37:0386(25)AR - - AFGE Local 987 and Air Force, Warner Robins Air Logistics Center, Robins AFB, GA - - 1990 FLRAdec AR - - v37 p386
[ v37 p386 ]
The decision of the Authority follows:
37 FLRA No. 25
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE AIR FORCE
WARNER ROBINS AIR LOGISTICS CENTER
ROBINS AIR FORCE BASE, GEORGIA
September 20, 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 Richard C. Maxwell 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 did not file an opposition to the Union's exceptions.
An employee filed a grievance in which she asked that she be given backpay and experience credit for performing the duties of a higher-graded position. The Arbitrator ruled that the grievance was not grievable and arbitrable under section 7121(c)(5) of the Statute because it concerned the classification of the grievant's position.
We find that the award is deficient because it is contrary to section 7121(c)(5). We will remand the award 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's permanent position is that of Production Controller, GS-9. The grievant claimed that management gave her temporary assignments during the periods November 17, 1987 to March 24, 1988 and August 30, 1988 to December 13, 1988 to perform the duties of Supervisory Production Controller, GS-11. Award at 1. The grievant maintained that she was entitled to credit for experience and backpay for working in the GS-11 position under section 13.01 of the parties' Master Labor Agreement. That section, Mandatory Temporary Promotions, provides:
When an employee is temporarily assigned to a higher position or the grade-controlling duties of a higher graded position for 30 consecutive calendar days, the employee shall be temporarily promoted into and receive the rate of pay of that position commencing on the 31st day. The employee must be qualified to fill the position on a permanent basis.
Id. at 3.
The Arbitrator rejected the Agency's contention that the grievance was not arbitrable because it concerned a temporary assignment to a supervisory position outside the bargaining unit. The Arbitrator held that the performance of supervisory duties on a temporary basis would not remove a person in the grievant's position from the coverage of the Master Labor Agreement.
The Agency also argued that the grievance concerned the classification of the grievant's position and therefore was excluded from the negotiated grievance procedure under section 7121(c)(5) of the Statute.(1) In response to that argument, the Arbitrator stated:
On the face of it it would seem that to determine as a matter of fact that the grievant here had been assigned and performed duties which are the "grade controlling duties" of supervisory production controller, GS-11 was not a classification of the duties in that position but merely a determination that the duties performed fit into the classification already established.
Award at 4. The Arbitrator compared the case before him with another arbitration case involving the same parties and a similar issue.(2) In that case, in which Arbitrator Bernard Cantor awarded the grievant a retroactive temporary promotion with backpay, there was a stipulation by the parties that a grievant at the GS-3 grade level performed the same duties as employees at the GS-4 level. The Arbitrator pointed out that there was no such stipulation in the case before him and that he was therefore compelled to decide "what are the 'grade-controlling duties' of a GS-11 position and did the performance of the grievant during the relevant periods meet the requirements?" Award at 5.
Based on his analysis of Social Security Administration and American Federation of Government Employees, Local 1923, AFL-CIO, 31 FLRA 933 (1988) (SSA) and other Authority decisions, the Arbitrator agreed with the Agency that the case before him "involves classification as the [S]tatute has been interpreted by the Authority." Award at 5-7. Therefore, he dismissed the grievance.
III. The Union's Exceptions
The Union contends that the award is contrary to "established Authority case law." Exceptions at 2. The Union claims that the grievant is seeking credit for experience and a temporary promotion for the time in which she served in a GS-11 position and that the grievance is arbitrable. The Union states that the Authority has held "that grievances concerning entitlement to temporary promotions do not directly involve the classification of positions under 5 USC 7121(c)(5)." Id. at 2-3. In support of its position, the Union cites Department of the Army, New Cumberland Army Depot and American Federation of Government Employees, Local 2004, 21 FLRA 968 (1986) (New Cumberland Army Depot) and Georgia Air National Guard, 165th Tactical Airlift Group, Savannah, Georgia and Georgia Association of Civilian Technicians, 15 FLRA 442 (1984).
The Union contends that the issue in this case is settled and that the Agency was attempting to relitigate settled law before the Arbitrator. The Union points out that the agreement provision in question was approved by the court in Department of Defense, Army-Air Force Logistics Command v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied, 455 U.S. 945 (1982). The Union also cites Warner Robins Air Logistics Center, Robins Air Force Base, Georgia and American Federation of Government Employees, Local 987, 10 FLRA 410 (1982), in which the Authority rejected the activity's argument that a grievance seeking a noncompetitive promotion to a position to which the grievant had been detailed concerned a classification under section 7121(c)(5).
The Union further contends that the Arbitrator erred by failing to decide whether the grievant was entitled to experience credit for the time spent performing GS-11 duties. The Union maintains that the issue of experience credit is arbitrable under the parties' agreement.
IV. Analysis and Conclusions
We agree with the Union that the Arbitrator erred in finding that the grievance is not grievable or arbitrable because it concerns the classification of a position under 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 grievance in this case does not concern the classification of the grievant's permanent position. Rather, the grievance concerns the interpretation and application of a provision in the parties' collective bargaining agreement which provides for temporary promotions for employees assigned to perform the duties of a higher-graded position. Therefore, we find that the grievance is arbitrable and the Arbitrator's award to the contrary is deficient.
The Authority has consistently held to be negotiable, and enforceable in arbitration, agreement provisions which permit employees to receive temporary promotions when they are assigned to perform the duties of higher-graded positions. See, for example, American Federation of Government Employees, Local 987 and U.S. Department of the Air Force, Warner Robins Air Force Logistics Center, Robins Air Force Base, Georgia, 37 FLRA No. 10 (1990); 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); New Cumberland Army Depot, 21 FLRA at 969-70 (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).
In this case, the grievance concerned the grievant's claimed entitlement to a temporary promotion under section 13.01 of the collective bargaining agreement. The obligation of the Arbitrator was to determine whether the grievant had actually performed the higher-graded duties as she claimed and whether she was entitled to a temporary promotion under section 13.01 of the agreement. As the Arbitrator correctly noted, such a factual finding required "merely a determination that the duties performed fit into the classification already established." Award at 4. There was no requirement that there be a stipulation or agreement between the parties that the grievant was detailed to a higher-graded position. The Arbitrator had the authority to resolve that question. Therefore, the Arbitrator was in error when he ruled that to resolve the grievance "require[d him] to classify the sum total of the duties performed by the grievant at the GS-11 level." Award at 4.
The Arbitrator's reliance on SSA and the other Authority decisions which he cited was misplaced. In SSA, the Authority held that the grievances concerned the classification of a position within the meaning of section 7121(c)(5) of the Statute because "the grievances and the award pertain to the appropriateness of the grade level of the grievants in light of the duties assigned to and performed by them." 31 FLRA at 936. See also U.S. Department of Veterans Affairs Medical Center, Buffalo, New York and Service Employees International Union, Local 200-C, 37 FLRA No. 24 (1990). The other decisions cited by the Arbitrator also involved grievances concerning the proper classification of the grievant's permanent position; none involved the interpretation and application of agreement provisions requiring temporary promotion for the performance of higher-graded duties. See Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, Local 1923, Baltimore, Maryland, 20 FLRA 694 (1985); The Veterans Administration Medical Center, Togus Maine and American Federation of Government Employees, Local 2610, AFL-CIO, 17 FLRA 963 (1985); and Overseas Education Association and Department of Defense Dependents Schools, 15 FLRA 358 (1984).
In summary, we find the Arbitrator's award to be deficient because it is contrary to section 7121(c)(5) of the Statute. Contrary to the Arbitrator, the grievance presented to him did not concern the classification of the grievant's position. Rather, the grievance concerned the arbitrable question of the grievant's entitlement to a temporary promotion under the collective bargaining agreement. Because the Arbitrator failed to address the merits of the grievance presented, we will remand the award to the parties for resubmission to the Arbitrator.
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.)
1. 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 reduction in grade or pay of an employee.
2. The case to which the Arbitrator referred was decided by the Authority in Air Force Logistics Command, Robins AFB, Georgia and American Federation of