[ v58 p416 ]
58 FLRA No. 102
OF GOVERNMENT EMPLOYEES
DEPARTMENT OF THE ARMY
CORPUS CHRISTI ARMY DEPOT
CORPUS CHRISTI, TEXAS
March 31, 2003
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This case is before the Authority on an exception to an award of Arbitrator Don J. Harr filed by the Union under § 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 grievance in this case on the ground that it concerned a matter relating to the classification of a position within the meaning of § 7121(c)(5) of the Statute. The Union excepts on the ground that the Arbitrator's award is contrary to law. For the following reasons, we deny the Union's exception.
II. Background and Arbitrator's Award
The Union filed a grievance on behalf of the grievant seeking a non-competitive permanent promotion to WG-11 and backpay. [n1] The grievance was based on the claim that, for at least 10 years, the grievant had been "performing duties above and beyond his normal scope of assigned duties on an ongoing and daily basis without proper compensation." Award at 3. At the second step, the grievant requested backpay from November 11, 1996, while at the third step he requested backpay from March 1991. The grievance was denied at all steps and subsequently submitted to arbitration.
The Arbitrator stated the issues presented as follows:
1. Does the grievance involve classification issues and is therefore non-arbitrable?
2. Did the Grievant . . . perform the duties of a Journeyman Mechanic WG-2604-11 on a Regular and Recurring Basis? If so, what is the proper remedy?
Award at 2.
The Arbitrator addressed the Agency's motion to dismiss the grievance on the ground that it concerned classification issues and, therefore, was not arbitrable. Citing United States v. Testan, 424 U.S. 392 (1976) (Testan), a case involving a claim of backpay for a period of alleged wrongful classification, the Arbitrator stated that the Supreme Court has held that "[t]he proper remedy" in such a case is "to use the classification procedures to assertain [sic] whether the claiment's [sic] position should have been reclassified." Id. at 6. Further, the Arbitrator cited AFGE, Local 2142, 51 FLRA 1140 (1996) (Local 2142), a case in which the grievants claimed that they had performed higher-graded duties for an extended period of time without appropriate compensation. The Arbitrator noted that, in Local 2142, the Authority upheld the dismissal of the grievances as non-arbitrable on the ground that grievances concerning the "classification of the grievants' positions" are excluded from the negotiated grievance and arbitration procedure under § 7121(c)(5) of the Statute. Award at 6-7. Consequently, the Arbitrator found that the grievance is non-arbitrable and sustained the Agency's motion to dismiss the grievance on that ground.
III. Positions of the Parties
A. Union's Exception
The Union contends that the Arbitrator erred by dismissing the grievance as non-arbitrable. The Union contends that the grievance does not concern a classification matter, but involves a non-competitive promotion based on an accretion of duties. Noting that there have been several non-competitive promotions within the bargaining unit because of additional duties that are directly related to employees' previous positions, the Union states that when major duties of a position change "then a reclassification of the position is required." Exception at 1. The Union states that the grievant continues [ v58 p417 ] to perform the duties of his existing position, but that he is also performing "additional and more complex duties of the higher-grade level . . . ." Id. at 2.
B, Agency's Opposition
According to the Agency, the Union has failed to demonstrate that the Arbitrator erred. The Agency maintains that, to the extent the Union believes that Local 2142 is irrelevant, the Union overlooks the fact that: (1) the grievances in that case concerned the grade level of duties assigned to and performed by the grievants in their permanent positions; and (2) the Authority upheld the arbitrator's conclusion that the grievances were non-arbitrable under § 7121(c)(5) of the Statute.
The Agency notes that the Union argues that "changes in grades through non-competitive processes are not considered classification." Opposition at 4. The Agency acknowledges that it "is possible to non-competitively promote employees because of the accretion of duties," but contends that "the determination of the proper grade at which employees are performing fall [sic] within the purview of classification." Id.
V. Analysis and Conclusions
The Union's exception appears to claim that the Arbitrator erred, as a matter of law, in determining that the grievance in this case concerns a classification matter within the meaning of § 7121(c)(5) of the Statute. For purposes of this decision, therefore, the exception will be treated as a claim that the award is contrary to law, i.e., § 7121(c)(5), under § 7122(a)(1) of the Statute.
The Authority reviews questions of law raised by exceptions to an arbitrator's award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994). In applying a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.
Under § 7121(c)(5) of the Statute, 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 § 7121(c)(5). See, e.g., Local 2142, 51 FLRA at 1142 (citing AFGE, Local 2025, 50 FLRA 39, 42 (1994) (Local 2025)). 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 § 7121(c)(5).
Based on the record in this case, it appears that the grievant seeks an upgrade in his permanent position based on the claim that higher-graded duties have been added to that position. Consistent with its decision in Local 2025, the Authority, in Local 2142, found that, because "the substance of the grievances concerned the grade level of the duties assigned to, and performed by, the grievants in their permanent positions," the grievances concerned the classification of the grievants' permanent positions and were "precluded by law under § 7121(c)(5) of the Statute from coverage by a negotiated grievance procedure." Local 2142, 51 FLRA at 1142-43. Because the grievance in this case also concerns the grade level of the duties performed by the grievant in his permanent position, it concerns a matter relating to the classification of that position. Based on Local 2142, therefore, it is excluded from the negotiated grievance procedure as a matter of law under § 7121(c)(5) of the Statute. Accordingly, the Arbitrator's dismissal of the grievance as non-arbitrable was consistent with law.
The Union's reliance on materials pertaining to non-competitive promotions based on an accretion of higher-graded duties to an employee's existing position is inapposite. In those circumstances, at least one condition precedent to a promotion is a classification determination upgrading the position. Accord Matter of Patrick J. Fleming, Comp. Gen. Decision No. B-191413 (September 19, 1978) (unpublished). The mere performance of additional duties is not sufficient in and of itself to warrant an upgrade. As noted above, however, an exception to this principle is where a collective bargaining agreement requires a temporary promotion for a detail to a higher-graded position. Nothing in the record of this case suggests that the grievant was seeking such a temporary promotion.
The Union's exception is denied.
Footnote # 1 for 58 FLRA No. 102 - Authority's Decision