20:0508(60)AR - Agriculture, Agricultural Research Service, Eastern Regional Research Center and AFGE Local 1331 -- 1985 FLRAdec AR
[ v20 p508 ]
The decision of the Authority follows:
20 FLRA No. 60 UNITED STATES DEPARTMENT OF AGRICULTURE, AGRICULTURAL RESEARCH SERVICE, EASTERN REGIONAL RESEARCH CENTER Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL UNION No. 1331, AFL-CIO Union Case No. 0-AR-930 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Alexander M. Freund filed by the Activity under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. A grievance was filed and submitted to arbitration contending that the grievant, a support scientist, was entitled to have been permanently promoted noncompetitively to GS-11. Before the Arbitrator, the Activity primarily argued that the grievant was not entitled to a noncompetitive career promotion because, in accordance with the career ladder of support scientists, the full-performance level of the grievant's position is GS-9. The Activity further maintained that management had not by planned action upgraded his position by the assignment of additional duties and responsibilities. Contrary to the position of the Activity, the Arbitrator rejected that the full-performance level for support scientists was GS-9. Thus, the Arbitrator stated that to resolve the grievance, it was only necessary to determine whether the grievant had been performing at the GS-11 grade level at the time he requested to be promoted. Although the Arbitrator acknowledged that an audit of the grievant's position had not resulted in an official classification determination that the position was at the GS-11 level, he nevertheless determined that the grievant had advanced to the GS-11 level. Accordingly, as his award, the Arbitrator ordered the grievant promoted to GS-11 with backpay retroactive to December 1983. As one of its exceptions the Agency contends that the award is deficient because it concerns the classification of positions. The Authority agrees. In U.S. Equal Employment Opportunity Commission, Memphis District Office, Memphis, Tennessee and National Council of EEOC Locals, No. 216, American Federation of Government Employees, AFL-CIO, 18 FLRA No. 16(1985), the grievance essentially claimed a career-ladder promotion potential of GS-6 in a particular position and the award directed the grievant's promotion to GS-6 notwithstanding the Activity's determination that a grade level of GS-6 could not be supported as a matter of classification. Because the substance of both the grievance and the award concerned the grade level to which the grievant could receive a noncompetitive career promotion, the Authority found that both the grievance and the award concerned the classification of a position within the meaning of section 7121(c)(5) of the Statute precluding such matters from grievance and arbitration. Similarly, the Authority uniformly has held that where the substance of the grievance concerns the grade level of the duties assigned to and performed by the grievant, the grievance concerns the classification of a position within the meaning of section 7121(c)(5). E.g., Veterans Administration Medical Center, Tampa, Florida and American Federation of Government Employees, Local 547, 19 FLRA No. 129(1985). In terms of this case, the essential nature of the grievance and the award concerned both the grade level to which the grievant as a support scientist could receive a noncompetitive career promotion and the grade level of the duties assigned to and performed by the grievant. Thus, under established precedent, the Authority finds that both the grievance and the award concern the classification of a position within the meaning of section 7121(c)(5) of the Statute precluding such matters from grievance and arbitration. See VA Medical Center, Tampa; EEOC, Memphis. Accordingly, the award is deficient and is set aside. /1/ Issued, Washington, D.C., October 22, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ In view of this decision, it is unnecessary that the Authority address the other exceptions to the award.