52:0938(94)AR - - Air Force, Warner Robins Air Logistics Center, Robins AFB, GA and AFGE Local 987 - - 1997 FLRAdec AR - - v52 p938

[ v52 p938 ]
The decision of the Authority follows:

52 FLRA No. 94















January 31, 1997


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 Samuel J. Nicholas, Jr. 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 filed an opposition to the Agency's exceptions.

The Arbitrator found, as relevant here, that the grievance, which sought temporary promotions for four grievants, was arbitrable and awarded the grievants compensation for temporary promotions for a specified period. We conclude that the Agency has failed to establish that the award is deficient. Accordingly, we deny the exceptions.

II. Background and Arbitrator's Award

The grievants, WG-7 parachute packers, claimed they had been performing the work of WG-8 fabric workers for over 2 years and, when they realized they had been performing higher-graded work, filed a grievance seeking temporary promotions. The parties could not resolve the grievance and submitted the grievance to arbitration. The Arbitrator framed the issues as follows:

(1) Was the grievance filed in accordance with the time limits of the [a]greement?

(2) Is this a non-arbitrable classification dispute?

Lastly, the Arbitrator must consider the appropriate remedy should he find the grievance timely and arbitrable.

Award at 8.

The Arbitrator found that the grievance constituted a continuing violation of Article 13 of the parties' agreement(1) and, as such, was timely filed. The Arbitrator further found that the substance of the grievance concerned the grievants' request for temporary promotions under Article 13 of the agreement for performing higher-graded work. The Arbitrator determined that the WG-7 parachute packers were doing essentially the same work as the WG-8 fabric workers and were entitled to temporary promotions and backpay for the period commencing 21 days prior to the filing of the grievance through the date on which the WG-8 positions were reclassified to WG-7.(2)

III. Exceptions

A. Agency's Contentions

The Agency contends that the grievance concerns the grade level of the duties assigned to and performed by the grievants and, therefore, is not arbitrable under section 7121(c)(5) of the Statute. The Agency maintains that because its classification audit determined that the work is at the GS-7 level, the grievance is without merit.

Additionally, the Agency contends that even if the grievants did perform the WG-8 work, they would not be entitled under the Back Pay Act, 5 U.S.C. § 5596, to backpay as awarded by the Arbitrator. According to the Agency, a Federal employee is entitled to receive only the salary of the position to which he or she was appointed, even though the employee may have performed the duties of another position. The Agency also argues that backpay is not available as a remedy for misassignments to higher-level duties or improper classifications. According to the Agency, backpay may be awarded only where the employee was affected by an unjustified or unwarranted personnel action, and the Arbitrator made no such finding.

B. Union's Opposition

The Union contends that the substance of the grievance concerned the grievants' requests for temporary promotions under Article 13 of the agreement and was arbitrable under the Statute. Further, the Union argues that the violation of the parties' agreement on temporary promotions is a basis for an award of backpay to the grievants.

IV. Analysis and Conclusions

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. 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)).

A. The Grievance Did Not Concern a Classification Matter and Was Arbitrable

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 collective bargaining agreement by reason of having performed the duties of a higher-graded positio