18:0088(16)AR - EEOC, Memphis District Office, Memphis, TN and National Council of EEOC Locals No. 216, AFGE -- 1985 FLRAdec AR

 18 FLRA No. 16
 
 U.S. EQUAL EMPLOYMENT OPPORTUNITY 
 COMMISSION, MEMPHIS DISTRICT OFFICE, 
 MEMPHIS, TENNESSEE 
 Activity 
 
 and 
 
 NATIONAL COUNCIL OF EEOC
 LOCALS NO. 216, AMERICAN 
 FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO
 Union
 
                                            Case No. 0-AR-655
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Don E. Hamilton filed by the Agency under section 7122(a) of
 the Federal Service Labor-Management Relations Statute and part 2425 of
 the Authority's Rules and Regulations.  The Union filed an opposition.
 
    The grievance in this case concerns the claim of the grievant to a
 career-ladder promotion to GS-6.  The grievant was assigned to the
 position of compliance clerk as a GS-4 and subsequently was promoted
 noncompetitively to GS-5.  Thereafter, she was recommended for a
 career-ladder promotion to GS-6 by her supervisor.  When the
 recommendation was not approved, a grievance was filed.  The position of
 the Activity essentially was that whether or not the grievant was
 originally advised that the position of compliance clerk had a career
 ladder from GS-4 to GS-6, by the time of the promotion recommendation of
 the grievant, the Activity had determined, after a review of the Office
 of Personnel Management identifying classification problems with the
 compliance clerk position, that the highest grade level supportable for
 the position was GS-5.  The grievance was not resolved and was submitted
 to arbitration.  The Arbitrator acknowledged that management had
 determined that the highest supportable grade for the position of
 compliance clerk was GS-5 and that by the time the grievant was
 recommended for promotion, promotions of compliance clerks to GS-6 had
 been discontinued.  However, the Arbitrator viewed the dispositive issue
 to be whether the "covenant" to the grievant must be honored and not the
 classification of the compliance clerk position.  In this respect the
 Arbitrator concluded that the determination that the highest supportable
 grade for the compliance clerk position was GS-5 did not abrogate the
 commitment to the grievant to promote her to GS-6.  Accordingly, the
 Arbitrator sustained the grievance and directed that the grievant be
 promoted retroactively to GS-6.
 
    As one of its exceptions the Agency contends that the award is
 contrary to section 7121(c)(5) of the Statute.  /1/ In support the
 Agency essentially argues that the grievance concerns the classification
 of the grievant's position which did not result in a reduction-in-grade
 or pay.  /2/ The Authority agrees.
 
    As noted the grievance in this case essentially claims a
 career-ladder promotion potential in the compliance clerk position of
 GS-6 and the award directs the grievant's promotion to GS-6
 notwithstanding the Activity's determination that a grade level of GS-6
 for the compliance clerk position cannot be supported as a matter of
 classification.  In the classification of positions under 5 U.S.C. 5107,
 agencies have the responsibility of placing positions in their
 appropriate grade and, when facts warrant, changing the grade of a
 position.  Because the substance of both the grievance and the award
 concerns the grade level to which the grievant could be promoted in the
 position of compliance clerk, the Authority finds that both the
 grievance and the award concern the classification of a position within
 the meaning of section 7121(c)(5) precluding such matters from grievance
 and arbitration.  See Overseas Education Association and Department of
 Defense Dependents Schools, 15 FLRA No. 77 (1984);  Federal Aviation
 Administration, Department of Transportation, Tampa, Florida and Federal
 Aviation Science and Technological Association, National Association of
 Government Employees, Tampa, Florida, 8 FLRA 532 (1982).  Accordingly,
 the award is deficient and is set aside.  /3/ Issued, Washington, D.C.,
 May 22, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 7121(c)(5) provides:
 
          (c) The preceding subsections of this section shall not apply
       with respect to any grievance concerning--
 
                                  * * * *
 
          (5) the classification of any position which does not result in
       the reduction in grade or pay of an employee.
 
 
    /2/ In its opposition the Union contends that the Agency is estopped
 from contending that the award is deficient as contrary to section
 7121(c)(5) because it failed to comply with the parties' collective
 bargaining agreement as to when arbitrability issues must be raised.
 However, because section 7121(c)(5) precludes grievances concerning
 classification and because the Agency has timely filed an exception
 contending that the award was precluded on that basis, the Agency's
 exception is not barred and is properly before the Authority for
 resolution under the Statute.  Cf. Professional Air Traffic Controllers
 Organization and Federal Aviation Administration, 5 FLRA 763, 767-68
 (1981) (wherein the Authority held that the exception contending that
 the award was contrary to section 7106(a) of the Statute was properly
 before the Authority because contrary to the argument of the union, the
 agency could not have waived its right under section 7106(a)).
 
 
    /3/ In its opposition the Union has also argued that the award is not
 deficient because there has been no proper reclassification of the
 compliance clerk position and the grievant therefore was entitled to
 promotion.  In finding the award deficient, the Authority has not
 decided that the grievant is not entitled to a promotion to GS-6 only
 that grievance and arbitration are not provided by the Statute to
 resolve the grievant's claim.  In addition, in view of this decision, it
 is not necessary to address the other exceptions to the award.