Internal Revenue Service, Buffalo District and National Treasury Employees Union, Chapter 59 

 2 FLRA No. 10
 
 INTERNAL REVENUE SERVICE.
 BUFFALO DISTRICT
 
 and
 
 NATIONAL TREASURY EMPLOYEES
 UNION, CHAPTER 58
 
                                            FLRC No. 78A-172
 
                 DECISION ON APPEAL FROM ARBITRATION AWARD
 
                            BACKGROUND OF CASE
 
    ACCORDING TO THE ARBITRATOR'S AWARD, FROM MARCH 1974 TO DECEMBER 1976
 THE GRIEVANT, A GS-11 REVENUE OFFICER, WAS ASSIGNED FULL-TIME TO A
 COMPLIANCE PROGRAM OPERATED BY THE ACTIVITY.  APPARENTLY CONTENDING THAT
 DURING THIS TIME THE GRIEVANT HAD PERFORMED GS-12 DUTIES FOR WHICH HE
 WAS ENTITLED TO RECEIVE A SPECIAL ACHIEVEMENT AWARD UNDER THE PARTIES'
 NEGOTIATED AGREEMENT, THE UNION FILED A GRIEVANCE ON BEHALF OF THE
 GRIEVANT.  THE ISSUE TO BE RESOLVED BY THE ARBITRATOR WAS STIPULATED BY
 THE PARTIES AS FOLLOWS:  /1/
 
    (W)HETHER GRIEVANT WAS CONTRACTUALLY ENTITLED TO RECEIVE A SPECIAL
 ACHIEVEMENT AWARD FOR
 
    HIS WORK PERFORMANCE IN ACCORDANCE WITH ARTICLE 9, SECTION 2 (OF THE
 AGREEMENT).  /2/
 
                            ARBITRATOR'S AWARD
 
    AT THE ARBITRATION HEARING THE ACTIVITY RAISED A QUESTION OF
 ARBITRABILITY.  IN THIS REGARD THE ACTIVITY ARGUED THAT THE GRAVAMEN OF
 THE ISSUE WAS THE PROPER GRADE LEVEL AT WHICH THE GRIEVANT WORKED.  THE
 ACTIVITY MAINTAINED THAT GRIEVANCES CONCERNING THE ENTITLEMENT TO A
 SPECIAL ACHIEVEMENT AWARD UNDER ARTICLE 9, SECTION 2 OF THE NEGOTIATED
 AGREEMENT WERE NOT ARBITRABLE BECAUSE GRIEVANCES OVER THE GRADE LEVEL
 ASSIGNED TO WORK IS A MATTER FOR WHICH A STATUTORY APPEAL PROCEDURE
 EXISTS AND WHICH THEREFORE, UNDER EXECUTIVE ORDER NO. 11491, MAY NOT BE
 RAISED UNDER THE NEGOTIATED GRIEVANCE PROCEDURE.  HOWEVER, THE
 ARBITRATOR FOUND THAT THE GRIEVANCE DID NOT SEEK TO CHALLENGE THE GRADE
 LEVEL ASSIGNED TO THE GRIEVANT'S WORK, BUT RATHER TO REQUIRE THE
 ACTIVITY TO HONOR THE GRADE LEVEL THAT IT HAD ORIGINALLY ASSIGNED TO
 THAT WORK.  THEREFORE, THE ARBITRATOR FOUND THAT THE GRIEVANCE
 ARBITRABLE AND HE PROCEEDED TO THE MERITS.
 
    ON THE MERITS, THE ARBITRATOR EXPLAINED THAT NATIONALLY THE
 COMPLIANCE PROGRAM WORK WAS GRADED AT BOTH GS-11 AND GS-12 WITH THE
 DIFFERENCE BASED ON THE LEVEL OF DIFFICULTY OF THE PROGRAM STUDIES.  THE
 ARBITRATOR OBSERVED THAT, DURING THE SIX YEARS OF OPERATION OF THE
 PROGRAM IN THE BUFFALO DISTRICT, ALL REVENUE OFFICERS ASSIGNED TO THE
 PROGRAM WERE GS-12'S EXCEPT THE GRIEVANT.  THE ARBITRATOR FURTHER
 OBSERVED THAT THE GRIEVANT AND ANOTHER EMPLOYEE, A GS-12, WORKED AS A
 TEAM DURING THE PERIOD OF THE GRIEVANT'S ASSIGNMENT TO THE PROGRAM
 WITHOUT ANY DISTINCTIONS AS TO THE DIFFICULTY OF THE WORK PERFORMED BY
 EACH.  THE ARBITRATOR DETERMINED THAT THESE MATTERS REFLECTED THE
 ACTIVITY'S JUDGMENT THAT FOR THE BUFFALO DISTRICT THE COMPLIANCE PROGRAM
 WORK WAS OF THE GRADE LEVEL GS-12.  THEREFORE, HE CONCLUDED THAT THE
 GRIEVANT HAD PERFORMED SUFFICIENT GS-12 LEVEL WORK TO BE ENTITLED TO A
 SPECIAL ACHIEVEMENT AWARD UNDER THE PROVISIONS OF THE NEGOTIATED
 AGREEMENT.  ACCORDINGLY, HIS AWARD AS TO THIS ISSUE, SET FORTH IN PART
 (2) OF THE AWARD, WAS:  "(THE GRIEVANT) IS ENTITLED TO A SPECIAL
 ACHIEVEMENT AWARD UNDER ARTICLE 9, SECTION 2."
 
                              AGENCY'S APPEAL
 
    THE AGENCY FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD WITH
 THE FEDERAL LABOR RELATIONS COUNCIL.  THIS CASE WAS PENDING BEFORE THE
 COUNCIL ON DECEMBER 31, 1978.  IN ACCORDANCE WITH SECTION 2400.5 OF THE
 TRANSITION RULES OF THE FEDERAL LABOR RELATIONS AUTHORITY (44 FED. REG.
 44741) AND SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (92 STAT. 1215), THE RULES OF PROCEDURE OF THE FEDERAL
 LABOR RELATIONS COUNCIL, 5 C.F.R. PART 2411(1978), REMAIN OPERATIVE WITH
 RESPECT TO THE PRESENT CASE EXCEPT THAT THE WORD "AUTHORITY" IS
 SUBSTITUTED, AS APPROPRIATE, WHEREVER THE WORD "COUNCIL" APPEARS IN SUCH
 RULES.  UNDER SECTION 2411.32 OF THE RULES AS SO AMENDED, THE AUTHORITY
 ACCEPTED THE AGENCY'S PETITION FOR REVIEW INSOFAR AS IT RELATED TO THE
 AGENCY'S EXCEPTION WHICH ALLEGED THAT PART (2) OF THE ARBITRATOR'S
 AWARD, FINDING THAT THE GRIEVANT IS ENTITLED TO A SPECIAL ACHIEVEMENT
 AWARD, VIOLATES APPLICABLE LAW AND APPROPRIATE REGULATION.  /3/ BOTH
 PARTIES FILED BRIEFS.
 
                                  OPINION
 
    SECTION 2411.37(A) OF THE AMENDED RULES OF PROCEDURE PROVIDES:
 
    (A) AN AWARD OF AN ARBITRATOR SHALL BE MODIFIED, SET ASIDE IN WHOLE
 OR IN PART, OR REMANDED
 
    ONLY ON GROUNDS THAT THE AWARD VIOLATES APPLICABLE LAW, APPROPRIATE
 REGULATION, OR THE ORDER,
 
    OR OTHER GROUNDS SIMILAR TO THOSE APPLIED BY THE COURTS IN PRIVATE
 SECTOR LABOR-MANAGEMENT
 
    RELATIONS.
 
    AS PREVIOUSLY STATED, THE AUTHORITY ACCEPTED THE AGENCY'S PETITION
 FOR REVIEW INSOFAR AS IT RELATED TO THE AGENCY'S EXCEPTION WHICH ALLEGED
 THAT PART (2) OF THE ARBITRATOR'S AWARD, FINDING THAT THE GRIEVANT IS
 ENTITLED TO A SPECIAL ACHIEVEMENT AWARD, VIOLATES APPLICABLE LAW AND
 APPROPRIATE REGULATIONS.  SINCE THE CIVIL SERVICE COMMISSION WAS
 RESPONSIBLE FOR PRESCRIBING REGULATIONS CONCERNING THE MATTERS INVOLVED
 IN THIS CASE, AND SINCE UNDER SECTION 902(B) OF THE CIVIL SERVICE REFORM
 ACT OF 1978 /4/ THIS APPEAL MUST BE RESOLVED AS IF THE CIVIL SERVICE
 REFORM ACT HAD NOT BEEN ENACTED, THE AUTHORITY REQUESTED FROM THE OFFICE
 OF PERSONNEL MANAGEMENT (THE SUCCESSOR AGENCY TO THE CIVIL SERVICE
 COMMISSION WITH RESPECT TO THE MATTERS INVOLVED HEREIN) AN
 INTERPRETATION OF CIVIL SERVICE COMMISSION REGULATIONS AS THEY PERTAIN
 TO PART (2) OF THE ARBITRATOR'S AWARD.  THE OFFICE OF PERSONNEL
 MANAGEMENT REPLIED IN RELEVANT PART AS FOLLOWS:
 
    PART (2) OF THE AWARD DEALS WITH THE ISSUE OF WHETHER THE GRIEVANT IS
 ENTITLED TO A SPECIAL
 
    ACHIEVEMENT AWARD IN ACCORDANCE WITH ARTICLE 9, SECTION 2 OF THE
 AGREEMENT WHICH PROVIDES, IN
 
    PART, THE FOLLOWING:
 
    WHERE IT HAS BEEN ADMINISTRATIVELY DETERMINED THAT AN EMPLOYEE HAS
 PERFORMED:
 
    1.  HIGHER GRADED DUTIES FOR 50% OR MORE OF THE PREVIOUS 12 MONTH
 PERIOD,
 
    2.  IN A MANNER WHICH FULLY MEETS THE PERFORMANCE REQUIREMENTS OF THE
 HIGHER GRADED DUTIES,
 
    SUCH PERFORMANCE WILL BE RECOGNIZED BY A SPECIAL ACHIEVEMENT AWARD .
 . . .
 
    THE ARBITRATOR FOUND THAT THE GRIEVANT HAD PERFORMED SUFFICIENT GS-12
 LEVEL WORK FOR A
 
    PERIOD GREATER THAN TWELVE MONTHS FOR HIM TO BE ENTITLED, UNDER
 ARTICLE 9, SECTION 2 OF THE
 
    NEGOTIATED AGREEMENT, TO A SPECIAL ACHIEVEMENT AWARD.
 
    THE AGENCY CONTENDS THAT THE ARBITRATOR, IN FINDING THAT THE GRIEVANT
 HAD PERFORMED GS-12
 
    LEVEL WORK, HAD IN EFFECT MADE A CLASSIFICATION DETERMINATION AND HAD
 THEREBY VIOLATED 5 CFR
 
    511.603 ET SEQ.
 
    SUBPART F OF PART 511 OF TITLE 5 OF THE CODE OF FEDERAL REGULATIONS
 RELATES TO AN
 
    EMPLOYEE'S RIGHT TO APPEAL THE CLASS, GRADE, OR PAY SYSTEM OF THE
 OFFICIAL POSITION OF RECORD,
 
    AND THE RIGHT OF THE AGENCY TO APPEAL ANY CLASSIFICATION DECISION
 MADE BY OPM WITH RESPECT TO
 
    ANY POSITION IN THE AGENCY.
 
    IN THE CASE AT BAR THE GRIEVANT DID NOT REQUEST A CHANGE IN THE
 CLASS, GRADE, OR PAY SYSTEM
 
    OF HIS OFFICIALLY ASSIGNED POSITION;  NOR DID THE ARBITRATOR ORDER
 SUCH CHANGES.  SINCE THE
 
    CLASSIFICATION OF THE GRIEVANT'S OFFICIAL POSITION WAS NOT AT ISSUE
 IN PART (2) OF THE AWARD,
 
    WE CONCLUDE THAT THE ARBITRATOR DID NOT VIOLATE 5 CFR 511.603.  /5/
 
    BASED ON THE FOREGOING INTERPRETATION OF THE OFFICE OF PERSONNEL
 MANAGEMENT, WE CONCLUDE THAT PART (2) OF THE ARBITRATOR'S AWARD, FINDING
 THAT THE GRIEVANT IS ENTITLED TO A SPECIAL ACHIEVEMENT AWARD, IS
 CONSISTENT WITH APPLICABLE LAW AND APPROPRIATE REGULATION.
 
                                CONCLUSION
 
    FOR THE FOREGOING REASONS, WE FIND THAT THE ARBITRATOR'S AWARD DOES
 NOT VIOLATE APPLICABLE LAW OR APPROPRIATE REGULATION.  THEREFORE,
 PURSUANT TO SECTION 2411.37(B) OF THE RULES OF PROCEDURE, WE SUSTAIN THE
 ARBITRATOR'S AWARD AND VACATE THE STAY.  /6/
 
    ISSUED, WASHINGTON, D.C., NOVEMBER 15, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ THE PARTIES ALSO SUBMITTED AN ISSUE TO THE ARBITRATOR CONCERNING
 THE FAIRNESS OF A PROMOTION APPRAISAL OF THE GRIEVANT.  HOWEVER, THE
 ARBITRATOR'S AWARD AS TO THAT ISSUE, SET FORTH IN PART (1) OF HIS AWARD,
 IS NOT BEFORE THE AUTHORITY IN THIS CASE.
 
    /2/ ACCORDING TO THE AWARD, ARTICLE 9, SECTION 2 PROVIDES:
 
    ACTUAL WORK PERFORMANCE IS TO BE EVALUATED IN RELATION TO THE
 REASONABLE PERFORMANCE
 
    REQUIREMENTS OF THE JOB FOR WHICH AN EMPLOYEE IS PAID.  WHERE IT HAS
 BEEN ADMINISTRATIVELY
 
    DETERMINED THAT AN EMPLOYEE HAS PERFORMED:
 
    1.  HIGHER GRADED DUTIES FOR 50% OR MORE OF THE PREVIOUS 12 MONTH
 PERIOD,
 
    2.  IN A MANNER WHICH FULLY MEETS THE PERFORMANCE REQUIREMENTS OF THE
 HIGHER GRADED DUTIES,
 
    SUCH PERFORMANCE WILL BE RECOGNIZED BY A SPECIAL ACHIEVEMENT AWARD.
 
    /3/ THE AGENCY REQUESTED AND THE AUTHORITY GRANTED, PURSUANT TO
 SECTION 2411.46(F) OF THE RULES OF PROCEDURE, A STAY OF THE AWARD
 PENDING DETERMINATION OF THE APPEAL.
 
    /4/ THE CIVIL SERVICE REFORM ACT OF 1978, PUB. L. NO. 95-454, SEC.
 902(B), 92 STAT. 1224, PROVIDES:
 
    (B) NO PROVISION OF THIS ACT SHALL AFFECT ANY ADMINISTRATIVE
 PROCEEDINGS PENDING AT THE
 
    TIME SUCH PROVISION TAKES EFFECT.  ORDERS SHALL BE ISSUED IN SUCH
 PROCEEDINGS AND APPEALS
 
    SHALL BE TAKEN THEREFROM AS IF THIS ACT HAD NOT BEEN ENACTED.
 
    /5/ IN THIS CONNECTION PLEASE COMPARE WITH THE CIVIL SERVICE
 COMMISSION OPINION TO THE FEDERAL LABOR RELATIONS COUNCIL, JUNE 1, 1977,
 IN FEDERAL AVIATION ADMINISTRATION AND PROFESSIONAL AIR TRAFFIC
 CONTROLLERS ORGANIZATION, FLRC NO. 76A-133.
 
    /6/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978, THE INSTANT CASE WAS DECIDED SOLELY ON THE BASIS OF E.O. 11491,
 AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.  THE DECISION DOES NOT
 PREJUDGE IN ANY MANNER EITHER THE MEANING OR APPLICATION OF RELATED
 PROVISIONS OF THE NEW STATUTE OR THE RESULT WHICH WOULD BE REACHED BY
 THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE STATUTE RATHER THAN THE
 ORDER.