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58 FLRA No. 157
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 987
(Union)
and
UNITED STATES
DEPARTMENT OF THE AIR FORCE
WARNER ROBINS AIR LOGISTICS CENTER
ROBINS AIR FORCE BASE, GEORGIA
(Agency)
0-AR-3583
_____
DECISION
July 10, 2003
_____
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1]
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Arvid Anderson filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency did not file an opposition to the Union's exceptions.
The grievance alleged that the Agency violated the parties' collective bargaining agreement by not promoting the grievant after temporarily assigning him to a higher-graded position. The Arbitrator denied the grievance, finding that the grievance concerned a classification matter and that such matters are excluded from the grievance procedure by § 7121(c)(5) of the Statute. For the reasons that follow, we deny the exceptions.
II. Background and Arbitrator's Award
The Agency employs the grievant as a WG-6910-05 Materials Expediter. The Agency reassigned the grievant to that position in December 2000 from a WG-907-05 Materials Handler position following a review of the grievant's duties by Agency classification officials.
The Union then filed a grievance in February 2001 alleging that the grievant had consistently been performing WG-07 level tasks in his position. As a remedy, the Union requested that the Agency grant the grievant backpay to the time of his reassignment and promote the grievant to the WG-07 level. After the parties could not resolve the matter, they submitted it to arbitration.
Before the Arbitrator, the Union also alleged that the Agency committed prohibited personnel practices against the grievant in connection with the classification of his position. The Union requested that the grievant be temporarily promoted under Section 13.01 of the parties' agreement to the WG-07 level for the period from December 2000 until such time as he is no longer performing the duties of a higher-graded position. [n2] The Agency argued that the grievance involved a classification matter and that the grievance was barred by res judicata as two arbitrators had previously denied grievances filed by the grievant requesting a promotion based upon the duties of his position.
The Arbitrator found that the grievance concerned the classification of the grievant's position. Therefore, he found that § 7121(c)(5) of the Statute excluded the grievance from the scope of the grievance procedure. The Arbitrator rejected the Agency's assertion that the matter was res judicata as the facts of those cases were different from the facts giving rise to the instant grievance.
III. Union's Exceptions
The Union first argues that the award is contrary to § 7121(c)(5) of the Statute. The Union claims that the Authority has held that grievances concerning entitlements to temporary promotions do not involve the classification of positions, but instead involve determinations of performance. The Union further maintains that positions have properly been established at the WG-05 and WG-07 level and that it is merely asking that the Agency use its own standards when measuring employee performance for pay purposes. In support, the Union claims that Air Force Instruction 36-1401 (AFI 36-1401) requires the Agency to pay an employee in accordance with the duties performed and [ v58 p620 ] not in accordance with the duties contained in the employee's position description. [n3]
Additionally, the Union asserts that the award is based on a nonfact because there is no substantiation to the Agency's claim that the Office of Personnel Management (OPM) directed the Agency to downgrade the WG-6910 Materials Expediter positions to pay grade 5. Further, in this regard, the Union claims that the grievance does not address any questions of classification and that OPM had no knowledge of the grievant's position.
Finally, the Union claims that the award is incomplete because the Arbitrator failed to consider its claims that the Agency committed prohibited personnel practices.
IV. Analysis and Conclusions
A. The award is not contrary to law
The Authority reviews questions of law raised by the exception and the Arbitrator's award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a de novo standard of review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
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. The Authority has construed the term "classification" in § 7121(c)(5) as involving "the analysis and identification of a position and placing it under the position-classification plan established by [the Office of Personnel Management] under chapter 51 of title 5, United States Code." Soc. Sec. Admin., Office of Hearings and Appeals, Mobile, Ala., 55 FLRA 778, 779-80 (1999) (quoting 5 C.F.R. § 511.101(c)).
The Authority has distinguished between two situations in assessing whether a grievance concerns the classification of a position. Where the substance of a grievance concerns the grade level of the duties permanently assigned to and performed by the grievant, the grievance concerns the classification of a position within the meaning of § 7121(c)(5) of the Statute. Soc. Sec. Admin., 31 FLRA 933, 936 (1988). However, where the substance of a grievance concerns whether the grievant is entitled to be compensated at a higher rate of pay by reason of having temporarily performed the established duties of a higher graded position, the grievance does not concern the classification of a position within the meaning of § 7121(c)(5). United States Dep't of the Navy, Naval Aviation Depot, Marine Corps Air Station, Cherry Point, N.C., 42 FLRA 795, 801 (1991).
We find, in agreement with the Arbitrator, that the grievance in this case concerns a classification matter within the meaning of § 7121(c)(5). There is no evidence that the grievant assumed any temporary duties which would entitle him to a temporary promotion under the agreement. Instead, the grievant was requesting a promotion based upon the performance of permanently assigned duties. In this connection, we note that the grievant filed the grievance following the reclassification of his position to the WG-6910 series at the pay level 5, rather than the requested 7 level. The failure to classify the grievant's position at the 7 level then formed the basis of the grievance. Therefore, the grievance concerned a classification matter and was barred by § 7121(c)(5). [n4]
Moreover, to the extent that the Union is contending that the award is contrary to Paragraph 4.4.1 of AFI 36-1401, we note that that provision addresses the classification of positions. Therefore, the Union's argument itself demonstrates that this is a classification matter barred by § 7121(c)(5).
B. The award is not based on nonfact
To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See United States Dep't of the Air Force, Lowry Air Force Base, Denver, Co., 48 FLRA 589, 593 (1993). However, the Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties had disputed at hearing. Id. at [ v58 p621 ] 594 (citing Nat'l Post Office Mailhandlers v. United States Postal Serv., 751 F.2d 834, 843 (6th Cir. 1985)). Additionally, "[t]he mere fact that the appealing party disputes an arbitral finding does not provide a basis for finding that an award is based on a nonfact." AFGE, Local 1923, 51 FLRA 576, 579 (1995). These principles appropriately accord deference to an arbitrator's factual findings because the parties have bargained for the facts to be found by an arbitrator whom they have chosen. See AFGE, Local 1858, 56 FLRA 422, 424 (2000).
The Union maintains that the Arbitrator's award is based on a nonfact because there is no evidence to support the Agency's contentions concerning OPM's role in the classification of the grievant's position. The Arbitrator, however, did not make any findings with regard to the alleged role of the OPM in this matter. Thus, the Union's exception provides no basis for finding that the award is based on a nonfact.
C. The Arbitrator did not exceed his authority
The Union claims that the award is incomplete because the Arbitrator failed to address the issue of the Agency's alleged prohibited personnel practices. We construe this as an assertion that the Arbitrator exceeded his authority. See Soc. Sec. Admin. Headquarters, Baltimore, Md., 57 FLRA 459, 461 (2001). An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed by the grievance. See United States Dep't of Defense, Army and Air Force Exchange Serv., 51 FLRA 1371, 1378 (1996). The Arbitrator found that the grievance concerned a classification matter and that the grievance was therefore barred by § 7121(c)(5). Having found that the grievance was barred by the Statute, the Arbitrator was not required to address any additional claims related to the classification of the grievant's position. [n5]
V. Decision
We deny the Union's exceptions.
File 1: Authority's Decision in 58 FLRA No.
157
File 2: Opinion of Member Pope
Footnote # 1 for 58 FLRA No. 157 - Authority's Decision
The dissenting opinion of Member Pope is set forth at the end of this decision.
Footnote # 2 for 58 FLRA No. 157 - Authority's Decision
Section 13.01 of the parties' agreement provides: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.Award at 4.
Footnote # 3 for 58 FLRA No. 157 - Authority's Decision
AFI 36-1401, Paragraph 4.4.1 states, in pertinent part, "the position will be classified on the basis of duties and responsibilities assigned and performed rather than on the basis of the duty description." Exceptions at 2.
Footnote # 4 for 58 FLRA No. 157 - Authority's Decision
The Union argues that the Authority has found that a request for a temporary promotion is not a classification matter. However, a claim for a temporary promotion will not preclude the Authority from concluding that the substance of the underlying grievance involves a classification matter. See LIUNA, Local 28, 56 FLRA 324, 326 n.2 (2000) (Chairman Cabaniss concurring).
Footnote # 5 for 58 FLRA No. 157 - Authority's Decision
The Union also claims that the award fails to draw its essence from the agreement but offers no support for this claim. Therefore, we dismiss it as a bare assertion. See, e.g., United States Dep't of Veterans Affairs Med. Ctr., Coatesville, Pa., 56 FLRA 966, 971 (2000).