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The decision of the Authority follows:
51 FLRA No. 92
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE ARMY
CORPUS CHRISTI ARMY DEPOT
CORPUS CHRISTI, TEXAS
April 17, 1996
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator Paul Barron 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 Regulations. The Agency filed an opposition to the Union's exception.
The Arbitrator dismissed the grievances, which alleged that the grievants had performed higher-graded duties without additional compensation. He found that they were not arbitrable because they concerned the classification of the grievants' positions.
We conclude that the Union's exception fails to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exception.
II. Arbitrator's Award
Several aircraft mechanical parts repairers, who are classified either at the WG-5 helper level or the WG-8 intermediate level, filed grievances alleging that they had performed the duties of the WG-10 journeyman level for an extended period of time without additional compensation. The Arbitrator dismissed the grievances as not arbitrable because they concerned the classification of the grievants' positions within the meaning of section 7121(c)(5) of the Statute. He found the grievances virtually identical to the grievance in U.S. Department of the Air Force, Air Education and Training Command, Randolph Air Force Base, San Antonio, Texas and American Federation of Government Employees, Local 1840, 49 FLRA 1387 (1994) (Randolph AFB). The Arbitrator concluded that he was compelled to follow the Authority's decision, which found the grievance precluded by section 7121(c)(5) of the Statute. He noted that apparently there is no provision in the parties' collective bargaining agreement for temporary promotions when employees perform the duties of a higher-graded position, and that the decision may have been different if there had been such a provision.
A. Union's Contentions
The Union contends that the award is contrary to law. The Union argues that the grievances were arbitrable and that the Arbitrator committed harmful error by misinterpreting and misapplying the principle of equal pay for substantially equal work set forth in 5 U.S.C. § 5101.
B. Agency's Opposition
The Agency contends that the Arbitrator correctly followed the Authority's decision in Randolph AFB in dismissing the grievances as nonarbitrable.(*)
IV. Analysis and Conclusions
As the Union's exception in this case involves the award's consistency with law, we review the questions of law raised by the Arbitrator's award and the exception de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995). The Union's exception that the award is contrary to law fails in two respects.
Section 7121(c)(5) of the Statute provides that grievances concerning "the classification of any position which does not result in the reduction in grade or pay of an employee" are precluded by law from coverage by a negotiated grievance procedure. When the substance of a grievance concerns the grade level of the 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. E.g., American Federation of Government Employees, Local 2025 and U.S. Department of the Air Force, Ninth Reconnaissance Wing, Beale Air Force Base, California, 50 FLRA 39, 42 (1994). When the substance of a grievance concerns whether the grievant is entitled to a temporary promotion under a collective bargaining agreement by reason of having performed the duties of a higher-graded position, the grievance does not concern the classification of a position within the meaning of section 7121(c)(5). Id.
In Randolph AFB, on which the Arbitrator in this case relied in dismissing the grievances, the arbitrator determined that the grievant's WG-5 position required the grievant to perform WG-9 duties and ordered the agency to provide the grievant with backpay. 49 FLRA at 1390. The Authority concluded that the arbitrator had resolved the grievance by determining the grade level of the duties performed by the grievant. The Authority noted that there was no indication in the record that the grievant had challenged a failure by the Agency to promote him temporarily because he had performed higher-graded duties. Accordingly, the Authority ruled that the award pertained to the classification of the grievant's position and that, therefore, it conflicted with section 7121(c)(5) of the Statute. Id.
Reviewing the questions of law de novo, we first conclude that the Arbitrator correctly determined on the basis of Randolph AFB that the grievances were precluded by section 7121(c)(5) of the Statute. As in Randolph AFB, the substance of the grievances concerned the grade level of the duties assigned to, and performed by, the grievants in their permanent positions and not whether they were entitled to temporary promotions under the parties' collective bargaining agreement for performing previously classified duties of higher-graded positions. Second, nothing in the equal pay principles of 5 U.S.C. § 5101 is inconsistent with an award finding that grievances concerning the classification of a position are precluded by law under section 7121(c)(5) of the Statute from coverage by a negotiated grievance procedure. See U.S. Department of the Air Force, Air Force Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 47 FLRA 667, 673 (1993); cf. Overseas Education Association and Department of Defense Dependents Schools, 15 FLRA 358, 359 (1984) (enforcement of equal pay principle does not prevent award from conflicting with section 7121(c)(5) of the Statute).
In addition, we reject the Union's contention that the award is deficient because the Arbitrator failed to apply the harmful-error rule as it is applied by the Merit Systems Protection Board under 5 U.S.C. § 7701. Arbitrators are bound by the harmful-error rule of section 7701 only when they are resolving grievances over performance-based actions covered by 5 U.S.C. § 4303 or serious adverse actions covered by 5 U.S.C. § 7512. E.g., United States Department of Justice, Federal Bureau of Prisons, Correctional Institution, McKean, Pennsylvania and American Federation of Government Employees, Council of Prison Locals, 49 FLRA 45, 47 (1994). These grievances did not concern either of those actions, and, consequently, no basis is provided for finding the award deficient because the Arbitrator failed to apply the harmful-error rule of section 7701. See id.
Accordingly, we deny the exception.
The Union's exception is denied.
(If blank, the decision does not have footnotes.)
*/ The Union filed a "Rebuttal" to the Agency's opposition. As the Authority's Regulations do not provide for the filing of supplemental submissions and as there is no basis on which acceptance of the submission is warranted, we have not considered it. See American Federation of Government Employees, AFL-CIO and U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 49 FLRA 1666, 1666 n.1 (1994).