20:0508(60)AR - Agriculture, Agricultural Research Service, Eastern Regional Research Center and AFGE Local 1331 -- 1985 FLRAdec AR



[ v20 p508 ]
20:0508(60)AR
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
                                       Cha