121(c)(5) of the Statute because the Arbitrator "engage[d] in a classification decision[.]" Exceptions at 2. The Union argues that the Arbitrator improperly engaged in a process of grading the work performed by the grievant to determine its appropriate grade level. The Union maintains that resolution of the grievance did not require a classification determination of the traffic control duties because the grade of the duties was already established at the WG-11 level by the Agency's assignment of the duties to the WG-11 electronic mechanics.

Second, the Union contends that the award is deficient because it is contrary to Office of Personnel Management (OPM) classification standards. The Union argues that under OPM standards, mixed jobs, such as the WG-11 electronic mechanic position, must be graded in recognition of the highest skill and qualification requirements, which are a regular and recurring part of the job. The Union asserts that to the extent that the parties' collective bargaining agreement does not supercede the classification standards, the OPM standards are controlling and that the Arbitrator disregarded the standards by reconsidering the Agency's own grading of the duties at the WG-11 level.

Third, the Union contends that the award is deficient because the Arbitrator exceeded her authority. The Union asserts that the Arbitrator decided an issue not submitted when she based her denial of the grievance on a classification analysis of the traffic control duties.

B. Agency's Opposition

The Agency contends that the Union fails to establish that the award is contrary to section 7121(c)(5) or OPM classification standards or that the Arbitrator exceeded her authority.

IV. Analysis and Conclusions

A. The award is not contrary to section 7121(c)(5).

When a party's exception challenges an arbitration award's consistency with law or regulation, we review the question of law or regulation raised in the exception and the arbitrator's award de novo. In applying a de novo standard of review, we assess whether the arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings.

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 section 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 OPM under chapter 51 of title 5, United States Code." See, e.g., American Federation of Government Employees, Local 2025 and U.S. Department of the Air Force, Ninth Reconnaissance Wing, Beale Air Force Base, California, 50 FLRA 39, 42 (1994) (Beale AFB). Consequently, grievances and arbitration awards concerning whether a grievant is entitled to a temporary promotion under a collective bargaining agreement by reason of having performed higher-graded duties of a classified position do not concern the classification of a position within the meaning of section 7121(c)(5). See id. Moreover, section 7121(c)(5) does not bar an arbitrator's consideration of the proper classification of the duties performed by a grievant when resolving whether a temporary promotion is warranted. See id.

As the grievance and the award in this case concern whether the grievant was entitled to a temporary promotion for having performed higher-graded duties and the Arbitrator analyzed the grade of the traffic control duties only to determine whether the grievant was [ v56 p326 ] entitled to a temporary promotion, the award is not contrary to section 7121(c)(5). Furthermore, the Union erroneously relies on the Agency's previous assignment of the traffic control duties to the WG-11 electronic mechanics.

Contrary to the claim of the Union, the classification of the traffic control duties was not already established at WG-11 by the Agency's previous assignment of the duties to the WG-11 electronic mechanics. As the Union recognizes, the defining characteristic of mixed jobs is that the job may involve the performance of duties at different grade levels. Thus, the grade level of a mixed job cannot establish the grade level of the various duties performed in that job. For an arbitrator to award a temporary promotion consistent with law, the arbitrator must determine that the grievant performed duties of a higher grade than the grievant's permanent position, regardless of the classification of the position which encompasses the duties. See id. at 42-43; U.S. Department of the Navy, Naval Aviation Depot, Marine Corps Air Station, Cherry Point, North Carolina and International Association of Machinists and Aerospace Workers, Local 2297, 42 FLRA 795, 802 (1991).

Accordingly, we deny this exception. [n2]

B. The award is not contrary to classification standards.

For two reasons, the Union fails to establish that the award is deficient.

First, the Union fails to establish that the OPM standards govern the Arbitrator's resolution of the grievance. The Union is equivocal in its assertion that the standards control the resolution of the grievance, and the Authority has specifically held that they do not control the resolution of temporary promotion grievances. In U.S. Department of the Treasury, Internal Revenue Service, Cincinnati District, Cincinnati, Ohio and National Treasury Employees Union, Cincinnati Joint Council, 47 FLRA 207, 211-14 (1993), the Authority specifically rejected the argument that OPM's classification standards controlled the determination of whether an employee in a "mixed-grade" position was entitled to a temporary promotion for performing higher-graded duties. The Authority held that OPM's position classification standards do not govern whether the contractual requirements for a temporary promotion have been met.

Second, even if the determination of whether a grievant had performed higher-graded duties is to some extent governed by OPM classification standards and we were to review the award de novo, the Union fails to establish that the award is deficient. As with its first exception, the Union erroneously relies on the Agency's previous assignment of the duties to the WG-11 position. Because the grade level of a mixed job cannot establish the grade level of the various duties performed in that job, the Union fails to establish that by considering whether the work the grievant performed on the traffic control system was work at a higher-grade level, the Arbitrator disregarded OPM classification standards.

Accordingly, we deny this exception.

C. The Arbitrator did not exceed her authority.

Arbitrators exceed their authority when they resolve an issue not submitted to arbitration. See, e.g., U.S. Department of Veterans Affairs Medical and Regional Center, Togus, Maine and American Federation of Government Employees, Local 2610, 55 FLRA 1189, 1191 (1999). Arbitrators do not exceed their authority by addressing any issue that is necessary to decide a stipulated issue. See id.

The Union asserts that the Arbitrator decided an issue not submitted when she based her denial of the grievance on a classification analysis of the traffic [ v56 p327 ] control duties. We find that the Arbitrator's decision on the grade level of the traffic control duties performed by the grievant did not decide an issue not submitted. Instead, the Arbitrator's decision was necessary to decide the stipulated issue of whether the Agency violated the agreement by failing to temporarily promote the grievant for performing those duties. The determination of whether a temporary promotion was warranted required the Arbitrator to determine whether the disputed duties were at a grade level higher than the grievant's grade level. Accordingly, the Arbitrator did not exceed her authority in considering that issue. See National Air Traffic Controllers Association, MEBA/NMU and U.S. Department of Transportation, Federal Aviation Administration, Southern California TRACON, 51 FLRA 993, 996 (1996) (arbitrator did not exceed his authority by determining an issue that was necessary to decide the stipulated issue).

Accordingly, we deny this exception.

V. Decision

The Union's exceptions are denied.

File 1: Authority's Decision in 56 FLRA No.
46

File 2: Opinion of Member Cabaniss

Footnote # 1 for
56 FLRA No. 46

• Authority's Decision

Member Cabaniss's concurring opinion is set forth at the end of this decision.

Footnote # 2 for
56 FLRA No. 46

• Authority's Decision

Our concurring colleague expresses a concern that grievances are being found arbitrable that pertain to the duties of grievants' permanent positions. She maintains that "[t]he Authority's current line of cases . . . no longer appears to examine whether . . . the duties forming the basis for the temporary promotion have been permanently assigned or not to the employee's position." We disagree. For example, the Authority recently explained that where the substance of the grievance concerns the grade level of the duties assigned to, and performed by, the grievant in the grievant's permanent position, the grievance concerns the classification of a position within the meaning of section 7121(c)(5). See American Federation of Government Employees, Local 1617 and U.S. Department of the Air Force, San Antonio Air Logistics Center, Kelly Air Force Base, Texas, 55 FLRA 345, 347 (1999) (citing American Federation of Government Employees, Local 987 and U.S. Department of the Air Force, Air Force Logistics Command, Robins Air Force Base, Warner Robins, Georgia, 52 FLRA 212, 215 (1996); American Federation of Government Employees, Local 2142 and U.S. Department of the Army, Corpus Christi Army Depot, Corpus Christi, Texas, 51 FLRA 1140, 1142 (1996)). Moreover, these cases do not suggest that the mere claim of a temporary promotion will cure a grievance that pertains to the grievant's permanent position. Thus, in our view, they do not support our colleague's assertion that "Authority precedent seems to focus only on the nature of the remedy requested (a permanent or a temporary promotion)." In addition, in U.S. Nuclear Regulatory Commission and National Treasury Employees Union, Chapter 208, 54 FLRA 1416 (1998), the Authority specifically stated that Authority precedent had not held that "all grievances seeking temporary promotions are arbitrable[.]" 54 FLRA at 1422 (emphasis original). When appropriate, the Authority will find that a grievance concerning the duties performed by a grievant in the grievant's permanent position concerns the classification of a position within the meaning of section 7121(c)(5) of the Statute. We all agree that this is not such a case.

[ v56 p327 ]

Concurring Opinion of Member Cabaniss:

I write separately regarding precedent relied on by the Authority to determine whether the actions of an arbitrator constitute a classification matter under section 7121(c)(5). In the present case the excepting party alleges that the Arbitrator engaged in a classification action by assessing whether the grievant was entitled to a temporary promotion. The Authority rightfully determined that to not be the case because the Arbitrator assessed whether the grievant had been performing the higher-graded duties of a classified position.

What I find problematic is the singular emphasis on the fact that a temporary promotion (as opposed to permanent promotion) is being sought. Typically, most contracts provide a right of temporary promotion for being detailed to a higher-graded position or where an employee is temporarily assigned higher-graded duties of a (usually vacant) position without actually being detailed. In those situations, an arbitrator properly examines the grade level of those temporary duties to determine whether the contractual requirements for a temporary promotion have been fulfilled. An implicit predicate for the temporary promotion is that it is based upon the performance of "other" duties not permanently assigned to the employee's position, as examining the appropriate grade level of duties permanently assigned to one's position would seem to clearly constitute "the analysis and identification of a position" that the majority decision identifies as an improper classification action under section 7121(c)(5), citing to American Federation of Government Employees, Local 2025 and U.S. Department of the Air Force, Ninth Reconnaissance Wing, Beale Air Force Base, California, 50 FLRA 39, 42 (1994).

The Authority's current line of cases, as to whether an arbitration award results in an improper classification action, no longer appears to examine whether the implicit predicate is met, i.e., whether the duties forming the basis for the temporary promotion have been permanently assigned or not to the employee's position. Instead, Authority precedent seems to focus only on the nature of the remedy requested (a permanent or a temporary promotion). The present case points out the potential for problems.

In the present matter, the former WG-11 position performing the duties in question was abolished, and it is unclear from the record as to whether the duties in question had been permanently or only temporarily assigned to the grievant, although no argument was made that the duties had been permanently transferred. Had that permanent assignment of duties occurred, I would have found this to be an improper classification action, notwithstanding that the relief sought was only a temporary promotion, because the Arbitrator would have been examining the grade level of the permanent duties of the grievant's position.

Even where the remedy sought could only be a temporary rather than permanent promotion, the Authority still needs to determine whether the promotion is based upon duties that are (or were) permanently assigned to a grievant's position. For example, in the event an agency permanently assigned higher-graded duties to a position, then deleted those duties at a later time, a temporary promotion (as opposed to a permanent promotion) would be the only possible remedy. Yet, because awarding that temporary promotion would require an arbitrator to ascertain the appropriate grade level of permanently assigned duties, an improper classification action under section 7121(c)(5) would result from doing so.

Accordingly, in temporary promotion matters arising out of arbitration exception cases, I believe the Authority and the parties before it must place less emphasis on the remedy sought (temporary promotions versus permanent promotions) and greater emphasis on whether the arbitrator is being asked to ascertain the appropriate grade level of duties permanently assigned to the position in question. [n1]

File 1: Authority's Decision in 56 FLRA No. 46

File 2: Opinion of Member Cabaniss

Footnote # 1 for
56 FLRA No. 46

• Opinion of Member Cabaniss

The matters set out at footnote 2 of the majority opinion do not assuage my concern with the need to examine more closely to what position the duties in question have been assigned.