38:0032(6)AR - - Air Force, Scott AFB, IL and NAGE Local R7-23 - - 1990 FLRAdec AR - - v38 p32

[ v38 p32 ]
The decision of the Authority follows:

38 FLRA No. 6












November 7, 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 Joseph J. Nitka 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.

The Arbitrator denied the grievance of an employee on the ground that it concerned the classification of a position and, therefore, was not arbitrable under section 7121(c)(5) of the Statute and under the parties' collective bargaining agreement.

For the following reasons, we remand the case to the parties for further consideration consistent with our decision.

II. Background and Arbitrator's Award

It is not entirely clear what the precise matter in dispute was before the Arbitrator. As set forth by the Arbitrator, the grievant occupied a non-appropriated funds position classified as an AS-05. Award at 1. The grievant's immediate supervisor occupied an appropriated funds position classified as a GS-6. The grievant was temporarily assigned to perform some of her supervisor's duties after her supervisor was promoted and transferred. The grievant applied for her supervisor's vacant position, but was not referred for promotion consideration because she was not qualified. In the meantime, the position in question was converted to a non-appropriated funds position. The grievant continued performing the duties of the temporary assignment.

By letter dated August 13, 1987, the grievant requested that she be retroactively promoted to UA-6 or UA-7 because she had been acting as a supervisor. On November 27, 1987, the vacant position was reclassified at the AS-07 level, a non-supervisory, non-appropriated fund position. A UA-6 or 7 grade is a higher grade than an AS-07. See Employer's Brief Opposing Arbitrability at 3, attached to Union's Exceptions. The record does not indicate the meaning of the terms "AS" and "UA."

Pursuant to the reclassification and the grievant's August request for retroactive promotion, the grievant was paid a differential of 41 cents per hour more for the period of November 1, 1986, through April 18, 1987. Additionally, the grievant was paid 42 cents per hour more for the period April 19, 1987, until April 1, 1988, when she resigned. The additional pay the grievant received reflected the difference in pay between the AS-06 position to which she was permanently assigned and the AS-07 position to which she was temporarily detailed. Award at 2. It is unclear whether the grievant's permanent position was an AS-05 (as stated at page 1 of the award) or an AS-06 (as stated at page 2 of the award).

The Arbitrator stated that, "[n]otwithstanding the classification of the position to which she was detailed at the AS-07 level and the payment of the wage differential, [the grievant] continue[d] to challenge the grade level assigned to the temporary position and to claim salary at the UA-6 or 7 level." Award at 2. On March 8, 1988, the Union filed a grievance contending that the grievant

performed work at a much higher level than that for which she was paid. She performed work as a supervisor and as de facto supervisor since the retirement of [another individual]. She contends and requests as a remedy that she be retroactively promoted to the UA-equivalent (UA 7 or 6) of the GS supervisory position for which she was actually doing the work.

[The grievant] grieves that she is and was being treated unfairly and inequitably and improperly in connection with this matter.

She grieves also that the Employer has improperly failed to classify and pay her and provide a proper position description and that the Employer is improperly requiring her to sign a SF 172 before it will generate proper paperwork on her position. She grieves that the inaction of the Employer constitutes dilatory practices and thus results in unfair and/or inequitable treatment.

In summary [the grievant] requests as a remedy:

Backpay as stated above.
A proper [position description.]
That the Employer cease and desist its dilatory practices.
That she otherwise be made whole.

Attachment to Union's Exceptions.

In its May 18, 1988 response to the grievance, the Agency denied the grievance and stated, in pertinent part:

A classification review was conducted and it was determined that the duties [the grievant] was performing were evaluated as that of a Supply Clerk (Inspection) AS-2005-7. To correct this situation, we will take action to retroactively pay [the grievant] at the AS-7 grade for the period 1 November 1986 until 1 April 1988.

In our review of this grievance, we find that [the grievant's] grievance appears to challenge the grade assigned to the work she was performing. In this regard, we believe this issue constitutes the basis of a classification appeal and therefore is not a grievable matter.

Attachment to Union's exceptions.

No classification appeal was initiated. The grievance was submitted to arbitration. Because the parties agreed that there was an initial issue of the arbitrability of the grievance, the parties requested the Arbitrator to rule on that issue. The Arbitrator concluded that the grievance was not arbitrable because it involved a matter concerning the classification of a position under section 7121(c)(5) of the Statute.(*) The Arbitrator rejected the Union's position that the grievance is only "clearly asking for backpay for work performed." Award at 10. The Arbitrator construed the Union's request that the grievant be "retroactively promoted" and that "[a] proper Position Description" be prepared for her former position as a request that the position be reclassified. Id.

The Arbitrator found that the case before him was not distinguishable from the circumstances in Social Security Administration and American Federation of Government Employees, Local 1923, AFL-CIO, 31 FLRA 933 (1988) (SSA I) and Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, Local 1923, Baltimore, Maryland, 20 FLRA 694 (1985) (SSA II). He concluded that the grievance concerned the classification of a position within the meaning of section 7121(c)(5) of the Statute and that the exclusion of such grievances "is a prohibition against the arbitrability of the grievance involved in this case." Award at 12.

III. The Union's Exceptions

The Union contends that the Arbitrator's award is contrary to law and is based on a nonfact. The Union asserts that the Arbitrator "could have found an interpretation of the contract that would have allowed arbitration" and that "the contract clearly delineates what is not arbitrable [and] [t]hat which is not delineated therefore is clearly arbitrable." Exceptions at 1-2. The Union contends that "this case involved a promotion situation and a situation where the [Agency] was procrastinating in applying the classification process," and that although part of the grievance became moot when the Agency took a classification action to upgrade the grievant's job, "another part of the grievance . . . concerned a promotion into a position other than the one which she occupied." Id. at 2. The Union maintains that it is "not contending [that the grievant's] position was incorrectly classified or the position of the supervisor but that she was not being paid for the work of another existing position, i.e., that of the supervisor" and that the grievant "should have been promoted, even if only temporarily to the other position." Id.

The Union further contends that the Arbitrator's decision was based on the nonfact that "the case involved a classification matter when the clear text of the grievance distinguishes between the various elements of the grievance."

Exceptions at 3.

IV. Analysis and Conclusions

We can not determine from the record before us whether the award is deficient. For the following reasons, we will remand the case to the parties for further consideration consistent with our decision.

Section 7121(c)(5) of the Statute 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." Where the substance of a grievance concerns the grade level of duties assigned to and performed by the grievant, the grievance concerns the classification of a position within the meaning of section 7121(c)(5) of the Statute. See, for example, SSA I; SSA II; and Veterans Administration Medical Center, Tampa, Florida and American Federation of Government Employees, Local 547, 19 FLRA 1177 (1985).

However, an exception to the general rule that an employee is entitled only to the salary of the position to which the employee actually is appointed exists "where the parties to a collective bargaining agreement agree to make temporary promotions mandatory for details to higher grade positions, thereby establishing a nondiscretionary agency policy which would provide a basis for backpay." Cassandra G. McPeak and Wayne E. Dabney, 69 Comp. Gen. 93, 94 (1989). Accordingly, 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, U.S. Department of the Navy, Long Beach Naval Shipyard, Long Beach, California and International Federation of Professional and Technical Engineers, Local 174, 37 FLRA No. 95 (1990); American Federation of Government Employees, Local 987 and U.S. Department of the Air Force, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 37 FLRA 386 (1990); and U.S. Department of the Air Force, Warner Robins Air Force Logistics Center, Robins Air Force Base, Georgia and American Federation of Government Employees, Local 987, 37 FLRA 155 (1990). Absent a collective bargaining agreement provision or agency regulation mandating a temporary promotion for assignments of duties of, or details to, a higher-graded position for an extended period of time, there is no authority for a retroactive temporary promotion for such extended assignments or details. See, for example, Social Security Administration and American Federation of Government Employees, Local 1923, 20 FLRA 684, 685 (1985).

In this case, it is unclear from the record before us whether the grievance that was submitted to arbitration involved: (1) a contention that the grievant should have received a temporary promotion pursuant to an applicable collective bargaining agreement provision for temporarily performing the duties of a higher-graded position other than the grievant's permanent position; or (2) a claim that either the grievant's permanent position or any other position was improperly classified. If the matter sought to be arbitrated involves the former contention, that matter is arbitrable, absent a provision in the parties' collective bargaining agreement to the contrary. If the matter sought to be arbitrated involves the latter claim, that matter is not arbitrable by operation of section 7121(c)(5) of the Statute.

Accordingly, we will remand th