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Judgment No. 6
Complaints No. 7, 8, 9, 10, and 11 Rodolfo T. García, Helena de Méndez, Lucila Prieto de Zambrana, Beatriz de Mendoza and Modesto Lucero v. Secretary General of the Organization of American States
THE ADMINISTRATIVE TRIBUNAL OF THE ORGANIZATION OF AMERICAN STATES, Composed of Mozart Víctor Russomano, President; Juan Bautista Climent Beltrán, Vice President; and Alejandro Tinoco, Judge, Has before it for judgment the proceedings on the complaints filed by Rodolfo T. García, Helena de Méndez, Lucila Prieto de Zambrana, Beatriz de Mendoza, and Modesto Lucero against the Secretary General of the Organization of American States. All the Complainants acted on their own behalf, and Rodolfo T. García was also represented by Yolanda Manautou Palmer, attorney, and the Secretary General was represented by Francisco V. García-Amador, Director of the Department of Legal Affairs, all in conformity with Article 20 of the Rules of Procedure of the Tribunal. WHEREAS: I. On April 23, 1970, Rodolfo T. García and Modesto Lucero, together with another member of the staff of the same office, jointly submitted to the Director of the Office of Personnel a request for reclassification. This request was denied on November 9 of the same year. On November 15, 1971, the Director of their office presented to the Director of the Office of Personnel a request for the reclassification of the posts in that office. In response to this request, it was decided on October 3, 1972, that according to the Classification Standards the posts of the staff of the office, including those of the Complainant, were properly classified. On October 6, 1972, the Complainant Lucero requested the Secretary General to reconsider his decision of October 3, and on the 13th of the same month the Complainants García, Méndez, Mendoza, and Zambrana submitted similar requests on their own behalf. On March 1, 1973, after the appropriate procedure had been followed, these requests were denied by the Secretary General, as had been recommended by the Advisory Committee on Reconsideration in its report dated January 15. Separately, Rodolfo T. García, Helena de Méndez, and Lucila Prieto de Zambrana on May 25, 1973, and Beatriz de Mendoza and Modesto Lucero on May 29 filed complaints, as authorized by the Statute of the Administrative Tribunal, against the Secretary General. All the Complainants met the requirements of Article II of the Statute of the Tribunal and challenged the decision taken by the Secretary General on March 1, 1973. In their accounts of the events, the Complainants state that discrepancies exist between the duties assigned to them in their job descriptions and the duties they in fact perform, and make particular reference to the repeated recommendations of the Director of the Office that their posts be reclassified. In one way or another, the Complainants challenge the conclusions reached by the Advisory Committee on Reconsideration in its report to the Secretary General, for it is their view that they are entitled to the reclassification requested on the ground that in their cases the same circumstances are present as in other cases that were favorably decided upon. All the Complainants cite Staff Rules 102.3(b)(ii) and 102.4(b)(iii) and assert that the legal presumptions these embody are applicable to their cases. They also cite the Revised Classification Standards for Positions in the General Secretariat of the Organization of American States referred to in Staff Rule 102.3; the Secretary General's Executive Order No. 69-1; and the entry into force on February 27, 1970, of the Protocol of Amendment to the Charter of the Organization, to which they ascribe a change in the obligations and duties assigned to their office. They recognize that there is room for discretion but contend that in the use of this discretionary power the same criteria must be applied when similar reasons obtain, without discrimination or favoritism. They say that the restructuring of their office has increased their responsibilities and broadened their functions and duties and that, in fact, they have been performing duties of a higher classification. Even though vacancies have occurred in that office, none of the Complainants have been appointed to them, so that it has been impossible to advance either by way of promotion or through reclassification. The Complainants all pray that the decision challenged be nullified and that their right to the reclassifications requested be recognized retroactive to the date on which each one of them believes he or she was entitled to it. II. On July 5, 1973, Francisco V. García-Amador, Director of the Department of Legal Affairs of the General Secretariat of the Organization of American States, appeared on behalf and in representation of Galo Plaza, Secretary General of the OAS, to answer all the complaints together. After presenting his credentials in accordance with Article 20.1 of the Rules of Procedure of the Tribunal, he said that all the complaints had been filed against the same decision by the Secretary General of the Organization, that all the grounds, allegations, interpretations of the events, and the petitions were similar, and that the legal provisions invoked were also the same. In view of this, he requested, as a previous question, that the complaints and proceedings be joined. The representative of the Secretary General says that, although it is true that the Complainants' office was restructured by the Secretary General's Executive Order No. 69-1, this did not result in responsibilities different from those previously discharged by the office and the Complainants, since the only purpose of that Executive Order was to have the Office of Council and Conference Secretariat Services, as it was called before the Order was issued, carry out more efficiently the functions it had been performing. He says that the fact that no fundamental change took place can be easily verified by comparing the description of functions in Executive Order No. 69-1 with the one that appears in Executive Order No. 65-3 of November 22, 1965, which was in force until the issuance of No. 69-1. He adds that the restructuring of the office resulted merely in an increase in the volume of work, not in substantial changes in the nature of the Complainants' duties and level of responsibilities, which are the only factors that justify a possible reclassification according to Staff Rules 102.3 and 102.4, which the Complainants cite as having been violated. He adds that this is corroborated by the introduction to the Revised Classification Standards, in the last sentence of Section B.1, which expressly provides that the volume and quantity of work individually produced are not recognized as factors affecting the classification level of positions, because they are usually related to excellence of performance. As to the analogous cases cited by the Complainants, the representative of the Secretary General asserts that no such analogy exists. In one of the cases cited, the reclassification of the incumbent did not affect the post and was carried out on the basis of Section B.5, "Impact of Incumbent," of the Revised Classification Standards; in the other case, the reclassification bears no relation to the posts held by the Complainants. Moreover, in this latter case, account was taken of the similarity between that post and others of the same kind that were classified at the level to which the post offered as an example was raised. With respect to the inaccuracy of the Complainants' job descriptions and the discrepancy between these and the duties they claim to perform, the representative of the Secretary General says that the purpose of a job description is not to reflect with absolute accuracy each and every task to be performed by the employee in the course of his work, which would be practically impossible, but to provide a general guide to the main duties assigned to a given position, so that it may serve as a reference point for the performance and supervision of the position. In this connection, he specifically cites section B.3 of the introduction to the Revised Classification Standards, which provides that the omission of duties and responsibilities at a given level does not mean that they are not performed but rather that they are not level-determining. He then refers to section B.4, which states: "It should also be borne in mind that the pay levels represent broad ranges of work assignments." After refuting the arguments of the Complainants, the representative of the Secretary General concludes by saying that denying the reclassification of the Complainants' posts did not violate Staff Rules 102.3 and 102.4 or any other applicable provision. To the contrary, the steps taken by the Secretariat were in accordance with these Rules and with the Revised Classification Standards. In his petitions, the representative of the Secretary General prays that the complaints and proceedings be joined, that the answer of the Secretary General be held to have been submitted in accordance with Article 13.1 of the Rules of Procedure of the Tribunal, and that a judgment be issued dismissing the complaints. III. After the appropriate procedural steps were taken, the Complainants presented separate replies to the answer filed by the representative of the Secretary General. The Complainants concur in opposing the request for joinder of the complaints and proceedings, since each of them is of the opinion that his or her case has special characteristics that distinguish it from those of the other. With respect to the substantive issue, all five Complainants make similar assertions to the effect that the nature of the duties and the level of responsibilities assigned to them have changed significantly as a result of the change in the structure of the Organization. The Complainant García appends a copy of a ruling of the United Nations Administrative Tribunal in a case he considers similar. Mrs. Méndez mentions specifically a memorandum dated June 28, 1973, from the Director of the Office to the Assistant Secretary General, in which he stated that her post carries greater responsibilities than were originally foreseen and expressed the view that this situation should be examined. In accordance with Article 17.1 of the Rules of Procedure of the Tribunal, she offers as a witness Susana De Clerck, a staff member of the General Secretariat, to testify about the work she performs as a reviewer-editor of minutes. She also states that evidence of her work as a reviewer may be requested from the files of the office. The Complainant Lucila de Zambrana appends a copy of a memorandum dated June 22, 1973, from the Assistant Secretary General, then Officer in Charge of the General Secretariat, to the Director of the Office of Personnel, which refers to the manner in which the post in one of the examples cited by the Complainants was reclassified. Mrs. Mendoza, for her part, asks that a copy of the memorandum mentioned by Mrs. Zambrana be requested from the General Secretariat and added to the record. The Complainant Modesto Lucero seeks to show that the two examples of reclassification cited by the Complainants were carried out for reasons other than those stated by the representative of the Secretary General in his answer. Mr. Lucero further alleges that in his case Staff Rule 104.11, which deals specifically with promotions, was violated. IV. In accordance with Article 13.5 of the Rules of Procedure of the Tribunal, the representative of the Secretary General submitted his response to the Complainants' replies, advancing arguments intended to reinforce his request for the joinder of the complaints and proceedings. The representative of the Secretary General reiterates his previous arguments that the nature of the Complainants' duties has not undergone the significant changes that are the basic prerequisites for the reclassification of a post in accordance with Staff Rules 102.3 and 102.4. He adds that a comparison of Executive Orders Nos. 65-3 and 69-1, which appear in the record, will suffice to show this. With respect to the copy of the United Nations judgment appended by Mr. García, the representative of the Secretary General says that it is not relevant or applicable to the Complainants' case because the circumstances and characteristics of the budgetary and other regulations of the United Nations are not the same as those of the General Secretariat of the OAS, and because the judgment in question is based on the principle that posts of the same kind should be classified at the same level -- a principle that is not at issue in the present case, which is based on the Complainant's contention that the duties and level of responsibility of their posts have changed significantly, as contemplated in Staff Rules 102.3 and 102.4. V. On September 10, 1973, in accordance with Article 14.2 of the Rules of Procedure of the Tribunal, the cases were placed on the list of matters pending consideration. Once the opening date had been set for the session in the fourth quarter of 1973 the pertinent steps were taken and the Tribunal was composed up of its three principal members. It met as scheduled and, before entering upon the substantive issue, considered the request for joinder submitted by the Respondent. After an extensive analysis, the Tribunal issued Resolution No. 3, whereby it joined the complaints filed by Helena de Méndez, Lucila Prieto de Zambrana, Beatriz de Mendoza, and Modesto Lucero to the complaint filed by Rodolfo T. García, for the reasons stated in that resolution. The Tribunal had before it, and decided on, the following petitions: (1) from Helena de Méndez, that testimony by Susana De Clerck be heard; (2) from Mrs. Méndez and Messrs. García and Lucero, that oral proceedings be held, as provided for in Article 17.4, 5, and 6 of the Rules of Procedure of the Tribunal; (3) from Mr. García's representative, that her client appear as a witness; and (4) from Mr. García's representative, that she be permitted to examine her client's record in the files of the Office of Personnel. The first two requests were granted and the Tribunal further decided to hear the testimony of Samuel Echalar, Acting Director of the Office of the Secretariat of the General Assembly, the Meeting of Consultation, and the Permanent Council. For this purpose, a hearing was set for Thursday, October 25, 1973, at 9:30 a.m. The third request was denied, in accordance with Article X.2(f) of the Statute and bearing in mind the precedent set in Judgment No. 2, in which a similar request was denied. The fourth request was also denied, since no directive is necessary to enable staff members to examine their personnel files. It was also pointed out that customary professional practice requires that a request for documentary evidence mention precisely which documents it is desired to examine, whether in their original form or in certified copies. VI. On October 23, 1973, Francisco V. García-Amador, Director of the Department of Legal Affairs of the General Secretariat, delegated to José Ignacio Tremols, an attorney in the same Department, the power with which he had been acting thus far in the proceedings and at the same time reserved his right to resume the exercise of that power. VII. On October 25 at 9:30 a.m., as scheduled, both the witness offered by Mrs. Méndez and the testimony ordered by the Tribunal were heard, after which oral proceedings took place. In accordance with Article 25 of the Rules of Procedure of the Tribunal, Alejandro Tinoco was then designated to draft the judgment. On October 29, 1973, the Tribunal issued Resolution No. 5, by which it ordered an expert opinion, in accordance with articles 16 and 17 of its Rules of Procedure, and established the procedure to be followed in appointing the expert, the points to be dealt with in the opinion, and the deadline for submission of the report. On November 2, 1973, pursuant to the procedure established, the Tribunal issued its Resolution No. 6, appointing William S. Fradkin to make the expert study ordered and authorizing the Secretary of the Tribunal to install him in his post and administer the oath provided for Article 17.3 of the Rules of Procedure. On January 10 of this year, the Secretary of the Tribunal installed the expert and swore him in. On March 11 the expert submitted his report, which was added to the record. On May 20, 1974 the Tribunal set a hearing for Wednesday, May 22, at 4:00 p.m., to enable the parties to put questions to the expert, in accordance with Article 17 of the Rules of Procedure. The hearing took place on the date and at the time set, and Mr. García's representative, Mrs. Méndez, Mrs. Zambrana, Mrs. Mendoza, and Mr. Lucero participated successively. All of them put questions to the expert, which he answered with the permission of the President of the Tribunal. The hearing was adjourned at 7:30 p.m. and resumed the following day at 10:00 a.m. Mr. Lucero continued questioning the expert, and the representative of the Secretary General then made a statement. The members of the Tribunal themselves briefly questioned the expert, and the hearing was concluded at 11:20 a.m. Having examined the proceedings, the Tribunal now CONSIDERS: 1. That it is competent to hear this complaint, pursuant to Article II of its Statute. Complainant Rodolfo T. García 2. The Complainant's main petition is that his claim to reclassification be upheld retroactive to August 1, 1971. 3. An analysis of whether the reclassification is in order must necessarily start with the legal instrument that, according to the Complainant's petition, governs the reclassification system. That legal instrument is the Staff Rules of the Organization of American States, which were promulgated on January 1, 1971, and which, according to the introductory note, embody "the fundamental conditions of service and the basic rights, duties and obligations of the members of the Staff of the General Secretariat of the Organization of American States . . . ," which "the Secretary General shall . . . enforce . . . as he considers necessary." 4. Since the Complainant's petition is that the Tribunal should order a reclassification, it is necessary to determine whether or not this is in order. In the opinion of this Tribunal, Staff Rule 102.3 must be interpreted within the following premises:
5. From the analysis it has made of the testimony and the expert opinion and from a thorough examination of the pertinent provisions of the Charter of the Organization of American States --both the Charter adopted in Bogotá in 1948 and the Protocol of Buenos Aires, which amended it in 1967 and came into force in February 1970-- this Tribunal concludes that the Complainant has not properly and sufficiently proved that there has been a change in the intrinsic nature of his duties, which, according to the evidence in these proceedings, essentially concern the rendering of secretariat services to the highest organs of the Organization of American States. His responsibility, therefore, remains basically unchanged, although the volume of work appears to have increased substantially. A detailed examination of the record reveals that Mr. García, in the view of this Tribunal, has failed to prove, as is procedurally required of a Complainant, that the classification he is entitled to is P-4. Not even the testimony of the former Director of the Office affords sufficient cause for this Tribunal to find that the current classification is incorrect, since the arguments of that official are not based on the Complainant's performing the duties of a P-4 staff member, but rather, and primarily, on the need for a "general revision of the Office," on the assertion that the reclassification of the secretary of the Chairman of the Council had "a direct and appreciable effect on the general situation of the Office," and on the claim that the Complainant's duties "are directly and intimately related to the functioning of organs of the highest level and require the persons performing them to be in contact with the highest officials of the Organization and with the missions of the member states." Thus, the recommendations of the former Director of the Office are not based on the claim that the Complainant's work consists of P-4 duties, but on the view that his personal qualifications entitle him to a reclassification. This amounts to an opinion based on the "Impact of Incumbent" standard (sections A and B of the introduction to the Revised Classification Standards for Positions in the General Secretariat), which the Secretary General is free to accept or reject. It is also evident, and this Tribunal deems it so proved, that the classification of the former Director of the Office was based on the same "Impact of Incumbent" rule. Nor has it been shown, in the opinion of the Tribunal, that the duties performed by the Complainant are of the level that the Standards indicate for a P-4 post. Complainant Helena de Méndez 6. The Complainant Helena de Méndez has requested that the decision of the Secretary General confirming the October 3, 1972, decision of the Office of Personnel be nullified. She seeks instead an acknowledgment of her right to the reclassification of her present P-2 post and, in consequence, the assignment to her of a higher grade. After a careful examination of the evidence in these proceedings, the Tribunal has found that the duties actually performed by the Complainant do exceed, by a substantial margin, the duties detailed in the job description referred to by the Complainant. Indeed, the review of edited transcripts constitutes the basic work performed by the Complainant, and since this Tribunal is of the opinion that the Classification Standards applicable to her are those for editors, in which the difference between the P-2 and P-3 levels is determined by the complexity of the material dealt with and the level of judgment used in taking decisions (pages 76 and 77 of the Revised Classification Standards), it finds that the oral proceedings, the statements of the witnesses, the opinion of the expert, and especially his answers given to the questions put to him have conclusively shown that the Complainant's duties invoke a constant exercise of judgment. Therefore, in the light of the evidence presented in these proceedings, this Tribunal holds that the proper classification of the Complainant from the date on which her complaint was filed is P-3. Complainant Lucila Prieto de Zambrana 7. The Complainant Mrs. Zambrana has requested that the decision denying reclassification of her post and confirming the decision issued by the Office of Personnel on October 3, 1972, be revoked, and that consequently her right to the reclassification of her post be declared. For the same reasons given in this judgment concerning the petition of Rodolfo T. García, this Tribunal finds that the Complainant has not satisfactorily proved that her classification is improper, and that the basic duties of her post are secretarial, consisting in typing, stenography, and general administrative work. This Tribunal considers that the record shows insufficient evidence that the classification of her activities should be higher than G-7. Complainant Beatriz de Mendoza 8. The Complainant has requested that her right to the reclassification of her post be declared and that the decision of the General Secretariat to deny this right and confirm the decision of the Office of Personnel dated October 3, 1972, be nullified. The Tribunal considers that the evidence presented does not show that the Complainant's duties are those of grade G-7, since they are basically secretarial--typing, stenography, paperwork, and administrative services for the Deputy Director. Complainant Modesto Lucero 9. The Complainant's basic petition is that this Tribunal find the conclusion reached by the Advisory Committee on Reconsideration on his request submitted on October 6, 1972, to be out of order. This conclusion, which appears in the report of the Reconsideration Committee included in the record, is that the Committee saw no reason to have acceded to the request for reconsideration of the decision of the Office of Personnel contained in the October 3, 1972, memorandum to the Director of the Office, and that according to the job descriptions and the desk audits, the posts whose reclassification was requested were correctly classified. In this connection, it may be noted that decisions reached by the Advisory Committee on Reconsideration are merely recommendations to the Secretary General and are not in themselves challengeable. This Tribunal concludes, as with the petition of the Complainant Rodolfo T. García, that the record shows insufficient evidence that the classification in question is not appropriate to the work that the Complainant in fact performs. The Complainant also requests the reclassification of his post on the ground that the previous classification is discriminatory and unfair, and asks to be reclassified to grade P-4. For the reasons given above, this Tribunal likewise finds that grounds for the Complainant's request have not been proved. By virtue of the foregoing, the Tribunal unanimously RESOLVES: 1. To grant the petition of Helena de Méndez and therefore to order that she be reclassified to grade P-3 effective May 25, 1973, the date on which she presented her complaint to this Tribunal. 2. To dismiss the complaints filed by Rodolfo T. García, Lucila de Zambrana, Beatriz de Mendoza, and Modesto Lucero.
Let notification be given. Washington, D.C., May 30, 1974
Mozart Víctor Russomano, Esq. / President Juan Bautista Climent Beltrán, Esq. / Vice President Alejandro Tinoco, Esq. / Judge Jorge L. Zelaya, Esq. / Secretary OEA/Ser.R TRIBAD/19 29 May 1974 Original: Spanish |
