48:0868(91)AR - - Army, Corpus Christi Army Depot, Corpus Christi, TX and IAM, Local 2049 - - 1993 FLRAdec AR - - v48 p868

[ v48 p868 ]
The decision of the Authority follows:

48 FLRA No. 91











LOCAL 2049





November 10, 1993


Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator Donald P. Goodman filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency filed an opposition to the Union's exception.

The grievant filed a grievance and contended that he had performed the duties of a higher-graded position for an extended period of time, which entitled him to the pay of that position. The Arbitrator denied the grievance.

We conclude that the Union fails to establish that the award is deficient. Accordingly, we will deny the Union's exception.

II. Background and Arbitrator's Award

The grievant is a WG-7 metal tube maker, installer, and repairer. He filed a grievance and contended that during the period from February 28, 1987, to October 28, 1991, he performed the work of the position of WG-9 tube maker and that he was entitled for that period to have been compensated at the WG-9 pay level. The grievance was not resolved and was submitted to arbitration on the issue of whether the grievant performed duties during the disputed period warranting compensation at the higher-grade level.

Before the Arbitrator, the Union maintained that the job description of the WG-7 tube maker states that the employee is to work under the immediate supervision of a supervisor or a higher-graded worker and that, when working independently, the work will involve predetermined methods, materials, and machines. The Union argued that during the disputed period, the grievant worked independently and without immediate supervision and that much of his work did not involve predetermined matters. The Union asserted that it was clear that the grievant performed the work of the WG-9 position 75 percent of the time during the disputed period. The Agency argued that for the grievant to be entitled to the pay of the WG-9 position for having temporarily performed the duties of that position, the grievant must have spent a majority of his work time performing those higher-graded duties. The Agency asserted that an evaluation of the grievant's evidence showed that he spent less than 6 percent of his time on the higher-graded duties. The Agency disputed that merely working without immediate supervision qualified the work as that of the WG-9 level. The Agency maintained that WG-7 tube makers are expected to work the majority of their time without immediate supervision, but that supervisors and higher-level employees are available at all times to assist them.

The Arbitrator ruled that the decisive consideration in this case was the amount of time the grievant actually spent working at the WG-9 level. He held that the grievant was entitled to the pay of the WG-9 position for having temporarily performed the duties of that position only if a majority of his work during the disputed period was at the WG-9 level. The Arbitrator determined that the majority of the work of the grievant during the disputed period was at the WG-7 level. He found that although the grievant performed some work at the WG-9 level, it was not of a sufficient amount to warrant the pay of the higher-level position. In so determining, the Arbitrator agreed with the Agency that work performed by the grievant without immediate supervision did not necessarily qualify as WG-9 work because of the following provision of the WG-7 job description: "Supervisor or higher-grade worker is readily available to assist on problems encountered but close guidance is not normally given except where incumbent is given new tasks are [sic] complex assignments requiring development of skills." Award at 4 (quoting job description). Accordingly, the Arbitrator denied the grievance.

III. Union's Exception

A. Positions of the Parties

1. The Union

The Union contends that the award is "[c]apricious" and violates the Back Pay Act, 5 C.F.R. § 511.101, and the principle of equal pay for substantially equal work under 5 U.S.C. § 5101. Exception at 1. The Union asserts that the WG-7 job description states that the work is performed under immediate supervision. The Union then argues that because the Arbitrator found that the grievant worked without immediate supervision, he cannot deprive the grievant of the higher-level pay simply because a WG-9 employee was also present in the shop. The Union also asserts that it established that the grievant's performance of higher-graded duties amounted to about 75 percent of the grievant's work during the disputed period. The Union notes that this proof was reinforced by the fact that the employees working on the special projects performed by the grievant before him and after him were WG-9s. Thus, the Union argues that the Agency established both a WG-7 position and a WG-9 position within the meaning of the definition of position under 5 C.F.R. § 511.101(e), which defines "position" as the work, consisting of duties and responsibilities, assigned to be performed by an employee, and the Agency assigned the grievant to work at the WG-9 position. The Union claims that the Agency and the Arbitrator cannot now deny him the pay of that position because to do so would violate the principle of equal pay for equal work under 5 U.S.C. § 5101 and management's responsibilities to recognize both positions under section 511.101. The Union concludes that, therefore, the grievant should have received a backpay award under the terms of the Back Pay Act, 5 U.S.C. § 5596(b).

2. The Agency

The Agency contends that the Union's exception provides no basis for finding the award deficient. The Agency asserts that the Union overlooks the fact that the Arbitrator viewed the decisive factor to be the amount of time actually spent working at the WG-9 level. The Agency concedes that the grievant performed some WG-9 work, but asserts that t