[ v31 p933 ]
The decision of the Authority follows:
31 FLRA NO. 73 31 FLRA 933 (1988) Date: 23 MAR 1988 SOCIAL SECURITY ADMINISTRATION Agency and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1923, AFL-CIO Union Case No. 0-AR-1431 DECISION I. Statement of the Case This case is before the Authority on exceptions to the award of Arbitrator Robert D. Moran filed by the Agency under section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. Three employees filed grievances, seeking backpay for a period in which each allegedly had performed the work of a higher-graded position. The Arbitrator ruled that the Agency had violated the parties' collective bargaining agreement by failing to grant the grievants temporary promotions for the relevant periods. He directed the Agency to pay each grievant an amount equal to the difference between the salary each had received and the salary of the position whose work each had performed. The Agency challenges the award as a violation of section 7121(c)(5) of the Statute and of the Back Pay Act, 5 U.S.C. SS 5596. Inasmuch as the grievance concerns the classification of a position, we have determined that the Arbitrator's award must be set aside. II. Background The grievants, all employed at grade GS-4 in the Agency's Social Security Number Processing Branch, were reassigned to perform a new function which the Agency was required to carry out under a court order. The new tasks included verifying that funds SSA was paying to representatives of Social Security beneficiaries who were not legally competent to handle the funds themselves were being properly administered by the representatives. The grievants were among a group of employees trained for the new-function without regard to grade level. Grades GS-4 and GS-5 performed identical tasks, and no position descriptions or other documents describing job content or responsibility were prepared for the first 8 months of the program. Award at 4. In addition to performing the regular duties involved in verifying that the "representative payees" were utilizing the Social Security benefits for the beneficiaries, some employees, including the grievants, assumed additional responsibilities known as "quality assurance." They became known as "QAs." Award at 5. Grievants Lois Terry and Carole Young assumed the responsibilities of QAs in early March 1984; grievant Phyllis Lee, in November 1984. Position descriptions for the work they were performing were not created until October 26, 1984. Award at 7-8. The position each grievant occupied was rated GS-4. Award at 8. The grievants also were responsible for "training, guiding, and assisting" employees in grades higher than their own. Award at 6. Although they remained GS-4s after positions in the "Representative Payee" program were classified, all three grievants continued to serve as QAs until their assignments to the program ended on December 2, 1985. 1 Award at 13. The Union filed a grievance on behalf of each employee, asserting that the Agency had violated Article 26, section 16 of the parties' agreement by assigning each grievant temporarily to a higher-graded position without giving her a temporary promotion. 2 Award at 2. The Agency denied the grievances on the grounds that the full range of duties of the higher-graded position had not been performed by any of the grievants. Award at 2. The grievances were consolidated and submitted to arbitration. III. Arbitrator's Award The Arbitrator found that when position descriptions were created they did not reflect the actual work being performed but rather reflected the grade level held by the person. The Arbitrator determined that unrebutted testimony established that each grievant continued to serve as a QA after the position descriptions were established in October 1984. Award at 10. He noted that the grievants provided guidance and advice to employees at the GS-5 level and that management had "consciously selected" the grievants for this role from a pool of employees that included GS-5s. Award at 11. Moreover, the Agency later created a GS-5 Lead Examining Technician position description, which, the Arbitrator found, included "duties and responsibilities identical" to those which the grievants had performed before the position description was written, thus "confirm(ing) the agency's own determination that it was at least GS-5 level work." Award at 11. The Arbitrator concluded that the Agency had violated the parties' agreement by failing to temporarily promote each grievant to the GS-5 position. He found that grievants Terry and Young had performed the work of Lead Examining Technician, GS-5, from March 5, 1984, to December 2, 1985, and that grievant Lee had performed the work of the GS-5 position from November 1, 1984, to December 2, 1985. The Arbitrator directed the Agency to pay each grievant the difference between the salary of the GS-5 position and the GS-4 rate actually paid to her during the relevant period. Award at 12-13. IV. Exceptions The Agency challenges the award of backpay on the grounds that: (1) the position of Lead Examining Technician was not established until October 1984, and that backpay and retroactive promotion may be awarded only if the detail is to an officially-classified position (Exceptions at 4-5); and (2) the grievance concerns the classification of a position, which is precluded from coverage under the negotiated grievance procedure, under section 7121(c)(5) of the Statute, absent a reduction of the employee's grade or pay. Exceptions at 5. V. Analysis and Conclusions We agree with the Agency that the award is deficient under the Statute and must be set aside. The award of backpay to the three grievants for the period from October 26, 1984, to December 2, 1985, is deficient because the-award is founded on the Arbitrator's conclusion that the grievants should have been classified at the GS-5 rather than the GS-4 level. The award, therefore, concerns the classification of a position. Where the substance of a grievance concerns the grade level of duties assigned to and performed by the grievant, the grievance concerns the classification of a position within the meaning of section 7121 (c) (5) of the Statute. Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, Local 1923, Baltimore, Maryland, 20 FLRA 694, 695 (1985); Veterans Administration Medical Center, Tampa, Florida and American Federation of Government Employees, Local 547, 19 FLRA 1177, 1178 (1985). Section 7121 (c) (5) precludes such a grievance from coverage by a negotiated grievance procedure when there has been no reduction in the grade or pay of the employee. In this case, as in the cited cases, the grievances and the award pertain to the appropriateness of the grade level of the grievants in light of the duties assigned to and performed by them. Furthermore, "the substance of the dispute (is) whether the grievan(ts)' position(s) (were) properly classified." 19 FLRA at 1179. Since the issue before the Arbitrator involved whether the grievants were assigned to the appropriate grade level, the matter was not arbitrable pursuant to Section 7121(c)(5) of the Statute. The grievants were employed at the GS-4 level. They alleged that they had performed the work of a GS-5 level. The Arbitrator agreed and directed the Agency to reclassify the grievants for the period involved. We conclude, therefore, that the grievances and the award pertain to the classification of a position. Section 7121(c)(5) of the Statute excludes such a matter from coverage in grievance and arbitration proceedings. Accordingly, the award is deficient under the Statute and must be set aside. Moreover, we note that the award of backpay to grievants Terry and Young for the period of March 5 to October 26, 1984, could not be sustained because the position of GS-5 Lead Examining Technician was not established until October 26, 1984. No position descriptions for the program existed at the time grievants Terry and Young assumed their duties. Award at 4. Under the Back Pay Act, 5 U.S.C. SS 5596, a retroactive promotion with backpay is not authorized for any period before the position is actually classified. See American Federation of Government Employees, Local 1960 and Department of the Navy, Development Center, 26 FLRA 250, 254 (1987); Service Employees International Union, Local 200 and Veterans Administration Medical Center, 10 FLRA 49, 50 (1982). See also United States v. Testan, 424 U.S. 392 (1976). VI. Decision For the foregoing reasons, the award is set aside. Issued, Washington, D.C.,March 23, 1988. Jerry L. Calhoun, Chairman Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY FOOTNOTES Footnote 1 All dates are set forth as found by the Arbitrator, who noted that the specific dates during which the grievants served as QAs were not provided in the grievants' submissions. Award at 13 (footnote 5). Footnote 2 Article 26, section 16 of the parties' agreement provides: When employees are temporarily assigned to a position of a higher grade for a period in excess of 30 days, the assignment shall be made via temporary promotion effective the first day of the assignment.