42:0795(52)AR - - Navy, Naval Aviation Depot, Marine Corps Air Station, Cherry Point, NC and IAM Local 2297 - - 1991 FLRAdec AR - - v42 p795
[ v42 p795 ]
The decision of the Authority follows:
42 FLRA No. 52
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator William H. Mills filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exceptions.
The grievant filed a grievance claiming that he had performed the duties of higher-graded positions without being properly compensated. The Arbitrator sustained the grievance. He found that the grievant was assigned the duties of higher-graded positions and was entitled under the parties' collective bargaining agreement to have been compensated at the level of those positions. He remanded the matter of determining the amount of backpay due the grievant back to the parties, but retained jurisdiction to determine the amount if the parties were unable to agree.
We conclude that the Agency's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
The grievant is employed by the Agency as a WG-8 pneudraulic systems worker. Prior to September 11, 1988, he was employed as a WG-8 aircraft engine repairer. The grievant filed a grievance claiming that he had performed the work of higher-graded positions without being properly compensated. The grievance was not resolved and was submitted to arbitration.
At the beginning of the arbitration hearing, the Agency moved to dismiss the grievance because it was not arbitrable. The Arbitrator denied the motion and the matter proceeded to hearing on the merits.
The grievant testified before the Arbitrator that in April 1987, he began performing the work of the WG-9, WG-10, and WG-11 mechanic positions and that he performed such work continuously and on a regular basis until December 7, 1989. The individual who had been the grievant's supervisor since October 1989, acknowledged that during the time he supervised the grievant, the grievant was assigned duties of the WG-10 mechanic position for certain periods of time, but asserted that not all of the work performed by the grievant during this time was at the WG-10 level. The Arbitrator noted that the grievant's position description and the position descriptions for the positions of pneudraulic systems mechanic, WG-9, and pneudraulic systems mechanic, WG-10, were received in evidence. The Arbitrator explained that the basic differences in the grievant's position and the higher-graded positions were the sophistication of the work performed, the skill and knowledge required to perform it, and the stated expectations for performing work independently and with less supervision. The Arbitrator also stated that the higher-graded positions specified certain equipment that persons occupying those positions are expected to work on and test for performance.
Beginning in January 1990, a classification audit of the grievant's position was conducted. The audit report found that the grievant performed work on the type of equipment mentioned in the WG-10 mechanic position description and that he performed some of the duties of the WG-9 mechanic position. However, the audit report concluded that the grievant's position did not qualify for a higher-level classification because the grievant did not spend a sufficient amount of time performing the duties of the higher-graded positions and did not perform the full range of duties of the higher-graded positions. The classification specialist who supervised the audit testified that, from her review of the audit, the grievant performed a significant amount of the duties of the higher-graded positions. She was of the opinion that except for the decision of the Comptroller General in Cassandra G. McPeak and Wayne E. Dabney, 69 Comp. Gen. 93 (1989) (McPeak), the grievant should have been compensated for the performance of the duties of the higher-graded positions. The Arbitrator also noted that the Agency, in its final decision on the grievance, conceded that the grievant performed the duties of higher-graded positions on a regular and recurring basis over a significant period of time, but concluded that compensation was precluded by the decision in McPeak.
Before the Arbitrator, the Union contended that the Agency's failure to compensate the grievant for the performance of the duties of higher-graded positions violated Article 18, Section 3 of the parties' collective bargaining agreement, which provides as follows:
The Employer agrees that to the extent possible, efforts will be made to assign work within the proper rating of employees as defined by established Office of Personnel Management standards; and in this regard, will compensate employees on the basis of the highest level of duties assigned as a substantial portion of the job assignment continuously for a representative period of time; provided it can reasonably be determined that such assignments meet the criteria for compensation as outlined in appropriate classified job descriptions, Job Grading Standards, or regulations. When assigning higher level duties to unit employees, the employees will be compensated for higher level duties as outlined in this section and other provisions of this agreement. It is further agreed that where it can reasonably be determined in advance that employees in the Unit will be required to perform a majority of their duties above the level of their rating for periods in excess of thirty (30) days, that qualified and eligible employees will be selected and temporarily promoted to the higher level positions not to exceed 120 days. If an assignment to higher level duties exceeds 120 days, consideration will be given to either affecting a permanent promotion or temporarily promoting another employee to the higher level position. It is further agreed that the Union shall have the right to meet with the Employer to discuss any alleged inequities in connection therewith.
This Section is not to interfere with the rights of the Employer as set forth in 5 U.S.C. Section 7106.
Award at 9-10.
The Arbitrator stated that the critical issue was whether the quantity of work of the higher-graded positions performed by the grievant entitled him to the pay of these positions under Article 18, Section 3, particularly the provision that the duties of the higher-graded position be "assigned as a substantial portion of the job assignment continuously for a representative period of time[.]" The Arbitrator determined that the duties of the higher-graded mechanic positions were assigned to the grievant as a substantial portion of his work and that he had performed the duties of the higher-graded positions for a representative period of time. Consequently, the Arbitrator held that under Article 18, Section 3, the grievant was entitled to have been paid at the level of the higher-graded mechanic positions and that the Agency violated this provision by failing to compensate him at the higher grade levels.
The Arbitrator rejected the Agency's claim that compensation at the higher grade levels was precluded by the decision in McPeak because the grievant was never detailed to the higher-graded mechanic positions. The Arbitrator ruled that the Federal Personnel Manual (FPM) does not require any particular formality in the assignment of a different set of job duties in order to constitute a detail. Finding that the grievant was assigned the duties of the higher-graded positions for a legitimate management purpose, the Arbitrator concluded that the grievant had been detailed within the meaning of the FPM and that, therefore, the decision in McPeak was not controlling. The Arbitrator also rejected the Agency's contention that a formal detail was required because the parties' agreement contained no such requirement. In the Arbitrator's view, to add such a requirement of formality would negate the clear language of the agreement. Accordingly, the Arbitrator sustained the grievance.
While the Arbitrator was certain that the grievant had performed the duties of higher-graded positions for which he was entitled to be compensated, the Arbitrator stated that he was unable to decide on the basis of the evidence before him the specific periods of time for which backpay was due or the amount of backpay that was due. Accordingly, the Arbitrator directed that "the parties confer on this matter, consult all pertinent records, and endeavor to agree on the correct amount of back pay, and report the result of their conference to the Arbitrator." Award at 17. The Arbitrator retained jurisdiction to conduct a further hearing and fix the amount of backpay in the event that the parties were unable to agree.
III. Positions of the Parties
A. The Agency
The Agency contends that the award is contrary to section 7121(c)(5) of the Statute and to Federal law that requires that employees be detailed to a higher-graded position before they may receive the pay of that position.
The Agency argues that the award is deficient because it concerns the classification of a position within the meaning of section 7121(c)(5). The Agency states that whether an arbitrator has made a classification decision hinges on whether the arbitrator analyzed and identified positions or merely determined whether an employee was performing the duties of positions already classified by management. The Agency maintains that the positions at issue in this case are prevailing rate positions known as "mixed jobs." Exceptions at 3-4. The Agency explains that whether work is regular and recurring is a factor in determining the grade level of mixed jobs. The Agency argues that in determining that the duties of a higher-graded position constituted a substantial portion of the grievant's job assignment and that the grievant performed the duties continuously for a representative period of time, the Arbitrator made precisely the inquiry that management must make when classifying mixed jobs. Thus, the Agency asserts that the award intrudes into the area of classification and is inconsistent with the Statute.
The Agency argues that the Arbitrator did not enforce a contractual requirement to promote employees to higher-graded positions as permitted by decisions of the Authority. The Agency claims that the Arbitrator resolved a classification question, just as the arbitrator did in Social Security Administration and American Federation of Government Employees, Local 1923, AFL-CIO, 31 FLRA 933 (1988) (SSA), because the Arbitrator decided that the positions to which the grievant was assigned were properly classified at higher-grade levels than the grievant's official job. The Agency asserts that this deficiency is not avoided by the Arbitrator's reliance on the testimony of the classification specialist or the final decision of the Agency on the grievance. The Agency claims that neither the testimony nor the decision identify any higher-graded position classified by management. The Agency asserts that the award rests on the conclusion that the grievant performed "higher level duties" and is, consequently, deficient by failing to conclude that the grievant performed in a higher-graded job classified by agency management. Exceptions at 9 (emphasis in original).
The Agency also contends that the award is deficient because there was no detail to a higher-graded position as required by the Comptroller General's decision in McPeak. The Agency argues that under FPM chapter 300, subchapter 8-3, an employee, who continues to perform the duties of the position to which permanently assigned while also performing the duties of another position, generally is not considered to be on detail. The Agency alleges that the grievant continued to perform the duties of his position and that the Arbitrator did not determine otherwise. Thus, the Agency asserts that the grievant was not detailed and the award is precluded by McPeak. The Agency maintains that this case is distinguishable from the Authority's decision in 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 1111 (1990) (Long Beach Naval Shipyard), because in that case the arbitrator had found that the grievant performed the duties of a GS-11 position and under the parties' collective bargaining agreement was entitled to a temporary promotion. The Agency argues that, in contrast, the Arbitrator never identified a higher-level job or position classified by management that was performed by the grievant and that, therefore, the award is unenforceable.
B. The Union
The Union contends that the award does not concern the classification of a position under section 7121(c)(5). The Union asserts that the award is clearly based on the testimony presented as it applied to the classified position descriptions submitted in evidence. The Union argues that the Arbitrator properly awarded the grievant backpay for performing work classified by the Agency at a higher grade level, just as was awarded by the arbitrator in Lexington-Blue Grass Army Depot and International Association of Machinists and Aerospace Workers, Local 859, 32 FLRA 256 (1988). The Union claims that it made it clear that it was not bringing a classification appeal. The Union also claims that the Agency's argument that the grievant had to be detailed before he was entitled to the higher pay is contrary to the parties' agreement. In the Union's view, the Agency's exceptions constitute nothing more than disagreement with the Arbitrator's findings of fact, reasoning and conclusions, and interpretation and application of the parties' collective bargaining agreement and provide no basis for finding the award deficient.
IV. Analysis and Conclusions
We conclude that the Agency fails to establish that the award is deficient, as alleged.
We conclude that no basis is provided for finding that the award is contrary to section 7121(c)(5) of the Statute. Section 7121(c)(5) precludes any grievances concerning "the classification of any position which does not result in the reduction in grade or pay of an employee." The Authority has uniformly and repeatedly held that grievances over whether a grievant was entitled under a collective bargaining agreement to have been compensated at a higher rate of pay by reason of having temporarily performed the duties of a higher-graded position do not concern the classification of any position within the meaning of section 7121(c)(5). American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 38 FLRA 89 (1990) (and cases cited in the decision) (SSA, Baltimore); 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 cases cited in the decision) (Robins AFB); U.S. Department of Justice, Immigration and Naturalization Service and National Immigration and Naturalization Service Council, American Federation of Government Employees, Local 2805, 15 FLRA 862 (1984) (INS); Georgia Air National Guard, 165th Tactical Airlift Group, Savannah, Georgia and Georgia Association of Civilian Technicians, 15 FLRA 442 (1984) (Georgia Air National Guard).
The Authority has viewed the meaning of "classification" under section 7121(c)(5) in the context of 5 C.F.R. chapter 511. 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." As emphasized by the Union, the grievance did not claim that the grievant's position should be reclassified because he performed the duties of a higher-graded position. The grievant merely requested compensation at the higher rates of pay for the time during which he performed the duties of the WG-9, WG-10, and WG-11 mechanic positions. The Arbitrator did not reclassify the grievant at a higher grade. Instead, the Arbitrator merely interpreted the position descriptions and duties of the WG-9, WG-10, and WG-11 positions as previously established and classified by management. The question resolved by the Arbitrator was whether the grievant was entitled to compensation at a higher rate of pay when he performed substantial amounts of duties of the higher-graded positions.
The Authority has refused to find that such a grievance concerns the classification of any position within the meaning of section 7121(c)(5) of the Statute. SSA, Baltimore (and cases cited in the decision); Robins AFB (and cases cited in the decision); INS; Georgia Air National Guard. In this case, positions at the WG-9, WG-10, and WG-11 grade levels were established and classified by management and were specifically examined and considered by the Arbitrator. We are not persuaded that the fact that these positions are prevailing rate "mixed jobs" or that the Arbitrator frequently discussed duties rather than positions distinguishes this case from the long line of Authority cases pertaining to the temporary assignment of duties of a higher-graded position. Therefore, contrary to the claim of the Agency, this case is unlike SSA, 31 FLRA 933. See 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, 159-60 (1990). Accordingly, we will deny this exception.
We also conclude that the Agency provides no basis for finding that the award is contrary to the Comptroller General's decision in McPeak. As we noted in Long Beach Naval Shipyard, 37 FLRA at 1119, the decision in McPeak confirms the general rule that an employee is only entitled to the salary of the position to which the employee was actually appointed. However, the Comptroller General acknowledged an exception "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." 69 Comp. Gen. at 94. The Comptroller General concluded that the affected employees in McPeak were not entitled to retroactive temporary promotions because "there [was] no evidence of a detail of the employees to the higher-graded position. Instead, it appear[ed] that over a period of several years they either assumed or were assigned some duties which were associated with the higher-graded position." Id.
In contrast, in this case, as in Long Beach Naval Shipyard, the Arbitrator specifically found that "the Grievant was detailed within the meaning of that term as defined in the Federal Personnel Manual." Award at 16. Accordingly, we find that the award is fully consistent with McPeak and, contrary to the claim of the Agency, is indistinguishable from Long Beach Naval Shipyard. As the Arbitrator found that management's assignment of higher-graded duties to the grievant for a legitimate management purpose constituted a detail, we reject the Agency's claim that this finding is contrary to FPM chapter 300, subchapter 8-3. We refuse to find the Arbitrator's determination deficient based on an FPM provision which merely advises that when employees continue to perform the duties of their positions, while also performing the duties of another position, they "generally [are] not considered to be on a detail." See U.S. Department of Veterans Affairs Medical Center, Allen Park, Michigan and American Federation of Government Employees, Local 933, 38 FLRA 688, 696 (1990) (Authority concluded that based on the determinations of the arbitrator, the award was consistent with the FPM and denied the agency's exception). Accordingly, we will deny the exception.
The Agency's exceptions are denied.(*)
(If blank, the decision does not have footnotes.)
*/ In denying the exceptions, we anticipate that the parties, as ordered by the Arbitrator, will now endeavor to agree on the amount of backpay. We remind the parties, and advise the Arbitrator, of the limitations on temporary promotions set forth in 5 C.F.R. § 335.102 and FPM chapter 335, subchapter 1-5. We recommend that the parties and the Arbitrator consult the Authority's decisions in U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employee