UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
)
)
U.S. Department of Housing and )
Urban Development, )
)
Agency )
) Re: Community Builder
and ) Career Ladder Promotions
)
American Federation of Government )
Employees, National Council )
of HUD Locals 222, )
)
Union )
____________________________________)
Pursuant To 5 C.F.R. Section 2425.1, the American Federation of Government Employees, National Council of HUD Locals 222 (Union) hereby files exceptions to the Award of Arbitrator Roger P. Kaplan concerning the grievance of the parties identified herein. A copy of the award is attached as Attachment A.[1] As set forth fully below, the arbitration award is deficient and should be set aside as it: (1) includes a finding of non-fact that substantially and materially affects the decision and award; and (2) applies the wrong standard of proof with regard to career ladder promotions.
The following are the relevant provisions of the Settlement Agreement and the parties’ collective bargaining agreement (CBA) at issue in this matter:
7. Nothing in this Agreement is intended to, nor does it extinguish, the right to file a grievance of any Community Builder not promoted under this Agreement.
Article 13, Section13.13
Management shall make prompt determinations regarding career ladder promotions of their employees. Management shall notify the employee by his/her anniversary date whether or not a promotion shall be recommended and provide a written explanation if the employee shall not be promoted. A career ladder promotion is dependent on:
1. The employee’s demonstration of the ability to perform the duties of the next higher grade to the satisfaction of his/her supervisor. A copy of the promotion criteria (position description or performance standards for the next grade) shall be given to an employee as he/she enters each level of a career ladder.
2. The availability of enough work at the next higher grade.
3. Meeting the minimum qualification and other regulatory requirements.
In June of 1997, the Agency announced the creation of the position of Community Builder, GS-1101 (hereinafter referred to as CB). In October of 1997, the Agency advertised the position as a career ladder GS-13/14/15. The first round of hires began their new jobs in the spring of 1998.
In the spring of 1999, these hires became eligible for their first career ladder promotions. At the same time, the Agency continued to bring on board CBs at grades GS-14 and 15, often working side by side with CBs awaiting their first career ladder promotions.
Several CBs inquired about the career ladder promotions, and some filed grievances. When it became apparent that almost none of the approximately 110 CBs due career ladders were being promoted, the Union began to inquire. During the course of discussions, the Agency conducted a workload assessment and promoted some, but not all, of the CBs in career ladder positions. In those instances where promotions were received, they were several months late. After months of informal discussion, the Union filed a grievance of the parties (the Grievance) in the spring of 2000.
On March 16, 2001, the parties entered into a Settlement Agreement (the Settlement). Among other things, the Settlement provided that the Agency would
promote retroactively, with appropriate back-pay, as expeditiously as possible after its review, all those Community Builders in career ladders who were not promoted to the full performance level for which they originally competed consistent with the Code of Federal Regulations and the HUD/AFGE Agreement.
The Settlement further specified that it did not extinguish the rights of CBs who were not promoted to file grievances regarding non-promotion. The parties entered into an Addendum to Settlement Agreement identifying the “Field Policy and Management – Community Builders – Career Ladder Eligibles” whose circumstances would be reviewed. The Addendum included 59 named individuals.
On July 31, 2001, the Agency provided the Union with a copy of its review pursuant to the Settlement. The review resulted in no promotions and no back-pay. On September 13, 2001, the Union filed a grievance of the parties alleging Agency failure to implement the Settlement. The parties proceeded to arbitration on the matter, with hearings held on January 28 and February 21, 2002. The Arbitration Award was issued on June 24, 2002, and it is this Arbitration Award to which the Union takes exception.
The central issue in dispute was the availability of work at the next higher grade level. The Union argued that with regard to career ladder promotions, the burden to show that work was not available for a classified and advertised career ladder position properly rested with the Agency, and that the Agency had failed to meet this burden. Nonetheless, regardless of who properly has the burden, the Union argued that there was work for at least 44 members of the class as demonstrated by the Agency’s concurrent hiring of higher graded CBs to work side by side with CBs who were career ladder promotion eligible.
The Arbitrator found that the burden of proof properly fell on the Union, and that the Union did not meet its burden (see Award, page 11). Specifically, the Arbitrator found that the Agency reclassified the CB Career Ladder positions into three single-graded positions; “Thus, following reclassification, there were no career ladder positions with any promotion potential” (Award at p. 11).
As discussed more fully below, the Union takes exception to the Award as it: (1) includes a finding of non-fact that substantially and materially affects the decision and award; and (2) applies the wrong standard of proof with regard to career ladder promotions.
1. The Award makes a finding of non-fact.
The Union argues that the Award is based on a non-fact, to wit, that the CB positions were reclassified as single-graded positions, therefore eliminating promotion potential. As the central issue in the grievance was failure to promote, this finding is a “central fact underlying the award . . . but for which a different result would have been reached by the arbitrator.” U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and NFFE Local 1497, 48 FLRA 589, 593 (1993).
The mere fact that the Union disagrees with the finding of the arbitrator will not provide the basis for a non-fact. See American Federation of Government Employees Local 1923 and U.S. Department of Health and Human Services Health Care Finance Administration, Baltimore, Maryland, 51 FLRA 576, 579 (1995). Rather, the standard in Lowry AFB, reiterated in Local 1923, is that the fact be “clearly erroneous.”
The Union argues that the fact is clearly erroneous. Specifically, the fact is contradicted by the Agency in a brief it has filed with the FLRA in U.S. Department of Housing and Urban Development, and American Federation of Government Employees, Local 3294, FLRA Docket Number 0-AR-3518 (decision pending) (hereinafter Local 3294). Local 3294 concerns an Agency exception to an Arbitrator’s Award of back pay to four Community Builders in Seattle, one of whom is a woman named Lee Desta. Ms. Desta is also one of the 59 named individuals in the Settlement Addendum. As the Settlement specifically authorized individual grievances regarding career ladder promotions, Ms. Desta is covered by both her individual grievance and the national grievance of the parties.
In its exceptions to the Arbitrator’s Award in Local 3294, the Agency has stated at page 5 that “Ms. Desta remains in her career ladder position.” The Agency filed its exception March 15, 2002 (copy attached). The hearing in the arbitration under consideration here was held January 28 and February 21, 2001. After the hearing dates, the Agency presented to the FLRA in exceptions to a related case that a member of the class “remains in her career ladder position,” thereby acknowledging that the CB positions at issue continue to be career ladder positions. The Arbitrator’s finding June 24, 2002, that the Agency reclassified the positions as single-graded positions is clearly erroneous.
The Agency may argue that, pursuant to Lowry AFB, the FLRA should not find as a non-fact any factual matter that the parties had disputed at arbitration. The Union agrees that the matter of reclassification was in dispute at the arbitration. An Agency witness testified that the positions were reclassified; the Union asked for copies of the Notices of Personnel Action, SF-50s, indicating a change in position or promotion potential. The Agency failed to provide any SF-50s, and the copies produced by the Union indicated no change in position or promotion potential. In one instance, the SF-50 was dated 21 months after the alleged reclassification. The record shows that the matter was in dispute at the hearing.
Nonetheless, the instant circumstance is beyond that contemplated by the Authority in any previous case. The Authority should not permit the Agency to allege as fact that positions were reclassified in one action before the Authority, and then allege as fact that the same positions were not reclassified in another action before the Authority. To arbitrarily change a fact depending on whether the “fact” helps or hurts its position is unacceptable. Such duplicity should go against the offending party.
The “central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator.” Lowry AFB, 48 FLRA 589, 593 (1993). Therefore, we ask the Authority to set aside the award as a based on a non-fact.
2. The Award applies the wrong standard of proof with regard to career ladder promotions.
It is generally accepted that the party filing a grievance has the burden of proof. The Union believes that in the circumstances of career ladder promotions and work availability, however, it is Management that has the burden of demonstrating that work is not available. Management must overcome the record that it created when it established the career ladder in the first place. We believe that this position is supported by an analysis of the career ladder program.
The Federal Labor Relations Authority has examined career ladders in the context of negotiability. The current Code of Federal Regulations mirrors the language formerly found in the Federal Personnel Manual at Chapter 335, Subchapter 1-5(c)(1)(a). 5 CFR Part 335.103(c)(3)(i) states that agencies may except from competitive promotion procedures:
[a] promotion without current competition of an employee who was appointed in the competitive [sic] from a civil service register . . . for an assignment intended to prepare the employee for the position being filled (the intent must be made a matter of record and career ladders must be documented in the promotion plan).
About this language, the FLRA stated:
Thus, in essence, the Federal Personnel Manual defines a “career ladder promotion” as the noncompetitive promotion of an employee who is part of a group selected competitively at an earlier stage for career ladder positions, with the recorded intention of preparing the employee for successive promotions. It is clear under the Federal Personnel Manual that the Agency could promote individual members of the group who, as required by the proposal herein, have demonstrated ability to perform at the next higher level, provided that there is enough work at the full performance level for all employees in the group. . . . It is clear that a career ladder promotion, as referenced in the proposal, would merely be a ministerial act implementing the Agency’s earlier decision . . .. AFGE Local 32 and OPM, 8 FLRA 460, at 464-66 (1982) (emphasis added).
We have emphasized two sentences in the foregoing. First, that the decision regarding the availability of work must apply to all members of the group. And second, that a career ladder promotion implements an agency’s earlier decision, and thus becomes ministerial.
The Union believes that it is incumbent upon the agency to decide whether work is available at the time the agency determines the full performance level of a position. In creating the position, they have made a decision that work exists for all members of the career ladder. Management made this determination when they originally posted the Career CB GS-13/14/15 vacancy announcements.
Although an agency has the right to reclassify a position after posting vacancy announcements and hiring staff, it cannot do so on an ad hoc basis. It must do so for the entire group of employees and it must undertake a process as serious as the one that lead it to establish the career ladder position in the first place. To promote is a “ministerial act.” To not promote takes more than a ministerial act. Management must overcome their earlier decision to place the employee in a career ladder position. Thus, when Management refuses a career ladder promotion stating no work availability, the burden of proof properly rests with Management.
CONCLUSION
The Union asks the Authority to set aside the decision of the Arbitrator, and to remand the case for reconsideration with the following direction: 1) that the arbitrator find that the agency did not reclassify the positions and that they continue to be career ladder positions; and 2) that the agency bears the burden of proof regarding work availability.
Dated this 24th day of July, 2002.
Respectfully submitted:
_____________________________
Carolyn Federoff, President
American Federation of Government Employees
Council of HUD Locals, 222
P.O. Box 5961
Boston, MA 02114
617/994-8264
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
)
)
U.S. Department of Housing and )
Urban Development, )
)
Agency )
) Re: Community Builder
and ) Career Ladder Promotions
)
American Federation of Government )
Employees, National Council )
of HUD Locals 222, )
)
Union )
____________________________________)
I, Carolyn Federoff, hereby certify that the attached documents in the above-captioned matter were filed with the Case control Office, Federal Labor Relations Authority, Washington, D.C., and were delivered this day to:
(by personal delivery)
Norman Mesewicz
Deputy Director
Labor & Employee Relations Division
U.S. Department of HUD
451 Seventh Street SW, Room 2150
Washington, DC 20410
Dated this 24th day of March 2002 ____________________________
Carolyn Federoff
Attachments: Arbitration Award
Agency’s Exceptions to Arbitration Award
FLRA 0-AR-3518
[1] The award is dated June 24, 2002, and was delivered via mail. The name and address of the arbitrator is Roger P. Kaplan, 211 North Union Street, Suite 100, Alexandria, Virginia, 22314.