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51:1422(116)AR - - Justice, Federal Bureau of Prisons, Atlanta, GA and AFGE, Council of Prisons, Local 1145 - - 1996 FLRAdec AR - - v51 p1422

[ v51 p1422 ]
The decision of the Authority follows:

51 FLRA No. 116















JUNE 25, 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 exceptions to an award of Arbitrator Michael Jay Jedel filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute)and section 2425 of the Authority's Regulations. The Union's opposition, filed more than 30 days after service of the Agency's exceptions, is untimely and has not been considered in this decision.(1)

The Arbitrator sustained, in part, a grievance, which alleged that the grievant had performed higher-graded duties without additional compensation. For the following reasons, we conclude that the Arbitrator's award is deficient and we set aside the award.

II. Arbitrator's Award

The grievant, a GS-11 Contract Specialist, filed a grievance claiming that she had performed the duties of a GS-12 position for 2 years, but that she continued to be compensated at the GS-11 level. The grievance was not resolved and the matter was submitted to arbitration. The Arbitrator framed the issue as follows:

Did the Agency violate the Agreement during the period of October 1992 through October 1994 by paying the grievant at the GS-11 rate of pay and not the GS-12 rate of pay for the duties she was performing? If so, what shall the remedy be?

Award at 2.

The Arbitrator first rejected the Agency's claim that the matter was not arbitrable because it concerned the classification of the grievant's position. The Arbitrator found that based on the Agency's response to the grievance, the grievance involved whether the grievant should receive back pay for performing higher-graded duties and not the classification of the grievant's position.

On the merits, the Arbitrator found that the record, including the testimony of several managers, established that the grievant had performed GS-12 duties for a 6-month period. The Arbitrator concluded that the grievant was, as a result, entitled to receive GS-12 pay for that work. Although the grievant requested GS-12 pay for 2 years, the Arbitrator ordered back pay for the grievant in an amount equal to the difference between GS-12 and GS-11 for a 6-month period.

III. Exceptions

The Agency first contends that the award is contrary to Authority and other relevant case law construing the Back Pay Act, 5 U.S.C. § 5596, because the Arbitrator did not expressly find that there was a governing Agency regulation or a collective bargaining agreement provision mandating the grievant's temporary promotion to a higher-graded position. The Agency claims that the grievant is entitled only to her salary at a GS-11 level even though she may have performed some of the duties assigned to a GS-12 position.

Second, the Agency claims that the award fails to draw its essence from the parties' collective bargaining agreement, because the award lacks any identifiable basis in the agreement and because the Arbitrator exhibited a manifest disregard for the contractual prohibition against redefining the issue without mutual consent, so as to make the grievance arbitrable.

Third, the Agency argues that the award is deficient because it concerns a classification matter within the meaning of section 7121(c)(5) of the Statute. The Agency claims that it is clear that the grievant's back pay demands were based upon her alleged performance of GS-12 work while still encumbering her GS-11 position. Accordingly, the Agency maintains that the Arbitrator was without jurisdiction to resolve the matter before him.

Finally, the Agency argues that, even if the Arbitrator was correct in finding that the grievant was entitled to a temporary promotion, it should have been for 1 month instead of 6 months.

IV. Analysis and Conclusion

A. The Award Is Contrary to Law

In circumstances where agency exceptions involve an award's consistency with law, we must review the questions of law raised by the Arbitrator's award and the Agency's exceptions de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). Here, among other grounds, the Agency excepts to the award on the basis that the award is inconsistent with: (1) section 7121(c)(5) of the Statute; and (2) the Back Pay Act, 5 U.S.C. § 5596.

1. The Award Is Not Inconsistent With Section 7121(c)(5)

Contrary to the Agency's claim, the award is not inconsistent with section 7121(c)(5) of the Statute. Section 7121(c)(5) of the Statute removes from the scope of negotiated grievance procedures, and thereby bars an arbitrator from resolving, any grievance concerning the classification of a position that does not result in reduction in grade or pay of an employee. U.S. Department of Agriculture Animal and Plant Health Inspection Service, Plant Protection and Quarantine and National Association of Agriculture Employees, 51 FLRA 1210, 1215 (1996). The Authority has construed the term "classification" in section 7121(c)(5) to have the same meaning as in 5 C.F.R. § 511.101(c), which defines the term as "the analysis and identification of a position and placing it in a class under the position-classification plan established by OPM under chapter 51 of title 5 . . . ." Id. (quoting 5 C.F.R. § 511.101(c)). Consistent with this construction, the Authority has long held that grievances concerning whether a grievant is entitled to a temporary promotion under a bargaining agreement by reason of having performed the duties of a higher-graded position do not concern the classification of a position, within the meaning of section 7121(c)(5). Id.

The Arbitrator determined, based on his consideration and evaluation of the record in this case, including the parties' responses to one another, that the grievance concerned whether the grievant performed duties which had already been classified at a higher grade. In these circumstances, we conclude that the award does not conflict with section 7121(c)(5) of the Statute, because the issue addressed by the arbitration did not concern the classification of the grievant's position. Accordingly, the award is not inconsistent with section 7121(c)(5) of the Statute.

2. The Award Is Inconsistent With the Back Pay Act

The Authority has long held that under the Back Pay Act, an award of back pay is authorized only when an arbitrator finds that: (1) the aggrieved employee was affected by an unjust or unwarranted personnel action; (2) the personnel action directly resulted in the withdrawal or reduction of the grievant's pay, allowances or differentials; and (3) but for such action, the grievant otherwise would not have suffered the withdrawal or reduction. E.g., U.S. Department of Justice, Immigration and Naturalization Service, San Diego, California and American Federation of Government Employees, National Immigration and Naturalization Service Council, 51 FLRA 1094, 1097 (1996).

The general rule is that an employee is entitled only to the salary of the position to which the individual is appointed. U.S. Department of the Army, Fort Polk, Louisiana and National Association of Government Employees, Local R5-168, 44 FLRA 1548, 1563 (1992) (Ft. Polk) (citing Cassandra G. McPeak and Wayne E. Dabney, 69 Comp. Gen. 140 (1989) (McPeak)). An exception to this rule exists, which permits compensation for the temporary performance of the duties of a higher-graded position based on an agency regulation or collective bargaining provision making temporary promotions mandatory for details to higher-graded positions. U.S. Department of the Army, Army Armament Research Development and Engineering Center and American Federation of Government Employees, Local 225, 49 FLRA 562, 565 (1994) (citing Wilson v. U.S., 229 Ct. Cl. 510 (1981) and McPeak, 69 Comp. Gen. at 141)). This exception establishes a nondiscretionary agency policy which provides a basis for back pay. National Treasury Employees Union, Chapter 231 and U.S. Department of the Treasury, U.S. Customs Service, North Central Region, Chicago, Illinois, 51 FLRA 594, 597 (1995) (citing Ft. Polk, 44 FLRA at 1563).

Here, the Arbitrator determined that the record established that the grievant had performed GS-12 duties. However, the Arbitrator failed to identify any non-discretionary Agency policy set forth in an Agency regulation or a collective bargaining agreement provision which would entitle the grievant to back pay for performing the duties of a higher-graded position. As such, there was no unjust or unwarranted personnel action which would entitle the grievant to an award of back pay under the Back Pay Act. In the absence of such a finding, there is no basis to sustain an award of back pay. Accordingly, the Arbitrator's award of back pay to the grievant is deficient as it is contrary to the Back Pay Act. See U.S. Department of Health and Human Services, Public Health Service, Navajo Area Indian Health Service and Laborers' International Union of North America, Navajo Nation Health Care Employees, Local 1376, 50 FLRA 383, 386 (1995).(2)

V. Decision

The award is set aside.

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

1. In view of our determination that the Union's opposition was untimely filed, it is unnecessary for us to address the Agency's motion to strike the Union's opposition.

2. In view of our decision that the award is contrary to law, it is unnecessary to address the Agency's additional exceptions.