UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS
AUTHORITY
WASHINGTON, D.C.
)
U.S.
Department of Housing and Urban )
Development,
Washington, DC )
)
(Agency), ) FMCS-03-07743
)
and )
)
American
Federation of Government )
Employees,
National Council of HUD Locals )
222, AFL-CIO )
(Union) )
__________________________________________)
Pursuant to 5 C.F.R.,
Section 2425.1 (a), the Department of Housing and Urban Development (Agency or
HUD) hereby files exceptions to the Award of Arbitrator Andree Y. McKissick
concerning the Question of the Arbitrability of the Union Grievance of the
Parties, FMCS-03-07743. A copy of the Award is attached as Exhibit 1 (E1)¹. As
set forth fully below, the Award is deficient and should be set aside as it:
finds a grievance concerning the classification of a position which does not
result in the reduction in grade or pay of an employee to be grievable in
violation of Section 7121(c)(5) of the Federal Service Labor-Management
Relations Statute (Statute) as well as Article 22, Section 22.05 (5) of the
HUD/AFGE Agreement (Agreement) (E2). Because the subject of the grievance is
statutorily excluded from the grievance procedure, the arbitrator had no basis
upon which to assert jurisdiction in this matter. The Federal
___________________________________________
1 The Award is dated June 23, 2003 and was
delivered via U.S. Mail. The address of Arbitrator McKissick is 2808 Navarre
Drive, Chevy Chase, MD 20815.
1
Labor Relations Authority (Authority) holds that issues which, as a matter of law, are not cognizable under a grievance procedure, may not go before an arbitrator, Director of Administration HQ, USAF and AFGE Council of HQ USAF Locals, 17 FLRA No. 58 (1985). The Award is also based on a non-fact.
On November 13, 2002, the Union filed the instant Grievance of the Parties (Grievance) regarding the filling of certain positions at certain grade levels. The stated remedy was "We are seeking as a remedy that the full promotion potential for all similarly situated employees be GS-13, and such other relief as maybe just" (E3). The Agency denied the Grievance noting the remedy required the reclassification of certain positions. The Agency's decision also explained that both Section 7121(c)(5) of the Statute and Article 22, Section 22.05 of the Agreement exclude from the grievance procedure grievances concerning the classification of positions which do not result in the reduction of grade or pay of an employee (E4). The Union invoked arbitration (E5). The Agency initially declined to participate in arbitration proceedings reiterating that the Grievance was barred by Section 7121 (c)(5) of the Statute noting particularly that Authority holds that issues which, as a matter of law, are not cognizable under a grievance procedure, may not go before an arbitrator (E6). Pursuant to the Union's request, the Federal Mediation and Conciliation Service made a direct designation of an
2
arbitrator in this matter (E7). The Agency decided
to participate in the arbitration, and on April 30, 2003 submitted its Question
of Arbitrability Argument to the arbitrator (E8).2
The issue as stated by the
arbitrator was "Whether or not this grievance is arbitrable?" (E1
p.4) The arbitrator found the Grievance to be arbitrable. In so finding, she
stated, without rationale, that the Grievance does not involve a classification
issue under Section 7121(c)(5) of the Statute. She also stated that the remedy
requested was "reassignment" (El pp. 5-6). Inexplicably, the
arbitrator reached those two conclusions despite the fact that the requested
remedy, as stated on the Grievance is "We are seeking as a remedy that the
full promotion potential for all similarly situated employees be GS-13, and
such other relief as may be just."3 Thus, the Award does not
address how the elevation of the promotion potential, i.e. reclassification, of
certain positions is not a classification matter within the scope of Section
7212(c)(5) of the Statute.4
Moreover, the assertion that the requested remedy was
"reassignment" is patently false. A review of the Grievance will
reveal that nowhere in that document does the word "reassignment"
appear (E3). Assuming arguendo that
requested reassignments were part of the Grievance, granting that remedy would
interfere with the Agency's reserved right to assign and assign work under
Section 7106(a)(2)(B) of the Statute. Additionally, any
_________________________
2
The exhibits which were part of the Agency's Argument are not now
included since they are addressed independently in these exceptions. The
Authority decisions provided to the arbitrator are included.
³The Grievance does not elaborate upon what "such other
relief as may be just" may be.
4 The Agency's position regarding the
applicability of Section 7121(c)(5) of the Statute to this matter is fully set
forth in its initial submission to the arbitrator (E8).
3
reassignment to a higher graded position absent
competition is a violation of 5 C.F.R.,
Part 335 - Promotion and Internal Placement (E9).5
The arbitrator stated that
the stipulated issue before the arbitrator was "Whether or not this
grievance is arbitrable?" (E1 p.4). The Authority holds that if the sole
issue before an arbitrator is whether or not a grievance presents a matter
arbitrable under the negotiated agreement, the decision on that issue is not
interlocutory, and exceptions lie to that decision, irrespective of the
understanding of one party that the case would proceed to the merits if the
grievance were found grievable. If the stipulated issue is limited to
grievability, that decision is final when it is made. USIA and AFGE Local 1812, 32 FLRA 739 (1988); DLA and AFGE Local 916,
53 FLRA 460, 462 n.1 (1997). In this
case, the Agency put squarely before the arbitrator the position that the
Grievance was excluded from the Parties' grievance procedure by Article 22,
Section 22.05 (5) of the
Agreement (E8 Management Argument p.2).6
___________________________________________
5 Regarding reassignment, the arbitrator refers
to a Memorandum of Understanding dated February 27, 1995 without further
identification, and establishes no nexus between it and the Grievance.
6 The fact that the Agency also argued lack of
jurisdiction under Section 7121(c)(5) of the Statute cannot preclude the taking
of this position since the jurisdictional issue is based on a separate authority,
i.e., the Statute and procedurally precedes a contractual bar to grievability.
Had the arbitrator acknowledged the statutory bar to jurisdiction, she never
would have reached the issue of arbitability under the Agreement.
4
Assuming arguendo that the Exceptions are
interlocutory, they must still be considered because there are extraordinary
circumstances warranting their review. Specifically, those circumstances are
that the Grievance is excluded from consideration under the grievance procedure
by Section 7121(c)(5) of the Statute. As noted above, the remedy of the
Grievance requires the reclassification of certain positions and the Grievance
fails to allege any loss of grade or pay by any employee (E3). Grievances
which, as a matter of law, are not cognizable under a grievance procedure may
not go before an arbitrator. Internal
Revenue Service, National Office and NTEU, 21 FLRA 646, 649 n.3(1986). Thus,
there is a statutory bar to the arbitrator's assertion of jurisdiction over the
Grievance.
The Authority holds that
interlocutory review should only be undertaken where the arguments challenging
an award present a plausible jurisdictional defect, the resolution of which
will advance the ultimate disposition of the case. Dept. Of Interior, BIA and NFFE Local 34155 FLRA 1230 (2000), Library
of Congress and FOP Labor Committee 58 FLRA No. 120 (2003), U.S. DOD, NIMA and
AFGE Local 1827 57 FLRA 837 n.2(2002). The Agency submits that the facts in
this case meet the above-noted test for interlocutory review. Specifically, a
finding that the arbitrator improperly asserted jurisdiction would completely
dispose of this case. This is so because, once it is established that the
Grievance concerns a classification issue under 7121(c)(5) of the Statute,
there will no issues, tangential or otherwise, left to resolve. In this regard,
it must be reiterated that the only remedy specified in the Grievance requires
the reclassification
5
of certain positions (E3), and that the remedy of reassignment "created" by the arbitrator interferes with the Agency's right to assign work under Section 7106(a)(2)(B) of the Statute.
The
Award is Contrary to Law.
The Authority may review
arbitrability decisions of arbitrators challenged under Section 7121 of the
Statute on the basis that the award is contrary to law, rule or regulation. AFGE Local 3669 and VAMC, Minneapolis, 3
FLRA 310 (1980). In this case the arbitrator asserted jurisdiction over a
grievance seeking the reclassification of certain positions absent the
reduction in grade or pay of any employee (E3). That assertion of jurisdiction
violated Section 7121(c)(5) of the Statute.
To establish that an award
is based on non-fact, the appealing party must demonstrate that the central
fact underlying the award is clearly erroneous, but for which a different
result would have been reached by the arbitrator. Lowery AFB, Denver, Colorado and NFFE Local 1497 48 FLRA 589 (1993) In
her Award, the arbitrator states that the requested remedy is reassignment (E
1). As was noted above, this is patently false since the remedy, as stated on
the Grievance is " We are seeking as a remedy that the full promotion
potential for all similarly situated employees be GS-13, and such other relief
as may be just.". If the arbitrator had, rather, acknowledged the reality
of the
6
requested remedy she could not have asserted jurisdiction in violation of Section 7212(c)(5) of the Statute. Thus, the central fact of the award is clearly erroneous, and a different result, i.e., a decision of non-arbitrability, would have obtained had the actual remedy not been ignored by the arbitrator. At this point, it must also be reiterated that that the arbitrator's fictional remedy, reassignment, is an interference with the Agency's reserved right to assign and assign work under Sections 7106(a)(2)(A) and (B) of the Statute.
The Award is contrary to law, based on non-fact, and proposes a remedy that violates the Agency's reserved right to assign and assign work under Sections 7106 (a)(2) (A) and (B) of the Statute. Accordingly, the Award is deficient and must be set aside.
Norman Mesewicz, Esq.
Deputy Director, Labor and Employee Relations Division
Office of Human Resources
451 7th Street, SW, Room 2150
Department of Housing and Urban Development
Washington DC, 20410-0500
(202) 708-3373
7
FEDERAL LABOR RELATIONS
AUTHORITY
WASHINGTON, D.C.
)
U.S.
Department of Housing and Urban )
Development,
Washington, DC )
(Agency), )
and ) FMCS No. 03-07743
American
Federation of Government )
Employees,
National Council of HUD Locals )
222,
AFL-CIO )
(Union) )
)
)
__________________________________________)
I, Norman Mesewicz, hereby certify that on this date the Agency's exceptions to the arbitration award and attachments in the above-captioned matter were filed with the Case Control Office, Federal Labor Relations Authority, and served on the following in the manner indicated:
By Messenger Delivery
(Original and 4 copies):
Case
Control Office
Federal
Labor Relations Authority
Docket
Room, Suite 201
1400
K Street, NW
Washington,
DC 20424-0001
Carolyn
Federoff
President,
American Federation of
Government Employees
National
Council of HUD
Locals
222, AFL-CIO
Dated
this 28`h of July 2003 Norman
Mesewicz