50:0039(9)AR - - AFGE, Local 2025 and Air Force. Ninth Reconnaissance Wing, Beale AFB, CA - - 1994 FLRAdec AR - - v50 p39
[ v50 p39 ]
The decision of the Authority follows:
50 FLRA No. 9
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE AIR FORCE
NINTH RECONNAISSANCE WING
BEALE AIR FORCE BASE, CALIFORNIA
December 13, 1994
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Alan R. Rothstein filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.
The Arbitrator sustained, in part, a grievance alleging that the Agency violated the parties' collective bargaining agreement by failing to document the assignment of certain functions of a Supervisory Recreation Specialist position to the grievant. The Arbitrator directed the Agency to properly document the assignment as a detail. However, the Arbitrator determined that the duties performed by the grievant during the detail did not warrant a temporary promotion.
For the following reasons, we conclude that the Union's exceptions to the denial of a temporary promotion provide no basis for finding the award deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.
II. Background and Arbitrator's Award
The grievant, a GS-7 Recreation Specialist, was directed to assume the functions of the Director of the Community Activities Center, a position which was classified as Supervisory Recreation Specialist, GS-9. Subsequently, a grievance was filed over the Agency's failure to document the grievant's performance of the Director's functions and, when the grievance was not resolved, it was submitted to arbitration. The issue, stipulated to by the parties, was:
Did the [A]gency violate the [a]greement ([A]rticle 20) by failing to detail the grievant into the position of Supervisory Recreation Specialist (commonly referred to as the Director of the Community Activities Center)? If so, what is an appropriate remedy?(1)
Award at 2 (footnote added).
The Arbitrator determined that the grievant "was detailed orally to perform functions and responsibilities, some of a supervisory nature, that were not in her recreation specialist position description" and that the Agency violated Article 20 of the parties' agreement by failing to document the grievant's detail.(2) Id. at 7. The Arbitrator also determined that significant, higher-grade duties had been removed from the Director's position prior to the grievant's detail. The Arbitrator determined that "the preponderance of duties performed by the grievant . . . were performed at the GS-7 level, [and] that the GS-9 Supervisory Recreation Specialist position description was no longer accurate at the time of the detail." Id. at 10.
As his award, the Arbitrator directed the Agency's personnel office to document the grievant's detail as required by the parties' agreement. However, because he found that the grievant did not perform the higher-grade work described in the GS-9 position description, the Arbitrator concluded that "there was no need to process the detail as a temporary promotion . . . ." Id. at 11.
A. Union's Contentions
The Union contends that the portion of the award that denies the grievant a temporary promotion violates law and the parties' agreement because the Arbitrator improperly made a position classification determination.(3) In the Union's view, the position to which the grievant was detailed "was properly classified [at the GS-9 level] in accordance with the law, rules, regulations and the negotiated agreement." Exceptions at 6. Accordingly, the Union requests that the Authority remand the award to the Arbitrator for clarification.
B. Agency's Opposition
The Agency argues that the exceptions should be denied because the award is consistent with the negotiated agreement and applicable law, which it maintains require a grievant to demonstrate performance of "regular and recurring duties at a higher grade level before a temporary promotion could be processed." Opposition at 1. In the Agency's view, a "temporary promotion to a GS-9 level position, which no longer existed and which described duties clearly not performed by the grievant, would not be appropriate." Id. at 2.
IV. Analysis and Conclusions
Section 7121(c)(5) of the Statute removes from the scope of negotiated grievance procedures, and thereby bars an arbitrator from resolving, any grievance concerning the classification of a position that does not result in reduction in grade or pay of an employee. The Authority has construed the term "classification" in section 7121(c)(5) in the context of 5 C.F.R. § 511.101(c), which defines the term 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." See U.S. Department of the Army, Fort Polk, Louisiana and National Association of Government Employees, Local R5-168, 44 FLRA 1548, 1552 (1992) (Ft. Polk). Consistent with this construction, grievances concerning whether a grievant is entitled to a temporary promotion under a collective bargaining agreement by reason of having performed the duties of a higher-grade position do not concern the classification of a position within the meaning of section 7121(c)(5) of the Statute. See, for example, Ft. Polk and U.S. Department of the Navy, Naval Aviation Depot, Marine Corps Air Station, Cherry Point, North Carolina and International Association of Machinists and Aerospace Workers, Local 2297, 42 FLRA 795 (1991) (Cherry Point).
As relevant in this case, the Arbitrator compared the work performed by the grievant while on detail with the duties in the GS-9 Supervisory Recreation Specialist position description and found that the grievant was not performing the higher-graded work described. Specifically, the Arbitrator determined that, because of a reorganization which occurred prior to the grievant's detail, "higher-graded functions . . . were removed . . ." from the position. Award at 3. Our reading of the award does not support the Union's contention that the Arbitrator reclassified the position. Rather, we find that the Arbitrator analyzed the grade levels of various duties removed from and remaining in the Supervisory Recreation Specialist position only to determine whether the grievant performed the higher-graded duties in the position.
The Union's assertion that the disputed position remained properly classified at the GS-9 level at the time of the detail provides no grounds for finding the award deficient. Consistent with law and applicable precedent, to be eligible for a temporary promotion, a grievant must perform higher-graded duties, regardless of the classification of the position which encompasses the duties. See, for example, Cherry Point, 42 FLRA at 802.
We construe the Union's assertion that the award conflicts with the parties' agreement as an argument that the award fails to draw its essence from the agreement. To establish that an award is deficient on this ground, the party making the allegation must show that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact, and so unconnected with the wording and the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See, for example, U.S. Department of the Treasury, Headquarters, Internal Revenue Service, Washington, D.C. and National Treasury Employees Union, Chapter 65, 49 FLRA 1430, 1435-36 (1994).
The parties' agreement contains the same wording as section 7121(c)(5) of the Statute. See n.3. We have alread