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, withi