51:1140(92)AR - - AFGE Local 2142 and Corpus Christi Army Depot, Corpus Christi, TX - - 1996 FLRAdec AR - - v51 p1140



[ v51 p1140 ]
51:1140(92)AR
The decision of the Authority follows:


51 FLRA No. 92

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2142

(Union)

and

U.S. DEPARTMENT OF THE ARMY

CORPUS CHRISTI ARMY DEPOT

CORPUS CHRISTI, TEXAS

(Agency)

0-AR-2787

_____

DECISION

April 17, 1996

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator Paul Barron 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 exception.

The Arbitrator dismissed the grievances, which alleged that the grievants had performed higher-graded duties without additional compensation. He found that they were not arbitrable because they concerned the classification of the grievants' positions.

We conclude that the Union's exception fails to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exception.

II. Arbitrator's Award

Several aircraft mechanical parts repairers, who are classified either at the WG-5 helper level or the WG-8 intermediate level, filed grievances alleging that they had performed the duties of the WG-10 journeyman level for an extended period of time without additional compensation. The Arbitrator dismissed the grievances as not arbitrable because they concerned the classification of the grievants' positions within the meaning of section 7121(c)(5) of the Statute. He found the grievances virtually identical to the grievance in U.S. Department of the Air Force, Air Education and Training Command, Randolph Air Force Base, San Antonio, Texas and American Federation of Government Employees, Local 1840, 49 FLRA 1387 (1994) (Randolph AFB). The Arbitrator concluded that he was compelled to follow the Authority's decision, which found the grievance precluded by section 7121(c)(5) of the Statute. He noted that apparently there is no provision in the parties' collective bargaining agreement for temporary promotions when employees perform the duties of a higher-graded position, and that the decision may have been different if there had been such a provision.

III. Exception

A. Union's Contentions

The Union contends that the award is contrary to law. The Union argues that the grievances were arbitrable and that the Arbitrator committed harmful error by misinterpreting and misapplying the principle of equal pay for substantially equal work set forth in 5 U.S.C. § 5101.

B. Agency's Opposition

The Agency contends that the Arbitrator correctly followed the Authority's decision in Randolph AFB in dismissing the grievances as nonarbitrable.(*)

IV. Analysis and Conclusions

As the Union's exception in this case involves the award's consistency with law, we review the questions of law raised by the Arbitrator's award and the exception de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995). The Union's exception that the award is contrary to law fails in two respects.

Section 7121(c)(5) of the Statute provides that grievances concerning "the classification of any position which does not result in the reduction in grade or pay of an employee" are precluded by law from coverage by a negotiated grievance procedure. When the substance of a grievance concerns the grade level of the 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. E.g., American Federation of Government Employees, Local 2025 and U.S. Department of the Air Force, Ninth Reconnaissance Wing, Beale Air Force Base, California, 50 FLRA 39, 42 (1994). When the substance of a grievance concerns whether the grievant is entitled to a temporary promotion under a collective bargaining agreement by reason of having performed the duties of a higher-graded position, the grievance does not concern the classification of a position within the meaning of section 7121(c)(5). Id.

In Randolph AFB, on which the Arbitrator in this case relied in dismissing the grievances, the arbitrator determined that the grievant's WG-5 position required the grievant to perform WG-9 duties and ordered the agency to provide the grievant with backpay. 49 FLRA at 1390. The Authority concluded that the arbitrator had resolved the grievance by determining the grade level of the duties performed by the grievant. The Authority noted that there was no indication in the record that the grievant had challenged a failure by the Agency to promote him temporarily because he had performed higher-graded duties. Accordingly, the Authority ruled that the award pertained to the classification of the grievant's position and that, therefore, it conflicted with section 7121(c)(5) of the Statute. Id.

Reviewing the questions of law de novo, we first conclude that the Arbitrator correctly determined on the basis of Randolph AFB that the grievances were precluded by section 7121(c)(5) of the Statute. As in Randolph AFB, the substance of the grievances concerned the grade level of the duties assigned to, and performed by, the grievants in their permanent positions and not whether they were entitled to temporary promotions under the parties' collective bargaining agreement for performing previously classified duties of higher-grad