52:0938(94)AR - - Air Force, Warner Robins Air Logistics Center, Robins AFB, GA and AFGE Local 987 - - 1997 FLRAdec AR - - v52 p938
[ v52 p938 ]
The decision of the Authority follows:
52 FLRA No. 94
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE AIR FORCE
WARNER ROBINS AIR LOGISTICS CENTER
ROBINS AIR FORCE BASE, GEORGIA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
January 31, 1997
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 Samuel J. Nicholas, Jr. 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 Regulations. The Union filed an opposition to the Agency's exceptions.
The Arbitrator found, as relevant here, that the grievance, which sought temporary promotions for four grievants, was arbitrable and awarded the grievants compensation for temporary promotions for a specified period. We conclude that the Agency has failed to establish that the award is deficient. Accordingly, we deny the exceptions.
II. Background and Arbitrator's Award
The grievants, WG-7 parachute packers, claimed they had been performing the work of WG-8 fabric workers for over 2 years and, when they realized they had been performing higher-graded work, filed a grievance seeking temporary promotions. The parties could not resolve the grievance and submitted the grievance to arbitration. The Arbitrator framed the issues as follows:
(1) Was the grievance filed in accordance with the time limits of the [a]greement?
(2) Is this a non-arbitrable classification dispute?
Lastly, the Arbitrator must consider the appropriate remedy should he find the grievance timely and arbitrable.
Award at 8.
The Arbitrator found that the grievance constituted a continuing violation of Article 13 of the parties' agreement(1) and, as such, was timely filed. The Arbitrator further found that the substance of the grievance concerned the grievants' request for temporary promotions under Article 13 of the agreement for performing higher-graded work. The Arbitrator determined that the WG-7 parachute packers were doing essentially the same work as the WG-8 fabric workers and were entitled to temporary promotions and backpay for the period commencing 21 days prior to the filing of the grievance through the date on which the WG-8 positions were reclassified to WG-7.(2)
A. Agency's Contentions
The Agency contends that the grievance concerns the grade level of the duties assigned to and performed by the grievants and, therefore, is not arbitrable under section 7121(c)(5) of the Statute. The Agency maintains that because its classification audit determined that the work is at the GS-7 level, the grievance is without merit.
Additionally, the Agency contends that even if the grievants did perform the WG-8 work, they would not be entitled under the Back Pay Act, 5 U.S.C. § 5596, to backpay as awarded by the Arbitrator. According to the Agency, a Federal employee is entitled to receive only the salary of the position to which he or she was appointed, even though the employee may have performed the duties of another position. The Agency also argues that backpay is not available as a remedy for misassignments to higher-level duties or improper classifications. According to the Agency, backpay may be awarded only where the employee was affected by an unjustified or unwarranted personnel action, and the Arbitrator made no such finding.
B. Union's Opposition
The Union contends that the substance of the grievance concerned the grievants' requests for temporary promotions under Article 13 of the agreement and was arbitrable under the Statute. Further, the Union argues that the violation of the parties' agreement on temporary promotions is a basis for an award of backpay to the grievants.
IV. Analysis and Conclusions
The Agency 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. In circumstances where a party's exceptions involve an award's consistency with law, we must review the questions of law raised by the arbitrator's award and the party'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)).
A. The Grievance Did Not Concern a Classification Matter and Was Arbitrable
Contrary to the Agency's claim, the award is not inconsistent with section 7121(c)(5) of the Statute. 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. U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine and National Association of Agriculture Employees, 51 FLRA 1210, 1215 (1996). 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 collective bargaining agreement by reason of having performed the duties of a higher-graded position do not concern the classification of a position within the meaning of section 7121(c)(5). Id.
The Arbitrator determined, based on his consideration and evaluation of the record in this case, that the grievance concerned whether the grievants performed duties that had already been classified at a higher grade. The Agency's classification audit of the WG-7 and WG-8 positions does not affect whether the grievance is arbitrable because it was conducted after the grievance was filed and was prospective in nature. The issue addressed by the arbitration did not concern the classification of the grievants' positions. Accordingly, the award is not inconsistent with section 7121(c)(5) of the Statute. See U.S. Department of Justice, Federal Bureau of Prisons, Atlanta, Georgia and American Federation of Government Employees, Council of Prisons Local 1145, 51 FLRA 1422, 1424-25 (1996). Accordingly, we deny this exception.
B. The Award Is Consistent With the Back Pay Act
The Authority has long held that under the Back Pay Act, an award of backpay 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) (Department of Justice).
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)). An exception to this rule exists, which permits compensation for the temporary performance of the duties of a higher-graded position based on an agency regulation or collective bargaining provision making temporary promotions mandatory in these circumstances. 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)). Under this exception, such a collective bargaining agreement provision establishes a nondiscretionary agency policy which provides a basis for backpay. National Treasury Employees Union, Chapter 231 and U.S. Department of the Treasury, U.S. Customs Service, North Central Region, Chicago, Illinois, 51 FLRA 594, 597 (1995) (citing Ft. Polk, 44 FLRA at 1563).
Here, the Arbitrator determined that the record established that the WG-7 parachute packer grievants had performed WG-8 fabric worker duties. The Arbitrator also found that, under Article 13 of the parties' agreement, the grievants were entitled to temporary promotions for performing the same duties as the WG-8 employees, but did not receive those promotions. These findings by the Arbitrator satisfy the first requirement for an award of backpay.
As to the second and third Back Pay Act requirements, the Authority has stated that the "but for" test does not require a "specific recitation of certain words and phrases" to establish a direct connection between an unwarranted or unjustified personnel action and an employee's loss of pay or differentials. Department of Justice, 51 FLRA at 1098 (citing American Federation of Government Employees, Local 31 and U.S. Department of Veterans Affairs, Medical Center, Cleveland, Ohio, 41 FLRA 514, 518 (1991) (VA Cleveland)). The Authority has also stated that a finding of a direct causal connection may be "implicit from the record and the award." VA Cleveland, 41 FLRA at 519. The award establishes that the Agency failed to temporarily promote the grievants and that except for this violation of Article 13 of the parties' agreement, the grievants would not have suffered the loss of pay. Consequently, the award satisfies the second and third requirements for an award of backpay under the Back Pay Act. See Department of Justice, 51 FLRA at 1097-98. Accordingly, we deny this exception.
The Agency's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. Article 13 states in pertinent part:
SECTION 13.01: MANDATORY TEMPORARY PROMOTIONS
When an employee is temporarily assigned to a higher graded position or the grade-controlling duties of a higher graded position for 30 consecutive calendar days, the employee shall be temporarily promoted into and receive the rate of pay of that position commencing on the 31st day. . . .
Award at 3.
2. After the grievance was filed, the Agency audited the WG-7 and WG-8 positions and determined that none of the work being performed was at the WG-8 level. The Agency reclassified the WG-8 positions to WG-7.