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21:0413(56)AR
The decision of the Authority follows:
21 FLRA No. 56
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3258
Union
and
U.S. DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT
Agency
Case No. 0-AR-1026
DECISION
I. STATEMENT OF THE CASE
This matter is before the Authority on exceptions to the award of
Arbitrator Albert J. Hoban filed by the Agency under section 7122(a) of
the Federal Service Labor-Management Relations Statute and part 2425 of
the Authority's Rules and Regulations.
II. BACKGROUND AND ARBITRATOR'S AWARD
The grievant, a GS-9 support service specialist claimed that he
should have received a noncompetitive, career ladder promotion to GS-11.
His position had previously been graded GS-11 and was identified as one
with promotion potential to GS-11, subject to further classification
review. However, when funds for the Agency were reduced, the grievant
was assigned a number of duties of lower-graded positions that had been
eliminated, duties that were not within his position description. When
the grievant was eligible for a career promotion to GS-11, his
supervisor forwarded a recommendation that he be promoted to the
Personnel Office for review. When no action was taken on the
recommendation after almost five months, the grievance in this matter
was filed. The supervisor's recommendation eventually was disapproved
based upon the findings of a classification desk audit that the grievant
was working most of the time on duties at or below the GS-9 level. The
Agency argued before the Arbitrator that the grievance was not
arbitrable because it involved the classification of the grievant's
position and, further, that even if the grievance was arbitrable, the
grievant was not entitled to a promotion because two conditions for
promotion had not been met, i.e., that the employee must demonstrate the
ability to perform at the next higher level and that there must be
enough work at the higher level.
The Arbitrator acknowledged that he had no jurisdiction over a
classification matter but found that the dispute was arbitrable because
the essence of the grievance was that the Agency violated the parties'
collective bargaining agreement when it changed the grievant's duties
and prevented him from demonstrating that he could perform
satisfactorily at the GS-11 level. The Arbitrator found that under
Section 13 of the parties' agreement an employee such as the grievant in
a career ladder position with potential for a higher grade was entitled
to a chance to demonstrate ability to perform at the higher grade. As
his award, the Arbitrator provided as follows:
1. The grievance is arbitrable.
2. The grievant's present classification is correct.
3. The Agency violated the rights of the grievant as a career
employee by assigning him to duties which were not in his position
description and altering the balance between higher and lower
rated duties causing a reduction in his opportunities to
demonstrate his ability to perform at the GS-11 level.
4. The Agency must comply with the letter and intent of the
collective bargaining agreement, particularly Section 13, by
restoring as near as practical, the balance of higher and lower
rated duties which the grievant performed (previously); or in
some other way provide him with the same opportunities he then had
to demonstrate that he is able to satisfactorily perform at the
GS-11 level.
III. FIRST EXCEPTION
A. Contentions
In its first exception, the Agency contends that the award is
contrary to section 7121(c)(5) of the Statute which precludes grievances
concerning the classification of any position that does not result in
the reduction in grade or pay of an employee. The Agency argues that
this dispute concerns the classification of the grievant's position and,
therefore, is not grievable or arbitrable.
B. Analysis and Conclusions
The Authority has held that a grievance and an award which pertain to
whether a grievant is entitled to a noncompetitive promotion do not
concern the classification of any position within the meaning of section
7121(c)(5). See, e.g., U.S. Army Missile Command and American
Federation of Government Employees, Local 1858, 15 FLRA 286 (1984). The
Authority finds that the grievance and award in this case pertain to
whether the grievant was entitled to a noncompetitive promotion and do
not directly concern the classification of his position. In that
regard, and particularly in view of the Arbitrator's acknowledgement
that he was without jurisdiction to consider classification matters, the
Authority finds that the Arbitrator's statement in paragraph 2 of his
award that "(t)he grievant's present classification is correct(,)"
constitutes nothing more than a recognition of the fact that the desk
audit had determined that based upon the duties assigned and performed
the grievant's position was properly classified at GS-9. The Authority
concludes that the Agency has failed to establish that the award is
deficient as alleged. Accordingly, this exception must be denied.
IV. SECOND EXCEPTION
A. Contentions
In its second exception, the Agency contends that the award
interferes with management's right to assign work under section
7106(a)(2)(B) of the Statute.
B. Analysis and Conclusion
The Authority has repeatedly recognized that the plain language of
section 7106 provides that "nothing" in the Statute shall "affect the
authority" of an agency to exercise the rights enumerated in that
section. E.g., American Federation of Government Employees, AFL-CIO,
Local 1968 and Department of Transportation, Saint Lawrence Seaway
Development Corporation, Massena, New York, 5 FLRA 70, 79 (1981), aff'd
sub nom. AFGE Local 1968 v. FLRA, 691 F.2d 565 (D.C. Cir. 1982), cert.
denied, 461 U.S. 926 (1983). Therefore, the Authority has consistently
held that an arbitration award may not interpret or enforce a collective
bargaining agreement so as to improperly deny an agency the authority to
exercise its rights under section 7106 or result in the substitution of
the arbitrator's judgment for that of the agency in the exercise of
those rights. Id.; National Treasury Employees Union and U.S. Customs
Service, 17 FLRA No. 12 (1985); U.S. Customs Service, Laredo, Texas and
Chapter 145, National Treasury Employees Union, 17 FLRA No. 17 (1985).
Section 7106(a)(2)(B) of the Statute, in particular, reserves to
management officials the authority to assign work. In this case, to the
extent that the Arbitrator restricts the assignment of duties to the
grievant or directs the Agency to restore the mix of higher and
lower-rated duties which the grievant had previously performed, the
Arbitrator substituted his judgment for that of management as to the
duties to be assigned to the grievant. Therefore, the Authority finds
that to that extent the award is deficient as contrary to management's
right to assign work pursuant to section 7106(a)(2)(B).
V. DECISION
Accordingly, based on the above reasons, the Arbitrator's award is
modified by striking paragraphs 3 and 4 and substituting the following:
3. The Agency violated the rights of the grievant as a career
employee by causing a reduction in his opportunities to
demonstrate his ability to perform at the GS-11 level.
4. The Agency must comply with the letter and intent of the
collective bargaining agreement, particularly Section 13, by
providing him with opportunities to demonstrate his ability to
perform satisfactorily at the GS-11 level.
Issued, Washington, D.C., April 22, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY