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38:0448(44)AR - - Navy, Naval Supply Center, Norfolk, Virginia and IAM Lodge 97 - - 1990 FLRAdec AR - - v38 p448

[ v38 p448 ]
The decision of the Authority follows:

38 FLRA No. 44














November 27, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Marvin C. Wahl filed by the U.S. Department of the Navy (Agency) on behalf of the Naval Supply Center, Norfolk, Virginia (Activity) pursuant to section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exceptions.

The Arbitrator ruled that a grievance over payment for the performance of higher-graded duties was arbitrable. For the following reasons, we find that the Arbitrator's award is deficient.

II. Background and Arbitrator's Award

The grievant is assigned to a position classified as Warehouse Worker, WG-5. He filed a grievance in which he contended that he performs the duties of a Rigging Worker, WG-8 position. The grievance was submitted to arbitration.

The Arbitrator framed the issue as whether the grievant "is entitled to be compensated at a higher grade level for working out of his Position Description or be upgraded to [a position of Rigging Worker, WG-8]." Award at 1.

The Agency contended that the grievance was not arbitrable because the grievant was seeking a reclassification of his position. The Union claimed that the case involved misassignment for which the grievant was entitled to relief. The Arbitrator found that the grievant had spent most of his time for the past 3 years working in the steelyard as part of a team consisting of 2 rigging workers and 2 warehouse workers. The Arbitrator stated that the work performed by the grievant, who was also licensed to operate a crane, was "substantially indistinguishable from the work performed by the other [rigging worker] members of the team" and that when a rigging worker was not present the grievant performed rigging duties "on his own." Id. at 2.

The Arbitrator noted that the grievant had filed a similar grievance in 1987, after which his position was audited and recertified as a WG-5 warehouseman. The Arbitrator found that the Union's contention "that this is a case of 'misassignment'" relied on Article 16, Section 8 of the parties' collective bargaining agreement, which provides:

The Employer further agrees to compensate employees commensurate with the assigned major duties and responsibilities identifiable with an established position.

Award at 2-3.

The Arbitrator found that it was difficult to distinguish the work of the grievant from that of the rigging workers on the team and found that it was not apparent that the grievant was only assisting the rigging workers--a duty included in his position description. The Arbitrator stated that "[t]he record in this case does not permit a finding of how much, if any, of the grievant's work is outside of his classification and within that of the Rigger Worker and, therefore, compensable." Id. at 3-4. The Arbitrator noted that he had no authority to change the grievant's classification or to direct promotion to a higher classification. However, relying on Lexington-Blue Grass Army Depot and International Association of Machinists and Aerospace Workers, Local 859, 32 FLRA 256 (1988), the Arbitrator declared that "to the extent that an employee is assigned to work which is not included within his Position Description, but in a higher classification, and performs such work, he may be entitled to compensation therefor." Id. at 4.

The Arbitrator also ruled that Article 15, Section 8 of the parties' agreement was inapplicable because that provision "deals with a temporary assignment [and the grievant's] assignment to the steelyard was clearly not a temporary one." Award at 4 n.2. Article 15, Section 8 provides in pertinent part:

It shall be the policy of this activity to compensate any Unit employee who is temporarily assigned to a higher level position within the Unit for a period of six (6) or more consecutive workdays.

Agreement at 19, Agency Exhibit JX-3.

The Arbitrator made the following award:

The grievance is arbitrable to the extent it seeks remuneration for work performed at a higher grade level which is not specifically included in the grievant's Position Description of Warehouse Worker but is within the Position Description of the Rigger Worker. He is entitled to compensation for all such identifiable work which is not de minimis which he performed following July 13, 1988, the date of the pending grievance, to the extent not limited by any provision of the negotiated agreement. Insofar as the grievance seeks an award to amend the grievant's classification or direct his promotion to the classification of Rigger Worker, his grievance is denied.

Id. at 5.

III. Positions of the Parties

A. The Agency's Exceptions

The Agency contends that the Arbitrator's award is contrary to law and that employees are not entitled to backpay for work outside their classification or for misassignments. The Agency cites Cassandra G. McPeak and Wayne E. Dabney, 69 Comp. Gen. 93 (1989) (McPeak), in which the Comptroller General denied backpay for employees who were misassigned to higher-graded duties. The Agency maintains that although the parties' collective bargaining agreement provides that employees who are detailed to higher-graded duties for more than 6 days will receive temporary promotions, there is no showing in the instant case that the grievant was ever detailed to duties outside his position description. The Agency contends that the grievant is arguing only that his position is misclassified and notes that the grievant filed a similar grievance in 1987 which resulted in a finding that he was properly classified as a warehouse worker.

The Agency also contends that the award is contrary to law because the Arbitrator was unable to determine from the record in the case to what extent the grievant was assigned to higher-graded duties outside his position description. Consequently, the Agency argues, "[t]he [A]rbitrator cannot now order backpay for all identifiable higher grade level work performed by the grievant in accordance with the agreement after having failed to find that the employee was performing the duties of the higher level position." Exceptions at 4.

B. Union's Opposition

As a procedural matter, the Union contends that the Agency's exceptions are untimely filed and that they should therefore be dismissed. On the merits, the Union denies that the Arbitrator's award is contrary to law and maintains that the Agency's exceptions constitute an attempt to reargue the case before the Authority. The Union states that it "never made any claim of improper classification or misassignment [of the grievant] to higher level duties." Opposition at 1. Rather, the Union contends, the grievant was given assignments by the supervisor and was not compensated for those assignments as required under the parties' agreement.

IV. Analysis and Conclusions

A. The Agency's Exceptions Are Timely

The time limit for filing exceptions to an arbitration award is 30 days beginning on the date the award is served on the filing party. 5 C.F.R. § 2425.1(b). The date of service is the date the arbitration award is deposited in the U.S. mail or is delivered in person. 5 C.F.R. § 2429.27(d). Absent evidence to the contrary, the date of the arbitration award is presumed to be the date of service of the award. See Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local No. 916, 32 FLRA 165, 167 (1988). If the award is served by mail, 5 days are added to the period for filing exceptions to the award. 5 C.F.R. § 2429.22.

The Arbitrator's award is dated February 1, 1990. Assuming that the award was deposited in the U.S. mail on that date, exceptions to the award had to be either postmarked by the U.S. Postal Service or received in person at the Authority's Docket Room no later than March 7, 1990 in order to be considered timely. 5 C.F.R. §§ 2425.1(b), 2429.21(b) and 2429.22.

The Agency's exceptions to the Arbitrator's award were dated March 7, 1990 and were received in the Authority's Docket Room on March 7, 1990. Accordingly, the exceptions are timely filed.

B. The Arbitrator's Award Is Contrary to Law

In this case, the substance of the grievance concerned the grievant's claim that he was performing the duties of a higher grade and therefore was entitled to the pay of that grade. We note that the Authority has consistently held to be negotiable, and enforceable in arbitration, agreement provisions which permit employees to receive temporary promotions when they are assigned to perform the duties of higher-graded positions. See, for example, American Federation of Government Employees, Local 987 and Department of the Air Force, Air Force Logistics Center, Robins Air Force Base, Georgia, 37 FLRA 155 (1990). See also McPeak. The Arbitrator specifically held, however, that the grievance did not involve a detail to a higher-graded position and that Article 15, Section 8 of the parties' agreement, allowing temporary promotions for details in excess of 6 days, was not applicable. See Award at 4. Therefore, the Arbitrator's award cannot be interpreted as requiring a retroactive temporary promotion with backpay.

Consistent with Wilson v. U.S., 229 Ct. Cl. 510 (1981) and the decision of the Comptroller General in McPeak, an award of compensation for the temporary performance of the duties of a higher grade must be based on a nondiscretionary provision of an applicable law, regulation, or collective bargaining agreement. See, for example, Social Security Administration and American Federation of Government Employees, Local 1923, 20 FLRA 684 (1985) and cases cited therein. As noted above, the Arbitrator expressly rejected Article 15, Section 8 of the parties' agreement as a basis for the award. Furthermore, the Arbitrator did not identify any other basis for his award of compensation, and none is apparent to us. Therefore, we find that the Arbitrator's award is deficient as it is contrary to law and must be set aside.

V. Decision

The Arbitrator's award is set aside.

(If blank, the decision does not have footnotes.)