37:0155(10)AR - - Air Force, Warner Robins Air Force Logistics Center, Robins AFB, GA and AFGE Local 987 - - 1990 FLRAdec AR - - v37 p155
[ v37 p155 ]
The decision of the Authority follows:
37 FLRA No. 10
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE AIR FORCE
WARNER ROBINS AIR FORCE LOGISTICS CENTER
ROBINS AIR FORCE BASE, GEORGIA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
September 12, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Sherman F. Dallas filed by the Union pursuant to section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency filed an opposition to the Union's exceptions.
The Arbitrator denied the grievance of an employee who claimed that she performed duties at the GS-7 pay level, but was compensated only at the GS-6 level. The grievant contended that the assignment of duties beyond her pay grade constituted a detail to a higher-graded position and that she was entitled, therefore, to a temporary promotion pursuant to the terms of the parties' Master Labor Agreement. The Arbitrator denied the grievance on the ground that it concerned a matter relating to the classification of the grievant's position and, therefore, was not arbitrable under section 7121(c)(5) of the Statute.
For the following reasons, we conclude that the Arbitrator's ruling that the grievance was not arbitrable is contrary to section 7121(c)(5) of the Statute. The award will be remanded to the parties for the purpose of requesting the Arbitrator to render a decision on the merits of the grievance.
II. Background and Arbitrator's Award
The grievant was reassigned to a GS-6 management assistant position in 1985. In 1988, she filed a grievance in which she claimed that she had been performing GS-7 duties since the reassignment and that she was entitled to retroactive promotion and backpay from the date of reassignment. She also claimed entitlement to a promotion to GS-9, which she maintained she would have received if she had been timely promoted to GS-7.
The grievance was submitted to arbitration. The Arbitrator stated that he would address three issues: (1) whether the grievant was entitled to backpay under the law for the higher-rated duties that she performed; (2) whether the grievance was not arbitrable because it involved a matter of classification; and (3) whether the Arbitrator had the authority to grant a retroactive promotion.
The Arbitrator denied the grievance. He found that the grievance concerned the classification of the grievant's position and that it was not arbitrable under section 7121(c)(5) of the Statute.(*) The Arbitrator found no basis for an award of backpay and stated: "It is clear that regardless of how issues were or are labeled, an award of back pay for having performed higher-graded duties, would be illegal." Award at 3, emphasis in original. He noted the Agency's argument that the grievant was actually asking the Arbitrator to find "that the Agency misclassified her" and "that she was actually performing at the GS-7 level." Id. The Arbitrator dismissed as "preposterous" the grievant's claim that she was entitled to a promotion to GS-9. Id.
III. Positions of the Parties
A. Union's Exceptions
The Union contends that the Arbitrator's award is deficient because it is contrary to the Back Pay Act, 5 U.S.C. § 5596. The Union maintains that the Arbitrator erred in his statement that an award of backpay for performing higher-graded duties "would be illegal." Exceptions at 2. The Union claims that the grievant was entitled to backpay under the Back Pay Act for performing higher-graded duties.
The Union also maintains that the three issues ruled on by the Arbitrator "were not issues in the final decision at step 3 of the negotiated grievance procedure." Id. The Union contends that the issue which the Arbitrator should have addressed concerned the Agency's final decision at step 3 of the grievance "which stated the threshold issue was 'the grievance was untimely filed at step 1.'" Id. at 3. The Union contends that the Arbitrator's award was not based on the threshold issue "but issues that were not addressed throughout the grievance." Id.
B. Agency's Opposition
The Agency asserts that the Arbitrator properly denied the grievant's claim for backpay because a Federal employee is "entitled only to the pay and benefits of the position to which he or she is appointed and not those of the position or grade to which he or she could or should have been appointed." Opposition at 2. In support of its position, the Agency cites United States v. Testan, 424 U.S. 392 (1976) (Testan) and subsequent cases.
The Agency contends that the Arbitrator correctly found the grievance to be nonarbitrable on the ground that it concerned a classification matter. The Agency points out that "the grievant was actually asking the Arbitrator to determine if the classification of her position should have been higher." Opposition at 2.
The Agency maintains that there was no basis on which the Arbitrator could order the grievant retroactively promoted because there was no showing by the Union that there was any position for which the grievant could have been considered and there could be no finding that the grievant would have been promoted but for an improper Agency action. The Agency asserts that the Union's exceptions constitute nothing more than disagreement with the Arbitrator's findings.
IV. Analysis and Conclusions
We disagree with the Arbitrator's conclusion that the grievance in this case is not grievable or arbitrable because it concerns the classification of a position within the meaning of section 7121(c)(5) of the Statute. Section 7121(c)(5) provides that any grievance concerning "the classification of any position which does not result in the reduction in grade or pay of an employee" must be excluded from a negotiated grievance procedure under the Statute. Classification of a position is defined in 5 C.F.R. § 511.101(c) as "the analysis and identification of a position and placing it in a class under the position-classification plan established by OPM [Office of Personnel Management] under chapter 51 of title 5, United States Code."
The Authority has consistently held to be negotiable contract provisions which permit employees to receive temporary promotions when they are assigned to perform the duties of higher-graded positions. See, for example, National Federation of Federal Employees and Department of the Interior, Bureau of Land Management, 29 FLRA 1491, 1494-96 (1987) (Authority found to be negotiable a provision requiring temporary promotions for employees temporarily placed in a higher-grade position or assigned to a group of duties "warranting a higher grade"), review granted in part and denied in part as to other matters sub nom. Department of the Interior, Bureau of Land Management v. FLRA, 873 F.2d 1505 (D.C. Cir. 1989); American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 628-30 (1980) (Authority found to be negotiable proposals requiring that an employee temporarily assigned to a higher-graded position for 30 consecutive days be paid the rate of pay of the higher-graded position commencing on the 31st day), enforced sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied as to other matters sub nom. AFGE v. FLRA, 455 U.S. 945 (1982). Such provisions are enforceable in arbitration proceedings. See, for example, U.S. Department of Agriculture, Forest Service and National Federation of Federal Employees, Local 450, 35 FLRA 542 (1990) (sustaining arbitrator's award granting temporary promotion for a detail to higher-graded duties where grievant did not claim that his position was wrongfully classified); Department of the Army, New Cumberland Army Depot and American Federation of Government Employees, Local 2004, 21 FLRA 968, 969-70 (1986) (where grievance pertains to whether grievant should have been temporarily promoted during period of asserted reassignment to higher-graded position, the grievance does not directly concern the classification of a position).
The Agency's reliance on Testan is misplaced. Testan concerned employees' claims that their positions were wrongly classified. The Supreme Court ruled that Federal employees are entitled to receive only the salary of the position to which they are appointed, even though they may have performed the duties of another position or claim that they should have been placed in a higher grade. See Testan, 424 U.S. at 406. The Court concluded that "neither the Classification Act nor the Back Pay Act creates a substantive right in the respondents to backpay for the period of their claimed wrongful classifications." Id. at 407.
Testan does not apply in this case because the grievant is not seeking a reclassification of her position, but rather a temporary promotion for the time in which she claims to have performed the duties of a higher-graded position. Testan does not preclude the enforcement of collective bargaining provisions which provide for temporary promotions for employees assigned to perform the duties of higher-graded positions. As the Comptroller General has recognized, such provisions in collective bargaining agreements are enforceable exceptions to the general rule that an employee is entitled to pay only for the position to which the employee is actually appointed. For example, Cassandra G. McPeak and Wayne E. Dabney, 69 Comp. Gen. -- (B-232695) (Dec. 15, 1989).
In the present case, the grievance concerned the grievant's claim that she had been assigned the duties of a higher-graded position in the past and that "the assignment of duties beyond her pay grade constituted a 'detail' to a higher grade position and therefore entitlement to a temporary pay grade pursuant to Article 13 of the Master Labor Agreement." Award at 2. The grievant did not claim that her permanent GS-6 position was improperly classified or that her permanent position should be reclassified at a higher grade. Therefore, the Arbitrator was not being asked to classify a position within the meaning of section 7121(c) of the Statute. Compare Social Security Administration and American Federation of Government Employees, Local 1923, AFL-CIO, 31 FLRA 933 (1988) (setting aside award in which the issue concerned whether grievants were assigned to the appropriate grade level--a classification matter). Rather, the Arbitrator was required to decide only whether the grievant was assigned the duties of a higher-graded position and was entitled to compensation for the performance of those duties under terms of the parties' agreement. See Lexington-Blue Grass Army Depot and International Association of Machinists and Aerospace Workers, Local 859, 32 FLRA 256, 259 (1988) (arbitrator properly decided question of whether grievant was entitled to higher pay for performance of higher-graded duties under terms of the collective bargaining agreement).
Section 7121(a)(2) of the Statute provides that a collective bargaining agreement "may exclude any matter from the application of the grievance procedures which are provided for in the agreement." The parties may agree to exclude any matter, including entitlement to a temporary promotion for performing higher-graded duties, from the scope of their negotiated grievance procedure. See, for example, U.S. Naval Air Station, Kingsville, Texas and American Federation of Government Employees, Local 1735, 35 FLRA 841, 842 (1990) (enforcing parties' exclusion of disputes concerning contracting out from grievance procedure). We note that there is no evidence in the record of this case to show that the parties have agreed to exclude the matter of temporary promotions from the scope of their negotiated grievance procedure. Consequently, in the absence of a negotiated exclusion or a statutory exclusion under section 7121(c)(5), the issue of the grievant's entitlement to a temporary promotion under Article 13 of the collective bargaining agreement is by law covered by the parties' negotiated grievance procedure.
Accordingly, we conclude that the Arbitrator improperly denied the grievance as not arbitrable and we find that the award is deficient because it is contrary to section 7121(c)(5) of the Statute. We will remand the award to the parties for resubmission to the Arbitrator for a decision on the merits of the grievance.
The Arbitrator's award is remanded to the parties for the purpose of requesting the Arbitrator to render an award on the merits of the grievance.
(If blank, the decision does not have footnotes.)
*/ 5 U.S.C. § 7121(c)(5) provides:
(c) The preceding subsections of this section [concerning negotiated grievance procedures] shall not apply with respect to any grievance concerning--
. . . .
(5) the classification of any position which does not result in the reduct