This Agency Opposition to Union's Exceptions to Arbitration Award is filed

pursuant to 5 C.F.R. 2425.1(c). The Union's Statement of Service notes that it was made

by personal delivery to the Agency representative on March 24, 2002. The Agency has

relied on related correspondence to conclude that service was made by personal delivery

on July 24, 2002. Specifically, this correspondence is the Union's cover letter to the

Authority transmitting its Exceptions which is dated July 24, and 2002, and the Union's

July 29, 2002 cover letter transmitting an additional document to the Authority which

refers to an original personal delivery date of July 24, 2002. In this regard, it must also

be noted that the Agency's representative was out of town on July 24, 2002, and did not

return until July 29, 2002.

BACKGROUND

The grievance which generated this case involves what was the "Community

Builder" (CB) program at the Agency which was abolished in April 2002. Specifically, it

revolves around the rights of certain former CBs to career ladder promotions from the

GS-13 to the GS-15 levels, and whether or not the Agency properly implemented the

Settlement of a National Grievance of the Parties filed by the Union concerning those

career ladder promotions (Attachment 1). The history of the CB program is recounted in

the Management Post-Hearing Brief filed in the instant arbitration hearing (Attachment 2.

pp. 2-5.).

The Award in question was rendered by Arbitrator Roger P. Kaplan,, ESQ. on

June 2, 2002 (Attachment 3.). The stipulated issues were; 1. Did the Department

properly implement the March 16, 2001 Settlement Agreement, as amended, and 2. If not

what is the appropriate remedy (Attachment 3. p. 2)?

The Arbitrator held that Management properly implemented the Settlement

Agreement, as amended, and denied the grievance (Attachment 3. pp. 10, 12). In so

doing, he found that, in December 1999, the Community Builder positions had been

reclassified in compliance with Management's obligation to classify positions properly,

and that following the reclassification, there were no career ladder positions with any

promotion potential (Attachment 3. p. 11). The evidence of record demonstrated

reclassification was required because the projected duties which would have continued to

support the initial CB career ladder classification did not materialize. Thus, there was

insufficient work at the GS-14 and GS-15 levels to support wholesale career ladder

promotions. (Attachment 3. pp. 4-5). The Arbitrator also found it was the Union's

burden establish the existence of sufficient higher graded work to support CB career

ladder promotions, and that the Union did not sustain its burden (Attachment 3. pp. 10-11)

THE UNION'S EXCEPTIONS MUST FAIL

The Union excepts to the instant Award on two bases, first that it makes a finding

of non-fact, and second that it applies the wrong standard (burden) of proof (Attachment

4. pp. 1, 4, 7). The deficiencies of each exception will be addressed in turn below.

 

ALLEGATION OF NON-FACT

The Union asserts the Arbitrator's finding that the CB positions were reclassified

as single graded positions, therefore eliminating promotion potential, is a non-fact

(Attachment 4. p. 5). In support of this assertion, the Union points to a set of exceptions

to an arbitration award filed by the Agency March 15, 2002 (Attachment 5), and argues

that the sentence "Desta remains in her career ladder position" contradicts and renders

the Arbitrator's finding that the CB positions were reclassified clearly erroneous

(Attachment 4. pp. 5-6). As will be demonstrated below, this is an egregiously

misleading characterization.

An objective reading of Attachment 5 reveals the following. The sentence in

question follows an extensive explanation of the circumstances surrounding the

reclassification of the CB positions (Attachment 5. pp. 3-5). Thus, it cannot be construed

to mean that the CB positions had not been reclassified or that there is sufficient work

available at a higher grade to support a career ladder promotion. It is a mere assertion

contained in a pleading submitted in an unrelated matter. It is not a finding of fact or law.

As such, it has no probative value. Accordingly, it cannot support the contention that the

Arbitrator's finding that the CB positions were reclassified was a non-fact. At this point,

it must also be noted that all of the original CBs retain their career ladders in the sense

that they may be non-competitively promoted to the maximum of the potential for which

they originally competed in the event sufficient higher graded work becomes available to

them. In this regard, please see 5 C.F.R. Section 331.103(c)(3)(v) (Attachment 6).

The Arbitrator specifically found that the CB positions had been reclassified, and

their original promotion potential eliminated (Attachment 3. p. 11). An arbitrator's

finding of fact is not to be questioned on appeal. AFGE Local 987 and Warner Robbins

Air Logistics Center., Robins Air Force Base, 3 FLRA 549 (1980). No where in its

exceptions does the Union demonstrate that the reclassification finding was clearly

erroneous under U.S. Department of the Air Force. Lowry Air Force Base, Denver

Colorado, and NFFE Local 1497, 48 FLRA 589 (1993). Thus, the Union's argument

fails the Authority's "non-fact" exception test in that it merely expresses a disagreement

with the Arbitrator's finding of fact. This does not constitute a basis for the review of an

arbitration award. Army Missile Materiel Readiness Command and AFGE Local 1858, 2

FLRA 432, 438-439 (1980). Accordingly, this exception has no merit and must be

rejected.

Citing no authority other than its own belief, the Union asserts that in the

circumstances of career ladder promotions and work availability it is Management that

has the burden of demonstrating that work is not available.

The Arbitrator specifically rejected this contention. He held that the Union had

the burden of proof to establish the existence of sufficient work to support CB career

ladder promotions, and found that Union did not sustain that burden (Attachment 3. pp.

10-11). The Authority has consistently held that unless a specific standard of proof is

expressly provided in the contract, the arbitrator may establish whatever standard that the

arbitrator considers appropriate, and the award is not reviewable on that basis. DODDS,

Europe and Overseas Education Association, 4 FLRA 412 (1980), Bureau of Indian

Affairs and NFFE Local 243, 25 FLRA 902 (1987), VA Leavenworth and AFGE Local

85, 34 FLRA 898 (1990), Department of the Navy, Naval Aviation Depot Norfolk and

IAM Local 39, 36 FLRA 217 (1990) and DHS, SSA, Office of Hearings and Appeals and

AFGE Local 3615, 39 FLRA 407 (1991). The Union presented no evidence that its

preferred burden of proof is expressly provided for in the National Agreement between

the Agency and the Union. Accordingly, this exception has no merit and must be

rejected.

In light of the foregoing, it is requested that the Authority deny the Union's

Exceptions in their entirety, and affirm the Arbitrator's Award in this case.

Respectfully submitted,


Norman Mesewicz
Agency Representative
Department of Housing and Urban Development
451 Seventh Street, SW,
Room 2150
Washington, DC 20410
Telephone 202-708-3373

U.S. Department of Housing and

Urban Development,

Re: Case No. O-AR-3573

Agency

And

American Federation of Government

Employees, National Council

of HUD Locals 222,

Union

I, Norman Mesewicz, hereby certify that the attached Agency Opposition to Union's
Exceptions to Arbitration Award in the above-captioned case were delivered this day via
FedEx to:

Carolyn Federoff
President, American Federation
of Government Employees
National Council of HUD
Locals 222, AFL-CIO

 

Dated this 23th day of August 2002

Attachment:

Agency Opposition to Union's Exceptions to Arbitration Award