51:1645(137)AR - - AFGE, Local 1617 & Air Force, San Antonio Air Logistics Center, Kelly AFB, TX - - 1996 FLRAdec AR - - v51 p1645

[ v51 p1645 ]
The decision of the Authority follows:

51 FLRA No. 137





LOCAL 1617










July 26, 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 exceptions to an award of Arbitrator Raymond L. Britton 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 denied a grievance which alleged that the grievant had performed higher-grade duties without additional compensation. For the following reasons, we conclude that the Union has not established that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.

II. Background and Arbitrator's Award

The grievant, a GS-303-5 Plans and Mobility Assistant, filed a grievance claiming that she had performed the duties of a GS-303-7 position, but that she continued to be compensated at the GS-303-5 level. The grievance was not resolved and the matter was submitted to arbitration. The Arbitrator framed the issue as follows:

Was the grievant performing GS-303-7 duties as a Plans and Mobility Assistant, GS-303-5, from September 1989? If so, what should the remedy be?

Award at 1.

The Arbitrator found nothing in the record supporting the Union's contention that the grievant performed the grade controlling duties of a GS-303-7 position. Accordingly, the Arbitrator denied the grievance.

III. Exceptions

A. Union's Contentions

First, the Union claims that the Arbitrator did not consider the full scope of the evidence presented during the hearing along with the affidavits the grievant presented.

Second, the Union argues that the Arbitrator did not respond to the original grievance. The Union maintains that instead of resolving the issue of whether the grievant was entitled to back pay, the Arbitrator examined whether the employee had performed higher-grade duties.

Finally, the Union asserts that the award is deficient because it is contrary to section 7121(c)(5) of the Statute and 5 U.S.C. § 5596, the Back Pay Act. Accordingly, the Union requests that the Authority remand the grievance to the Arbitrator to render the requested remedy.

B. Agency's Opposition

The Agency argues that, contrary to the Union's assertions, the Arbitrator found that the grievant never performed the higher-level duties. The Agency maintains that the award is not contrary to any law, rule or regulation nor is it contrary to grounds applied by Federal courts in private sector labor-management relations. Finally, the Agency contends that, as the Arbitrator found that the grievant was not entitled to a promotion, the question of back pay is moot.

IV. Analysis and Conclusion

A. The Union Received a Fair Hearing

We construe the Union's assertion that the Arbitrator did not consider the full scope of the evidence presented during the hearing as a claim that the Arbitrator failed to conduct a fair hearing.

The Authority will find an award deficient when it determines that an arbitrator's refusal "to hear or consider pertinent and material evidence, or other actions in conducting the proceeding, prejudiced a party so as to affect the fairness of the proceeding as a whole." American Federation of Government Employees, Local 1668 and U.S. Department of the Air Force, Elmendorf Air Force Base, Anchorage, Alaska, 50 FLRA 124, 126 (1995).

The Union has not demonstrated that the Arbitrator refused to consider any pertinent and material evidence. The Arbitrator's award contained multiple references to memoranda circulated between the parties along with references to witness testimony at the hearing. Other than a broad assertion that the Arbitrator did not consider evidence, the Union has failed to establish that the Arbitrator's actions during the hearing prejudiced the grievant and affected the fairness of the hearing. Accordingly, we deny this exception.

B. The Arbitrator Did Not Exceed His Authority

We construe the Union's assertion that the Arbitrator did not respond to the original grievance as a claim that the Arbitrator exceeded his authority. Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority or award relief to those not encompassed within the grievance. U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine and National Association of Agriculture Employees, 51 FLRA 1210, 1218 (1996) (PPQ). Here, the issue of whether the Arbitrator exceeded his authority revolves around his inquiry into the grievant's performance of higher-level duties.

The stipulated issue expressly involved the grievant's entitlement to back pay based on her claim that she had performed higher-grade duties and that she had not received additional compensation. Without an examination of the duties performed by the grievant, the Arbitrator would not have been able to determine what compensation, if any, to which the grievant would be entitled. Therefore, the Arbitrator's inquiry into whether the grievant performed higher-grade duties did not redefine the issue, but was necessary to decide the issue presented. See National Air Traffic Controllers Association, MEBA/NMU and U.S. Department of Transportation, Federal Aviation Administration, Southern California Tracon, 51 FLRA 993, 996 (1996). Accordingly, we deny this exception.

C. The Award Is Not Contrary To Law

As the exception involves the award's consistency with law, we review the questions of law raised by the Arbitrator's award and the Union's exceptions de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995), citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994). Here, among other grounds, the Union excepts to the award on the basis that the award is inconsistent with: (1) section 7121(c)(5) of the Statute; and (2) the Back Pay Act, 5 U.S.C. § 5596.

1. The Award Is Not Inconsistent With Section 7121(c)(5)

Contrary to the Union's claim, the award is not inconsistent with section 7121(c)(5) of the Statute. Section 7121(c)(5) of the Statute provides that matters concerning the classification of any position which do not result in the reduction in grade or pay of an employee are excluded from the negotiated grievance procedure. PPQ, 51 FLRA at 1215. The Authority has construed the term "classification" in section 7121(c)(5) to have the same meaning as in 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 under chapter 51 of title 5[.]" Id. (quoting 5 C.F.R. § 511.101(c)). Consistent with this construction, the Authority has long held that grievances concerning whether a grievant is entitled to a temporary promotion under a 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).

In support of its claim, the Union relies on 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) (Warner Robins). However, Warner Robins concerned an arbitrator's failure to evaluate the merits of a grievance based on his erroneous determination that the grievance concerned classification issues and was, therefore, not arbitrable. In this case, the Arbitrator did evaluate the merits of the grievance, that is, whether the grievant performed the higher-grade duties entitling her to a temporary promotion and back pay. Therefore, contrary to the Union's interpretation, the Arbitrator's award here is consistent with Warner Robins.

The Union does not claim that the grievant's position was incorrectly classified, that the higher-grade duties were incorrectly classified, or that the grievance was in any other way not arbitrable. Accordingly, the Union's argument does not involve classification matters under section 7121(c)(5) of the Statute.

2. The Award Is Not Inconsistent With The Back Pay Act

The Authority has long held that under the Back Pay Act, an award of back pay is authorized only when an arbitrator finds that: (1) the aggrieved employee was affected by an unjust or unwarranted personnel action; (2) the personnel action directly resulted in the withdrawal or reduction of the grievant's pay, allowances or differentials; and (3) but for such action, the grievant otherwise would not have suffered the withdrawal or reduction. E.g., U.S. Department of Justice, Immigration and Naturalization Service, San Diego, California and American Federation of Government Employees, National Immigration and Naturalization Service Council, 51 FLRA 1094, 1097 (1996).

The general rule is that an employee is entitled only to the salary of the position to which the individual is appointed. U.S. Department of the Army, Fort Polk, Louisiana and National Association of Government Employees, Local R5-168, 44 FLRA 1548, 1563 (1992) (Ft. Polk) (citing Cassandra G. McPeak and Wayne E. Dabney, 69 Comp. Gen. 140 (1989) (McPeak)). Following this principle, the grievant would only be entitled to her salary at the GS-5 level, the position to which she was appointed.

An exception to this rule exists, however, which permits compensation for the temporary performance of the duties of a higher-grade position based on an agency regulation or collective bargaining provision making temporary promotions mandatory for details to higher-grade positions. U.S. Department of the Army, Army Armament Research, Development and Engineering Center and American Federation of Government Employees, Local 225, 49 FLRA 562, 565 (1994) (citing Wilson v. U.S., 229 Ct. Cl. 510 (1981) and McPeak, 69 Comp. Gen. at 141)). In other words, this exception establishes that a violation of a nondiscretionary agency policy may provide a basis for back pay. National Treasury Employees Union, Chapter 231 and U.S.