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52:0285(26)AR - - 88th Air Base Wing, Aeronautical Systems Division, Wright-Patterson AFB and IAM, Aerospace Workers, Local 2333 - - 1996 FLRAdec AR - - v52 p285

[ v52 p285 ]
The decision of the Authority follows:

52 FLRA No. 26












LOCAL 2333





September 30, 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 Edward E. McDaniel 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 Regulations. The Union did not file an opposition to the Agency's exceptions.

The Arbitrator sustained a grievance alleging 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. Background and Arbitrator's Award

The grievant, a WG-6 Motor Vehicle Operator, was temporarily promoted to a WG-7 Rigger Worker on March 27, 1992. This temporary promotion was extended once and terminated on October 1, 1993, at which time the grievant was returned to his WG-6 Motor Vehicle Operator position. On May 1, 1994, the grievant was again temporarily promoted to the WG-7 Rigger Worker position.

The grievant claimed that from October 1, 1993, to May 1, 1994, he continued to perform the duties of the higher-graded position, and he filed a grievance seeking to be compensated at the higher pay for that period. The parties could not resolve the grievance and submitted the grievance to arbitration. The Arbitrator framed the issue as follows, based on the Union's statement:

Grievant held a temporary promotion [to a] WG-7 Mover [Rigger job] from March 27, 1992 through October 1, 1993, when he was returned to WG-6. However, since October 1, 1993, nothing has changed. He has continued to perform the same task of the WG-7 at WG-6 pay. Therefore, the remedy he seeks is to be recompensed for his performance during this time period, October 1, 1993 to present.

Award at 1; Exceptions at 2.

The Arbitrator found that the grievant continued to perform higher-graded duties from October 1, 1993, to May 1, 1994, and concluded that the grievant's pay claim did not raise any classification issue. The Arbitrator determined that despite the Agency's action in officially returning the grievant to his WG-6 position, the grievant had been retained in the WG-7 position and no law or regulatory application "can be said to have shielded" the Agency from any pay consequences thereof. Award at 11. The Arbitrator ordered that the Agency provide the grievant the "'pay loss'" remedy requested. Id. at 12.

III. Exceptions

The Agency first contends that the grievance and the award concern the grade level of the duties assigned to and performed by the grievant and, therefore, are not grievable or arbitrable under section 7121(c)(5) of the Statute and under the parties' agreement.

Second, the Agency contends that even if the grievant did perform WG-7 duties, he would not be entitled to any backpay under the Back Pay Act, because an employee is entitled to receive pay only for the position to which he is appointed.

Finally, the Agency argues that the Arbitrator exceeded his authority and that the award fails to draw its essence from the agreement.

IV. Analysis and Conclusions

In circumstances where a party's exceptions involve an award's consistency with law, we must review the questions of law raised by the Arbitrator's award and the party'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.

A. 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, 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. See U.S. Department of Justice, Federal Bureau of Prisons, Atlanta, Georgia and American Federation of Government Employees, Council of Prisons Local 1145, 51 FLRA 1422, 1424-25 (1996).

B. The Award Is Inconsistent With the Back Pay Act

The Authority has long held that under the Back Pay Act, an award of backpay 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 continued to perform WG-7 Mover Rigger duties after termination of his temporary promotion. 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 backpay 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 backpay under the Back Pay Act. In the absence of such a finding, there is no basis to sustain an award of backpay. Accordingly, the Arbitrator's award of "pay loss" (backpay) 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).(*)

V. Decision

The award is set aside.

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

*. In view of our decision that the award is contrary to the Back Pay Act, it is unnecessary to address the Agency's additional exceptions contending that the Arbitrator exceeded his authority and that the award fails to draw its essence from the parties' agreement.