50:0383(58)AR - - HHS, Public Health Service, Navajo Area Indian Health Service and Laborers's Intl. Union of North America ( LIUNA ), Navajo Nation Health Care Employees Local 1376 - - 1995 FLRAdec AR - - v50 p383

[ v50 p383 ]
The decision of the Authority follows:

50 FLRA No. 58











LOCAL 1376





May 9, 1995


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Thomas Angelo 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.(1)

The Arbitrator sustained a grievance over the Agency's failure to pay an employee for performing higher-graded duties. The Agency contends that the award is deficient under section 7122(a) of the Statute because it is contrary to the Back Pay Act.

For the following reasons, we conclude that the Arbitrator's award is deficient and we set aside the award.

II. Background and Arbitrator's Award

The grievant is a GS-6 licensed practical nurse who was assigned to perform discharge planning duties. She filed a grievance claiming that the discharge planning duties constituted GS-9 or GS-11 work and that she was entitled under Article XV of the parties' collective bargaining agreement to receive pay at the GS-9 or GS-11 level.(2) The matter was ultimately submitted to arbitration, where the Arbitrator determined that the issues concerned whether the grievant was entitled to be compensated on the basis of the highest level of duties performed at least 25% of the time and, if so, whether she should be compensated at the level of compensation for a discharge planner at a related Agency facility.

The Arbitrator rejected the Agency's claim that the grievance involved a classification determination and, therefore, was not arbitrable because the Arbitrator found that discharge planning duties had already been classified by the Agency at another Agency facility. The Arbitrator also found that the grievant was performing higher-graded discharge planning duties for more than 25% of the time on a regular and recurring basis. Accordingly, the Arbitrator concluded that, under the parties' agreement, the grievant was entitled to compensation at the higher grade level and sustained the grievance. The Arbitrator noted, but did not otherwise address, the Agency's argument that the grievant lacked the academic degrees needed to qualify for a temporary promotion to either the social worker/discharge planner position or a registered nurse position.

The Arbitrator issued an award remanding to the parties for resolution the question of the length of time that the employee performed the higher-graded duties. When the parties failed to resolve the question, the Arbitrator issued a second award, finding that the grievant should be paid at the level of the GS-9 social worker/discharge planner position and ordering that the grievant receive $11,839 in additional compensation that she would have received but for the Agency's unwarranted and unjustified personnel action.

III. Exceptions

The Agency contends that the award is deficient under section 7121(c)(5) of the Statute because it constitutes a classification determination with regard to the grievant's discharge planning duties. The Agency also contends that the award is contrary to the Back Pay Act. According to the Agency, because the grievant was not qualified for a temporary promotion to the GS-9 position, the Agency's failure to pay her at that level did not constitute an unjustified or unwarranted personnel action that warranted backpay under the Back Pay Act.

IV. Analysis and Conclusions

The Agency has not demonstrated that the Arbitrator's conclusion that the grievant performed the duties of a GS-9 position based on a position classified at that level at another facility constitutes a classification determination within the meaning of section 7121(c)(5) of the Statute. Consequently, the Agency's exception on that ground does not provide a basis for finding the award deficient. See U.S. Department of the Navy, Naval Aviation Depot, Marine Corps Air Station, Cherry Point, North Carolina and International Association of Machinists and Aerospace Workers, Local 2297, 42 FLRA 795, 802 (1991).

An arbitrator may properly award backpay under the Back Pay Act when the arbitrator determines that an agency has denied an employee a temporary promotion to which the employee was entitled under a collective bargaining agreement or applicable regulations for having performed the duties of a higher-graded position for an extended period of time. See U.S. Department of the Army, Headquarters Fort Dix, Fort Dix, New Jersey and American Federation of Government Employees, Local 1930, 49 FLRA 730 (1994) (Fort Dix). However, the employee must meet the minimum qualification requirements prescribed by the Office of Personnel Management (OPM) for the position to which the employee is to be promoted. 59 Fed. Reg. 67121-22 (Dec. 29, 1994). Minimum qualification requirements apply to both permanent and temporary promotions. Federal Correctional Institution, Petersburg, Virginia and American Federation of Government Employees, Appomattox Local 2052, 16 FLRA 600, 601 (1984).

It is undisputed, and the Arbitrator found, that the grievant did not possess an academic degree. Under the OPM Handbook X-118 qualification standards, an academic degree is a minimum qualification requirement for a GS-9 social worker/discharge planner position.(3) Because the grievant was not qualified for the GS-9 position, the grievant could not be temporarily promoted to or compensated at the rate applicable to t