United States, Department of the Army , United States Army Reserve, Personnel Command, St. Louis, Missouri (Agency) and American Federation of Government Employees, Local 900 (Union)

[ v59 p455 ]

59 FLRA No. 71

UNITED STATES
DEPARTMENT OF THE ARMY
UNITED STATES ARMY RESERVE
PERSONNEL COMMAND
ST. LOUIS, MISSOURI
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 900
(Union)

0-AR-3693

_____

DECISION

November 24, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Cyrus A. Alexander filed by the Agency under § 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 the grievants were entitled to backpay for the performance of higher-graded duties. For the reasons set forth below, we find that the Arbitrator's award is deficient as contrary to the Back Pay Act. Accordingly, we set aside the award.

II.     Background and Arbitrator's Award

      A grievance was filed alleging that the grievants were required to perform higher-graded duties without being compensated at the appropriate rate of pay. The grievance was unresolved and was submitted to arbitration where the parties stipulated the issue to be: "Were employees in Series 335 GS-7 performing the identical or very similar duties of employees in Series 334 GS-9 from June 1, 1999 through June 27, 2001? If so, what is the remedy?" Award at 3. Before the Arbitrator, the Agency argued that the grievance was not arbitrable because it concerned a classification issue and was beyond the jurisdiction of the Arbitrator.

      The Arbitrator found that the Union did not contend the employees were misclassified and that the Agency's argument that the grievance concerned a classification issue was misplaced. Id. at 7. The Arbitrator next found that the grievants performed the higher-graded duties of employees in the Series 334 GS-9 position. The Arbitrator concluded that the performance of the higher-graded duties was a misassignment prohibited by a particular Agency memorandum (the 1989 Memorandum). [n2]  He also stated that the grievants were not detailed to a higher-graded position and, under a different Agency memorandum (the 1990 Memorandum), could be paid at their lower salary. [n3]  The Arbitrator awarded the grievants the higher rate of pay for the period during which they performed the higher-graded duties, stating that "[i]t is axiomatic that when an employee performs higher graded duties for the benefit of management, he is entitled to the higher paid job duties." Id. at 8.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency excepts to the award on the ground that the award is contrary to the Back Pay Act because there is "no unjustified or unwarranted personnel action entitling the grievants to an award of back pay under the Back Pay Act." Exceptions at 5. In this connection, the Agency contends that "[n]either the arbitrator, nor the union in its grievance, identified a non-discretionary policy in either a regulation or collective bargaining agreement mandating temporary promotions for details to higher-graded work." Id. at 2.

B.     Union's Opposition

      The Union contends that the Arbitrator did not improperly award temporary promotions to the grievants [ v59 p456 ] for performance of higher-graded duties. Opposition at 3. According to the Union, the 1989 Memorandum establishes an Agency policy warranting the promotions. In this connection, the Union argues that the Arbitrator identified the memorandum as a mandatory policy to cease the practice of misassignments and use the procedures set forth in Article 24 of the parties' agreement for temporary promotions or details of employees to higher-graded positions. [n4]  Id.

IV.     Analysis and Conclusions

      The Authority reviews questions of law raised by an arbitrator's award and an exception to it de novo. NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.

      Under the Back Pay Act, 5 U.S.C. § 5596, an award of backpay is authorized only where an arbitrator finds that (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action; and (2) the personnel action has resulted in the withdrawal or reduction of the employee's pay, allowances, or differentials. See United States Dep't of Def., Def. Commissary Agency, Fort Lee, Va., 56 FLRA 855, 859 (2000).

      The Authority has held that an employee may be compensated 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 for details to higher-graded positions. United States Dep't of the Army, Headquarters, III Corps & Fort Hood, Fort Hood, Tex., 56 FLRA 544, 546 (2000) (Fort Hood). Absent such a regulation or collective bargaining provision, the fact that a grievant performed higher-graded duties is insufficient to entitle the grievant to an award of backpay. See, e.g., United States Dep't of the Air Force, 88th Air Base Wing, Aeronautical Sys. Div., Wright-Patterson Air Force Base, Ohio, 52 FLRA 285 (1996). Where an arbitrator fails to identify a non-discretionary agency regulation or a collective bargaining agreement provision that would entitle a grievant to backpay for performing the duties of a higher-graded position, there is no unjustified or unwarranted personnel action which would entitle the grievant to an award of backpay under the Back Pay Act. Fort Hood, 56 FLRA at 546.

      In the award, the Arbitrator briefly mentioned the two memoranda relied on by the Union and stated that the 1989 Memorandum prohibits misassignments. Award at 8. However, the Arbitrator did not identify, in either the 1989 or the 1990 memoranda, a non-discretionary policy that would entitle the grievants to temporary promotions, and, in fact, he acknowledged that the 1990 Memorandum permitted the grievants to be paid at their lower rate of pay while performing the higher-graded duties. In granting backpay, the Arbitrator relied on the principle that "[i]t is axiomatic that when an employee performs higher graded duties for the benefit of management, he is entitled to the higher paid job duties." Award at 8.

      Even if the Arbitrator had relied on the 1989 Memorandum, that memorandum does not contain a non-discretionary policy entitling the grievants to temporary promotions. In this connection, the 1989 Memorandum calls for misassignments to cease immediately and states that "[m]isassignments can be avoided by proper use of details and temporary promotions". Exceptions, Attachment-3 at 1, 3 (1989 Memorandum). Thus, contrary to the Union's argument, the 1989 Memorandum merely provides the Agency with options to avoid misassignments and does not require temporary promotions.

      Because the Arbitrator has not identified or relied on a non-discretionary policy mandating temporary promotions, we conclude that the award of backpay to the grievants is deficient as contrary to the Back Pay Act and must be set aside.

V.     Decision

      The award is set aside.


Concurring Opinion of Chairman Cabaniss:

      Although I agree that the arbitration award in this case violates the Back Pay Act, that issue was not presented to the Arbitrator and I would not rely upon it now. See 5 C.F.R. § 2429.5. However, I agree with the majority in concluding that no non-discretionary policy mandating temporary promotions upon which the Arbitrator could have based his award was presented to the Arbitrator. Therefore, the Arbitrator engaged in a classification action in violation of 5 U.S.C. § 7121(c)(5) and the award results from a jurisdictional defect that the Authority may considered sua sponte. Because the award is jurisdictionally defective, I concur with the majority's conclusion that the award should be set aside.



Footnote # 1 for 59 FLRA No. 71 - Authority's Decision

   Chairman Cabaniss' concurring opinion is set forth at the end of this decision.


Footnote # 2 for 59 FLRA No. 71 - Authority's Decision

   The 1989 Memorandum provides, in pertinent part, "[a] misassignme