U.S. Army Aviation Center, Fort Rucker, Alabama (Activity) and Wiregrass Metal Trades Council, AFL-CIO (Union)

 



[ v06 p209 ]
06:0209(35)AR
The decision of the Authority follows:


 6 FLRA No. 35
 
 U.S. ARMY AVIATION CENTER,
 FORT RUCKER, ALABAMA
 Activity
 
 and
 
 WIREGRASS METAL TRADES COUNCIL,
 AFL-CIO
 Union
 
                                            Case No. O-AR-68
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTION TO THE AWARD OF
 ARBITRATOR GEO. SAVAGE KING FILED BY THE AGENCY UNDER SECTION 7122(A) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
 7122(A)).
 
    ACCORDING TO THE ARBITRATOR, THE TWO GRIEVANTS WERE EMPLOYED IN THE
 ACTIVITY'S FIELD PRINTING PLANT IN WG-9 POSITIONS.  FOLLOWING POSITION
 AUDITS, THE GRIEVANTS' POSITIONS WERE RECLASSIFIED AS WG-10 POSITIONS
 AND THE GRIEVANTS WERE COMPETITIVELY PROMOTED INTO THEM.  THE QUESTIONS
 INVOLVED IN THE GRIEVANCES AND BEFORE THE ARBITRATOR WERE WHETHER THE
 GRIEVANTS SHOULD HAVE BEEN PROMOTED NONCOMPETITIVELY TO THE WG-10
 POSITIONS AND WHETHER THEY WERE ENTITLED TO BACKPAY FOR WG-10 WORK THEY
 HAD PERFORMED WHILE IN WG-9 POSITIONS.
 
    AS TO THE FIRST QUESTION, THE ARBITRATOR CONCLUDED THAT THE GRIEVANTS
 WERE NOT ENTITLED TO NONCOMPETITIVE PROMOTIONS IN THE CIRCUMSTANCES OF
 THIS CASE.  REGARDING THE SECOND QUESTION, THE ARBITRATOR NOTED THAT
 THERE WAS "NO DISPUTE THAT THE GRIEVANTS IN FACT PERFORMED WG-10 LEVEL
 DUTIES FOR SOME TIME PRIOR TO THE RECLASSIFICATION FROM WG-9 TO THAT
 LEVEL" AND FOUND THAT THEY WERE ENTITLED TO COMPENSATION FOR THOSE
 DUTIES FROM THE DATE THE VERIFICATION AUDIT OF THEIR POSITIONS BEGAN.
 ACCORDINGLY, HE MADE THE FOLLOWING AWARD:
 
    . . . (1) THE GRIEVANTS . . . WERE NOT ENTITLED TO NON-COMPETITIVE
 PROMOTIONS TO THE
 
    POSITIONS IN QUESTION;  (2) THEY ARE ENTITLED TO BACK PAY FOR THE
 DIFFERENCE BETWEEN WG-9 AND
 
    WG-10 LEVELS IN THEIR RESPECTIVE JOBS FROM AUGUST 28, 1978, UNTIL
 THEIR SUBSEQUENT PROMOTIONS
 
    TO THE WG-10 LEVELS IN THEIR RESPECTIVE JOBS.
 
    THE AGENCY FILED AN EXCEPTION TO PART (2) OF THE ARBITRATOR'S AWARD
 UNDER SECTION 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE /1/ AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS, 5
 CFR PART 2425.  /2/ THE UNION DID NOT FILE AN OPPOSITION.
 
    IN ITS EXCEPTION THE AGENCY CONTENDS THAT PART (2) OF THE
 ARBITRATOR'S AWARD VIOLATES THE BACK PAY ACT OF 1966.  /3/ IN SUPPORT OF
 THIS EXCEPTION, THE AGENCY ASSERTS THAT THE ARBITRATOR HAS ERRONEOUSLY
 DIVORCED THE CONTRACTUAL REQUIREMENT TO COMPENSATE EMPLOYEES /4/ FROM
 THE STATUTORY REQUIREMENT TO PROPERLY CLASSIFY POSITIONS.  /5/ THE
 AGENCY NOTES THAT UNDER 5 U.S.C. 5596(B)(2) AND THE U.S. SUPREME COURT'S
 DECISION IN UNITED STATES V. TESTAN, 424 U.S. 392(1976), AN EMPLOYEE IS
 NOT ENTITLED TO BACKPAY FOR A PERIOD OF A CLAIMED WRONGFUL
 CLASSIFICATION.
 
    FOR THE REASONS THAT FOLLOW THE AUTHORITY FINDS THAT PART (2) OF THE
 ARBITRATOR'S AWARD IS DEFICIENT BECAUSE IT IS CONTRARY TO THE BACK PAY
 ACT AND THEREFORE MUST BE MODIFIED ACCORDINGLY.
 
    IN THIS CASE, THE ARBITRATOR FOUND THAT THE GRIEVANTS WERE PERFORMING
 WG-10 DUTIES AT THE AGENCY'S DIRECTION FROM AT LEAST AUGUST 28, 1978,
 AND THE ARBITRATOR INTERPRETED THE PARTIES' COLLECTIVE BARGAINING
 AGREEMENT TO REQUIRE COMPENSATION FROM THE FIRST DAY THAT THE HIGHER
 GRADED DUTIES WERE REGULARLY ASSIGNED AND CONSTITUTED A MAJOR DUTY
 INVOLVING A SUBSTANTIAL PORTION OF THE EMPLOYEE'S TIME.  HOWEVER, UNDER
 THE PROVISIONS OF 5 U.S.C.  5596(B)(2) AND THE SUPREME COURT'S DECISION
 IN TESTAN, BACKPAY CANNOT BE AWARDED BEFORE THE POSITIONS WERE
 CLASSIFIED.  THE ARBITRATOR FOUND THAT THE TWO POSITIONS IN QUESTION
 WERE CLASSIFIED ON FEBRUARY 14, 1979, AND MARCH 7, 1979, RESPECTIVELY.
 THEREFORE, BACKPAY CANNOT BE AWARDED BEFORE THOSE DATES.
 
    ACCORDINGLY, PURSUANT TO SECTION 7122(A) OF THE STATUTE AND SECTION
 2425.4 OF THE AUTHORITY'S RULES AND REGULATIONS, PART (2) OF THE
 ARBITRATOR'S AWARD IS MODIFIED AS FOLLOWS:  (2) THEY ARE ENTITLED TO
 BACKPAY FOR THE DIFFERENCE BETWEEN WG-9 AND WG-10 LEVELS IN THEIR
 RESPECTIVE JOBS FROM THE DATES THE RESPECTIVE POSITIONS WERE CLASSIFIED
 UNTIL THEIR SUBSEQUENT PROMOTIONS TO THE WG-10 LEVELS IN THEIR
 RES