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60 FLRA No. 16
Social Security Administration and AFGE, Local 1923 (Trotter, Arbitrator) 0-AR- 3761 (Decided June 30, 2004)
The Arbitrator found that the grievant was entitled to a retroactive temporary promotion and back pay for the performance of higher-graded duties, and directed the Agency to pay the Union reasonable attorney fees. The Authority set aside the award.
The Authority explained that under § 7121(c)(5) of the Statute, grievances concerning the classification of any position which do not result in the reduction in grade or pay of an employee are precluded by law from coverage by a negotiated grievance procedure. Thus, an arbitrator is barred from resolving any grievance concerning the classification of a position that does not result in the reduction in grade or pay of an employee.
In this case, in addition to ordering back pay, the Arbitrator ordered the Agency to temporarily promote the grievant to the GS-10 position and to pay her front pay at the grade 10 level until her job is reclassified or the duties she is performing are removed. The Authority interpreted this remedy as indicative that, in the Arbitrator's view, the performance of higher-graded GS-10 IS duties by the grievant was of an on-going, permanent nature, thereby defeating any claim that the performance of GS-10 duties was for a temporary period of time.