IN THE MATTER OF ARBITRATION )
) UNION’S BRIEF ON ISSUE
NATIONAL COUNCIL ) OF ARBITRABILITY
of HUD LOCALS 222 )
Grievant ) Case no. 03-07743
U.S. DEPARTMENT OF HOUSING )
AND URBAN DEVELOPMENT )
The matter before the Arbitrator concerns arbitrability. Management has made an allegation that the matter which is the subject of a grievance of the parties is not arbitrable. Pursuant to the HUD/AFGE Agreement (the CBA) at Article 22, Section 22.14, “[t]he moving party shall have the affirmative in going forward with the demonstration that the matter is not grievable.” We believe that Management will not be able to meet its burden, and that the Arbitrator should find that the subject matter of the grievance is subject to arbitration.
Furthermore, in its Grievance of the Parties, the Union seeks additional information to establish the possibility of additional violations and grievants. Management has refused to provided this information, based upon their assertion that the matter is not arbitrable. Should the Arbitrator find that the matter is arbitrable, we request that the arbitrator order the agency to provide additional information sought by the Union.
As set forth in the Grievance of the Parties dated November 13, 2002, this grievance concerns the advertisement and filling of positions occurring in and around the fall of 2002. During this time, the Agency was engaged in a massive hiring process referred to as “Staffing 9/30.” Several positions were advertised with career ladders greater than current employees; generally, the career ladder potential was GS-12 for staff already on board before Staffing 9/30, while the vacancy announcements provided for career ladders to GS-13.
In some instances, the positions were advertised at entry level only, below a GS-12. To secure the greater career ladder potential, an on-board employee would have to take a downgrade. In other instances, similar positions were advertised for on-board staff, but the vacancy announcements were cancelled after the period of time for application under the external announcement had expired.
We believe that there are additional violations (of the contract and law, rule and regulation). However, Management has refused to provide information in connection with this grievance. Therefore, we have been unable to identify all of the potential grievants and violations.
Nonetheless, we are aware of individuals who have reached the journey level of GS-12 for their career ladders, and who are now mentoring, training, and working side-by-side with entry level GS-9 staff that have career ladder potential to GS-13.
In its Grievance of the Parties, the Union alleged that Management violated the CBA at:
Article 4, Sections 4.01 (“. . . employees shall be treated fairly and equitably in the administration of this Agreement and in policies and practices concerning conditions of employment . . ..”) and 4.06 (“. . . manager, supervisors, and employees shall endeavor to treat one another with the utmost respect . . ..”);
Article 9, Section 9.01 (“Classification standards shall be applied fairly and equitably to all positions.”); and
Article 13, Section 13.01 (“Management agrees that it is desirable to develop or utilize programs that facilitate the career development of the Department’s employees. To that end, Management shall consider filling positions from within the Department . . , where feasible, to help promote the internal advancement of employees.”)
Additionally, we believe that there are other violations that would be revealed with the release of information sought by the Union in its Grievance of the Parties.
As remedy, the Union asks, “that the full promotion potential for all similarly situated employees be GS-13, and such other relief as may be just.”
Management issued a decision on January 17, 2003, wherein they stated:
Section 7121(c)(5) of the Statute excludes from negotiated grievance procedures the classification of any position which does not result in the reduction in grade or pay of an employee. Moreover, Article 22, Section 22.05(5) of the Agreement tracks the language of the Statute. Your grievance asserts that certain positions are classified at grades that are too low. It presents no evidence that the advertising/filling of the above-noted positions resulted in the reduction in grade or pay of any employee. The requested remedy requires the reclassification of certain positions. Accordingly, the grievance falls within the scope of a statutory exclusion to the grievance procedure, and must be denied on that basis.
The parties are now before the Arbitrator regarding the threshold issue of arbitrability.
Under both the parties’ Agreement and well-settled case law, the party asserting lack of arbitrability bears the burden. Additionally, as a general rule, this burden is very high.
The Agreement at Article 22, Section 22.14 states in part:
Questions of arbitrability shall be submitted to the arbitrator in writing and be decided prior to any hearing unless mutually agreed otherwise. The moving party shall have the affirmative in going forward with the demonstration that the matter is not grievable.
Generally, arbitrators “seek to resolve the issue between the parties on the merits and will rule that a certain matter is not arbitrable only if the agreement between the parties specifically states that such a matter is not arbitrable.” Department of Health and Human Services, Social Security Administration, Southeastern Program Service Center and AFGE, Local 2206, No. 82K01987, LAIRS 13996 (Johnston, 1982). “There is a strong presumption favoring arbitration of labor disputes as a matter of federal labor policy and language excluding certain disputes from arbitration must be clear and unambiguous, or unmistakably clear.” Massachusetts Army National Guard and NAGE, Local R1-154, LAIRS 14178 (Grossman, 1982).
The Matter Grieved is Not a Classification Issue
Management has alleged that the remedy “requires the reclassification of certain positions.” The Union asserts a) that the remedy does not require reclassification, and b) that Agreement specifically permits employees to grieve regarding the “consistency” of position descriptions. Agreement at Article 9, Section 9.05(3).
We turn first to A Guide to Federal Sector Labor Arbitration, Ernest C. Hadley, Dewey Publications, Inc. (2d Ed. 1999). Hadley considers the arbitrability of classification issues at page 73. He states that although “the law is clear,” “the application of that law is a little less clear.” “[T]he problem often is in defining, with precision, the issue that is raised by the grievance.” (Hadley at p. 73.) Thus, for example, a case that alleged that supervisors failed to promote employees to whom they had assigned higher graded duties was arbitrable; “The Union is asking an arbitrator to review the position descriptions of the affected employees as already classified by management and factually determine what grade level work the employees are performing.” Hadley at 73, quoting National Labor Relations Board and NLRB Union, ARBIHS06458 (Kaplan, 1994).
The Union believes that the central issue of this case is not about classification or proper classification. Rather, the issues concern fairness, equity and consistency. Based upon the advertisement of the positions with career ladders to GS-13, Management has indicated that it has properly classified the journey level of these positions at the GS-13 level. The remedy does not require reclassification of employees presently at the GS-12 level. Rather, the remedy requires that management reassign employees to the reclassified position. Reassignment would result in a consistent application of the classification standards.
This is a remedy that the parties have reached in other matters. In a Memorandum of Understanding between the parties dated February 24, 1995 (copy attached), the parties agreed to the reassignment of employees to reclassified positions having greater promotion potential. As set forth in the cover memorandum dated February 27, 1995, from then Deputy Secretary Dwight Robinson, “[t]his MOU allows an employee who is reassigned to a reclassified position with greater promotion potential to attain the new career ladder potential without competition.” We are asking that employees be reassigned to the reclassified position with greater promotion potential so that they may attain the new career ladder potential without competition.
Additionally, the Union is seeking all other relief as may be just. Other relief, including substitute relief, can include reassignment of the work classified as higher graded to employees at the GS-12 level and subsequent changes to their position descriptions. Based upon these changes, employees could pursue a reclassification audit or other appropriate action. These changes in and of themselves would not require reclassification.
The Federal Labor Relations Authority has upheld arbitrators’ decisions regarding the fair and equitable distribution of work assignments. For example, in National Association of Government Employees, Local R4-45 and U.S. Dept of Defense, Defense Commissary Agency, Fort Lee, Virginia, 55 FLRA 695 (July 31, 1999), the FLRA upheld an arbitrator’s decision that the agency failed to afford employees their right to fair and equitable treatment with respect to details and temporary assignments.
Since neither the matter grieved concerns nor the remedy requires reclassification of any position, we believe that the Grievance of the Parties is arbitrable.*
As part of its Grievance of the Parties dated November 13, 2003, the Union requested additional information. In the fact section of the Grievance, we state at the end of each paragraph that we do not have all of the information necessary to assess the matter. Specifically, we are waiting for Management’s response to our request for information dated October 9, 2002. This information will help us identify which announcements were cancelled, which were filled, by whom and at what grade level. Additionally, at the end of the Grievance of the Parties, we seek copies of specific vacancy announcements that we believe were advertisements at entry-level grades for positions with potential to GS-13. These announcements include: 02-MSD-2002-0066Z and 02-DEU-2002-0013Z; 152700; 152698; 152696; and PHJT-2-152800SO.
Finally, because Management early on advised that they would not provide additional information based upon their belief that the matter was not arbitrable, the Union did not make additional requests for information. If the Arbitrator finds this matter arbitrable, we request a list of all employees, including current grade, grade potential and location, presently in the positions of:
· Program Analyst, GS-0343, in the Office of Fair Housing and Equal Opportunity
· Contract Industrial Relations Specialist, GS-0246, in the Office of Departmental Operations and Coordination
· Engineers, GS-0801, in the Offices of Housing, and Public and Indian Housing
· Financial Analysts, GS-1160, in the Office of Public and Indian Housing
· Construction Analysts, GS-0828, in the Offices of Housing, and Public and Indian Housing
· Public Housing Revitalization Specialists, GS-1101, in the Office of Public Housing
This information is necessary to determine the class of similarly situated employees who have been harmed by Management’s disparate treatment of on-board versus incoming staff. Release of the information is not prohibited by law, and is reasonably available and necessary for the full and proper discussion of the subject Grievance of the Parties.
We request that the information be provided within two weeks of a favorable decision regarding arbitrability, provided, however, that the information is made available more than two weeks in advance of the scheduled hearing date for arbitration on the merits.
NATIONAL COUNCIL OF HUD LOCALS 222,
BY: Carolyn Federoff, President
P.O. Box 5961
Boston, MA 02114
* We understand that Management is arguing that Director of Administration Headquarters, U.S. Air Force, and AFGE-GAIU, Council of Headquarters USAF Locals, and Office of Personnel Management, 17 FLRA 372 (1985) precludes consideration of this matter before an arbitrator. The case is not on point. Among several distinguishing factors, the primary one is that the decision concerned an Unfair Labor Practice charge filed by the Union against Management for failure to participate in the parties’ grievance procedure. The matter currently before the Arbitrator does not involve an Unfair Labor Practice charge. The Union does not need to resort to a ULP to compel participation in the parties’ negotiated grievance and arbitration process. The parties have specifically negotiated language that permits either party to secure an arbitrator in the event the other party refuses to participate (see CBA at Article 23, Section 23.06), and either party may participate in an ex parte arbitration should the other party refuse to participate (see CBA at Article 23, Section 23.12). If the Arbitrator finds that the matter is arbitrable and eventually decides for the Union on the merits of the case, Management retains its right to challenge the decision before the FLRA. Management’s challenge can include a challenge to the Arbitrator’s decision regarding arbitrability.