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52 FLRA No. 20

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 987

(Union)

and

U.S. DEPARTMENT OF THE AIR FORCE

AIR FORCE LOGISTICS COMMAND

ROBINS AIR FORCE BASE

WARNER ROBINS, GEORGIA

(Agency)

0-AR-2819

_____

DECISION

September 27, 1996

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Roberta J. Bahakel 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 grievance was not arbitrable under section 7121(c)(5) of the Statute because it concerned the classification of the grievant's position. For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient under section 7122(a) of the Statute. Therefore, we deny the exceptions.

II. Background and Arbitrator's Award

The grievant, a WG-5 materials handler, filed a grievance contending that he had been performing the duties of a WG-6 materials handler for 3 years and was entitled to be paid as a WG-6. The Arbitrator noted that the parties characterized the grievance differently--the Union alleging that the grievant was temporarily promoted when he performed the higher grade work and the Agency arguing that the grievance concerned a classification matter that was not arbitrable under section 7121(c)(5) of the Statute. The Arbitrator framed the issues before her as follows:

1. Is this grievance arbitrable?

2. Did the Agency violate the terms of Article 13 of the Agreement? If so, what is the proper remedy?

Id. at 2.^(*)

The Arbitrator stated that the threshold issue was "whether the grievant was in fact seeking to be reclassified as a grade 6 employee or was merely asking for payment for a temporary upgrade for work done at the grade 6 level." Id. at 3. Based on the evidence, the Arbitrator concluded that the grievant was requesting a reclassification of his position. As a result, the Arbitrator found that the grievance concerned a classification matter under section 7121(c)(5) of the Statute and, therefore, was not arbitrable. Accordingly, she denied the grievance.

III. Exceptions

A. Union's Contentions

The Union argues that the award conflicts with Articles 6.03 and 7.05 of the parties' agreement because the Agency did not timely raise its classification argument under the grievance procedure. The Union also contends that the grievant was merely seeking backpay for a temporary promotion and that the Arbitrator erred in concluding that the grievance concerned a classification matter and was not arbitrable under section 7121(c)(5) of the Statute.

B. Agency's Opposition

The Agency argues that the Union's exceptions provide no basis for review because the Agency timely raised its argument in accordance with provisions of the agreement and the Arbitrator did not err in finding that the grievance concerned a classification matter under section 7121(c)(5) of the Statute.

IV. Analysis and Conclusions

A. The Union's Contention That the Award Conflicts With the Parties' Agreement Does Not Render the Award Deficient

The Union argues that the award conflicts with the parties' agreement because the Agency did not timely raise its classification argument under the grievance procedure. We construe the Union's argument as a claim that the Arbitrator exceeded her authority by considering the Agency's classification argument even though it was not timely raised. Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority or award relief to those not encompassed within the grievance. 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, 51 FLRA 1645, 1647 (1996). Here, the issue of whether the Arbitrator exceeded her authority revolves around her formulation of the issues.

It is well established that, in the absence of a stipulated issue, an arbitrator's formulation of the issues is accorded substantial deference. See U.S. Department of Defense, Defense Contract Audit Agency, Central Region and American Federation of Government Employees, Local 3529, 51 FLRA 1161, 1164 (1996). In this case, the parties did not stipulate the issue to be resolved. The Arbitrator evaluated the information presented to her, including the parties' responses in the underlying grievance, and formulated the issues to be decided. There is no evidence to support the Union's contention that the Arbitrator failed to observe the procedural requirements in the parties' grievance procedure in formulating the issues. Consequently, the Union has failed to establish that the Arbitrator exceeded her authority.

Moreover, to the extent that the Union's argument can be construed as a contention that the award fails to draw its essence from the parties' agreement, the Union has not demonstrated that the award is deficient under any of the tests set forth in United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-76(1990). Articles 6.03 and 7.05 of the agreement give an arbitrator the authority to make grievability and arbitrability determinations. Here, the Arbitrator determined that an arbitrability issue existed. There is nothing implausible, unfounded, or irrational in the Arbitrator's finding that an arbitrability issue existed. Accordingly, the Union has not demonstrated that the award fails to draw its essence from the parties' agreement.

B. The Award Is Not Inconsistent with Section 7121(c)(5) of the Statute

In circumstances where a party's exceptions involve an award's consistency with law, we must review the questions of law raised by the arbitrator's award and the party's exceptions de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)).

Section 7121(c)(5) of the Statute removes from the scope of negotiated grievance procedures, and thereby bars an arbitrator from resolving, any grievance concerning the classification of a position that does not result in reduction in grade or pay of an employee. 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). Where the issue before the arbitrator involves the appropriateness of a grievant's assigned grade level, the matter is not arbitrable under section 7121(c)(5) of the Statute. See Social Security Administration and American Federation of Government Employees, Local 1923, AFL-CIO, 31 FLRA 933, 936 (1988).

In this case, the Arbitrator found that the substance of the grievance concerned the grade level of the duties assigned to the grievant's WG-5 materials handler position and, therefore, the classification of a position within the meaning of section 7121(c)(5) of the Statute. Accordingly, the Arbitrator correctly concluded that the grievance involved the classification of a position and, therefore, was not arbitrable under section 7121(c)(5). See 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).

V. Decision

The Union's exceptions are denied.

APPENDIX

Article 13 states in relevant part:

SECTION 13.01: MANDATORY TEMPORARY PROMOTIONS

When an employee is temporarily assigned to a higher graded position or the grade-controlling duties of a higher graded position for 30 consecutive calendar days, the employee shall be temporarily promoted into and receive the rate of pay of that position commencing on the 31st day. The employee must be qualified to fill the position on a permanent basis.

Article 6.03 states:

The Employer agrees to furnish the Union a final written decision concerning the nongrievability or nonarbitrability of a grievance, within the time limits provided for the written decision in Step 3 of this procedure. If the grievance is alleged to be subject to statutory appeal procedures, except as modified by Article 5, Discipline, the decision shall expressly state that it is the activity's final decision in the matter. All dispute of grievability or arbitrability shall be referred to an arbitrator as a threshold issue of the grievance in accordance with Article 7, Arbitration. If the arbitrator determines that the issue is arbitrable, the arbitrator will hear the merits of the grievance.

Article 7.05 states:

The arbitrator shall have the authority to make all grievability and/or arbitrability determinations. Questions of arbitrability involving the applicability of statutory appeals shall be submitted to an arbitrator by brief, and decided prior to a hearing, unless otherwise mutually agreed upon. If the arbitrator determines there is a reasonable basis that the issue is arbitrable, he will hear the merits of the underlying grievance and decide the issues together. Upon mutual agreement of the parties, such threshold issues may be submitted to the arbitrator by brief, and decided prior to a hearing on the merits of the underlying grievance.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

*. Article 13 and other cited provisions of the parties' collective bargaining agreement are set forth in the Appendix to this decision.

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