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 barg