This case has an extensive, and somewhat complex, procedural history. It originates from a Union grievance alleging that the Agency violated the parties’ agreement by posting and filling certain positions with promotion potential to general schedule (GS)-13 (the new positions) in a manner that deprived employees occupying similar positions with promotion potential to GS-12 of the opportunity to be promoted to GS-13.^[2] As a remedy, the Union sought “full promotion potential for all similarly situated employees to the GS‑13 level.”^[3]  

 

In the merits award, the Arbitrator addressed the Agency’s argument that the grievance was not arbitrable. Specifically, she found that the grievance did not concern classification under § 7121(c)(5) of the Federal Service Labor-Management Relations Statute (the Statute) because the grievants were alleging “a right to be placed in previously[] classified positions,” rather than a right to have their current positions reclassified.^[4] Accordingly, the Arbitrator found that the grievance was arbitrable, and addressed its merits. 

 

In her merits determination, the Arbitrator found that the Agency violated the parties’ agreement, and sustained the grievance. In particular, the Arbitrator “credited the grievants’ unrebutted testimony that they were ‘told by their supervisors that their applications to [the new] . . . positions would be destroyed, or not considered, and [that] they should not apply.’”^[5] As a result of these and other factual findings, the Arbitrator concluded that, but for the Agency’s “inequitable and unfair” conduct, the grievants would have been promoted to the new positions,^[6] and she awarded an “organizational upgrade” to the grievants.^[7]

 

When the Agency filed exceptions to the merits award, the Authority addressed the Agency’s argument that the grievance was not arbitrable, and upheld the Arbitrator’s determination that the grievance did not concern classification within the meaning of § 7121(c)(5) of the Statute.^[8] In this regard, the Authority noted the distinction between a grievance concerning the promotion potential of existing positions – which might concern classification – as compared to a grievance alleging a right to be placed in previously classified positions – which would not concern classification.^[9] The Authority concluded that the grievance at issue in the merits award did not concern classification.^[10] In this regard, the Authority held that the Arbitrator’s findings “support[ed] [her] determination that the grievance was arbitrable because it did not concern classification within the meaning of § 7121(c)(5).”^[11] However, the Authority set aside the Arbitrator’s chosen remedy because directing the Agency to “reclassify the grievants’ existing positions” did involve classification within the meaning of § 7121(c)(5).^[12] Accordingly, the Authority remanded the merits award to the parties for resubmission to the Arbitrator, absent settlement, to formulate an alternative remedy.^[13] 

 

 

On January 10, 2012, the Arbitrator issued the remedial award, in which she adopted one of the Union’s proposed remedies. Specifically, the Arbitrator directed the Agency, in pertinent part, to “process retroactive permanent selections of all affected [bargaining-unit employees] into currently existing career[‑]ladder positions with promotion potential to the GS-13 level.”^[14] This meant, according to the Arbitrator, that “[a]ffected [bargaining-unit employees] shall be processed into positions at the grade level [that] they held at the time of the violations noted in my prior findings, and (if they met time-in-grade requirements and had satisfactory performance evaluations), shall be promoted to [the] next career[-]ladder grade(s) until the journeyman level.”^[15]

 

 

All [b]argaining[-]unit employees in a position in a career ladder (including at the journeyman level), where that career ladder le[d] to a lower journeyman grade than the journeyman (target) grade of a career ladder of a position with the same job series, which was posted between 2002 and [the] present.^[16] 

 

Following the Authority’s dismissal of the Agency’s exceptions to the remedial award, the parties reached “an impasse regarding the appropriate methodology for identifying” eligible class members.^[18] As a result, the Arbitrator met with the parties on February 4, 2014, to facilitate implementation of the remedy directed in the remedial award. In the Arbitrator’s memorialization of the parties’ first implementation meeting (first summary), issued on March 14, 2014, the Arbitrator explained that the purpose of that meeting was to “clarify the members of the class that was defined in . . . [the remedial a]ward.”^[19]  In this regard, she stated that “[n]othing [in the first summary] should be construed as a new requirement or modification of the existing [remedial a]ward,” but, rather, that she intended the first summary “solely to clarify with specificity which [b]argaining[-u]nit [e]mployees are eligible class members.”^[20] In particular, the Arbitrator rejected a methodology proposed by the Agency for identifying eligible class members. In an effort to resolve ongoing disputes between the parties about the appropriate methodology, the Arbitrator stated that “[t]he [c]lass definition is data driven, not announcement driven.”^[21] And, as an “example,” the Arbitrator stated that, based on the remedial award, all six Union witnesses who testified at the arbitration hearing are eligible class members.^[22]     

 

Subsequently, the Arbitrator met with the parties again on March 26, 2014, to discuss their progress in implementing the remedial award. On May 17, 2014, she issued the second summary, in which she reiterated that “[t]he [c]lass definition is data driven, not vacancy[‑]announcement driven.”^[23] And, in order to guide the parties’ efforts to identify eligible class members, she explained, in pertinent part:

 

 

 

As stated in prior [s]ummaries, this Arbitrator has instructed the [p]arties to make substantial progress on identifying class members. The [p]arties were instructed that[,] based upon this Arbitrator’s [remedial a]ward, as an example, all                GS-1101 employees at the GS-12 level from 2002 to [the] present were to be promoted . . . with [backpay] and interest, as of their earliest date of eligibility. As a simple subset that should be easily identifiable, this Arbitrator instructed the [p]arties to identify all PHRS employees, who would comprise the first set of class members.^[25] 

 

The Arbitrator further stated that the parties should “continue working to identify additional class members as set forth in the [remedial a]ward and as stated in the meeting.”^[26] Further, the Arbitrator “reminded” the Agency that “any use of location, vacancies[,] or any other limiting factor would not comport with the [remedial a]ward.”^[27] 

 

In addition to instructing the parties on how to identify class members, the Arbitrator urged the Agency to make “substantial, concrete progress” towards promoting and paying those employees whom the parties had already identified as eligible class members.^[28] In this regard, she “reminded” the Agency that it “continue[d] to be in violation of the prior [o]rders requiring that all six [Union] witnesses receive” promotions and backpay, and the Arbitrator “extended” “[t]hese [o]rders” to “the additional eleven . . . employees [whom] the Agency previously identified as eligible class members.”^[29]

 

In conclusion, the Arbitrator stated that “[n]othing . . . in this [s]ummary should be construed as a new requirement or modification of the existing [remedial a]ward.”^[30] 

 

                On September 4, 2014, the Agency filed exceptions to the third summary. Subsequently, the Authority’s Office of Case Intake and Publication (CIP) issued an order to show cause why the Agency’s exceptions should not be dismissed as untimely            (the order). CIP stated that it issued the order because:  (1) the third summary appears to clarify – not modify – the remedial award;^[31] and (2) “[e]ven assuming” that the challenged remedy modifies the remedial award, the Arbitrator’s discussion of the challenged remedy in the third summary “appears only to reiterate” a statement that the Arbitrator made in the second summary.^[32] And “[a]s the Agency waited to file its exceptions until after the Arbitrator reiterated this point in the third summary, which was well beyond thirty days after the Arbitrator issued the second summary,” CIP stated, “it appears that the Agency’s exceptions are untimely.”^[33] The Agency filed a response to the order (Agency’s response), and the Union filed an opposition to both the Agency’s exceptions and the Agency’s response.

 

In its exceptions to the third summary, the Agency argues that, by directing the challenged remedy in the third summary, the Arbitrator exceeded her authority because she was functus officio – that is, without further authority to modify a resolved matter – after issuing the “final and binding” remedial award.^[34] Specifically, the Agency alleges that, in the third summary, the Arbitrator improperly modified the remedial award by: (1) “[r]edefining the class of grievants to include all employees in the GS-1101 series, regardless of whether the employees encompass a career ladder at a lower journeyman grade than the target grade of a position with the same job series, posted between 2002 and present;” and (2) “[r]edefining the application of factors used to identify grievants eligible for the remedy of a retroactive promotion to the GS-13 level.”^[35] According to the Agency, “by directing the Agency to promote all employees in the GS‑1101 series from . . . grade 12 to . . . grade 13” in the third summary, “the Arbitrator modified the class of grievants to include all employees at . . . grade 12 in the GS-1101 series, regardless of whether a higher target grade exists.”^[36] 

 

Under § 2425.2(b) of the Authority’s Regulations, the time limit for filing exceptions to an arbitration award is thirty days after the date of service of the award.^[37] If no exceptions are filed within that      thirty-day period, then the award becomes final and binding.^[38] As previously discussed, the Agency concedes that the remedial award is “final and binding.”^[39] And because neither party filed exceptions within thirty days of the second summary, the second summary is also final and binding.^[40]

 

As noted above, in the remedial award, the Arbitrator identified the class of grievants as “[a]ll [b]argaining[-]unit employees in a position in a career ladder (including at the journeyman level), where that career ladder le[d] to a lower journeyman grade than the journeyman (target) grade of a career ladder of a position with the same job series, which was posted between 2002 and [the] present.”^[41] In the third summary, the Arbitrator stated that, under the remedial award, “as an example, all GS‑1101 employees at the GS-12 level from 2002 to present were to be promoted . . . with [backpay] and interest, as of their earliest date of eligibility.”^[42] To the extent that the Arbitrator cited one series of employees who are covered by the explicit terms of the remedial award, this appears to be a clarification – and not a modification – of the remedial award. 

 

Even assuming, without deciding, that the foregoing statement in the third summary constitutes a modification of the remedial award, the Arbitrator specifically identified, in the second summary, “all GS‑1101 employees” as part of the class of grievants covered by the remedial award.^[43] Specifically, she stated: “Employees encumbering [the GS‑1101] job series are clearly within the scope of the [remedial a]ward, . . . and therefore will serve as the basis for the next round of [g]rievants to be promoted with [backpay] and interest”;^[44] and “the [remedial a]ward covers all GS‑1101 employees who were not promoted to the GS-13 level               (among others).”^[45] In the third summary, she merely reiterated that point: “The [p]arties were instructed that, based upon this Arbitrator’s [remedial a]ward, as an example, all GS‑1101 employees at the GS-12 level from 2002 to [the] present were to be promoted . . . with [backpay] and interest, as of their earliest date of eligibility.”^[46] Therefore, even assuming that the Arbitrator modified the remedial award by including all GS-1101 employees in the class of grievants, the Agency should have filed exceptions when the Arbitrator first made that alleged modification in the second summary. 

 

Relatedly, the Agency argues that the Arbitrator modified the remedial award in the third summary because, unlike the second summary, the third summary no longer requires the parties to “work through” the     GS-1101 series to identify eligible class members.^[47] However, nothing in the third summary eliminates this requirement. Rather, in the third summary, the Arbitrator repeatedly directs the parties to work together to identify, and agree upon, eligible class members.^[48] Moreover, nothing in the third summary eliminates the eligibility requirements, set forth in the remedial award, that class members meet “time‑in-grade requirements” and have “satisfactory performance evaluations” in order to recover.^[49] And, in response to the dissent’s assertion that, in the third summary, the Arbitrator “‘extended’ the remedy to cover an ‘additional eleven . . . employees,’”^[50] we note, as discussed above, that this statement concerned remuneration for employees – in addition to the six Union witnesses – whom the parties had already identified as eligible class members. In other words, while the parties continue to work to identify class members, the Arbitrator directed the Agency to start providing a remedy to at least “the additional eleven . . . employees [whom] the Agency previously identified as eligible class members.”^[51]

 

Next, in support of its position that the third summary “constitutes a modification” of the remedial award,^[52] the Agency cites the Arbitrator’s “reminde[r]” that the Agency should not use “vacancies” as a “limiting factor[]” in identifying eligible class members.^[53] However, once again, this alleged modification is not unique to the third summary. Rather, the Arbitrator stated in the first summary that “[t]he [c]lass definition is data driven, not announcement driven,”^[54] and repeated this idea in the second summary when she stated that “[t]he [c]lass definition is data driven, not vacancy[‑]announcement driven.”^[55] Thus, the Agency’s modification arguments fail to identify any characteristic of the third summary’s challenged remedy that was not in the second summary. And yet, as stated above, the Agency did not file exceptions to the second summary.

 

We note that, although even the Agency acknowledges that the remedial award is “final and binding,”^[57] the dissent finds it necessary to reach back and address the merits of the Arbitrator’s earlier awards – and the Authority decisions that reviewed them. Even were that appropriate at this stage – which it is not^[58] – the dissent also mischaracterizes the events that gave rise to the underlying grievance. In this regard, the dissent asserts that “[the Agency] decided that current employees, as well as outside candidates, should be required to compete for [the new positions].”^[59] But the Arbitrator found that, rather than encouraging competition between internal and external candidates, the Agency actively discouraged the grievants from applying for the positions.^[60] Specifically, as discussed above, the Arbitrator “credited the grievants’ unrebutted testimony that they were ‘told by their supervisors that their applications to [the new] . . . positions would be destroyed, or not considered, and [that] they should not apply.’”^[61] Although the dissent mischaracterizes these findings as being mere Union allegations,^[62] that is incorrect. They are arbitral factual findings, to which no nonfact exceptions were filed. 

 

In addition, the dissent disagrees with the Authority’s dismissal – in 2012 – of the Agency’s exceptions to the remedial award.^[63] As discussed above, in that decision, the Authority held that the Agency could not challenge the awarded remedy in exceptions to the remedial award because the Agency had failed to do so before the Arbitrator.^[64] The dissent asserts that the Agency had sufficiently “raised its . . . arguments” opposing the Union’s proposed remedies merely by making various arguments in the “numerous” prior “proceedings.”^[65] The dissent fails to explain, however, why the Authority should have rewarded the Agency’s refusal to participate in arbitration proceedings on remand by considering arguments that the Agency declined to make to the Arbitrator in those proceedings. In this regard, the Agency neither complied with the Arbitrator’s directive to propose alternative remedies nor responded to the Union’s proposed alternative remedies.  And the Authority has stated that “a party’s refusal to participate in the arbitration process results in the hindrance or obstruction of grievance resolution through binding arbitration, which is contrary to the mandate and intent of Congress in enacting § 7121” of the Statute.^[66] So it is not clear how rewarding the Agency’s conduct in these circumstances – or, for that matter, otherwise reaching back to challenge the prior, final awards to which no party now objects – would promote “efficient [g]overnment”^[67]or “the prompt ‘settlement[] of disputes.’”^[68]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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