U.S. Army Aviation Center, Fort Rucker, Alabama (Activity) and Wiregrass Metal Trades Council, AFL-CIO (Union) 

 6 FLRA No. 35
 
 U.S. ARMY AVIATION CENTER,
 FORT RUCKER, ALABAMA
 Activity
 
 and
 
 WIREGRASS METAL TRADES COUNCIL,
 AFL-CIO
 Union
 
                                            Case No. O-AR-68
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTION TO THE AWARD OF
 ARBITRATOR GEO. SAVAGE KING FILED BY THE AGENCY UNDER SECTION 7122(A) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
 7122(A)).
 
    ACCORDING TO THE ARBITRATOR, THE TWO GRIEVANTS WERE EMPLOYED IN THE
 ACTIVITY'S FIELD PRINTING PLANT IN WG-9 POSITIONS.  FOLLOWING POSITION
 AUDITS, THE GRIEVANTS' POSITIONS WERE RECLASSIFIED AS WG-10 POSITIONS
 AND THE GRIEVANTS WERE COMPETITIVELY PROMOTED INTO THEM.  THE QUESTIONS
 INVOLVED IN THE GRIEVANCES AND BEFORE THE ARBITRATOR WERE WHETHER THE
 GRIEVANTS SHOULD HAVE BEEN PROMOTED NONCOMPETITIVELY TO THE WG-10
 POSITIONS AND WHETHER THEY WERE ENTITLED TO BACKPAY FOR WG-10 WORK THEY
 HAD PERFORMED WHILE IN WG-9 POSITIONS.
 
    AS TO THE FIRST QUESTION, THE ARBITRATOR CONCLUDED THAT THE GRIEVANTS
 WERE NOT ENTITLED TO NONCOMPETITIVE PROMOTIONS IN THE CIRCUMSTANCES OF
 THIS CASE.  REGARDING THE SECOND QUESTION, THE ARBITRATOR NOTED THAT
 THERE WAS "NO DISPUTE THAT THE GRIEVANTS IN FACT PERFORMED WG-10 LEVEL
 DUTIES FOR SOME TIME PRIOR TO THE RECLASSIFICATION FROM WG-9 TO THAT
 LEVEL" AND FOUND THAT THEY WERE ENTITLED TO COMPENSATION FOR THOSE
 DUTIES FROM THE DATE THE VERIFICATION AUDIT OF THEIR POSITIONS BEGAN.
 ACCORDINGLY, HE MADE THE FOLLOWING AWARD:
 
    . . . (1) THE GRIEVANTS . . . WERE NOT ENTITLED TO NON-COMPETITIVE
 PROMOTIONS TO THE
 
    POSITIONS IN QUESTION;  (2) THEY ARE ENTITLED TO BACK PAY FOR THE
 DIFFERENCE BETWEEN WG-9 AND
 
    WG-10 LEVELS IN THEIR RESPECTIVE JOBS FROM AUGUST 28, 1978, UNTIL
 THEIR SUBSEQUENT PROMOTIONS
 
    TO THE WG-10 LEVELS IN THEIR RESPECTIVE JOBS.
 
    THE AGENCY FILED AN EXCEPTION TO PART (2) OF THE ARBITRATOR'S AWARD
 UNDER SECTION 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE /1/ AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS, 5
 CFR PART 2425.  /2/ THE UNION DID NOT FILE AN OPPOSITION.
 
    IN ITS EXCEPTION THE AGENCY CONTENDS THAT PART (2) OF THE
 ARBITRATOR'S AWARD VIOLATES THE BACK PAY ACT OF 1966.  /3/ IN SUPPORT OF
 THIS EXCEPTION, THE AGENCY ASSERTS THAT THE ARBITRATOR HAS ERRONEOUSLY
 DIVORCED THE CONTRACTUAL REQUIREMENT TO COMPENSATE EMPLOYEES /4/ FROM
 THE STATUTORY REQUIREMENT TO PROPERLY CLASSIFY POSITIONS.  /5/ THE
 AGENCY NOTES THAT UNDER 5 U.S.C. 5596(B)(2) AND THE U.S. SUPREME COURT'S
 DECISION IN UNITED STATES V. TESTAN, 424 U.S. 392(1976), AN EMPLOYEE IS
 NOT ENTITLED TO BACKPAY FOR A PERIOD OF A CLAIMED WRONGFUL
 CLASSIFICATION.
 
    FOR THE REASONS THAT FOLLOW THE AUTHORITY FINDS THAT PART (2) OF THE
 ARBITRATOR'S AWARD IS DEFICIENT BECAUSE IT IS CONTRARY TO THE BACK PAY
 ACT AND THEREFORE MUST BE MODIFIED ACCORDINGLY.
 
    IN THIS CASE, THE ARBITRATOR FOUND THAT THE GRIEVANTS WERE PERFORMING
 WG-10 DUTIES AT THE AGENCY'S DIRECTION FROM AT LEAST AUGUST 28, 1978,
 AND THE ARBITRATOR INTERPRETED THE PARTIES' COLLECTIVE BARGAINING
 AGREEMENT TO REQUIRE COMPENSATION FROM THE FIRST DAY THAT THE HIGHER
 GRADED DUTIES WERE REGULARLY ASSIGNED AND CONSTITUTED A MAJOR DUTY
 INVOLVING A SUBSTANTIAL PORTION OF THE EMPLOYEE'S TIME.  HOWEVER, UNDER
 THE PROVISIONS OF 5 U.S.C.  5596(B)(2) AND THE SUPREME COURT'S DECISION
 IN TESTAN, BACKPAY CANNOT BE AWARDED BEFORE THE POSITIONS WERE
 CLASSIFIED.  THE ARBITRATOR FOUND THAT THE TWO POSITIONS IN QUESTION
 WERE CLASSIFIED ON FEBRUARY 14, 1979, AND MARCH 7, 1979, RESPECTIVELY.
 THEREFORE, BACKPAY CANNOT BE AWARDED BEFORE THOSE DATES.
 
    ACCORDINGLY, PURSUANT TO SECTION 7122(A) OF THE STATUTE AND SECTION
 2425.4 OF THE AUTHORITY'S RULES AND REGULATIONS, PART (2) OF THE
 ARBITRATOR'S AWARD IS MODIFIED AS FOLLOWS:  (2) THEY ARE ENTITLED TO
 BACKPAY FOR THE DIFFERENCE BETWEEN WG-9 AND WG-10 LEVELS IN THEIR
 RESPECTIVE JOBS FROM THE DATES THE RESPECTIVE POSITIONS WERE CLASSIFIED
 UNTIL THEIR SUBSEQUENT PROMOTIONS TO THE WG-10 LEVELS IN THEIR
 RESPECTIVE JOBS.
 
    AS SO MODIFIED, THE ARBITRATOR'S AWARD IS SUSTAINED.
 
    ISSUED, WASHINGTON, D.C., JULY 1, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ 5 U.S.C. 7122(A) PROVIDES:
 
    (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
 AUTHORITY AN EXCEPTION TO ANY ARBITRATOR'S AWARD PURSUANT TO THE
 ARBITRATION (OTHER THAN AN AWARD RELATING TO A MATTER DESCRIBED IN
 SECTION 7121(F) OF THIS TITLE).  IF UPON REVIEW THE AUTHORITY FINDS THAT
 THE AWARD IS DEFICIENT--
 
    (1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION;  OR
 
    (2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
 PRIVATE SECTOR
 
    LABOR-MANAGEMENT RELATIONS;
 
    THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
 CONCERNING THE AWARD AS IT CONSIDERS NECESSARY, CONSISTENT WITH
 APPLICABLE LAWS, RULES OR REGULATIONS.
 
    /2/ ALTHOUGH THE AGENCY'S EXCEPTION WAS FILED AT THE TIME THE
 AUTHORITY'S INTERIM RULES AND REGULATIONS WERE IN EFFECT, THE FINAL
 RULES AND REGULATIONS, 5 CFR PART 2425 (1980), ARE IDENTICAL TO THE
 INTERIM REGULATIONS.
 
    /3/ 5 U.S.C. 5596 (1976 AND SUPP. III 1979) WHICH PERTINENTLY
 PROVIDES:
 
    (B)(1) AN EMPLOYEE OF AN AGENCY WHO, ON THE BASIS OF A TIMELY APPEAL
 OR AN ADMINISTRATIVE DETERMINATION (INCLUDING A DECISION RELATING TO AN
 UNFAIR LABOR PRACTICE OR A GRIEVANCE) IS FOUND BY APPROPRIATE AUTHORITY
 UNDER APPLICABLE LAW, RULE, REGULATION, OR COLLECTIVE BARGAINING
 AGREEMENT, TO HAVE BEEN AFFECTED BY AN UNJUSTIFIED OR UNWARRANTED
 PERSONNEL ACTION WHICH HAS RESULTED IN THE WITHDRAWAL OR REDUCTION OF
 ALL OR PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS OF THE EMPLOYEE--
 
    (A) IS ENTITLED, ON CORRECTION OF THE PERSONNEL ACTION, TO RECEIVE
 FOR THE PERIOD FOR WHICH
 
    THE PERSONNEL ACTION WAS IN EFFECT--
 
    (I) AN AMOUNT EQUAL TO ALL OR ANY PART OF THE PAY, ALLOWANCES, OR
 DIFFERENTIALS, AS
 
    APPLICABLE WHICH THE EMPLOYEE NORMALLY WOULD HAVE EARNED OR RECEIVED
 DURING THE PERIOD IF THE
 
    PERSONNEL ACTION HAD NOT OCCURRED, LESS ANY AMOUNTS EARNED BY THE
 EMPLOYEE THROUGH OTHER
 
    EMPLOYMENT DURING THAT PERIOD;
 
   .          .          .          .
 
 
    (2) THIS SUBSECTION DOES NOT APPLY TO ANY RECLASSIFICATION ACTION NOR
 AUTHORIZE THE SETTING ASIDE OF AN OTHERWISE PROPER PROMOTION BY A
 SELECTING OFFICIAL FROM A GROUP OF PROPERLY RANKED AND CERTIFIED
 CANDIDATES.
 
    (3) FOR THE PURPOSE OF THIS SUBSECTION, "GRIEVANCE" AND "COLLECTIVE
 BARGAINING AGREEMENT" HAVE THE MEANINGS SET FORTH IN SECTION 7103 OF
 THIS TITLE . . . AND "PERSONNEL ACTION" INCLUDES THE OMISSION OR FAILURE
 TO TAKE AN ACTION OR CONFER A BENEFIT.
 
    /4/ ARTICLE 26 OF THE COLLECTIVE BARGAINING AGREEMENT PROVIDES:
 
    ARTICLE 26-- EMPLOYEE UTILIZATION
 
    IT SHALL BE THE POLICY OF THE EMPLOYER TO COMPENSATE EMPLOYEES ON THE
 BASIS OF THE HIGHEST LEVEL OF DUTIES REGULARLY ASSIGNED THAT CONSTITUTES
 A MAJOR DUTY INVOLVING A SUBSTANTIAL PORTION OF THEIR TIME.  HELPERS OR
 INTERMEDIATE EMPLOYEES WILL NOT BE REQUIRED TO PERFORM JOURNEYMAN DUTIES
 ON A CONTINUING BASIS WITHOUT APPROPRIATE COMPENSATION.
 
    /5/ 5 U.S.C. 5101 ET SEQ.