49:1387(124)AR - - Air Force, Air Education and Training Command, Randolph AFB, San Antonio, TX and AFGE, Local 1840 - - 1994 FLRAdec AR - - v49 p1387

[ v49 p1387 ]
The decision of the Authority follows:

49 FLRA No. 124











LOCAL 1840





June 15, 1994


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 Raymond L. Britton 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 did not file an opposition to the Agency's exceptions.

The Arbitrator sustained a grievance claiming that the Agency improperly failed to train and promote the grievant and ordered the Agency to provide the grievant backpay. For the following reasons, we conclude that the award must be set aside because it pertains to the classification of a position, a matter which is excluded from the scope of a negotiated grievance procedure by the Statute.

II. Background and Arbitrator's Award

The Union filed a grievance disputing the Agency's failure to "promote[] or . . . train[]" the grievant. Award at 2. When the grievance was not resolved, it was submitted to arbitration on the following issues:

1. Whether this matter is arbitrable? If so

2. Whether the Grievant had been wrongfully passed over for over nine (9) years of his employment at Randolph Air Force Base?

Award at 1.

On the first issue, the Arbitrator found that, as the grievance did not concern an alleged failure to select the grievant for promotion from among a group of candidates, it was not excluded from the scope of the parties' negotiated grievance procedure under Article 12 of the parties' agreement.(1) The Arbitrator also found that the grievance did not concern a classification matter and, therefore, was not excluded from the scope of the grievance procedure by section 7121(c)(5) of the Statute.(2)

On the second issue, the Arbitrator determined that the "work level of the [g]rievant was that of a WG-9 rather than a WG[-]5" and that the grievant "performed at the WG-9 level . . . during his employment" with the Agency. Id. at 9. The Arbitrator also determined that, although the grievant's supervisor testified that no WG-9 positions existed at the time of an earlier effort to promote the grievant, the fact that the grievant "was not formally promoted to a WG-9 because such a position may not have become open during this time frame [could not] reasonably be viewed as justifying the failure of the Agency to compensate the [g]rievant at the WG-9 rate for his performance of WG-9 work." Id. The Arbitrator concluded that the Agency's failure "to pay the [g]rievant as a WG-9" violated the parties' agreement in which, according to the Arbitrator, it was "implicit . . . that employees will be treated equally and fairly and without discrimination." Id.

As his award, the Arbitrator sustained the grievance and "directed that the [g]rievant be paid the back pay that he ha[d] been denied" for the previous 3 years. Id. at 10.

III. Exceptions

The Agency claims that the award is deficient because it concerns the classification of the grievant's position, within the meaning of section 7121(c)(5) of the Statute. The Agency asserts, in this regard, that the grievance concerns, and the Arbitrator made findings about, the grade level of the duties assigned to and performed by the grievant. The Agency also argues that the award is contrary to the Back Pay Act because, in the Agency's view, the Arbitrator failed to make the findings necessary to award backpay. Finally, the Agency claims that the award interferes with its right to make selections for appointment under section 7106(a)(2)(C) of the Statute.

IV. Analysis and Conclusions

As noted previously, section 7121(c)(5) of the Statute provides that matters concerning "the classification of any position which does not result in the reduction in grade or pay of an employee[]" are excluded from the negotiated grievance procedure. Where the substance of an award concerns the grade level of duties assigned to, and performed by a grievant, the award concerns the classification of a position, within the meaning of section 7121(c)(5) of the Statute. For example, U.S. Department of the Air Force, Scott Air Force Base, Illinois and National Association of Government Employees, Local R7-23, 38 FLRA 32, 36 (1990). Where, on the other hand, an arbitrator determines a grievant's entitlement to a temporary, career-ladder, or other noncompetitive promotion based on performance of previously-classified duties, the award does not concern classification matters. For example, National Treasury Employees Union and U.S. Customs Service, Pacific Region, 32 FLRA 1141, 1147 (1988). Of course, a disputed failure to promote a grievant under a competitive procedure also does not concern classification matters.

In this case, we conclude that the award concerns the classification of the grievant's position. In this regard, there is no indication in the record that the grievant challenged a failure by the Agency to promote him temporarily because he performed higher-graded duties. There also is no indication that the grievant claimed an entitlement to a career-ladder promotion. Similarly, although the grievance and award contain references to the Agency's failure to promote the grievant, nothing in the record shows that the grievant disputed the Agency's failure to select him for a competitive promotion or that the grievant claimed a noncompetitive promotion under any law, rule, regulation, or provision of the parties' agreement. Compare U.S. Department of the Air Force, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 42 FLRA 1342, 1344 (1991) (grievant claimed noncompetitive promotion based on failure of agency to implement alleged oral understanding requiring such promotion after completion of certain training); U.S. Department of the Treasury, Internal Revenue Service, Los Angeles District and National Treasury Employees Union, 42 FLRA 252, 254 (1991) (grievant claimed that agency violated a settlement agreement requiring noncompetitive promotion after desk audit established that grievant's position should be reclassified at a higher grade).

In our view, the substance of the award concerns the grade level of the duties performed by the grievant. In this regard, the Arbitrator determined, based on his consideration and evaluation of the grade level of the duties performed by the grievant, that the grievant "was capable of performing work as a WG-9 and that he actually performed the same type of work that the WG-9's were doing for a period of years." Award at 9. Moreover, although