American Federation of Government Employees, Local 2142 (Union) and United States, Department of the Army, Corpus Christi Army Depot, Corpus Christi, Texas (Agency)

[ v58 p416 ]

58 FLRA No. 102

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2142
(Union)

and

UNITED STATES
DEPARTMENT OF THE ARMY
CORPUS CHRISTI ARMY DEPOT
CORPUS CHRISTI, TEXAS
(Agency)

______

0-AR-3598

DECISION

______

March 31, 2003

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This case is before the Authority on an exception to an award of Arbitrator Don J. Harr filed by the Union under § 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 grievance in this case on the ground that it concerned a matter relating to the classification of a position within the meaning of § 7121(c)(5) of the Statute. The Union excepts on the ground that the Arbitrator's award is contrary to law. For the following reasons, we deny the Union's exception.

II.     Background and Arbitrator's Award

      The Union filed a grievance on behalf of the grievant seeking a non-competitive permanent promotion to WG-11 and backpay. [n1]  The grievance was based on the claim that, for at least 10 years, the grievant had been "performing duties above and beyond his normal scope of assigned duties on an ongoing and daily basis without proper compensation." Award at 3. At the second step, the grievant requested backpay from November 11, 1996, while at the third step he requested backpay from March 1991. The grievance was denied at all steps and subsequently submitted to arbitration.

The Arbitrator stated the issues presented as follows:
1.     Does the grievance involve classification issues and is therefore non-arbitrable?
2.     Did the Grievant . . . perform the duties of a Journeyman Mechanic WG-2604-11 on a Regular and Recurring Basis? If so, what is the proper remedy?

Award at 2.

      The Arbitrator addressed the Agency's motion to dismiss the grievance on the ground that it concerned classification issues and, therefore, was not arbitrable. Citing United States v. Testan, 424 U.S. 392 (1976) (Testan), a case involving a claim of backpay for a period of alleged wrongful classification, the Arbitrator stated that the Supreme Court has held that "[t]he proper remedy" in such a case is "to use the classification procedures to assertain [sic] whether the claiment's [sic] position should have been reclassified." Id. at 6. Further, the Arbitrator cited AFGE, Local 2142, 51 FLRA 1140 (1996) (Local 2142), a case in which the grievants claimed that they had performed higher-graded duties for an extended period of time without appropriate compensation. The Arbitrator noted that, in Local 2142, the Authority upheld the dismissal of the grievances as non-arbitrable on the ground that grievances concerning the "classification of the grievants' positions" are excluded from the negotiated grievance and arbitration procedure under § 7121(c)(5) of the Statute. Award at 6-7. Consequently, the Arbitrator found that the grievance is non-arbitrable and sustained the Agency's motion to dismiss the grievance on that ground.

III.     Positions of the Parties

A.     Union's Exception

      The Union contends that the Arbitrator erred by dismissing the grievance as non-arbitrable. The Union contends that the grievance does not concern a classification matter, but involves a non-competitive promotion based on an accretion of duties. Noting that there have been several non-competitive promotions within the bargaining unit because of additional duties that are directly related to employees' previous positions, the Union states that when major duties of a position change "then a reclassification of the position is required." Exception at 1. The Union states that the grievant continues [ v58 p417 ] to perform the duties of his existing position, but that he is also performing "additional and more complex duties of the higher-grade level . . . ." Id. at 2.

B,     Agency's Opposition

      According to the Agency, the