Arbitrator Andrée Y. McKissick dismissed as non-arbitrable the Union’s grievance, finding that the substance of the Union’s grievance involved a classification determination, which was precluded by § 7121(c)(5) of the Federal Service Labor-Management Relations Statute (the Statute) and a provision of the parties’ collective-bargaining agreement that mirrors § 7121(c)(5).^[1]  This case presents us with two questions. 

 

 

 

 

The parties could not agree as to the issue, and so, the Arbitrator listed the parties’ proposed issues separately. The issue presented by the Agency was “[w]hether . . . the grievance is arbitrable when the subject matter of the grievance is the classification of a position, a matter excluded from the grievance process by Article 47, Section 5 of the [parties’ agreement].”^[3]  The issue presented by the Union was “[w]hether the Agency must pay [the grievant] for work she performed above her pay grade as required by the Merit Staffing Act, 5 U[.]S[.]C[. §] 2301 and [the] Prohibited Personnel Act under 5 U[.]S[.]C[. §] 2302 for [e]qual [p]ay for [e]qual [w]ork.”^[4]

 

 

 

The Arbitrator found that the grievance was not arbitrable. First, the Arbitrator applied the Agency’s internal personnel regulations on classification and found that the comparison of job duties to appropriate pay, title, or series constituted a classification determination. Second, the Arbitrator noted that the parties’ agreement excluded grievances concerning the classification of any position that does not result in the reduction of grade or pay of an employee, and that in this grievance, the “thrust and substance” would require a classification analysis.^[5]  Next, the Arbitrator found that the Union’s reliance on equal-pay principles did not redeem a grievance that concerned classification. Lastly, the Arbitrator noted that the grievant failed to opt for a desk audit to challenge any existing disparities of duties and pay.

 

 

 

Under §§ 2425.4(c) and 2429.5 of the Authority’s Regulations, the Authority will not consider any evidence or arguments that could have been, but were not, presented to the arbitrator.^[7]  

The following factors, taken together, provide a sufficient basis for concluding that, at arbitration, the Union raised a temporary-promotion issue:  (1) the Union argued that it was not seeking a reclassification of the grievant’s position, but was asking the Arbitrator to “order[] [that] a comparison be performed between the tasks performed by [the grievant] and tasks performed by employees in higher[-]graded positions to ascertain [whether] the [g]rievant was performing at a level higher than anticipated by her position description”;^[8] (2) the requested remedy was purely retrospective, specifically, to “make[] the [g]rievant whole, including [backpay]”;^[9] (3) the Arbitrator noted the grievant’s “omission to request a desk audit”;^[10] and (4) the Union cited^[11]         U.S. Department of VA Medical Center,                  Buffalo, New York^[12] – a case involving a request for a temporary promotion. Because the Union raised a             temporary-promotion issue at arbitration, we find that §§ 2425.4(c) and 2429.5 do not bar the Union’s arguments.

 

 

 

The Union claims that the Arbitrator erred because the award does not draw its essence from the parties’ agreement.^[14] Specifically, the Union challenges the Arbitrator’s finding that Article 20, Section 5, of the parties’ agreement does not apply.^[15] The Arbitrator did not set forth the wording of Article 20, Section 5, in the award. And the Union does not provide a copy of the parties’ agreement, nor does it provide an excerpt of Article 20, Section 5. As the Union failed to “set[] forth[] in full” its argument in support of its essence exception, we find that § 2425.4(a)(2)-(3) bars consideration of the essence exception.^[16]

 

 

The Union argues that the Arbitrator committed “legal error” when she concluded the grievance concerned a matter of classification without a sufficient explanation or analysis of the cases she relied upon to reach her decision.^[17] The Union also contends that the Arbitrator erred in failing to distinguish its request for equal pay for equal work from a grievance that involves classification.^[18] 

 

A grievance concerns classification within the meaning of § 7121(c)(5)^[19] where the substance of the grievance concerns the grade level to which the grievant could receive a noncompetitive-career promotion.^[20] This principle applies to requests for noncompetitive promotions beyond the full performance level of the employee’s established career ladder.^[21] In contrast, where an arbitrator determines a grievant’s entitlement to a temporary or other noncompetitive promotion based on performance of previously classified duties, the award does not concern classification.^[22] 

 

Here, it is unclear whether the Arbitrator rejected the Union’s interpretation of the grievance as involving a temporary promotion, or whether the Arbitrator committed a legal error and incorrectly concluded that a request for temporary promotion involves classification. As such, the record is insufficient for us to determine whether the award is contrary to the legal principles set forth above. Where the Authority is unable to determine whether an arbitration award is contrary to law, the Authority will remand for further findings.^[23]  

 

 

 

 

 

 

 

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