National Association of Independent Labor, Local 7 (Union) and United States Department of the Air Force, Seymour Johnson Air Force Base, Goldsboro, North Carolina (Agency)

[ v63 p85 ]

63 FLRA No. 32

NATIONAL ASSOCIATION
OF INDEPENDENT LABOR
LOCAL 7
(Union)

and

UNITED STATES
DEPARTMENT OF THE AIR FORCE
SEYMOUR JOHNSON AIR FORCE BASE
GOLDSBORO, NORTH CAROLINA
(Agency)

0-AR-4221

_____

DECISION

January 30, 2009

_____

Before the Authority: Thomas M. Beck, Chairman and
Carol Waller Pope, Member

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Harold D. Smith 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 exceptions.

      The Arbitrator determined that the Union's grievance was not arbitrable under § 7121(c)(5) of the Statute and Article 44, § 6(e) of the parties' agreement. For the reasons set forth below, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      The Union filed a grievance alleging that the Agency violated Article 30, § 7 of parties' agreement when it failed to temporarily promote the grievant to a GS-07 position based on the duties she had been performing since she was selected for her GS-05 position. [n1]  See Award at 2, 5. During the course of the grievance process, the grievant's request for a desk audit was granted and she was promoted to a GS-06 position. Id. at 6-7. When the parties were unable to resolve the grievance, it was submitted to arbitration. In response to the Agency's contention that the grievance was not arbitrable under Article 44, § 6(e) of the parties' agreement or § 7121(c)(5) of the Statute, the Arbitrator framed the following issue: "Is the grievance filed by the grievant and the Union arbitrable under the terms of the [parties'] negotiated agreement?" Id. at 4.

      The Arbitrator found that Article 44, § 6(e) of the parties' agreement excluded from the grievance process issues involving "classification of any position which does not result in the reduction in grade or pay of an employee." [n2]  Id. at 7. The Arbitrator found that the underlying issue in the grievance was one of position classification, rather than temporary promotion. Id. at 8. The Arbitrator also found that the grievants's "claim for temporary promotion pursuant to Article 30, [§] 7" was not supported because there was "no established GS-07 Security Assistant position in the [grievant's] section[.]" Id. at 11. For these reasons, the Arbitrator concluded that the grievance involved a classification matter within the meaning of § 7121(c)(5) of the Statute and was not arbitrable. Id.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union asserts that the Arbitrator's arbitrability determination is contrary to Authority precedent, which holds that temporary promotions under a parties' agreement are different from classification matters and are therefore arbitrable. Exceptions at 10-11. In this regard, the Union argues that the grievant was not claiming that her permanent GS-05 duties had been misclassified, but that she had been temporarily performing the duties of the GS-07 position. Id. at 11.

      The Union also claims that the Arbitrator failed to consider whether the Agency violated the "equal pay for equal work" requirement of 5 U.S.C. § 2301(b)(3), as well as Article 5, § 12 of the parties' agreement, which provides that employees should be treated in a fair and equitable manner. Exceptions at 9. Further, the Union argues that the award is based on a nonfact because the Agency had established a GS-07 position, although it was not in the grievant's section. Id. at 12. [ v63 p86 ]

B.     Agency's Opposition

      The Agency asserts that the Union's exceptions do not demonstrate that the Arbitrator's award is deficient. In this regard, the Agency argues that the Arbitrator did not err when he did not address the Agency's alleged violations of 5 U.S.C. § 2301(b)(3) and Article 5, § 12, and that the Union's arguments in this regard are mischaracterizations of the real underlying issue -- the appropriate classification of the grievant's position -- which the Arbitrator properly resolved. Opposition at 2. In response to the Union's nonfact claim, the Agency states that the Arbitrator properly found that there was no GS-07 position into which the grievant could be temporarily promoted. Id. at 5.

IV.     Analysis and Conclusion

      For purposes of resolving this case, we assume, without deciding, that the Arbitrator properly exercised jurisdiction over this grievance. In denying the grievance, the Arbitrator relied on both Article 30 and Article 44 of the parties' agreement. For the following reasons, we conclude that the award is not deficient.

      The Arbitrator interpreted the parties' agreement as conditioning a temporary promotion on the existence of a position in the grievant's section. See Award at 11 ("There is no established GS-07 Security Assistant position in the [grievant's] section to support the [g]rievant's claim for temporary promotion pursuant to Article 30, [§] 7, of the Agreement."). Although the Union contests the Arbitrator's finding that there was no established GS-07 position, it does not challenge the Arbitrator's interpretation of the parties' agreement as requiring that such a position be located in the appropriate section in order for a temporary promotion to occur. Furthermore, the Union does not dispute the fact that there was no GS-07 position in the grievant's section. In these circumstances, the contractual requirements for temporary promotion, as interpreted by the Arbitrator, have not been met, and the award is not deficient.

V.     Decision

      The Union's exceptions are denied. [n3] 



Footnote # 1 for 63 FLRA No. 32 - Authority's Decision

   Article 30, § 7 of the parties' agreement provides:

Employees detailed to established positions of a higher grade shall be temporarily promoted to the higher grade (if otherwise qualified) effective the 46th day of the assignment. Where a temporary promotion is to be effected to a position with a known promotion potential or for a period in excess of 120 days, such promotion will be made under competitive promotion procedures.

Award at 3.


Footnote # 2 for 63 FLRA No. 32 - Authority's Decision

   This wording is ident