18:0088(16)AR - EEOC, Memphis District Office, Memphis, TN and National Council of EEOC Locals No. 216, AFGE -- 1985 FLRAdec AR
[ v18 p88 ]
The decision of the Authority follows:
18 FLRA No. 16 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, MEMPHIS DISTRICT OFFICE, MEMPHIS, TENNESSEE Activity and NATIONAL COUNCIL OF EEOC LOCALS NO. 216, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Union Case No. 0-AR-655 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Don E. Hamilton filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition. The grievance in this case concerns the claim of the grievant to a career-ladder promotion to GS-6. The grievant was assigned to the position of compliance clerk as a GS-4 and subsequently was promoted noncompetitively to GS-5. Thereafter, she was recommended for a career-ladder promotion to GS-6 by her supervisor. When the recommendation was not approved, a grievance was filed. The position of the Activity essentially was that whether or not the grievant was originally advised that the position of compliance clerk had a career ladder from GS-4 to GS-6, by the time of the promotion recommendation of the grievant, the Activity had determined, after a review of the Office of Personnel Management identifying classification problems with the compliance clerk position, that the highest grade level supportable for the position was GS-5. The grievance was not resolved and was submitted to arbitration. The Arbitrator acknowledged that management had determined that the highest supportable grade for the position of compliance clerk was GS-5 and that by the time the grievant was recommended for promotion, promotions of compliance clerks to GS-6 had been discontinued. However, the Arbitrator viewed the dispositive issue to be whether the "covenant" to the grievant must be honored and not the classification of the compliance clerk position. In this respect the Arbitrator concluded that the determination that the highest supportable grade for the compliance clerk position was GS-5 did not abrogate the commitment to the grievant to promote her to GS-6. Accordingly, the Arbitrator sustained the grievance and directed that the grievant be promoted retroactively to GS-6. As one of its exceptions the Agency contends that the award is contrary to section 7121(c)(5) of the Statute. /1/ In support the Agency essentially argues that the grievance concerns the classification of the grievant's position which did not result in a reduction-in-grade or pay. /2/ The Authority agrees. As noted the grievance in this case essentially claims a career-ladder promotion potential in the compliance clerk position of GS-6 and the award directs the grievant's promotion to GS-6 notwithstanding the Activity's determination that a grade level of GS-6 for the compliance clerk position cannot be supported as a matter of classification. In the classification of positions under 5 U.S.C. 5107, agencies have the responsibility of placing positions in their appropriate grade and, when facts warrant, changing the grade of a position. Because the substance of both the grievance and the award concerns the grade level to which the grievant could be promoted in the position of compliance clerk, the Authority finds that both the grievance and the award concern the classification of a position within the meaning of section 7121(c)(5) precluding such matters from grievance and arbitration. See Overseas Education Association and Department of Defense Dependents Schools, 15 FLRA No. 77 (1984); Federal Aviation Administration, Department of Transportation, Tampa, Florida and Federal Aviation Science and Technological Association, National Association of Government Employees, Tampa, Florida, 8 FLRA 532 (1982). Accordingly, the award is deficient and is set aside. /3/ Issued, Washington, D.C., May 22, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Section 7121(c)(5) provides: (c) The preceding subsections of this section shall not apply with respect to any grievance concerning-- * * * * (5) the classification of any position which does not result in the reduction in grade or pay of an employee. /2/ In its opposition the Union contends that the Agency is estopped from contending that the award is deficient as contrary to section 7121(c)(5) because it failed to comply with the parties' collective bargaining agreement as to when arbitrability issues must be raised. However, because section 7121(c)(5) precludes grievances concerning classification and because the Agency has timely filed an exception contending that the award was precluded on that basis, the Agency's exception is not barred and is properly before the Authority for resolution under the Statute. Cf. Professional Air Traffic Controllers Organization and Federal Aviation Administration, 5 FLRA 763, 767-68 (1981) (wherein the Authority held that the exception contending that the award was contrary to section 7106(a) of the Statute was properly before the Authority because contrary to the argument of the union, the agency could not have waived its right under section 7106(a)). /3/ In its opposition the Union has also argued that the award is not deficient because there has been no proper reclassification of the compliance clerk position and the grievant therefore was entitled to promotion. In finding the award deficient, the Authority has not decided that the grievant is not entitled to a promotion to GS-6 only that grievance and arbitration are not provided by the Statute to resolve the grievant's claim. In addition, in view of this decision, it is not necessary to address the other exceptions to the award.